Devi Prasad Singh, J.@mdashThe important question involved, affecting the public at large in the present petition relates to interpretation of word ''MAFIA''. Who can be termed as ''MAFIA''? Whether the persons who are associates of ''MAFIA can also be denied the access to Government contract in view of the Government Order in question or otherwise?
2. In these two writ petitions, since, common question of law and facts are involved, hence, they are taken up simultaneously. Writ Petition No.5018 (MS) of 2005 shall be the leading writ petition and the factual dispute of said writ petition have been discussed hereinafter in detail for the purpose of adjudication of question raised by the petitioner''s counsel. According to petitioner''s counsel, the private respondent No.3 of Writ Petition No.5018 (MS) of 2005 and private respondent No.4 of Writ Petition No.5153 (MS) of 2005 are the associates of ''MAFW and they should not have been awarded the mining lease for the excavation of sand on account of bar created by Government Order dated 6.10.2004, a copy of which has been filed as Annexure6 to the Writ Petition No.5018 (MS) of 2005 (in Writ Petition No.5153 (MS) of 2005, the same Government Order has been filed as Annexure No.3).
BRIEF FACTS
3. The brief facts of the case are that in pursuance to provision contained in The Mines and Minerals (Regulation and Development) Act, 1957 (in short hereinafter referred as the Act) read with provision contained in U.P. Minor and Mineral (Concession Rule 1963) (in short hereinafter referred as the Rule) as amended from time to time the District Magistrate, Bahraich had invited application for grant of lease from the eligible persons for mining works to excavate sand in District Bahraich. A notice was accordingly published by District Magistrate, Bahraich by memorandum dated 6.11.2004, a copy of which has been filed as Annexure3 to the writ petition. The interested persons were directed to submit an application in prescribed format between 8.12.2004 to 16.12.2004. The publication further provides that those who are interested to avail preferential treatment on account of their hereditary occupation should submit a certificate in MM Form 14 issued by District Magistrate of the District. According to petitioner he belongs to ''Nishad'' community and accordingly he was entitled to avail preferential treatment in grant of lease for excavation of sand. Petitioner had submitted an application dated 8.12.2004 alongwith MM Form 14 claiming preferential. treatment for grant of lease relating to mining work to excavate sand. A copy of the petitioner''s application has been filed as Annexure4 to the writ petition.
4. With intention to check the interference of criminals, antisocial elements and ''MAFIA'' in the mining works the State Government had issue a Government Order dated 16.10.2004 in pursuance to power conferred by the Act and the Rule. By Government Order dated 16.10.2004 the State Government had provided certain procedure to be adopted for grant of mining lease making it as part of Rule 9 and Rule 10. Accordingly procedure adopted by Government Order dated 16.10.2004 seems to have got statutory force. The provision relevant for the adjudication of present controversy is reproduced as under:
5. While filing the application dated 8.12.2004 (Annexure4) petitioner had also submitted a character certificate to indicate that no criminal case is pending against him. A copy of the certificate has been filed as Annexure No. 5 to the writ petition.
It has been submitted by petitioner''s counsel and also pleaded in Para 9 of the writ petition that only two persons have submitted applications for the grant of mining lease to excavate the sand in pursuance to notification dated 6.11.2004 i.e. the petitioner and the respondent No. 3. The applications of the petitioner visavis respondent No. 3 ought to have been considered in pursuance to Rule 9 of the Rules. On getting smell that the district authorities may favour the respondent No.3 for political reasons petitioner had submitted a representation dated 23.3.2005 to District Magistrate, Bahraich with the prayer that he may be given preferential treatment for grant of mining lease to excavate sand from Gata No. 1651. It has also been submitted by petitioner in his application dated 23.3.2005 that the respondent No.3 is the servant of local ''MAFIA and accordingly, he is not entitled to get the mining lease in view of Government Order dated 6.1 0.2004, a copy of petitioner''s application dated 23.3.2005 has been filed as Annexure7 to the writ petition. After receipt of petitioner''s application dated 1 6.1 0.2004 the District Magistrate, Bahraich had constituted a Committee consisting of Deputy Collector Tehsil Qaiserganj. Deputy S.P. Tehsil Qaiserganj. and Nayab Tehsildar Survey Bharaich to find out whether the respondent No.3 is ''MAFIA'' or has got any relationship with the local sand ''MAFIA. The Committee so constituted by the District Magistrate, Bahraich had after providing reasonable opportunity of hearing to the parties had submitted its report dated 5.3.2005 (Annexure8) with the finding that respondent No 3 Shri Ram Pal of Writ Petition No. 501 8 (MS) of 2005 and respondent No.4 Sri Aslam Khan of Writ Petition No. 51 53 (MS) of 2005 and some other persons who had applied for grant of mining lease to excavate sand were either servant or relative having close association with the local ''MAFIA'' Shri Khalid Khan S/O Nizamuddin Khan. The finding has been recorded by the Committee to the effect that private respondents of these two writ petitions alongwith others have got no source of livelihood to repay the mining rent. It has also been recorded by the Committee that it was Mohd. Khalid Khan who has directly been involved in sponsoring the private respondents of these two writ petitions and applied for the mining lease after providing necessary financial aid and facilities. Categorical finding has been given that Shri Aslam is the cousin brother of Mohd. Khalid Khan and. Ram Pal is his servant and has been engaged as labour. Ram Pal has got no landed property and he is the tractor driver of Mohd. Khalid Khan.
