A.K. Sikri, J.
1. In this writ petition the petitioner has raised an issue with respect to the powers and jurisdiction of the Lokayukta under the Delhi Lokayukta and Upalokayukta Act, 1995 ( hereinafter referred to as `the Act' for short). It may be mentioned at this stage itself that the Lokayukta has initiated suo moto proceedings taking cognizance of L-2 vend opened at Hans Bhawan and after inquiry passed order dated 19.9.20002 directing Excise Department/Respondent No. 3 to issue order for cancellation of the said vend. Based thereon respondent No. 3 passed order dated 27.9.2002 cancelling this vend. It is in this context that powers of the Lokayukta to pass such an order is questioned. At this stage, brief facts of the case are noted.
2. The petitioner is one of the co-owner of the property bearing No. Lower Ground Floor-1, Hans Bhawan, Bahadurshah Zafar Marg, New Delhi. This building as is well-known is a commercial building. Vide public notice dated 13/14.2.1999 Delhi State Civil Supplies Corporation Ltd. /Respondent No. 4 invited offer for shops/premises for running of Wine & Beer shops. Petitioner and co-owners offered aforesaid premises to Respondent No. 4 for opening of L-2 vend license of which was to be obtained by the Respondent No. 4. Their case was processed. No Objection Certificate from Area MLA was also obtained. For running Wine & Beer shop, the petitioner and co-owner applied. However, the matter was not finalised. In the meantime, Delhi Government came out with liberalised Excise Policy in the year 2000-2001 and after the commencement of this Policy, public notice inviting tenders were again offered on 4.2.2000. The petitioner along with his co-owners again applied on 19.2.2002. Area MLA also issued No Objection Certificate' for opening the vend at the place offered by the petitioner. In the meantime, on 4.7.2002 liberalised Excise Policy of the year 2002-2003 was announced. The Government decided to open 5 liquor vends in addition to the existing vends, subject to a ceiling of 70 new vends during the current year. As per the Policy, shops were to be opened in public sector only and 'NOC' from the area MLA was not required. The petitioner's shop was approved for L-2 vend and a Rent Agreement dated 16.8.2002 was signed between the petitioner and Respondent No. 4. Within few days of opening of this vend, Lokayukta initiated suo moto proceedings and took cognizance of the aforesaid L-2 vend opened at Hans Bhawan. He issued notices to Respondent Nos.2 and 3 and called for the record to examine as to under what circumstances said vend was allowed to be opened. On 8.8.2002 he passed an order observing that opening of this vend at the said place was contrary to rules. On 25.9.2002 the Finance Minister filed a detailed affidavit before the Lokayukta reiterating Government's stand that action of Excise Department in granting L-2 license was perfectly valid and only after four and half months of inquiry the said license was granted to the petitioner. After this affidavit was filed, proceedings were concluded by the Lokayukta.
3. Apprehending the closure on the basis of order passed on 19.9.2002 by the Lokayukta, the petitioner filed CWP.No. 6067/2002 in this Court. After hearing arguments on 27.9.2002 the matter was adjourned to 30.9.2002. However, on 27.9.2002 order was passed by the Excise Department for cancelling L-2 vend given to respondent No. 4 and on 28.9.2002 this vend was closed. Challenging these orders, present petition is preferred.
4. Some of the proceedings before the Lokayukta which include orders dated 13.9.2002 and 19.9.2002 are placed on record. A perusal of these orders would show that undisputedly it is the suo moto cognizance which was taken by the Lokayukta regarding opening of an IMFL L-2 vend. Order dated 8.8.2002 was passed by the Lokayukta in this respect asking Delhi Finance and Excise Minister to explain under what circumstances a liquor vend was allowed to be opened at Hans Bhawan at ITO Complex which was surrounded by the Offices of NCT of Delhi, the Income-tax Department, the Sales-tax Department, the Police Headquarter, the Delhi Institute of Management Studies, Mosque and adjoining the liquor shop Institute of Chartered Accountants.
