High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20..08..2009C O R A MThe Honourable Mr. H.L. GOKHALE, CHIEF JUSTICEandThe Honourable Mr. Justice D. MURUGESANWrit Petition No.6810 of 2009V.K. Palanivelu.. Petitionerversus1.The Deputy Director,Anti Corruption Wing,Central Bureau of Investigation,Shastri Bhavan, III Floor, Chennai-62.K.V. Thangabalu .. Respondents- - - - -Prayer : Petition filed under Article 226 of theConstitution of India praying for a writ of mandamusdirecting the 1st respondent to register the petitioner'scomplaint dated 6.3.2009 on file and to enquire into thecharges levelled against the 2nd respondent and hisfamily members and further proceed in accordance withlaw. - - - - -For Petitioner : Mr. Su. SrinivasanFor Respondent-1 : Mr. K. Chandrasekaran, Spl. Public Prosecutor for C.B.I. CasesFor Respondent-2 : Mr. G. Masilamani, Senior Counsel for Mr. K. Ramakrishna Reddy.- - - - -O R D E RThe Honourable the Chief JusticeHeard Mr. Su. Srinivasan, learned counsel in support of thiswrit petition. Mr. K. Chandrasekaran, Special Public Prosecutorfor C.B.I. Cases appears for the first respondent and Mr. G.Masilamani, learned senior counsel appears along with Mr. K.Ramakrishna Reddy for the second respondent. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner is an advocate practising at Salem. Heclaims to be a member of the Indian National Congress, a politicalparty and also claims to be the former General Secretary of theparty in Salem District. 3. The second respondent to the writ petition is thePresident of the Tamil Nadu Unit of the Indian National Congress.He was a Member of the Rajya Sabha from 1984-1990 and then of theLok Sabha from 1991-1996. During 1993-1996, he was a Minister ofState in the Central Government for the Ministry of SocialWelfare. He was subsequently elected to the Parliament during theterm 2004-2009. In 2009, he contested the election, wherein hewas defeated.4. The first respondent to the writ petition is the DeputyDirector, Anti Corruption Wing of the Central Bureau ofInvestigation. 5. The petitioner filed a complaint to the then Director ofC.B.I. at Chennai on 22.4.2004, just before the ParliamentaryElections of 2004. In that complaint, he pointed out that thesecond respondent was acquiring huge properties and wasregistering them in the names of his wife, son, sister, father-in-law, his associates and was also running granite industry andeducational institutions. He submitted that before becoming aMinister, for some time, the second respondent's income was verymarginal, but by misusing the influence and authority, he hadaccumulated properties worth several crores of rupees. Further,it was submitted in that complaint that acquiring propertiesdisproportionate to one's income, not paying proper income tax andregistering the documents by undervaluing the market value werepunishable offences. The prayer in this complaint was asfollows :-"Therefore, I kindly request you to take actionagainst Mr. Thangabalu and recommend to disqualify and toreject his nomination paper."Along with this complaint, documents running to some 410 pageswere produced.6. The petitioner did not receive any reply from the firstrespondent and the second respondent was not disqualified fromcontesting the elections. He contested the election and he wontherein.7. Thereafter, just before the Parliamentary Elections of2009, the petitioner wrote another letter to the Deputy Director,C.B.I., Chennai on 13.2.2009. This time, he sought someinformation under the Right to Information Act, 2005. The letterwritten by him is as follows :- https://hcservices.ecourts.gov.in/hcservices/ " BY RPADFrom ToV.K. Palanivelu, B.A., B.L., M/s. Deputy Director,District General Secretary, Central Bureau of Police,Salem District Congress, Chennai.Mallur Post, Salem District-33.Sir, Sub : Information sought under Right to Information Act - - -1)Kindly inform me what action was taken on my complaint dated22.4.2004, which was handed over in person (copy of thecomplaint with acknowledgment is annexed herewith).2)Whether your agency is bound to proceed on this complaint asthe statements were in the nature of admitted fact supportedwith documents? Kindly inform about the same.3)Even if your agency do not possess the power to disqualify himfrom contesting election, could have the authority torecommend on this for further action? Kindly inform me aboutthis.4)In case, if your agency do not have the power to recommend,why you have not given suitable advise to me to takeappropriate step/action at my end.5)Inform me, whether my complaint is under consideration or keptaside.Note :Since the information I am seeking is in the nature ofpublic interest, Anti Corruption & Revenue loss to Government,the information be furnished within 48 hours of my request.Rs.10/- court