THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) Petitioner : XXXXXXXXX WP(C) (Taken Up) No.1267 of 2010 Respondents: 1. The State of Arunachal Pradesh Represented by the Chief Secretary Government of Arunachal Pradesh, Itanagar, Arunachal Pradesh 2. The Commissioner, Public Works Department, Government of Arunachal Pradesh, Itanagar, Arunachal Pradesh 3. The Secretary to the Government of Arunachal Pradesh Urban Development Department, Itanagar, Arunachal Pradesh 4. The Secretary to the Government of Arunachal Pradesh Horticulture Department, Itanagar, Arunachal Pradesh 5. Kendriya Vidyalaya Sangathan, New Delhi 6. The Director of State Sports Council Government of Arunachal Pradesh Itanagar, Chimpu, Arunachal Pradesh 7. Mr. Nabam Tuki, Minister of Public Works Department and Urban Development, Itanagar, Arunachal Pradesh 8. Mr. Nabam Marry M/s Marry Associates, Naharlagun 9. Smti Nabami Yani Wife of Sri Nabam Tuki H.M (PWD & UD) Nitivihar, Itanagar, Prop. Of M/s NE Agency, A Sector of Naharlagun, District Rapropree Arunachal Pradesh 10. Smti Nabam Aka Wife of Nabam Tagam, Chairman, Anchal Samitee Ompuli, Sagalee Prop of M/s Jumsi Aqua Pure (Industry) M/s Engineering Co-operation Society M/s JCA Construction Village-Nyorchi, Yupia PO & PS Naharlagun Arunachal Pradesh Camp Arunachal House, New Delhi Page 1 of 10
11. Sri Nabam Tagam Son of Nabam Take, Contractor (PDS) Prop of M/s Assam Arunachal Agency (P.A.H), M/s Delhi Traders 12. Sri Taba Laj, Contractor, Son of Taba Prop of M/s Durga Motors Prem Nagar, Naharlagun PO & PS Naharlagun- 791110 13. The Director, Central Bureau of Investigation, New Delhi 14. United Commercial Bank Branch Office at Itanagar, A.P. 15. The Chief General Manager, United Commercial Bank, Itanagar, AP BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE MANOJIT BHUYAN For the petitioner : Mr. S Banik, learned Amicus Curiae, assisted by Mr. AH Laskar and Mr.MK Rongpi, learned counsel. For the Respondents : Mr.N Dutta, learned Advocate General, Arunachal Pradesh, assisted by Mr. S Saikia and Mr. BD Goswami, learned Additional Advocates General, Arunachal Pradesh and Mr.NNB Choudhury, learned Senior Government Advocate, Arunachal Pradesh, Mr.P Pathak, learned senior counsel for Respondent No.10, Mr.AK Bhattacharyya, learned senior counsel, assisted by Mr.D Bhattacharyya, learned counsel for Respondent No.11, Mrs. Suparna Nag, learned counsel for Respondent Nos.14 and 15, Mr. AC Borbora, learned senior counsel, assisted by Mr.MG Singh, learned counsel for Respondent No.7, Ms.M Dev, learned counsel for Respondent No.9. Date of hearing : 14.11.2017 Date of Judgment : 16.11.2017 Page 2 of 10
JUDGMENT AND ORDER (Ajit Singh, C.J.) Originally PIL No.76/2006 was filed by one Nabam Tagam seeking investigation by the Central Bureau of Investigation against Respondent No.7 Nabam Tuki, the then Minister of Public Works Department and Urban Development in the State of Arunachal Pradesh for illegally awarding contract works to his kith and kin. Surprisingly, later, Nabam Tagam made a request for withdrawal of the Public Interest Litigation, but the Division Bench of this Court vide order dated 16.2.2010 rejected the prayer with fine of Rs.10,000/- and direction to register the same as Suo Motu Writ Petition. The petition was thus registered as Taken Up case followed with an appointment of Amicus Curiae. The record reveals that it was then heard on different dates. However, on some administrative issues, the members of the Bar resolved to abstain from appearing in Courts. The resolution did not go well with the Bench and vide judgment and order dated 21.8.2015, the Division Bench decided the case on merits directing the Central Bureau of Investigation to register offences under Section 13(1)(d)(i)(ii) and (iii) of the Prevention of Corruption Act, 1988 against Respondent No.7 and persons who have abetted the commission of the said offences. The Division Bench also directed that after investigation final report be submitted by the Central Bureau of Investigation before the Special Court at Guwahati which shall try and dispose of the case in accordance with law. Aggrieved, Respondent No.7 challenged the judgment and order dated 21.8.2015 by filing Civil Appeal Nos.1522-1523 of 2017 before the Supreme Court on the ground that he was not given proper opportunity of hearing. The Supreme Court agreed with Respondent No.7 and vide order dated 6.2.2017 set aside the judgment and order dated 21.8.2015 with a direction that case be decided afresh after giving opportunity of hearing to all concerned. It is in this background, the case has been placed before us for a fresh decision and we have heard respective counsel for the parties in detail. Page 3 of 10