5. From the proceedings it further appears that notices were sent to the Finance Minister who was also Minister for Excise in Delhi Government, Commissioner, Excise Department and Delhi State Civil Supplies Corporation Ltd. They were represented by their counsel as well as Officers. The Lokayukta examined the files relating to allotment of the aforesaid license. In his order dated 19.8.2002 the Lokayukta, inter alia, observed as under:
' The topography of the ITO complex would reveal that it consists entirely of public offices and is surrounded by Vikas Bhawan (where most of the offices of Govt. of NCT of Delhi are located), Public Grievances Commission, Delhi Police Headquarters, PWD Offices, Vikas Minaar of DDA, Sales Tax Office, across the road in the corner a Masjid, and adjacent to the shop is the Institute of Chartered Accountants of India and the Delhi Institute of Management Studies. Also there are two book seller shops; one on either side of the shop in question and a few tea stalls and `dhabas'. The Institute has two entrance gates; one opening on the Vikas Marg, and; the other on the rear side, by the side of the parking area of the Institute with facilities of a lift and stair case.'
6. Thereafter the Lokayukta examined relevant Excise Rules and the provisions of Punjab Excise Act. He referred to Rule 33 and 33(8) of Delhi Liquor license Rules, 1976 and made following observations:
' The facts which emerge from the site plans and the Inspection Reports are that the Institute of Chartered Accountants of India has two entrance points; one gate opening on the Vikas Marg and the other by the side of parking area of the Institute which is opposite to the ITO building and immediately adjacent to the liquor shop. The parking area and the rear side entrance are within 75 meters from the liquor shop. There is a lift and stair case leading to the upper floors of the Institute from inside the parking area and the rear entrance gate. The Lokayukta may notice here that excise rules as were in force before 1st July, 2002 prohibit the location of any liquor shop within 75 meters of the major educational institutions, religious places and hospitals. It is little surprising how Sh. Sheodan Singh and other officers during inspection of the site on various occasions before 1st July, 2002 (when there was no amendment in the rules) adopted the method of measuring the distance between the gate of the shop and the main gate of the Institute to determine the applicability of rule 33 (1A). There was at that time no rule that the distance is to be measured between the `main gate' and the shop to determine whether the religious places etc., specified in rule 33(1A) are or not within 75 meters of the proposed liquor vend site. The Lokayukta finds from the plan that the building of the Institute of Chartered Accountants of India is within 75 meters of the liquor vend. The letter of the Addl. Secretary of the Institute states that the Institute is visited by a large number of students everyday for availing of library and reading room facilities and that the institute also conducts coaching classes prior to each examination. The Addl. Secretary has pointed out that in case L-2 vend is permitted in the area near and around the Institute Office it could be source of inconvenience and can also create law and order problem in the area. There is the parking area of the Institute and an entrance gate immediately adjoining the liquor shop. The fact that there is a lift and a staircase which lead to the upper floors of the Institute has been suppressed by the officers in their inspection report. The Lokayukta, prima-facie, finds the proposal to open the liquor vend at the premises in question and the recommendation made by the Corporation and the Excise Deptt., before 1st July,2002 for opening of L-2 vend in the shop in question is vocative of rule 33(1A)'.
7. Thereafter he gave directions to various persons including the Minister for Finance and Excise, Local MLA as well as Additional Secretary, Institute of Chartered Accountant etc. to answer the queries and file necessary affidavits. Further proceedings were recorded on 5.9.2002 which disclose his mind on certain factual and legal aspects. After noticing the same, the matter was adjourned to 13.9.2002. In the proceedings dated 13.9.2002 he recorded the arguments advanced by both the parties which could not be concluded on that date and for further arguments he listed the matter for 16.9.2002. It appears that at this stage the Minister for Finance filed an affidavit dated 25.9.2002 in which he stated that the matter regarding grant of license was not taken in undue haste and the Excise Department had taken almost four and a half months to process the case. He further clarified that there was a decision by the Cabinet dated 25.9.2002, by virtue of which it was decided that every case for grant of license or registration will be submitted to the Finance Minister. It was also stated that Institute of Chartered Accountants was not an educational institute within the meaning of Section 33(1A) of the Delhi Liquor license Rules. He concluded his affidavit by affirming as under:
'without admitting that Institute of Chartered Accountants is an Educational Institution, or that liquor vend in Hans Bhawan has been opened either to accommodate or favor any individual in any manner but, keeping in view the observations of the lokayukta during the course of proceedings and the surrounding factors, this deponent shall initiate action for closure of the liquor vend at Hans Bhawan after following due process of law, this deponent shall also consider forming an appropriate committee for site inspection for selecting the locations of liquor vends'.