fee is affixed herewith."The Superintendent of Police and Public Information Officer of the AntiCorruption Wing of C.B.I. replied to the petitioner on the following lines :-"CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION WINGSHASTHRI BHAVAN, III FLOOR, CHENNAI-600 006No.C6/RT1/019/2009/94Dt.27.02.2009ToMr. V.K. Palanivelu, B.A., B.L.,Former District General Secretary,Mallur Post, Salem District-632 203.Sir, Explanation : Your appln. dt. 13.2.2009 made under under Right to Information Act, 2005. - - -The following answers are given to the queries you have raised:1.Since you have submitted enough documents, on examining yourcomplaint dated 22.4.2004, it was decided that we cannotproceed further.2.It also revealed that the documents that you have sent alongwith the complaint are the documents of properties that werepurchased prior to 1993, lieu before he became Union Ministeror Member of Parliament, therefore, CBI cannot proceed againsthim. https://hcservices.ecourts.gov.in/hcservices/

3.We have no power to make such recommendation.4.You have sought us only to take action. If you want to appealagainst this communication, you may appeal to Mr. P.Kandasami, Deputy Director, CBI Anti Corruption Wing, ShasthriBhavan, III Floor, Chennai-6 within 30 days in an appropriatemanner.Thanking you,Sd/-(C. Murugan)Superintendent of Police &Public Information Officer,Anti Corruption Wing, Chennai."8. The petitioner thereafter wrote to the first respondent on6.3.2009 pointing out that the second respondent had accumulatedhuge wealth disproportionate to his known source of income. Atthe end of that letter, he made the following request :-"Therefore, it is requested to take my complaint onfile and you may please institute an enquiry into theamassing of huge wealth and assets disproportionate tothe known source of income of Mr. K.V. Thangabalu and hisfamily members as the assets are admittedly accumulatedwhen he was / is a public servant."Petitioner thereafter filed the present writ petition on 15.4.2009seeking a writ of mandamus against the first respondent toregister the petitioner's complaint dated 6.3.2009 on file and toenquire into the charges levelled against the second respondentand his family members and further proceed in accordance with lawand thus render justice.9. The second respondent filed his counter affidavit andpointed out that the petitioner is set up by unsuccessfulpolitical contenders. According to him, the first complaint wasmade just before the Parliamentary Elections of 2004 with anattempt to defame him. Thereafter, nothing was done for fiveyears and again, just before the Elections of 2009, the secondrepresentation is made to the C.B.I. He pointed out that he comesfrom an agricultural family having regular agricultural income andwith the said income, he entered into granite business in pattalands between 1975 and 1980. He was also doing private contractworks and earning considerable income from all these sources. Heis an income tax assessee and all the investments made by him andthe properties purchased by him are duly accounted for. Inparagraph 18 of the counter, the second respondent submitted thatthe petitioner was duty bound to disclose the source of the incometax documents produced concerning him and his family membersbefore placing reliance on them. He also wondered as to how theNotary has certified those documents as true copies and how hecould have seen the original income tax records which are in thepossession of the Income Tax Department. He submitted that thisis a petition filed with a mala fide intention and prays that thesame be dismissed. https://hcservices.ecourts.gov.in/hcservices/

10. As far as the first respondent is concerned, it issubmitted that in view of Section 6 of the Delhi Special PoliceEstablishment Act, 1946, the Delhi Special Police Establishmentshall not exercise powers and jurisdiction in any area in theState of Tamil Nadu without the consent of the respective StateGovernment. It is further stated in this affidavit as follows :-"It is respectfully submitted that State Governmentof Tamil Nadu by its letter dated 9th April 1989,stipulated three conditions while extending powers andjurisdictions of Special Police Establishment (CBI) forinvestigation of the offences in the State. Theconditions are as follows:(i)Cases involving either Central Government servantsor officers belonging to Public Sector Undertakingsunder the Central Government; or(ii)Cases involving financial or other interests of theCentral Government or Public Sector Undertakingsunder the Central Government; or(iii)Cases under the Central Act with theenforcement of which the Central Government isconcerned.It is respectfully submitted that the Member ofParliament does not fall under any of the above threecategories because he cannot be