Bar On Certain Matters To Be Entertained As PIL Does Not Preclude Court From Doing So In Exercise Of Inherent Power In Public Interest: Uttarakhand HC

             In a latest, landmark and extremely laudable judgment titled Soni Beniwal Vs State of Uttarakhand and others in Writ Petition (PIL) No. 191 of 2019, the Uttarakhand High Court has just recently on June 18, 2020 held in no uncertain terms that even if there is a bar on certain matters to be taken as PIL, there is always discretion available with the Court to do so in exercise of its inherent powers. Moreover, the Chief Justice-led Bench has also stated explicitly that even persons who are debarred under the High Court rules can be entertained to file public interest petitions where allegations of misappropriation of public funds by a government-aided college, receiving funds both from the State Government and the University Grants Commission, are involved. Very rightly so!

To start with, this noteworthy judgment authored by Uttarakhand Chief Justice Ramesh Ranganathan for himself and Justice Ramesh Chandra Khulbe after hearing the lawyers from both sides in considerable detail sets the ball rolling by observing first and foremost in para 2 that, “The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus directing the State of Uttarakhand to proceed further with the investigation on the FIR dated 28.03.2017; a mandamus directing the State of Uttarakhand to recover the excess amount, as pointed out in the Audit conducted by the Auditors of the Comptroller and Auditor General as well as the State of Uttarakhand, from the personal account of the sixth respondent, who was then the acting Principal of the College, as also the fifth respondent, who was the Secretary of the M.K.P. Society; and a mandamus directing the Director General of Police to constitute a Special Investigation Team to investigate into the gambit of corrupt practices currently underway in the respondent-College, as outlined in the Audit Reports; and to probe the reasons why no action was taken in the F.I.R. lodged in the year 2017.”

While elaborating further, it is then mentioned in para 3 that, “We had, by our order dated 02.01.2020, granted time to the learned Standing Counsel, appearing on behalf of the State Government, to ascertain whether or not a Final Report, after  further investigation was caused under Section 173(8) Cr.P.C, had been filed before the Magistrate till date. Subsequently, by our order dated 20.03.2020, while taking the counter affidavit filed on behalf of respondents 1 and 4 on record, we noted the request of Mr. C.S. Rawat, learned Additional Chief Standing Counsel, for the matter to be taken up on 25.03.2020 to enable him to ascertain what action the Government intends to take pursuant to its admission, in the counter affidavit, that respondents 5 and 6 had indulged in grave and serious irregularities, including mis-appropriation of public funds.”

What is then brought out in para 4 is that a counter-affidavit has now been filed on behalf of the fifth respondent raising objections both to the maintainability of the Writ Petition, as also on merits. Now coming to para 6, it states that, “The counter-affidavit, thereafter, states that the inquiry team had indicated that the prescribed procedure was violated in purchase of items/equipment from the UGC grant; at the relevant time, the sixth respondent was the Principal and the fifth respondent was the Secretary, who were equally responsible; a letter was addressed to the Registrar, Firms, Societies and Chits, Uttarakhand by the Additional Chief Secretary, Higher Education regarding irregularities in purchase of items/instruments from UGC funds; and, as per the findings in the Inquiry Report, respondents 5 and 6 were equally responsible for violation of the Rules and norms.”

More crucially, it is then stated in simple and straight language in para 8 that, “The afore-extracted findings of the Inquiry Report are not from the affidavit filed in support of the Writ Petition, but from the counter-affidavit filed on behalf of the State Government. The subject College, of which the sixth respondent is the in-charge Principal and the fifth respondent is the Secretary, is a State Government aided institution and receives funds both from the State Government and the University Grants Commission. The serious allegations, made in the counter-affidavit filed on behalf of the State Government, would necessitate an inquiry being caused and action taken in the larger public interest of ensuring that public funds are not mis-utilized. As the cause is in the public interest, it matters little who has brought these facts to the notice of the Court. Allegations regarding personal animosity between the petitioner and the fifth respondent, or that the Writ Petition was filed at the behest of others inimically disposed towards the fifth respondent, need not detain us, as this Court can examine these allegations, non-suiting the petitioner and entertaining the Writ Petition suo-motu.”

To put things in perspective, it is then made clear in para 10 that, “What Rule 3(4)(c) of the 2010 Rules prohibits is for a Writ Petition to be entertained, in the PIL jurisdiction of the High Court, where it relates to individual disputes in the arena of criminal jurisdiction. The present case relates to mis-utilization of public funds by those incharge of a Government aided institution, and does not relate to individual disputes in the arena of criminal jurisdiction. Further the jurisdiction which the High Court exercises, under Article 226 of the Constitution of India, is a part of the basic structure of the Constitution (L. Chandra Kumar v. Union of India : AIR 1997 SC 1225). As the power of judicial review is part of the basic structure, this power cannot be curtailed or negated even by an amendment to the Constitution, much less by legislation – plenary or subordinate.”

Be it noted, it is then brought out aptly in para 11 that, “The High Court of Uttarakhand P.I.L. Rules, 2010 have been made to guide the High Court in entertaining Writ Petitions in its Public Interest Litigation jurisdiction. That does not curtail or negate its jurisdiction to entertain cases where it is satisfied that larger public interest would be adversely affected if it fails to intervene. As the afore-extracted allegations are serious, and cannot be brushed aside, we are satisfied that an inquiry should be caused into these allegations, and action taken pursuant thereto in accordance with law.”

Most crucially, it is then held in no uncertain terms in para 12 that, “In the present case, the allegations relate to misappropriation and mis-utilization of public funds. As this Court can even treat letters addressed to it, or newspaper reports, as Writ Petitions filed in public interest, we see no reason not to cause an inquiry into these serious allegations merely because a criminal investigation has been caused in the matter, and a Final Report is said to have been filed by the Investigating Officer.”

Equally significant is what is then made amply clear by the Bench in its clarification in para 12 that, “Even if the Uttarakhand Audit Act, 2012 does not apply to the Society of which the fifth respondent is the Secretary, misutilization of public funds would undoubtedly, require an inquiry to be caused, and action taken pursuant thereto in accordance with law. Accepting the submission of Mr Neeraj Garg, learned counsel for the fifth respondent, that, in the absence of a specific provision either in the Uttarakhand Audit Act, 2012 or elsewhere, no inquiry can be caused, would enable persons, in charge of establishments which receive public funds, to misappropriate such funds and yet claim immunity from inquiry, and action being taken pursuant thereto.”

To sum up, the Uttarakhand High Court has made it amply clear in this leading case that even if there is a bar on certain matters to be taken as PIL, there is always discretion that is available with the Court to do so in exercise of its inherent powers. It is entirely up to the Court to exercise its power of discretion in exercise of its inherent powers hinging on the merits of the case! There can certainly be no ever denying or disputing it!

Sanjeev Sirohi