6. The sum and substance of the finding recorded by the Committee is that virtually it is Mohd. Khalid Khan, having criminal antecedents behind the private respondents and several other persons to get the mining works in district Bahraich. Entire infrastructure and sponsorship has been said to be provided by Mohd. Khalid Khan, the Committee has also given a finding that against Mohd. Khalid Khan outstanding dues of Rs.96 Lakhs pending for payment in lieu of mining lease and for the recovery of said amount recovery certificates were issued by the district authorities. An FIR has also been lodged against Mohd. Khalid Khan as Crime No.209 of 2002 and 379/411 under various sections of Indian Penal Code and under Section 3/57 of the Mines and Minerals Act. Entire sponsorship has been said to be provided by Mohd. Khalid Khan as he could not get contract in his name on account of bar created by Government Order. It has been submitted by petitioner''s counsel that inspite of finding recorded by the Committee lease for mining work was given to respondent No.3 by district authorities by impugned order dated 8.2.2005 which has been upheld by Government by the revisional order dated 15th July 2005. It has been pleaded in Para 15 of the writ petition that one Shri Ram Tej Yadav who is the former MLA of Qaiserganj and District President of Samajwadi Party has sent recommendation to Minister of Mines and Minerals. Government of U.P. to grant mining lease to respondent No.3. A copy of letter has been filed as Annexure 9 to the writ petition. While recommending for grant of mining lease to respondent No.3 it has been stated by former MLA of Samajwadi Party that respondent No.3 Ram Pal is the member of Samajwadi Party. The averment contained in Para 15 of the writ petition has been not denied categorically by respondent No.3 while filing the counter affidavit. It has been admitted in Para 16 of the counter affidavit by respondent No.3 that though a letter was given by former MLA and the District President of Samajwadi Party Shri Ram Tej Yadav recommending for grant of mining lease to respondent No.3 but the lease was granted on account of fact that he fulfils all necessary pre requisites for the grant of lease.
It has been submitted that when inspite of Committee''s report the mining lease was granted to respondent No.3, petitioner of these two writ petitions have filed a Writ Petition No.2952 (MB) of 2005 and Writ Petition No.2861 (MB) of 2005. Initially by interim order dated 9.5.2005 a Division Bench of this Court had restrained the private respondents to proceed with the mining work but later on writ petition was disposed of finally by judgment and order dated 27.5.2005 directing the petitioner to avail alternative remedy to approach the State Government against the decision taken by the District Magistrate. However, the Division Bench of this Court had restrained the private respondents to proceed with the mining work till disposal of matter by the State Government. A copy of judgment and order dated 27.5.2005 has been filed as Annexure12 to the writ petition.
7. Under the Rule 6 of the U.P. Minor Mineral (Concession Rule), 1963, the application filed by a person for grant of mining lease or permit should also be accompanied by a character certificate. The purpose is not to permit a person to get a mining lease having criminal antecedent. My attention has been invited by petitioner''s counsel towards the character certificate issued by the Superintendent of Police, Bahraich dated 25.11.2004 a copy of which has been filed as Annexure SA1 to the Supplementary affidavit. The column relating to the criminal antecedent of the private respondents has been crossed with the inevitable inference that no criminal case has been pending against Shri Ram Pal. The certificate issued by the Superintendent of Police, Bahraich has been countersigned by the district authorities. During the course of argument it was submitted by Mohd. Arif Khan, learned counsel for the private respondents that in one case police has submitted a final report but the other criminal case was pending at the time when the character certificate was issued. The factum relating to the pendency of criminal case has also been disclosed in the Committee''s report dated 5.3.2005. It is unfortunate that district authorities had issued a character certificate containing unfounded facts and tried to conceal the involvement of respondent No.3 of Writ Petition No.5018 of 2005 (MS) in two criminal cases. In both the cases Mohd. Khalid Khan is coaccused. After receipt of a report of Committee dated 5.3.2005 a show cause notice was issued by District Magistrate, Bahraich on 21st March 2005. In response to show cause notice the opposite party No.3 Ram Pal had submitted a reply dated 19th April, 2005, a copy of which has been filed as AnnexureRA3 to the writ petition. However, admittedly, no written order was communicated by the District Magistrate, Bahraich or any other competent authority to petitioner visavis opposite party No.3 relating to the outcome of exercise done in pursuance to report of Committee by which respondent No.3 has been declared to be an associate of local sand ''Mafia''.