treated as CentralGovernment Servant / Officers belonging to Public SectorUndertakings and that the case of disproportionateassets does not fall under the IInd category.It is respectfully submitted that the case alsodoes not fall under the last category because Preventionof Corruption Act, 1988 comes under the concurrent listof the Constitution on which both the State and theCentral Government have powers to legislate. Further,the Act is not a Central Act with the enforcement ofwhich only the Central Government is concerned."11. The first respondent had submitted that he could notproceed against the second respondent because he was a Member ofParliament and he could not, therefore, fall in one of the threecategories wherein the State of Tamil Nadu had permittedinvestigation by C.B.I. 12. With respect to that submission of the first respondent,the petitioner relied upon the judgment of the Apex Court in thecase of P.V. Narasimha Rao vs. State (CBI/SPE) reported in A.I.R.1998 S.C. 2120. Learned counsel for the petitioner submitted thata public servant is defined under Section 2(c)(viii) of thePrevention of Corruption Act, 1988 to mean any person who holds anoffice by virtue of which he is authorised or required to performany public duty. He pointed out that in the aforesaid judgment, https://hcservices.ecourts.gov.in/hcservices/ Members of Parliament were held to be public servants within theaforesaid definition. Learned counsel further submitted that thepresent case was one where the possession of assetsdisproportionate to one's income was under consideration andrelied upon the judgment of the Apex Court in the case ofVishwanath Chaturvedi vs. Union of India reported in (2007) 4S.C.C. 380, where the Apex Court had directed the C.B.I. toenquire into the alleged acquisition of wealth by respondents 2 to5 therein, and whether the allegations made out by the petitionerwith regard to the possession of assets disproportionate to theknown sources of income of respondents 2 to 5 was correct or not.According to the learned counsel for the petitioner, this was afit case for a similar direction.13. As against these submissions of the petitioners, Mr.K.Chandrasekaran, learned Special Public Prosecutor for C.B.I. Casesappearing on behalf of the first respondent pointed out that thereply of the first respondent dated 27.2.2009 which has beenquoted earlier is quite clear. According to him, with regard toQuery No.1 raised by the petitioner in his letter dated 13.2.2009,the C.B.I. had replied that since he had submitted enoughdocuments, on examining his complaint dated 22.2.2004, it wasdecided that the C.B.I. cannot proceed in the matter any further.In Query No.4, the petitioner had asked that if C.B.I. did nothave the power to recommend (disqualification of the secondrespondent from contesting elections), why they had not given himsuitable advise to take appropriate action at his end. To thisquery, the C.B.I. had replied that the petitioner had asked theC.B.I. to take only an action and it was stated, "If you want toappeal against this communication, you may appeal to Mr. P.Kandasami, Deputy Director, CBI Anti Corruption Wing, ShasthriBhavan, III Floor, Chennai-6 within 30 days in an appropriatemanner". The petitioner had sent such a representation on6.3.2009 and without waiting for any further reply thereto, hadrushed to this Court. 14. Mr. G. Masilamani, learned senior counsel appearing forthe second respondent, on the other hand, submitted that theC.B.I. was constituted under the Delhi Special PoliceEstablishment Act, 1946. Under Section 2 thereof, the DelhiSpecial Police Establishment was constituted as a special policeforce for the investigation in any Union Territory of offencesnotified under Section 3 of that Act. As far as the StateGovernments are concerned, Section 6 of the Act provided asfollows :-"6. Consent for State Government to exercise ofpowers and jurisdiction Nothing contained in Section 5 shall be deemed toenable any member of the Delhi Special PoliceEstablishment to exercise powers and jurisdiction in any https://hcservices.ecourts.gov.in/hcservices/ area in a State, not being a Union Territory or Railwayarea, without the consent of the Government of thatState."The petitioner wanted an action against the second respondentunder the Prevention of Corruption Act. Under Section 17 of thePrevention of Corruption Act, the persons who are authorised toinvestigate have been notified. They are as follows :-"(a)in the case of the Delhi Special PoliceEstablishment, of an Inspector of Police;(b)in the metropolitan areas of Bombay, Calcutta,Madras and Ahmedabad and in any other metropolitanarea notified as such under sub-section (1) ofsection 8 of the Code of Criminal Procedure, 1973 (2of 1974), of an Assistant Commissioner of Police;(c)elsewhere, of