8. When the matter was argued on 25.9.2002 and the aforesaid affidavit filed, the proceedings concluded. However, within two days thereafter impugned order was passed by the Respondent No. 3 under Section 41 of the Punjab Excise Act which gives powers to the Competent Authority to withdraw the licenses. By this order L-2 license granted to Respondent No. 4 for running the aforesaid liquor vend at Hans Bhawan, ITO Complex, New Delhi was withdrawn. In lieu of the 15 days notice required under the law, a sum of Rs. 4,200 i.e. equal to the amount of fee payable in respect thereof was remitted to the license holder.
9. The first question that needs to be addressed in these circumstances is as to whether Lokayukta has any powers and or jurisdiction to take cognizance of such a matter under the Act.
10. Act was passed for establishment and functioning of the Institution of Lokayukata to inquire into the allegations against public functionaries in the National Capital Territory of Delhi and for matters connected therewith. Section 7 of the Act delineates the matter which can be inquired into by the Lokayukta or Upalokayukta and reads as under:-
'7. Matter which may be inquired into by Lokayukta or Upalokayukta - Subject to the provision of this Act, on receiving complaint or other information or suo moto-
(a) The Lokayukta may proceed to inquire into an allegation made against a public functionary in relation to whom either the President or Lieutenant Governor is the Competent authority:
(b) the Upalokayukta may proceed to inquire into an allegation made against any public functionary other than that referred to in clause (a).
Provided that the Lokayukta may inquire into an allegation made against any public functionary referred to in clause(b).'
11. Section-8 enumerates certain matters which are not to be inquired by the Lokayukta and Upalokayukta. Thus this Section specifically excludes from the jurisdiction of Lokayukta certain types of matters.
12. Section-9 lays down the provisions relating to complaints i.e. the form and the manner in which complaint involving the allegation against the public functionaries is to be made. After conducting the inquiry into the complaint as per the procedure prescribed under Sections 10 and 11, the Lokayukta is to give his report in the manner provided under Section-12. He is to communicate his findings and recommendations along with relevant documents to the Competent Authority.
13. Thus the Lokayukta or Upalokayukta is given jurisdiction to inquire into the matter as specified in Section-7 and this inquiry can be made on receiving complaint or the other information or suo moto. The Lokayukta may proceed to inquire the allegation made against a public functionary in relation to whom either the President or the Lt. Governor is the Competent Authority.
14. Section-2(b) defines 'allegation' and reads as under:
'2. Definitions:- In this Act, unless the context otherwise requires-
(a) xxxx xxx
(b) 'allegation' in relation to a public functionary in capacity as such-
(i) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public functionaries or the class to which he belongs.
(ii) has abused or misused his position to obtain any gain or favor to him self or to any gain of favor to himself or to any other person or to cause loss or undue barn or hardship to any other person:
(iii) was actuated in the discharge of his functions as such public functionary be improper or corrupt motives or personal interest:
(iv) allegation of corruption, favor, nepotism or lack of faithfullness.
(v) Is or has at any time during the period of his office been in possession pecuniary resources or property disproportionate to his known sources of income whether such pecuniary resources or property are held by the public functionary personally or by any member of his family or by some other person on his behalf:
Explanation-For the purpose of this sub clause 'family' means husband, wife, sons and unmarried daughters living jointly with him.'
