# Chandradev Ram Yadav (Karaili) Minister Small Scale v. Lokayukta U.P

- **Citation:** (2012) 1 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-12
- **Case number:** Misc. Bench No. 12898 of 2011
- **Bench:** Devi Prasad Singh, D.K. Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandradev-ram-yadav-karaili-minister-small-scale-v-lokayukta-u-p-42125
- **Pages:** 8

## Headnote

Advocate Act, 1961-Section-30-Ban on
appearance
of
Advocate
before
uplokayukta-by virtue of notification dated
09.06.2011 provision of Section 30 of
Act-fully
applicable
denial
by
up
Lokayukta-held-not proper-person facing
enquiry has right to appear through
Counsel.

Held: Para 17

To the extent above, there appears to be
no room of doubt that in view of the
notification of the Government of India,
the Advocates have right to appear
before the Lokayukta. However, the
appearance of Advocates does not mean
that the person against whom the
investigation is pending, has got right to
represent the cause only through the
counsel. The Lokayukta has got right to
call for and ensure personal appearance
of
person
against
whom
the
investigation is pending, and to pass
appropriate order in compliance of the
statutory provisions during the course of
investigation. However, the Lokayukta
may not restrain the Advocates from
appearing before him/her to contest the
cause
of
a
person
against
whom
investigation is pending under the Act.

## Text

316 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
accordance with law and in the light of the
observations made above.

(C) The Educational Authorities are
also directed not to obstruct the process of
selection and appointment on Class-IV
posts in Secondary Educational Institutions
only on the basis of Para 2 of G.O. Dated
06.01.2011.

69. The Writ Petition No. 45708 of
2011
is
disposed
of
directing
the
competent educational authorities to pass
appropriate order on the matter of approval
on
selections
made
in
educational
institutions concerned for appointment on
Class-IV posts expeditiously and in any
case within a period of one month from the
date of production of a certified copy of
this order.

70. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE D.K. UPADHYAYA,J.

Misc. Bench No. 12898 of 2011

Chandradev Ram Yadav(Karaili)Minister
Small Scale

 ...Petitioner
Versus
Lokayukta U P 14 B Mall Avenue Lal
Bahadur Shastri Marg
 ...Respondents

Counsel for the Petitioner:
Sri Anupam Mehrotra

Advocate Act, 1961-Section-30-Ban on
appearance
of
Advocate
before
uplokayukta-by virtue of notification dated
09.06.2011 provision of Section 30 of
Act-fully
applicable
denial
by
up
Lokayukta-held-not proper-person facing
enquiry has right to appear through
Counsel.

Held: Para 17

To the extent above, there appears to be
no room of doubt that in view of the
notification of the Government of India,
the Advocates have right to appear
before the Lokayukta. However, the
appearance of Advocates does not mean
that the person against whom the
investigation is pending, has got right to
represent the cause only through the
counsel. The Lokayukta has got right to
call for and ensure personal appearance
of
person
against
whom
the
investigation is pending, and to pass
appropriate order in compliance of the
statutory provisions during the course of
investigation. However, the Lokayukta
may not restrain the Advocates from
appearing before him/her to contest the
cause
of
a
person
against
whom
investigation is pending under the Act.

(Delivered by Hon'ble Devi Prasad singh, J.)

1. Present writ petition under Article
226 of the Constitution of India has been
preferred feeling aggrieved with the
respondent Lokayukta in not permitting
an Advocate to appear and contest the
pending investigation under Lokayukta
and Uplokayukta Act, 1975 (in short the
Lokayukta Act).

2. Sri Anupam Mehrotra learned
counsel for the petitioner submits that in
view of notification dated 9.6.2011,
issued by the Central Government, under
Section 30 of the Advocates Act, 1961,
the Advocates may appear before the
Lokayukta
also
apart
from
other
authorities where the evidence is recorded
during the course of a proceeding.
1 All] Chandradev Ram Yadav (Karaili) Minister Small Scale V. Lokayukta U.P.
317

3. The petitioner, who is a Former
Cabinet Minister of the State of U.P., is
facing investigation before the Lokayukta
of the State with regard to certain
misconduct
alleged
to
have
been
committed by him while discharging
obligation as Cabinet Minister of the State
of
U.P.
During
the
course
of
investigation, the petitioner tried to
defend his cause through an Advocate but
it was declined by the Lokayukta. Hence,
the present writ petition has been
preferred.