a Deputy Superintendent of Police or apolice officer of equivalent rank."Learned senior counsel, therefore, submitted that whereas on theone hand the C.B.I. did not have the jurisdiction in any area inthe State without the consent of the Government of the State, theappropriate authority to investigate were the officers of theState Police, as laid down in Section 17. Petitioner had notapproached any of those authorities.15. Mr. G. Masilamani further submitted that the secondrespondent had declared his income all throughout by filingreturns. He had disclosed his source of income. The intention ofthe petitioner was only to harass the second respondent on the eveof the elections and that is why in 2004, he filed one complaintwherein the prayer was to disqualify the second respondent as acandidate. However, no order was passed thereon and the secondrespondent was elected, and the petitioner did not do anything forfive years. Now again, another complaint is filed just before theelections in 2009. Learned senior counsel submitted that assumingthat the second respondent was a public servant, no case had beenmade out on merits for taking any action against the secondrespondent.16. As far as the judgment in Vishwanath Chaturvedi's case(supra) is concerned, that was a matter where the Apex Courtexercised its powers under Article 32 of the Constitution sincevery serious allegations were made against respondents 2 to 5therein. The second respondent in that case was the Chiefminister of a State and details of the properties and the wealthamassed by him and his family members going into hundreds ofcrores were specifically quoted in paragraph 7 of the rejoinderfiled by the petitioner therein, which are quoted in paragraph 10of the judgment of the Apex Court. The judgment, in differentparagraphs, records the allegations with regard to thedisproportionate assets. Mr. G. Masilamani submits that the https://hcservices.ecourts.gov.in/hcservices/ petitioner in that matter was following the matter scrupulouslyand it was in such circumstances that the Supreme Court hasexercised its powers under Article 32 of the Constitution and italso had the authority to do complete justice under Article 142 ofthe Constitution. Those yardsticks cannot be applied in thepresent case. He drew our attention to the judgment of the ApexCourt in the case of Dr. B. Singh vs. Union of India reported inA.I.R. 2000 S.C. 1923. What the Court has observed with respectto public interest litigation in that matter is quite instructivefor our purpose. To quote the minimum of these observations, therelevant paragraphs are as follows :-"13. Public interest litigation is a weapon whichhas to be used with great care and circumspection andthe judiciary has to be extremely careful to see thatbehind the beautiful veil of public interest an uglyprivate malice, vested interest and/or publicity-seekingis not lurking." "17. As noted supra, a time has come to weed outthe petitions, which though titled as public interestlitigations are in essence something else.... Though in Duryodhan Sahu (Dr) v. Jitendra KumarMishra 1998 A.I.R. S.C.C. 3467, this Court held that inservice matters PILs should not be entertained, theinflow of the so-called PILs involving service matterscontinues unabated in the courts and strangely areentertained. The least the High Courts could do is tothrow them out on the basis of the said decision. Thistendency is being slowly permitted to percolate forsetting in motion criminal law jurisdiction, oftenunjustifiably just for gaining publicity and givingadverse publicity to their opponents. The otherinteresting aspect is that in the PILs, officialdocuments are being annexed without even indicating asto how the petitioner came to possess them.18. In S.P. Gupta v. Union of India, (1981) Supp.S.C.C. 87, it was emphatically pointed out that therelaxation of the rule of locus standi in the field ofPIL does not give any right to a busybody or meddlesomeinterloper to approach the court under the guise of apublic interest litigant. The following note of cautionwas given: (SCC p.219, para 24)“24. But we must be careful to see that themember of the public, who approaches the court incases of this kind, is acting bona fide and not forpersonal gain or private profit or politicalmotivation or other oblique consideration. The courtmust not allow its process to be abused bypoliticians and others to delay legitimateadministrative action or to gain a politicalobjective".” https://hcservices.ecourts.gov.in/hcservices/

