South Delhi Illegal Constructions: High Court Orders CBI To Not Act On Lokpal Order For Probe Against MCD Officials

The Delhi High Court on Wednesday asked the Central Bureau of Investigation (CBI) to not act on the order passed by Lokpal of India directing the central agency to initiate a probe against officials of the Municipal Corporation of Delhi (MCD) over a complaint alleging illegal and unauthorized constructions in South Delhi area.

"Considering the nature of matter, in the meantime, the CBI shall not proceed with the investigation under the impugned order ...  It is however clarified that if there are any specific complaints which are received by Lokpal against any other officials of the MCD or in general against unauthorised constructions, there would be no interdiction of the Lokpal proceedings, in accordance with law, in such a matter," said the court.

The order was passed by Justice Prathiba M. Singh after hearing a plea filed by the MCD against the order passed by the Lokpal last year. MCD has argued that the Lokpal on November 28 directed CBI investigation without an iota of allegation or finding of corruption or assigning any cogent reasons as to why the such a probe was needed.

Justice Singh in the order passed today said various legal issues have been raised by Senior Counsel for the petitioner including the fact that under Section 14, prior approval of the consent of state government would be required prior to any jurisdiction being exercised by Lokpal in respect of officials serving in any Corporation or a Board.

"I was reluctant to stay to it because I thought the Lokpal had found something. After seeing the file, I feel both the Lokpal and CVC are behaving ... it can't be like a post office," observed the court, during the hearing.

The court also said that an order for probe can't be passed against the entire department. 

The counsel representing the MCD told the court that one-page complaint, which became basis for the Lokpal order, related to an RTI query raised by the complainant. It was also argued that the complaint was not in proper format 

The counsel representing the Lokpal submitted that it had sent the matter earlier to the CVC for a report. However, the report which was received from the CVC was a report of the MCD Vigilance Department.  "In any event notice was also issued to the concerned officials and a reply was sought. Upon being not satisfied with the reply, the investigation was directed," he added. 

CBI counsel told the court that no FIR has been registered in the matter.

The court said only finding recorded by the Lokpal in the impugned order is that precise role of the public servants in the unauthorised constructions in South Delhi is not forthcoming. The Lokpal also has taken notice of the fact that illegal construction of properties takes place on a massive scale in south Delhi, the court noted.

"Apart from these two observations, there are no other specific findings recorded against any of the officials and also the basis for the investigation against the entire Corporation and all other agencies responsible for allowing illegal construction in an omnibus manner," said the court.

The court said provisions of Lokpal Act contemplate three stages of enquiry and investigation. The steps that are to be taken for a preliminary inquiry and investigation would include a preliminary investigation by an agency to ascertain as to whether there exists a prima facie case for proceeding in the matter.

"Thereafter, if such a case is made out, then the Lokpal after giving an opportunity to the concerned public servants ... arrive at finding that there is a prima facie case and thereafter direct investigation," said the court.

The court said perusal of the record in the present case would show that CVC was merely asked to obtain a report from the vigilance department of the MCD.

"The vigilance report of the MCD has been forwarded by the CVC to the Lokpal. In effect, therefore there has been no enquiry by the CVC or by the Lokpal at the stage. No specific allegations have been raised against the concerned officials or against the MCD and other agencies," it added.

Observing that the issues of jurisdiction and the manner in which the Lokpal is to proceed would arise for consideration in the present case, the court issued notice to the respondents and asked them to file counter placing their position on record.

The court clarified that its observations are only a prima facie view and "shall not be construed as an opinion on merits at this stage". It will hear the matter next on April 25.

MCD has argued that the impugned order passed on November 28 is not only arbitrary but is "antithesis to the rights of corporation and its officers" especially on the basis of a general finding vis-à- vis "rapid illegal construction across South Delhi".

According to the plea, the complaint alleged that some officials of the corporation, who were posted at the Building Department in city's Green Park area, failed to write letters to electricity and water departments to seek disconnection of delinquent builders or contractors.

The complainant further stressed upon the growing population density of national capital and how illegal construction is a growing menace, while claiming that the same is owing to the illegal conduct of officers of the corporation.

The plea submits that the impugned order is a transgression of scope and authority vested with the Lokpal of India as the same was passed without any incriminating document or inquiry to show a prima facie case of corruption and also without prior sanction from the appropriate government to prosecute the MCD officials.

"It is stated that an investigation by CBI without an iota of prima facie allegation of corruption under the Prevention of Corruption Act, 1988 or otherwise would tantamount to overreaching the settled cardinal principles of criminal jurisprudence and would unequivocally reduce the institutional legitimacy of the entire institution/petitioner corporation and its employees," the plea adds.

The plea also avers that the impugned order violates principles of natural justice as the CBI investigation was ordered against MCD officials while they were not a party before the Lokpal.

"It is further stated that a blanket order directing a CBI investigation for alleged unabated unauthorised constructions overlooks the socio-demographic fabric of the city of Delhi – which ranks on the top in terms of internal migration and population density. It is also stated that most of these illegal / unauthorised constructions end up becoming the subject matter of litigation thereby overshadowing action purported to be taken under the provisions of the DMC Act," the plea submits.

Senior Advocate Sandeep Sethi and Raj Shekhar Rao and Advocate Sanjay Vashishtha appeared for MCD. Arora Kurup appeared for Lokpal of India. 

Title: MCD v. Lokpal of India

Citation: 2023 LiveLaw (Del) 57