'Public functionary' is defined in Section-2(m) as under:
2 (m) 'public functionary' means a person who is or has been at any time-
(i) the Chief Minister or a Minister
(ii) a Member of Legislative Assembly;
(iii) a person having the rank of Minister but shall not include Speaker and Deputy Speaker of the Legislative Assembly:
(iv) a Chairman, Vice Chairman or Managing Director or a Member of a Board of Directors (by whatever name they be called) in respect of-
(1) an Apex Co-operative Society or any Co-operative Society constituted or registered under the Delhi Co-operative Societies Act, 1972, which is subject to the control of the Government;
(2) a Government Company within the meaning of section 617 of the Companies Act, 1956, engaged in connection with the affairs, and is under the control of the Government.
(3) a Local Authority established under any law in relation to Delhi;
Provided that the provisions of this Act shall not be applicable to any authority of a Local Authority constituted under an enactment related to entry No. 18 of the State List of the Seventh Schedule of the Constitution;
(4) a Corporation engaged in connection with the affairs, and under the control, of the Government.
(5) Any Commission or body set up by the Government which is owned and controlled by it;
(v) a Member of the Municipal Corporation of Delhi as defined in clause 2(27) of the Municipal Corporation Act,1957 (as amended in 1993):
A conjoint reading of Section-2(b), Section-2(m) and Section-7 would clearly indicate that the Lokayukta has power to proceed to inquire against public functionaries in respect of those allegations, nature whereof is specified in Section-2(b). Thus before he could assume jurisdiction, following three ingredients are to be satisfied:
1. The person is a `public functionary as defined in Section-2(m) of the Act.
2. Public functionary is the one in relation to whom either the President or Lt.Governor is the Competent Authority.
3. Allegation in relation to the said public functionary in capacity is the one specified in Section-2(b) of the Act.
15. In the instant case L-2 license was granted by the Commissioner of Excise i.e. Respondent No. 3 to Delhi State Civil Supplies Corporation Ltd i.e. Respondent No. 4. For this purpose, in order to run/operate the vend, Respondent no. 4 had taken the premises from the petitioner on rent. The Commissioner Excise while granting this license was discharging his statutory functions. He is not a `public functionary' defined under Section-2(m) and, thereforee, would not be under the jurisdiction of the Lokayukta. Further, from he facts narrated above, it is clear that the Lokayukta took suo moto notice of the opening of the liquor vend in Hans Bhavan, ITO as he wanted to know whether the Department wants to attract the students of the Institute of Chartered Accountant or employees at the Police Headquarters, the Sales Tax and the Income-tax Office which lie in the vicinity in the vend. It is clear that he nurtured a feeling or a prima facie opinion that such liquor vend should not be at such a place which was in the vicinity of aforesaid institutions. The inquiry conducted by him thereafter clearly reveals that exercise undertaken by the Lokayukta was that opening of such a vend in the vicinity of these offices was contrary to Rule-33(1A) and Rule 33(8) etc. as per which such vend could not have been located within 75 meters from such institutions. Even if it is presumed that there was violation of such provisions, it could not be said that such ground constituted 'allegation' within the meaning of Section-2(b). Thus neither the purported allegations were such which permitted the Lokayukta to have inquiry into the matters nor the act of Commissioner Excise in granting license could be inquired into by the Lokayukta under this Act. It is clear that the Lokayukta was conscious of his limitations insofar as his jurisdiction over the Excise Commissioner, is concerned. In order to overcome this limitation, he issued notice to the then Finance Minister in the Government of NCT of Delhi which is public functionary and by adopting this methodology he assumed jurisdiction over the matter. Such a course of action on the part of the Lokayukta was clearly impermissible.
16. We may hasten to add that the Lokayukta may have initiated the action in all bonafides and having public interest in mind but merely on these considerations he could not assume jurisdiction over the Officers or the subject matter which the Act otherwise does not permit. The Lokayukta being creature of the Statute has to act within the parameters laid down under the Act. The entire proceedings, thereforee, are clearly without jurisdiction.