8. Relating to the pendency of criminal cases against the respondent No.3 there is no categorical denial by the respondents. While filing counter affidavit on behalf of State Shri Umesh Chandra Mishra Assistant Geologist Collectorate Bahraich had categorically submitted in para 13 of the counter affidavit that respondent No.3 lacks any criminal history.
For convenience Para 13 of the counter affidavit filed by the Umesh Chandra Mishra is reproduced as under:
"That the contents of Para 12 of the writ petition are admitted that the opposite party No.3 belongs to socially and educationally backward caste of Mallah and in the Government Order dated 16.10.2004 in Paras VII and XVI the true copy of which has been file as Annexure6 to the writ petition it has been provided by the State Government to not to grant the mining leases to the persons who are ''Mafia''s, criminals and indulge in illegal activities and for the aforesaid purposes it will be necessary to file a current character certificate issued by the District Magistrate. But the rest of the contents of para under reply as alleged are wrong and denied. It is further stated that the opposite party No.3 is neither a "Mafia" nor have been found anytime indulge in criminal and illegal activities. He had been a lease holder of Minor Mineral. He always deposited the dues and never indulged in illegal mining. He also submitted the character certificate dated 2.12.2004 issued by the District Magistrate on the basis of report dated 25.11.2004 of the Superintendent of Police, Bahraich. He has neither any criminal history nor has been found to be indulged in illegal activities violating the law and order. There has been no material to substantiate that he has any connections with Mr. Khaiid Khan."
9. Opposite party No.3 while submitting supplementary counter affidavit in response to supplementary affidavit filed by the petitioner relating to criminal antecedent submitted that in case under Crime No.862 of 1988 the police has submitted a final report on 31st March 1999 but no averment has been made as to whether the final report has been accepted by competent Court. However, there is no denial relating to the pendency of other criminal cases referred hereinabove.
10. It was submitted by the petitioner''s counsel that a false affidavit was filed by the respondents'' State while submitting reply in the writ petition. Accordingly, the then District Magistrate as well as Senior Superintendent of Police was directed to file an affidavit. Initially, while filing the counter affidavit it was submitted by the State that no criminal case was pending against Shri Ram Pal. However, when this Court had directed the District Magistrate and Senior Superintendent of Police to file their personalaffidavit, the then Senior Superintendent of Police Bahraich Shri Malkhan Singh Yadav while filing an affidavit dated 10.11.2005 submitted that he has signed "No Objection Certificate" believing the report submitted by Shri G.P Arya, Deputy Superintendent of Police, Bahraich. In Para (4) it has been submitted by Shri Malkhan Singh Yadav, Superintendent of Police Bahraich that Shri G.P. Arya was not authorized to sign "No Objection Certificate". It was Shri Azizulhaq, Circle Officer who was authorized to sign the no objection certificate. Accordingly, it has been admitted that "No Objection Certificate" was issued on unfounded grounds by incompetent officer. While filing affidavit Shri Anurag Srivastava, the then District Magistrate, Bahraich had admitted in para 3 of the counter affidavit that two criminal cases were pending against Shri Khaiid Khan, out of which in one case police had submitted a final report. It has been admitted in para 5 of the counter affidavit by the then District Magistrate, Shri Anurag Srivastava that two criminal cases were also pending against Shri Ram Pal and in one case police had submitted a final report. Thus, at the face of record. "No Objection Certificate" issued by the then District Magistrate and Senior.Superintendent of Police. Bahraich were based on unfounded facts and is not sustainable under law.