4. Apart from claiming relief in the
nature of mandamus to permit an
Advocate to appear and defend the
petitioner's cause before the Lokayukta, a
prayer has also been made that the
pending proceeding before the Lokayukta
suffers from lack of jurisdiction hence it
be set aside.

5. So far as the petitioner's prayer to
quash
the
proceeding
before
the
Lokayukta is concerned, we are of the
view that it is always open to petitioner to
approach the Lokayukta with regard to
alleged illegality on which the Lokayukta
may record his finding in accordance with
law. However, the argument advanced by
the petitioner's counsel to the effect that
an Advocate is entitled to appear before
the Lokayukta, requires consideration.
Accordingly,
we
entertain
the
writ
petition and record our finding to the
limited extent with regard to right of
Advocates
to
appear
before
the
Lokayukta.

6. The Lokayukta is appointed under
Section 3 of the Lokayukta Act for the
purpose
of
conducting
investigation
relating to a complaint of citizen. The
power conferred on the State Government
to appoint the Lokayukta, has been
provided
under
Section
3
of
the
Lokayukta Act which provides that the
Lokayukta shall be appointed after
consultation with the Chief Justice of the
High Court of Judicature at Allahabad and
the leader of the Opposition in the
Legislative Assembly, and if there be no
such Leader a person elected in this
behalf by the members of the Opposition
in that House in such manner as the
Speaker may direct.

7. Section 7 of the Lokayukta Act
deals with the matters which may be
investigated
by
Lokayukta
or
UpLokayukta. For convenience, Section 7 is
reproduced as under:

7.Matters
which
may
be
investigated by Lokayukta or UpLokayukta--

(1) Subject to the provisions of this
Act and on a complaint involving a
grievance or an allegation being made in
that
behalf,
the
Lokayukta
may
investigate any action which is taken by,
or with the general or specific approval
of,--

i) a Minister or a Secretary; and

(ii) any public servant referred to in
sub-clause (ii) or sub-clause (iv) of

clause (j) of Section 2; or

(iii) any other public servant being a
public servant of a class or sub-class of
public servants notified by the State
Government in consultation with the
Lokayukta in this behalf.

(2) Subject to the provisions of this
Act and on a complaint a grievance or an
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
allegation being made in that behalf, an
Up-Lokayukta may investigate any action
which is taken by or with the general or
specific approval of any public servant
not being a Minister, Secretary or other
public servant referred to in sub-section
(1).

(3)
Notwithstanding
anything
contained
in
sub-section
(2),
the
Lokayukta may, for reasons to be
recorded in writing, investigate any action
which may be investigated by an UpLokayukta under that sub-section.

(4) Where two
or more
UpLokayuktas are appointed under this Act,
the Lokayukta may, by general or special
order, assign to each of them matters
which may be investigated by them under
this Act:

Provided that no investigation made
by an Up-Lokayukta under this Act and
no action taken or thing done by him in
respect of such investigation shall be open
to question on the ground only that such
investigation related to a matter which is
not assigned to him by such order."

8. A plain reading of the aforesaid
provisions,
reveals
that
subject
to
provisions of the Act, on a complaint
involving a grievance or an allegation
being made in that behalf, the Lokayukta
may investigate and recommend to
Government.

9. Section 8 of the Lokayukta Act
provides that Lokayukta/Up-Lokayuktas
shall not conduct any investigation except
on a complaint made under and in
accordance with Section 9 of the
Lokayukta Act. Section 9 contains to the
provisions with regard to complaints. For
convenience, Section 9 is reproduced as
under:

9.
Provisions
relating
to
complaints--(1) Subject to the provisions
of this Act, a complaint may be made
under this Act to the Lokayukta or an UpLokayukta--

(a) in the case of a grievance, by the
person aggrieved;

(b) in the case of an allegation, by
any person other than a public servant;

Provided that, where the person
aggrieved is dead or is for any reason
unable to act for himself, the complaint
may be made by any person who in law
represents his estate or, as the case may
be, by any person who is authorised by
him in this behalf:

[Provided further that in the case of a
grievance involving a complaint referred
to in sub-clause (ii) of clause (d) of
Section 2, the complaint may be made
also by an organization recognised in that
behalf by the State Government.]

(2)
Every
complaint
shall
be
accompanied by the complainants' own
affidavit in support thereof and also
affidavits of all persons from whom he
claims to have received information of
facts relating to the accusation, verified
before a notary, together with all
documents in his possession or power
pertaining to the accusation.