2. The facts in short are these. During the relevant period in 2005 and 2006, Respondent No.7 was the Minister of Public Works Department and Urban Development in the State of Arunachal Pradesh. Respondent No.9 is his wife and also the Proprietor of M/s NE Agency. Likewise, Respondent No.10 is sister-in-law of Respondent No.7 and wife of Respondent No.11. Respondent No.10 is also the Proprietor of M/s Jumsi Aqua Pure (Industry), M/s Engineering Co-operation Society and M/s JCA Construction whereas Respondent No.11 is Proprietor of M/s Assam Arunachal Agency and M/s Delhi Traders. Also Respondent No.8 is another sister-in-law of Respondent No.7 and she is the owner of M/s Marry Associates and Respondent No.12 is the owner of Durga Motors who is the younger brother of sister-in-law of Respondent No.7. 3. The allegations in the writ petition pertains to following contract works awarded by Respondent No.7 to his kith and kin for selfish wrongful gain without following the norms and inviting tenders:- (i) (ii) (iii) (iv) (v) (vi) (vii) Construction work of low cost housing for Safai Karmachari and for people living below poverty line at Itanagar for Rs.3,06,06,667.74 to M/s NE Agency owned by Respondent No.9, wife of Respondent No.7. Construction work of Staff Quarters for Kendriya Vidyalaya, Rohtak for Rs.53,28,038/- to M/s NE Agency owned by Respondent No.9, wife of Respondent No.7. Contract work of House Keeping & Catering Service of Arunachal House at Chanakya Puri, New Delhi awarded to M/s Jhumsi Enterprise owned by Respondent No.10, sister-in-law of Respondent No.7. Construction work for raising boundary wall at Kendriya Vidyalaya, Salt Lake, Kolkata for Rs.13,81,093/- to M/s Jhumsi Enterprise owned by Respondent No.10, sister-in-law of Respondent No.7. Construction work of Regional Office Building of Kendriya Vidyalaya, Salt Lake, Kolkata to M/s Engineers Co-operative Society Ltd. which was accepted by Respondent No.10, sister-in-law of Respondent No.7. Construction work for campus development and remodeling of primary class room to M/s JCA Construction vide total 65 nos. of work orders accepted by Respondent No.10,sister-in-law of Respondent No.7. Work orders under Shawbiman Schemes of the Horticulture Department, Arunachal Pradesh for Rs.6.50 crore to M/s Delhi Page 4 of 10
(viii) (ix) (x) (xi) Traders of which Respondent No.10 is the owner who is sister-inlaw of Respondent No.7. Construction work of Residential Building for Kendriya Vidyalaya, Umroi Cantt. Shillong Phase-II for Rs.1,23,82,490/- to M/s Marry Associates of which Respondent No.8 is the owner who is sister-inlaw of Respondent No.7. Construction work for First Phase of Development of Parking Places at Nirjuli for Rs.27.64 lacs and Naharlagun for Rs.78 lacs to M/s Mary Associates of which Respondent No.8 is the owner who is sister-in-law of Respondent No.7. Construction work of District Sports Complex at Yupia, Papumpare, Arunachal Pradesh for Rs.2,03,83,300/- to M/s Assam Arunachal Agency of which Respondent No.11 is the owner who is younger brother of Respondent No.7. Construction work of First Phase of Guest House at Nirjuli for Rs.38.66 lacs to M/s Durga Motors of which Respondent No.12 is the owner who is the younger brother of the sister-in-law of Respondent No.7. 4. Apart from these contract works, it is also alleged that Respondent No.7 opened a fictitious account in the United Commercial Bank to siphon off all the ill-gotten money in collusion with his brother Respondent No.11. 5. The common reply of the contesting respondents is that prior to the filing of instant Public Interest Litigation, the petitioner had filed WP(C) No.104(AP)/2006 leveling similar allegations in respect of awarding contract works by the State Government without floating tenders which was dismissed by judgment dated 27.3.2006. The petitioner then filed WA No.94/2006 and it too was dismissed with costs of Rs.5000/-. Thus, having failed in his earlier attempt, the petitioner has once again approached this Court by skillfully deleting the issues raised in the earlier petition and presenting himself to be a social and political worker without mentioning that he was also the General Secretary to the Contractors Welfare Association as well as the leader of a political party. The respondents have therefore prayed for dismissal of the writ petition on this ground alone. The respondents have also averred that economy of Arunachal Pradesh was in a state of transition and in order to encourage local entrepreneurship, construction contracts were distributed among the capable unemployed local youth. According to the respondents the tender system was not Page 5 of 10