11. The Enquiry Committee constituted by Sub District Magistrate while submitting its report dated 5.3.2005 had recorded a finding that Shri Ram Pal is the tractor driver of Mohd. Khalid Khan and Mohd. Aslam is the real cousin brother of Mohd. Khaiid Khan and has got no source of livelihood. It has been recorded by the Enquiry Committee that Shri Ram Pal as well as Mohd. Aslam, private respondents in these two writ petitions, do not have got their own source of income which may be sufficient to do mining work. They are the closed associates of Mohd. Khalid Khan. It is Mohd. Khalid Khan who had financed the private respondents of these two writ petitions to obtain mining lease under the political influence. The political influence is evident from undisputed fact that the letter written by the District President of Ruling Party to grant mining lease to Shri Ram Pal prompted District Magistrate, Bahraich to grant mining lease. From the material on record and under the facts and circumstances it can not be ruled out that because of political recommendation the mining lease was recommended to be granted to Sri Ram Pal.
12. Whenever mining lease are granted, it shall always be incumbent upon the contractor to make certain investments and pay instalments. Accordingly, to carry out the mining lease it shall always be necessary for the contractor to have a regular source of income. Nothing has been brought on record by the private respondents of these two writ petitions to disclose that they have got sufficient amount in the bank account to run the mining operation. It has also not been brought on record to show that they are income tax payee or they have sufficient earning resources from it they have collected certain fund for the purpose of mining lease.
STATUTORY PROVISIONS
13. While adjudicating the presentscontroversy it is necessary to consider certain statutory provisions relevant for the present controversy.
Section 2(j), 2(f) and 2(o) of the Mines Act 1952 defined the ''mines'' and ''minerals''. The Mines and Minerals (Regulations and Development) Act 1957 (in short hereinafter referred as the Act) and Rules framed thereunder laid down the procedure to find out the mining area and the procedure to grant lease or permit. Section 3(a) and 3(d) of the Act defines minerals and mining operation. Section 3(e) of the Act defines Minor Minerals. According to definition given in Section 3 (e) ordinary clay ordinary sand alongwith certain other things are covered by "minor minerals''. Section 3(f) andSection 3(b) defines prospecting licence and prospecting operations Section 3(hb) defines ''reconnaissance permit''. According to Section 4 of the Act the prospecting or mining operations can be done only under the licence or lease granted by the competent authority in accordance to law. Section 5 means ''restriction on the grant of prospecting licence of mining''. Section 7 provides ''period for which prospecting licences may be granted or renewed''. Section 8 deals with the period for mining lease. Section 11 deals with the preferential right of certain persons and also provides that application by minimum two persons shall be sufficient to proceed for grant of mining permit or lease. For convenience Section 11 is reproduced as under:
"11. Preferential right of certain person (1) Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licensee shall have a preferential right for obtaining a prospecting licence or mining lease as the case may be, in respect of that land over any other person:
Provided that the State Government is satisfied that the permit holder or the licensee, as the case may be
(a) has undertaken reconnaissance operations or prospecting operation, as the case may be, to establish mineral resources in such land;
(b) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;
(c) has not become ineligible under the provisions of this Act; and
(d) has not failed to apply for grand of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government.
(2) Subject to the provisions of subsection (1), where the State Government has not notified in the official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later.
Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the official Gazettee for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this subsection;
Provided further that where any such applications are received on the same day, the State Government, after taking into consideration the matter specified in subsection (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.
(3) The matters referred to in subsection (2) are the following
(a) any special knowledge of, or experience in, reconnaissance operation prospecting operations or mining operations, as the case may be. possessed by the applicant;
(b) the financial resources of the applicant:,
(c) the nature and quality of the technical staff employed or to be employed by the applicant:
(d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals;
(e) such other matters as may be prescribed.
(4) Subject to the provision of subsection (1). where the State Government notifies in the official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the application received during the period as specified in such notification, which shall not be less than thirty day, shall be considered simultaneously as if all such applications have been received on the same day and the State Government, after taking into consideration the maters specified in subsection (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.
(5) Notwithstanding anything contained in subsection (2), but subject to the provisions of subsection (1), the State Government may for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease, as the case may be, to an applicant whose application was received later in preference to an application whose application was received earlier;
Provided that in respect of mineral specified in the first Schedule, prior approval of the Central Government shall be obtained before passing any order under this subsection."
14. Section 13 empowers the Central Government to make rules in respect of mines and minerals. On the other hand, Section 15 empowers the State Government to make rules in respect of ''minor mineral''. Section 19 lay down that any mining lease or licence or prospecting licence granted in contravention of the act shall be void. For convenience Section 19 is reproduces as under:
"Prospecting licence and mining leases to be void if in contravention of Act Any [reconnaissance permit prospecting licence or mining lease] renewed, or acquired in contravention of the provisions of this act or any rules or orders made thereunder shall be void and of no effect."
15. Section 21 deals with the penalties. Section 23(c) deals with the power of State Government to make Rules for preventing illegal mining transportation and storage of minerals. Section 26 empowers the Central Government as well as State Government to delegate its power for discharging of duties under the Act. Under Section 30 Central Government has got revisional power.