(3) Every complaint and affidavit
under this section as well as any schedule
or annexure thereto shall be verified in the
manner laid down in the Code of Civil
1 All] Chandradev Ram Yadav (Karaili) Minister Small Scale V. Lokayukta U.P.
319
Procedure, 1908, for the verification of
pleadings and affidavits respectively.

(4) Not less than three copies of the
complaint as well as of each of its
annexures shall be submitted by the
complainant.

(5) A complaint which does not
comply with any of the foregoing
provisions shall not be entertained.

(6)
Notwithstanding
anything,
contained in sub-sections (1) to (5), or in
any other enactment, any letter written to
the Lokayukta or Up-Lokayukta by a
person in police custody, or in a gaol or in
any asylum or other place for insane
persons, shall be forwarded to the
addressee unopened and without delay by
the Police Officer or other persons in
charge of such gaol, asylum or other
place,
and
the
Lokayukta
or
UpLokayukta, as the case may be, may
entertain it and treat it as a complaint, but
no action in respect of such complaint
shall be taken unless it is accompanied or
subsequently supported by an affidavit
under sub-section (2)."

10. Keeping in view the provisions
contained in sub-section (2) of Section 9
read with sub-section (5) of Section 9,
condition precedent for Lokayukta to
exercise jurisdiction is that the complaint
must
be
filed
accompanied
by
complainant's own affidavit in support
thereof along with the affidavit of all
other persons from whom, he claims to
have received information disclosing the
facts relating to accusation. The affidavit
should be verified before a Notary
together with all documents in possession
of the complainant and should be duly
verified in accordance with provisions
contained in the Code of Civil Procedure.
Lokayukta cannot proceed unless the
complainant complies with the provisions
contained in sub-section (2), (3) and (4) of
Section 9 of the Act subject to exception
provided in sub-section (6) of Section 9 of
the Act. The provisions contained in
Section 9 of the Act being procedural in
nature, hence in the event of noncompliance of statutory requirement the
Lokayukta may direct the complainant to
furnish affidavit in terms of provisions
contained in sub-section (2) and (3) of
Section 9 of the Act, before proceeding
with the investigation.

11. The procedure with regard to
investigation by Lokayukta has been
provided under Section 10 of the
Lokayukta Act. For convenience, Section
10 is reproduced as under:

10.
Procedure
in
respect
of
investigations--(1)
Whether
the
Lokayukta or an Up-Lokayukta proposes
(after making such preliminary inquiry, if
any, as he deems fit) to conduct any
investigation under this Act, he--

(a) shall forward a copy of the
complaint to the public servant concerned
and the competent authority concerned;

(b) shall afford to the public servant
concerned an opportunity to offer his
comments on such complaint; and

(c)may make such orders as to the
safe custody of documents relevant to the
investigation as he deems fit.

(2) Every such investigation shall be
conducted in private, and in particular, the
identity of the complainant and of the
public
servant
affected
by
the
320 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
investigation shall not be disclosed to the
public or the press whether before, during
or after the investigation:

Provided that, the Lokayukta or an
Up-Lokayukta
may
conduct
any
investigation relating to a matter of
definite public importance in public, if he,
for reasons to be recorded in writing,
thinks fit to do so.

(3) Save as aforesaid, the procedure
for conducting any such investigation
shall be such as the Lokayukta or, as the
case may be, the Up-Lokayukta considers
appropriate in the circumstances of the
case.

(4) The Lokayukta or an UpLokayukta may, in his discretion, refuse
to investigate or cease to investigate any
complaint involving a grievance or, an
allegation, if in his opinion--

(a) the complaint is frivolous or
vexatious, or is not made in good faith; or

(b) there are no sufficient grounds for
investigating or, as the case may be, for
continuing the investigation, or

(c) other remedies are available to
the complainant and in the circumstances
of the case it would be more proper for
the complainant to avail of such remedies.

(5) In any case where the Lokayukta
or an Up-Lokayukta decides not to
entertain a complaint or to discontinue
any
investigation
in
respect
of
a
complaint, he shall record his reasons
therefor and communicate the same to the
complainant and the public servant
concerned.

(6) The conduct of an investigation
under this Act in respect of any action
shall not affect such action, or any power
or duty of any public servant to take
further action with respect to any matter
subject to the investigation."