17. It is well-known that the idea of establishment of Office of Lokpal and Lokayuktas came from Justitio Ombudsman, commonly called, Just Ombudsman, prevalent in European countries where such Office was established as far back as in early Nineteenth Century. However, the scope and power of the ombudsman is different in different countries. In India the desirability of the establishment of ombudsman type institution was repeatedly stressed in 1960s and thereafter. The Administrative Reforms Commission (ARC) in its Report on 'Problems of Redressal of Citizens' Grievances' submitted in October,1966, surveyed the existing remedial methods for redressal of the Citizens' grievances and allegations in connection with administrative corruption, maladministration, delinquencies, lapses, failures, improprieties, and lack of desired standards of administrative probity, propriety and efficiency. The ARC noted the widely prevalent corruption in the administration and administrative inefficiency and unresponsiveness to the public. It treated the problem at two levels: (i) lapses and improprieties committed by the Ministers and their immediate subordinates, that is, Secretaries to the Government and their aides; and (ii) the delinquencies committed by the lower administrative authorities and public servants. It is not necessary to state here, in detail, the recommendations of ARC. It would be sufficient to note that these recommendations were widely discussed and commented upon. Ultimately, the Government even tentatively accepted the same and Lokpal Bills were introduced in the Parliament a number of times but no enactment could be passed at that time. However, some progress was made at State level with the establishment of ombudsman type Lokayuktas in certain States including Bihar, Karnataka, Madhya Pradesh, Maharashtra, Rajasthan and Uttar Pradesh. Delhi also passed, ultimately, Delhi Lokayukta and Upalokayukta Act, 1995.
18. The scope and powers of these Lokayuktas in different State enactments are materially different. While in some States Legislations Lokayuktas cannot only inquire into the complaints of lapses and improprieties committed by Ministers and their immediate subordinates, namely, Secretaries to the Government, but also against lower Administrative Authorities and public servants. However, in Delhi Act a significant departure is made. The definition of 'public functionary' in Section-2(m) of the Act would clearly indicate that it is only Chief Minister, Ministers, Members of Legislative Assembly, a person having rank of Minister excluding Speaker and Deputy Speaker of Legislative Assembly or, Chairman, Vice-Chairman or Managing Director or a Member of a Board of Directors or certain authorities and Member of MCD who are treated as public functionaries. Significantly, public servants of whatever rank are not brought within the purview of the Act. Thus function of Lokayukta does not include inquiry into allegations of abuse of office, corruption or lack of integrity against public servants which may be in some of the Statutes of this type enacted by some other States. This omission is significant.
19. It is clear from the affidavit filed by the then Finance Minister that the decision was taken by Excise Department for granting license for the vend. He in his affidavit even tried to justify the decision by stating that matter was not processed in undue haste but in the ordinary course of business after completing all the formalities and he had no role to play therein. Such administrative decision taken by the administrative authorities could not be reviewed by the Lokayukta.
20. Having said so, still insofar as present writ petition is concerned, no relief can be granted to the petitioner. It is clear from the facts narrated above that license to open L-2 vend was granted by the Commissioner of Excise to Delhi State Civil Supplies Corporation Ltd./Respondent No.4. It is the license in their favor which has been cancelled. Respondent No. 4 had taken premises of the petitioner on rent for which Rent Agreement was executed. No doubt as per the terms of the said Agreement the petitioner was entitled to charge 12-1/2% of the gross profit as rent compensation from Respondent No. 4. However, fact remains that the license was not in favor of the petitioner and thereforee the petitioner has no locus to file the present petition challenging the said cancellation. It was for Respondent No. 4 to challenge the cancellation of the license.
21. However, although it is held that the petitioner has no locus standi to file this petition but as the findings at the same time are that the proceedings initiated and orders passed by the Lokayukta are without jurisdiction, and as impugned order dated 27.9.2002 passed by the Respondent No. 3 cancelling the license is based on the order/recommendation of Lokayukta, it would be open for the Respondent No. 3 to reconsider the matter without being influenced by the orders passed by the Lokayukta. On its own assessment the Respondent No. 3 should form an opinion as to whether it was not proper to have the L-2 vend at the aforesaid location keeping in view relevant provisions of law including Rule 33(1A) and Rule 33(8). He would also follow the prescribed procedure while taking such decision including observance of the principles of natural justice. Such a consideration be made and decision taken within a period of six weeks from today.
22. The writ petition is disposed of with the aforesaid observations. However, there shall be no orders as to costs.