16. In pursuance to power conferred by Section 15 of the Act State Government had framed Rules namely U.P. Minor Mineral (Concession) Rules 1963 (in short hereinafter referred as the Rule). According to Rule 3 the mining operation can be done only under the mining lease or permit granted by the competent authority in accordance to law. Under Rule 5 an application for grant or renewal of mining lease may be moved in Form MM1 and such application shall be entered into reaister called Form MM2. Rule 6 provides that an application should be accompanied by various documents including character certificate authenticated by district officer or all officer authorized by the State Government. For convenience Rule 6 is reproduced as under:
"Application fee and deposit for grant of mining lease (1) Every application for grant of a mining lease shall be accompanied by
(a) a fee one thousand rupees,
(b) a deposit of two thousand rupees for meet in the preliminary expenses, other than those specified in Rule 17, and
(c) four copies of the cadastral survey map on which the area applied for is clearly marked and in case such area is not covered by cadastral survey, four copies of topographical survey map on a scale at least 4� = 1 mile, on which the area applied for is accurately marked.
(d) A certificate, issued by the District Officer or by such officer as may be authorized by the District Officer in this behalf, showing that no mining dues are outstanding against the applicant.
''''Provided that further than such certificate shall not be required where the applicant has furnished an affidavit to the satisfaction of the State Government, stating that he does not hold or had not held any mining lease or any other mineral concession in the territory of the State.
(e) a certificate of caste and residence of the applicant, where the application is for mining lease of sand or morrum or bajri or boulder or any of these in mixed state.
(f) a character certificate given by the District Officer of the district, where the applicant permanently resides.
(2) If the application is not complete in any respect or is not accompanied by the fee deposit or the documents mentioned in subrule (1) the district Officer or the officer authorized by the State Government in this behalf, shall, by fifteen days notice require the applicant to complete the application in all respect or, to deposit the fee or furnish the documents within such time as may be specified in the notice and if the applicant to do so within the specified time such application shall not be considered.
6A. Application fee etc. for renewal of mining lease (1) An application for renewal of mining lease may be made atleast six months before the date of expiry of the mining lease along with four copies of the map of lease hold area showing clearly the area applied for renewal and the provisions of clause (a) and (d) of subrule (1) of Rule 6 shall/nutatis mutantis apply.
(2) The State Government may condone the delay caused in making the application for renewal of mining lease after the period specified in subrule (1)."
Rule 7 empowers the district officer to hold an enquiry to obtain an enquiry report. For convenience Rule 7 of the Rule is reproduced as under:
''7. Enquiry and report The District Officer shall, unless he is authorized to grant or renew the mining lease, cause an enquiry to be made into all relevant matters and, within two months from the date of receipt of application of mining lease, forward two copies of the application along with his report to the State Government or to such other authority as the State Government may have authorized in this behalf."
Rule 8 empowers the State Government to decide the application Rule 9 deals with the preferential right accruing to certain persons for grant of permit or lease.
17. A perusal of the Rule 9A at the face of record shows that preferential right accrue to the persons who belonging to Mallah or Nishad community. Undisputedly the petitioner belongs to Nishad community. For the purpose of preferential right a candidate should have submit a form in MM Form 14. Rule 9A categorically deals with preferential right, in respect of sand. For convenience Rule 9A is reproduced as under:
"9A. Preferential right of certain persons in respect of sand etc. Notwithstanding anything contained in Rule 9, in respect of mining lease for sand or Morrum or Bajri or Boulder or any of these in mixed state exclusively found in the river bed, preference shall be given in order as described below in each Category of the lands.
Category A In respect of land other than the land given in category B and C (1) to a person or group of persons, whether or not incorporated, who
(1) For the category of land, preference shall be given firstly according to clause (a), if any surplus land remains thereafter then according to provisions of clause (b).
(a) Various Corporation/Institutions of the State (excluding U.P. Forest Corporation Ltd.) for their own requirements in developments works.
Provided that they themselves or through Cooperative Society of the persons, as mentioned in clause (b) shall do the mining work.
(b) to a person or grup of persons, whether incorporated or not who belong to socially and educationally backward classes (such as Mallah. Ke Bind. Nishad. Manjhi. Batham. Khulwat. Tiyar Guadia. Godia and Kashyap and other such Castes) of citizens as notified by the State Government from time to time or Schedule Castes/Scheduled Tribes and who has obtained a certificate in form MM14 from the concerned District Officer or such other officer authorized in this regard by the State Government certifying that such person/persons is/are traditionally engaged in the excavation of sand/morrum for their livelihood and who are resident of the district for which the application for mining lease has been given situates and fulfill the conditions as mentioned in subrule (2) of Rule 9.