12. A plain reading of Section 10
reveals that Lokayukta or Up-Lokayukta
may conduct any investigation under the
Lokayukta Act and for the purpose, shall
forward a copy of the complaint to the
public
servant
and
the
competent
authority concerned. The Lokayukta may
make such orders as to the safe custody of
documents relevant to the investigation as
he deems fit. It shall be obligatory on the
part
of
the
Lokayukta
that
the
investigation may be conducted in private,
and in particular, the identity of the
complainant and of the public servant
affected by the investigation, shall not be
disclosed to the public or the press
whether before, during or after the
investigation. However, proviso (2) of
Section
10
further
provides
that
Lokayukta or an Up-Lokayukta may
conduct any investigation relating to a
matter of definite public importance in
public, if he, for reasons to be recorded in
writing, thinks fit to do so. Accordingly, it
appears that ordinarily, the investigation
conducted by the Lokayukta shall be in
private without disclosing identity of
complainant or the public servant to the
people. However, in appropriate cases for
the reasons to be recorded, the Lokayukta
or Up-Lokayukta may conduct any
investigation of public importance in
public. But while holding an investigation
in public, it shall be obligatory on the part
of the Lokayukta to record its reason for
going in public.
1 All] Chandradev Ram Yadav (Karaili) Minister Small Scale V. Lokayukta U.P.
321

13. Section 11 of the Lokayukta Act
further empowers the Lokayukta to record
evidence. Sub-section (2) of Section 11,
provides
that
Lokayukta
or
UpLokayuktas shall have powers of a Civil
Court while trying a suit under the Code
of Civil Procedure, 1908, for summoning
and enforcing the attendance of any
person and examining him on oath,
requiring the discovery and production of
any document, receiving evidence on
affidavits,
requisitioning
any
public
record or copy thereof from any Court or
office, and issuing commission for the
examination of witnesses or documents.
Sub-section (3) of Section 11 provides
that any proceeding before the Lokayukta
or an Up-Lokayukta shall be deemed to
be a judicial proceeding within the
meaning of Section 193 of the Indian
Penal Code. For convenience, Section 11
is reproduced as under:

"11. Evidence--(1) Subject to the
provisions of this section, for the purpose
of
any
investigation
(including
the
preliminary inquiry, if any, before such
investigation)
under
this
Act,
the
Lokayukta or an Up-Lokayukta may
require any public servant or any other
person who in his opinion is able to
furnish information or produce documents
relevant to the investigation to furnish any
such information or produce any such
documents.

(2) For the purpose of any such
investigation (including the preliminary
enquiry) the Lokayukta or an UpLokayukta shall have all the powers of a
Civil Court while trying a suit under the
Code of Civil Procedure, 1908 (Central
Act No.5 of 1908), in respect of the
following matters, namely:

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b) requiring the discovery and
production of any document;

(c) receiving evidence on affidavits;

(d) requiring any public record or
copy thereof from any Court or office;

(e) issuing commission for the
examination of witnesses or documents;

(f) such other matters as may be
prescribed.

(3) Any proceeding before the
Lokayukta or an Up-Lokayukta shall be
deemed to be a judicial proceeding within
the meaning of Section 193 of the Indian
Penal Code (Central Act No.45 of 1860).

(4) Subject to the provisions of subsection (5), no obligation to maintain
secrecy or other restriction upon the
disclosure of information obtained by or
furnished to the State Government or any
public servant, whether imposed by any
enactment or by any rule of law, shall
apply to the disclosure of information for
the purpose of any investigation under
this Act and the State Government or any
public servant shall not be entitled in
relation to any such investigation to any
such privilege in respect of the production
of documents or the giving of evidence as
is allowed by any enactment or by any
rule of law in legal proceedings.

(5) No person shall be required or
authorised by virtue of this Act to furnish
any such information or answer any such
322 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
question or produce so much of any
document--

(a) as might prejudice the security of
the State or the defence or international
relations of India (including India's
relations with the Government of any
other country or with any international
organisation), or the investigation of
detection of crime; or

(b) as might involve the disclosure of
proceedings of the Cabinet of the State
Government or any Committee of that
Cabinet.

and for the purpose of this subsection a certificate issued by the Chief
Secretary certifying that any information,
answer or portion of a document is of the
nature specified in clause (a) or clause (b),
shall be binding and conclusive.

(6) Subject to the provisions of subsection (4), no person shall be compelled
for the purpose of investigation under this
Act to give any evidence or produce any
document which he could not be
compelled
to
give
or
produce
in
proceedings before a Court."