adopted as it would result in awarding contracts to only one big time contractor, which would not result in equitable distribution of government largesse. The respondents have also given explanations to demonstrate how and under what circumstances the contract works were awarded to respondent Nos.8-12 who are kith and kin of Respondent No.7. The respondents have even averred that all the works orders were completed within the stipulated time without any complaint and there being no element of corruption, investigation by Central Bureau of Investigation is wholly unwarranted. 6. Respondent No.7, apart from denying corruption in awarding contract works to his kith and kin has stated that they were awarded contract works on their own qualification and experience of such works. Respondent No.7 has also stated that in Arunachal Pradesh contract works were awarded on the basis of proposal submitted by respective contractors and the formal tender process was not followed. Respondent No.7 has even categorically denied opening of fictitious account by him in the United Commercial Bank for siphoning off ill-gotten money. 7. Respondent No.9 (wife of Respondent No.7) in her affidavit has stated that she has been doing independent business of construction even before Respondent No.7 became a Minister. She has also stated that petitioner is a habitual litigant and had earlier lodged a false complaint in the Court of Judicial Magistrate First Class against the same contesting respondents which was registered as Case No.NLG/CE18/2006/264 and referred for settlement under Section 38 of the Assam Frontier (Administration of Justice) Regulation, 1945 and the same was dismissed with a penalty of three mithuns on the petitioner and caution that henceforth he will not make any complaint without proper verification. She has further stated that tender were not floated in order to encourage the local youths by awarding contracts to them and the same was necessary for development of entrepreneurship in the State. Page 6 of 10
8. The Bank officials have supported the plea of Respondent No.7 that he had not opened any bogus bank account. Although no affidavit-inopposition has been filed on behalf of Respondent No.11, his learned senior counsel has denied opening of fictitious bank account, as alleged by the petitioner. The learned senior counsel even took us through the documents filed by the Bank in support of his submission. 9. Learned senior counsel for the State has argued that only in exceptional cases and that too when prima facie offence is made out, the High Court should direct for investigation by the Central Bureau of Investigation and this is not such a case, which requires investigation by the Central Bureau of Investigation. He has also cited number of decisions in support of his submission. His another submission is that direction for investigation, if any, be given to the State Police and not to the Central Bureau of Investigation. 10. After hearing the respective counsel for the parties and perusing the records, we find that mainly two issues require our consideration. Firstly, whether the petition deserves to be dismissed having regard to the antecedent of petitioner and secondly, whether awarding of contract works to Respondent Nos.8 to 12, who are kith and kin of Respondent No.7, require investigation by an independent agency. 11. So far as the first question is concerned, we are not inclined to dismiss the petition because as seen above the petitioner himself had made a request for withdrawal of the petition which was rejected by the Division Bench vide order dated 16.2.2010 with fine of Rs.10,000/- and direction to register the same as Suo Motu Writ Petition. Also the Respondents did not challenge the order dated 16.2.2010 before any higher forum and as such, it has attained finality. Moreover, the petition is pending since 2006 in this forum and the subject matter involves serious allegations regarding nonuniform distribution of contracts involving huge chunk of public money and that too without following due process of law. The beneficiaries are admittedly kith and kin of Respondent No.7 who was at the helm of affairs when the contract works were awarded. The amount involved is very huge Page 7 of 10