Provided that the preference under clause (b) shall be limited to the extent of fifty percent (50%) of the land available after allotment under clause (a) in any district,
(2) Where the applicants mentioned in clause (a) and (b) of subrule (1) have applied for mining lease in respect of same area, the applicant whose application was received earlier in their respective clause shall have the preferential right.
Provided that where such applications are received on the same day, the preference shall be decided in each clause in accordance with criteria laid down in subrule (2) of Rule 9.
Category B In respect of land in which the minerals vest in a person other than the Government
(3) For this category of land, preference shall be given firstly according to clause (a), if any surplus land remains thereafter, then according to provisions of calsue (b) or (c):
(i) Who possesses surface rights; or
(ii) Who obtained consent in writing of the holder of the lands; or
(iii) In the absence of the applications under clause (a) and (b), the applicant, who comes under subrule (1) in order of priority for the land of CategoryA.
Category C In respect of Forest Land
(4) For this category of land, preference shall be given firstly according to clause (a), if any surplus land remains thereafter then according to provisions of clause (b):
(a) Uttar Pradesh forest Corporation Ltd; or
(b) Any other company or Corporation owned or controlled by the State Government;
Provided that if the aforesaid categories of the applicants have not applied for grant of mining lease, then areas shall be granted in accordance with the procedure prescribed in Chapter IV of these Rules i.e. by way of Auction or Auction cum tender."
A perusal of Rule 9A also shows that preferential right accrues to the persons belonging to Nishad or Mallah community.
Rule 10 deals with the maximum area which may be given for mining purpose. Rule 23 relates to declaration of area for auction/tendor/auctioncumtendor lease. Grant of lease or execution of lease may be done in pursuance to provision contained in Rule 28 and 29 respectively. A register should be maintained in MM Form 7 under Rule 30.
An application for grant of mining permit for the mining mineral should be given in MM Form 8 under Rule 52. Such application should be disposed of in pursuance to Rule 53. While deciding an application for grant of mining permit under Rule 53A preferential right should be given in pursuance to provision contained in Rule 9A. For convenience Rule 53A is reproduced as under:
"53A. Preferential right of certain persons for grant of permitPreferential shall be given in respect of mining permit as per order mentioned in Rule 9A for different categories of land for Sand, Morrum, Bajari, Boulder or any of these found exclusively or in mixed state in the river bed."
The mining permit granted in accordance to Rule should be recorded in a register under the Rule 56. For unauthorized mining a person can be punished under Rule 57.
Rules referred hereinabove have got statutory force and their noncompliance shall render a mining lease or agreement invalid.
''MAFIA''AND ITS DEFINITION
18. The Government Order which creates bar for grant of mining lease or permit to ''Mafia'' does not define that who can be termed as ''Mafia''. It also does not provide as to whether the associates of ''Mafia'' can also be debarred from getting a mining lease or permit under the relevant rule. Parties counsel has also not brought the attention of this Court towards any known judgment in which the word ''Mafia'' have been defined. Hence, the arduous task to define the word ''Mafia'' and the relevant facts and circumstance under which a person can be termed as ''Mafia'' rests on the shoulder of this Court. To understand the implication and definition of word ''Mafia'' it is necessary to understand its origin by tracing out in its historical background.
HISTORY
From the material available on internet and submitted by parties'' counsel the emergence of ''Mafia'' in world history relates back to 19th century to a place Sicily situated in Italy. The Sicilian ''Mafia'' originates during the mid of 19th century and around the same time of the emergence of modern Italian state. It was by this time Italy has become sovereign country on account of industrialization and development of trade and improvement in lifestyle with the aid of immunities. The seed of Sicilian ''Mafia" was started to cultivate, especially around the city of "Palermo" virtually is the birth place of Sicilian "Mafia". Palermo was and still is the Centre of trade, commerce politics for the island of Sicily and that is why the ''Mafia'' had made its base. Palermo was the main source of exports and thus wealth of the island from which the ''Mafia'' sprung was the large estates of lemon and orange groves that rise from the walls of Palermo up into the hills surrounding the city.
19. We can infer that in the absence of effective law enforcing agency in a society the organized gang of criminals play dominant role to capture resources of livelihood. The developing country having element of capitalism lays down the foundation to generate ''Mafia''s in various financial spheres.