14. While making submission with
regard to right of Advocates to appear
before the Lokayukta, Sri Anupam
Mehrotra learned counsel invited attention
to the fact that the proceeding pending
before
the
Lokayukta
is
judicial
proceeding where evidence is recorded
and a person is examined on oath.
Accordingly, relying upon Section 30 of
Advocates Act, 1961, it has been stated
by the petitioner's counsel that being a
judicial proceeding or even if Lokayukta
is Tribunal or authority authority having
right to record evidence, Advocates shall
have
right
to
appear
before
the
Lokayukta. Section 30 of the Advocates
Act, 1961 is reproduced as under:

"30. Right of advocates to practice-
-Subject to the provisions of this Act,
every advocate whose name is entered in
the (State roll] shall be entitled as of right
to practice throughout the territories to
which this Act extends.--

(I) in all courts including the
Supreme Court;

(ii) before any tribunal or person
legally authorised to take evidence and

(iii) before any other authority or
person before whom such advocate is by
or under any law for the time being in
force entitled to practice."

15. The Government of India,
Ministry of Law and Justice has issued
notification dated 9.6.2011. According to
the notification as published in Lucknow
Law Times Vol. LII, Issue 10, October
25, 2011 provides that in exercise of
powers conferred by sub-section 3 (ii), of
Section 1 of the Advocates Act, 1961 (25
of 1961), the Central Government hereby
appoints the 15th day of June, 2011 as the
date on which Section 30 of the said Act
shall come into force. For convenience,
the
notification
dated
9.6.2011
is
reproduced as under:

"[409] Ministry of Law and Justice
(Deptt. of Legal Affairs), Noti. No.S.O.
1349 (E), dated June 9, 2011, published
in the Gazette of India, Extra., Part II,
Section 3 (ii), dated 9th June, 2011, p. 1,
No.1139
[F.No.8(5)/88-IC]
1 All Vinod Kumar Sharma V. State of U.P. and others
323

In exercise of powers conferred by
sub-section 3 (ii), of Section 1 of the
Advocates Act, 1961 (25 of 1961), the
Central Government hereby appoints the
15th day of June, 2011 as the date on
which Section 30 of the said Act shall
come into force."

16. Number of cases cited by the
learned counsel for the petitioner, need
not be considered keeping in view the fact
that Union of India has issued notification
making Section 30 operative from the
15th day of June, 2011. Section 30 of the
Advocates Act confers on Advocates the
right to practise throughout the territories
to which the Act extends. Thus, in all
courts including Hon'ble Supreme Court,
Advocates have right to appear and
practise and represent the cause of
litigants. Under Clause (2) of Section 30,
the Advocates have got further right to
appear before any Tribunal or person
legally authorised to check the evidence.
Undoubtedly, the Lokayukta has got
power to take evidence keeping in view
the statutory provisions contained in the
Act. Accordingly, the Advocates have
right to appear before the Lokayukta in
view of the notification issued by the
Union of India (supra).

17. To the extent above, there
appears to be no room of doubt that in
view
of
the
notification
of
the
Government of India, the Advocates have
right to appear before the Lokayukta.
However, the appearance of Advocates
does not mean that the person against
whom the investigation is pending, has
got right to represent the cause only
through the counsel. The Lokayukta has
got right to call for and ensure personal
appearance of person against whom the
investigation is pending, and to pass
appropriate order in compliance of the
statutory provisions during the course of
investigation. However, the Lokayukta
may not restrain the Advocates from
appearing before him/her to contest the
cause
of
a
person
against
whom
investigation is pending under the Act.

18. To the extent as above, the writ
petition is allowed. Subject to the order
passed
by
the
Lokayukta
and
in
compliance of statutory provisions, the
petitioner may be represented by the
Advocate before the Lokayukta of the
State of U.P. during the pendency of
investigation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE DINESH GUPTA,J.

Civil Misc. Writ Petition No. 15112 of 2002

Vinod Kumar Sharma

 ...Petitioner
Versus
State
of
U.P.
Thru'
Secy.
Rural
Development and others ...Respondents

Counsel for the Petitioner:
Sri Anshu Chowdhary

Counsel for the Respondents:
Sri Yogendra Kumar Yadav
C.S.C.

Constitution
of
India,
Article
226Recovery of excess payment consequent
to cancellation of promotional paywithout
opportunity
of
hearing
to
petitioner-on ground the C.D.O. Was not
empowered-undisputed-that
petitioner
completed 14 years regular service-no
quarrel regarding entitlement of 1st P.P.
After completing 14 years Service-if
C.D.O. Not empowered commissioner