to be ignored and the allegations are also not such that the petition can be thrown away on the ground of locus. Further, since the case has already been taken up by the court, no question arises to dismiss the petition on the ground of petitioner s locus. 12. As regards the second question, admittedly, the contract works, in question, have been awarded to Respondent Nos.8 to 12, who are kith and kin of Respondent No.7, and during the relevant period, he was at the helm of affairs. And in all the contract works, huge public money is involved. Also not only the contracts relating to work in Arunachal Pradesh but works in the State of Haryana and West Bengal have been given to the close family members of Respondent No.7.Therefore, the submission of the respondents that contracts were given to local stake holders of Arunachal Pradesh does not appeal to us. 13. Apart from this, there is also a serious allegation against Respondent No.7 that he had opened a fictitious account in the United Commercial Bank to siphon off all the ill-gotten money, which was later changed in the name his brother Respondent No.11. The Bank officials have admitted on affidavit that the savings account opening slip of the account in question is missing. Also a Division Bench of this court headed by the then Chief Justice Hon ble J. Chelameswar vide order dated 2.12.2008 has already held that there are too many mistakes in the opening of account and signature of the account holder being distinctly different require probe. 14. Recently in Noida Entrepreneurs Association vs. Noida, (2011) 6 SCC 508), the Supreme Court has well settled that that the State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. And as such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. The Supreme Court has also held that State Page 8 of 10
actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution and that every action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance and should not be suggestive of discrimination, bias, favouritism and nepotism. The Supreme Court has even clarified that if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. In this case, which was filed as public interest litigation, the Supreme Court has reiterated that the public trust doctrine is a part of the law of the land and on similar circumstances, directed the Central Bureau of Investigation to have a preliminary enquiry in respect of allegations of awarding of contracts to certain contractors by a public servant. 15. The contesting respondents including the State of Arunachal Pradesh have tried to explain the circumstances under which contract works in question were allotted to the kith and kin of respondent No.7, but the same does not nullify the fact that except for one contract pertaining to construction work of low cost housing for Safai Karmachari and for people living below poverty line, all contracts were allotted without inviting tenders. As mentioned above, Respondent No.7 had also allegedly opened a fictitious account in the United Commercial Bank for siphoning off all illgotten money. The allegations are very serious in nature and pertain to illegal distribution of State largesse involving huge sum of money by awarding contract works to Respondent Nos.8 to 12 who admittedly are kith and kin of Respondent No.7. The contract works were awarded to them when Respondent No.7 was a Minister of Public Works Department and Urban Development in the State of Arunachal Pradesh. The allegations therefore require thorough probe by an independent agency. Since the State Government has defended the awarding of contracts in question, we are of the view that the State police will not be in a position to investigate the allegations fairly, more particularly, when high officials and former Minister are involved. We, accordingly, direct the Central Bureau of Page 9 of 10
Investigation to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law. Our this direction is in consonance with the similar direction given by the Supreme Court in Noida Entrepreneurs Association (supra). We also direct the Director, Central Bureau of Investigation to depute an officer to collect the records pertaining to this public interest litigation from the custody of the Registrar General of this Court. 16. Since our direction above is only confined to a preliminary enquiry and not an investigation by the Central Bureau of Investigation, we have refrained from elaborating on the case laws cited on behalf of the State. We have also deliberately refrained ourselves from commenting on the explanations given by the respondents justifying allotment of contracts as well as completion of works so that neither the enquiry nor the interest of the parties suffer prejudice. 17. With the above directions, the petition is finally disposed of. JUDGE CHIEF JUSTICE skd Page 10 of 10