In Italy ''Mafia'' was initially involved in the protection of large estates of lemon and orange grove as land owners were in need of ''Mafia'' for their protection and ''Mafia'' were needing the landowners political connections to operate freely. According to belief in the ''Sect'' (as the ''Mafia'' was known in the 19th century), the ruling aristrocracy were also members in early days of Italian estate. There were two main power groups i.e. the land owners and the politicians who were often synonymous. However, on the sidelines lay the ''Mafia'', quietly infiltrating and corrupting both the wings. It is believed that the ''Mafia'' initiated the members of both other groups into its number.
During the Fascist period in Italy, one Cesare Mori and at later stage when organized effort was made to crush the ''Mafia''s many of the Mafiosi (associates of ''Mafia'') fled to United State of America. During the Second World War the United States of America had utilized the. Italian connection of the American Mafiosi to invade the Italy and Sicily in 1943.
20. "Mafia" did not become powerful in Italy again until the country surrender in the second World War. In the 1980s and 1990s. however, a series of internecine "gang wars" led to many prominent ''Mafia'' members in murder and in new generation of Mafiosi has placed more emphasis on "WhiteCollar" criminal activity as opposed to more traditional racketeering enterprises.
In Italy the "Mafia" has become so intermixed with the financial resources and political bodies and become so effective that former Italian Prime Minister. Giulio Andreotti stood judicially accused of relationships with ''Mafia''. However later on he was cleared because the trial was out of prescription period but ''Mafia''s connection with the political figures of Italy was never above the suspicions.
The ''Mafia'' who have migrated to United States had also emerged as powerful organization having say in various social political and financial activities. In the mid of 20th century ''Mafia'' so reputed infiltrated many labor unions in the United States including teamsters whose President Jimmy Hoffa disappeared and is believed to have been killed by the ''Mafia'' in 1980''s. The federal Government made a determined and successfully attempt to remove ''Mafia''s influence from labor unions by enacting and enforcing Racketeer Influenced and Corrupt Organizations Act of 1970 (in short hereinafter referred as the RICO Act).
As discussed hereinabove, the word ''Mafia'' had originated from Sicily in view of historical background.
21. In United States of America the ''Mafia'' who have migrated from Sicily.and became influential at initial stage in the New York City had gradually by progressing from small neighbourhood operations to citywide and eventually become international organizations. It is said that five families had dominated and identified as prominent ''Mafia''. ''Mafia'' in the underworld having long hands spreaded in the entire United States of America. Each family was controlled by Don who was insulated from actual operations by several layers of authority. According to popular belief, the Don''s closest and most trusted advisor was referred as the consigliere ("Counselor" in Italina). Known as the Honored Society among Mafiosi the chain of command is organized in a pyramid similar to a modern corporate structure as follows:
" ''Mafia'' structure
Known as the Honored Society among Mafiosi, the chain of command is organized in a pyramid similar to a modern corporate structure.
1. Capo di Tutti Capi (the "Boss of Bosses", currently Bernardo Provenzano for the Sicilian "Mafia": "Lucky" Macronese for the American ''Mafia'')
2. Capo di Capi Re (a title of respect given to a senior or retired member, equivalent to being a chairman emeritus).
3. Capo Crimini (A "Super Boss" known as a Don or "Godfather" of a crime family)
4. Capo Bastone (Known as the "Underboss" is second in command to the Capo Crimini).
5. Consigliere (Advisor)
6. Contabile (Financial Advisor)
7. Caporegime or Capodecina (A Lieutenant who commands a "crew" of around ten or more Sgarrista or "soldiers")
8. Sgarrista or Soldati ("Made" members of the "Mafia" who serve primarily as foot soldiers)
9. Picciotto (A low ranking member of the "Mafia" who serve as "Enforcers" or "button men")
10. Giovane D''Onore (An associate member of the "Mafia", usually a nonItalian or Sicilian)"
Mario Puzo in his famous celebrated Novel "the God Father" had immortalized structure of "Mafia". Though it is a fiction but is near to truth.
DEFINITION
22. The word "Mafia" describes a specific secret society in Sicily and their descendants in the USA, yet the word itself has no pinpointed historical birthplace. In the original Palermo dialect the word ''mafioso'' once meant ''beautiful'', ''bold'' or selfconfident''. Anyone who was worthy of being described as a mafioso therefore had a certain something, an intangible attribute called "Mafia". ''Cool'' is about the closest modern English equivalent; a Mafioso was someone who fancied himself. In fact it was the early Italian Government which attached specific criminal connotations to the word and turned it into a subject of national debate. It was following the Prefect of Palermo, Filippo Gualterio''s report to Rome in 1865, citing that "the socalled "Mafia" or criminal associations" had become more daring, that the word rapidly entered general usage as a descriptor of criminal activity. The ties in with the theory that the word "Mafia" in Palermo dialect, came from an Arabic word adopted during the Arab occupation of Sicily, ''Maafeyya'' meaning exempted.