17. We have noted the submissions of the learned counselappearing for all the parties. From what is narrated above, it isvery clear that the petitioner's prayer in his first complaint tothe C.B.I. made in the year 2004 was to disqualify the secondrespondent from contesting the elections. No action was taken onthat complaint and the petitioner did not take any stepsthereafter for nearly five years. He filed another representationunder the Right to Information Act, just before the elections, on13.4.2009 and in that also, he sought to know what happened tohis representation/complaint dated 22.4.2004. He further wantedto know if the C.B.I. did not have the power to disqualify thesecond respondent from contesting the elections, he should begiven suitable advice. The C.B.I. replied to him on 27.2.2009stating that they had examined the documents which the petitionerhad submitted and it was decided that they could not proceedfurther. Thereafter, he was also informed that from thedocuments, it was clear that the properties were purchased priorto 1993, before the second respondent became a Minister andtherefore, on merits also, the C.B.I. could not proceed againsthim. With respect to petitioner's Query No.3 regardingdisqualification of the second respondent from contestingelections, he was informed that they did not have the power tomake such a recommendation and with respect to Query No.4, thepetitioner was informed that he had only asked them to take actionon his complaint and if he wanted to appeal against thiscommunication, he may appeal to the Deputy Director. Thereafter,he has filed a representation on 6.3.2009 wherein he has made aprayer that his complaint may be taken on file and an enquiry beinstituted into the alleged amassing of huge wealth and assets bythe second respondent. Without waiting for further response fromthe C.B.I., he has filed this writ petition.18. The second respondent, in his counter, has explained hissource of income and submitted that he does not possess any wealthor assets disproportionate to his income and that he has filed hisincome tax returns regularly. He could be considered to be apublic servant within the meaning of the definition under thePrevention of Corruption Act, as held by the Apex Court in P.V.Narasimha Rao's case (supra). However, on the documents whichwere submitted by the petitioner, the C.B.I. had informed thepetitioner by their communication dated 27.2.2009 that onexamining those documents, they could not proceed any further.The petitioner had made a further representation on 6.3.2009 andC.B.I. was expected to respond to the same in the normal course.19. The petitioner has not disclosed in his petition as tohow he got the official documents such as those from the IncomeTax Department. He was seeking to set in motion the criminal lawjurisprudence by filing a public interest litigation without first https://hcservices.ecourts.gov.in/hcservices/ approaching the authorities of the State Police, who are competentto take action under Section 17 of the Prevention of CorruptionAct. The manner in which the petitioner has followed hisgrievance clearly shows that he was motivated by politicalconsideration. This is so because he filed the first complaintbefore the elections of 2004 and took no steps thereafter for fiveyears. The prayer in the first complaint to the C.B.I. was todisqualify the second respondent from contesting the elections. InFebruary 2009, he sought information from the C.B.I. under theRight to Information Act as to whether they had any such power todisqualify a candidate and also as to what happened to hiscomplaint of the year 2004. This was just before the ParliamentaryElections which were notified to be held in March, 2009. Thatapart, from the tenor of his first complaint as well as the queryraised under the Right to Information Act, it is clear that theintention of the petitioner was to prevent the second respondentfrom contesting the Parliamentary Elections.20. In any case, if his intention was that the secondrespondent should be booked under the Prevention of CorruptionAct, he did not follow the remedy which was otherwise available tohim.21. The dicta of the observations of the Apex Court in thecase of Dr. B. Singh's case (supra) fully apply to the presentcase. 22. As stated above, the petitioner has given his furtherrepresentation to the C.B.I. on 6.3.2009 and the C.B.I. isexpected to respond to the same in the normal course. Withoutwaiting for the response from the C.B.I., the present writpetition is filed with a prayer, as stated above, to register thepetitioner's complaint.23. For the reasons stated above, no ground is made out toissue any such direction. The writ petition fails and is,therefore, dismissed, though we are refraining in making any orderas to costs. AbSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Deputy Director,Anti Corruption Wing,Central Bureau of Investigation,Shastri Bhavan, III Floor, Chennai-6+ 1 cc to Mr. K. Ramakrishna Reddy, Advocate SR No.39936+ 1 cc to Mr. Su. Srinivasan, Advocate SR No.40818NTK(CO)SR/26.8.2009Writ Petition No.6810 of 2009