Today, a member of the "Mafia" is a ''mafioso'', a ''manfias'', or, anglified, a ''man of honor''.
23. In Encyclopedia Britannica Volume (7) 15th Edition page 665. The word "Mafia" has been defined in a same manner as hereinabove. The hierarchical structure referred in the New Encyclopedia Britannica is same as given hereinabove. However, the word "Mafia" has been defined as under:
" ''Mafia'', hierarchically structured society of criminals of primarily Italian or Sicilian birth or extraction. The term applied to the traditional criminal organization in Sicily and also to a criminal organization in the United States."
In Oxford Advanced Learner''s Dictionary 7th Edition page 924 the word "Mafia" and ''Mafioso'' have been defined as under:
"Mafia" (1) a secret organization of criminals, that is active especially in Sicily, Italy and the US. (2) a group of people within an organization or a community who use their power to get advantages for themselves: a member of the local ''Mafia''."
Mafioso (1) a type of large thin book with a paper cover that you can buy every week or month containing articles, photographs, etc, often on a particular topic, a weekly/monthly magazine, a magazine article/interview, her designer clothes were from the pages of a glossy fashion magazine. (2) a radio or television program me that is about a particular topic, a regional news magazine on TV, a magazine programme/program (3) the part of a gun that holds the bullets before they are fired (4) a room or building where weapons, Explosives and bullets are stored".
In a text book "Comparative Criminology" Volume 2 written by Hermann Mannheim dealing with the sociology of crime under Chapter "associations in Crime" the word "Mafia" has been defined as an organized body to dominate and capture all enterprises to dominate the various financial fields. Relevant portion is reproduced as under:
"......According to him, the "Mafia" is not a secret society, but rather ''a habit of tackling all enterprises, great or small. In an indirect and underhand manner, by mediation, by recommendation, and other dubious forms of "influence" (p.65). While providing redress against evildoers, it also protects criminals against the law and encourages their crimes. Its origins lie in the resistance of Sicilians against oppression and corruption right from, the days of the Sicilians Vesper of 1282, but the organization itself seems to date from the time of the widely hated Bourbonic regime which was brought to an end by Garibaldi in 1860. Glimpses of this atmosphere can be caught from Guiseppe di Lampedusa''s famous novel The Leopard''. Guercio distinguishes two forms of "Mafia", the lower, concerned with largescale crimes against property, with blackmail, kidnapping, and murder as weapons to obtain its objects, and the higher, controlling politics, law, relations between landlords and tenants, with the aristocrats of the ''Mafia" frequently being prominent pillars of society. All this resembles the position in some parts of the United States, with the difference that there the power of gangster dom was built on bootlegging, drug traffic and gambling, whereas in Sicily its foundation was control of the land (p.66)."
24. As discussed hereinabove on account of Sicily''s endemic political corruption and misappropriation of European Commission Fund the "Mafia" had generated its strength perpetuating to hold having worldwide connection. Like the nobility, its roots are feudal. The "Mafia" remain invisible even in Italy unless closely watched it can not be experienced. The method of working of ''Mafia'' is unlike those of Japan''s Yakuza as it has got its own mythology. In truth the ''Mafia'' code is the antithesis of the code of Chivalry. In 70s the Italian Government as well as its judiciary has taken hard steps to curb the operation of "Mafia". It is believed that two of the Judges namely Giovanni Falcone and Paolo Borsellino were ordered to be killed by a famous mafia namely Toto Riina. The definition of "Mafia" given in 1979 by Cesare Terranova shall not be only tribute to that judicial officer who had sacrificed his life for the peoples of his country but virtually it gives practically experienced definition, which is reproduced as under:
''The "Mafia" is oppression, arrogance, greed, selfenrichment, power and hegemony above and against all others. It is not an abstract concept, or a state of mind, or a literary term........ It is a criminal organization regulated by unwritten but iron and inexorable rules.....The myth of a courageous and generous ''man of honor'' must be destroyed, because a Mafioso is just the opposite."
Cesare Terranova, Italian Magistrate murdered in 1979."
As discussed hereinabove leader of organized gang or "Mafia" always tends to perpetuate their organization from one generation to other. At initial stage such leaders (Don) directly indulge into criminal activities with the organization but at, later stage after developing full infrastructure of the organized crime they used to cover themselves under the mask of gentlemenship to avoid consistence police surveillance and threat of prosecution. Arrangements are being made to join the main stream of society to under cover criminal activities." We can have a glimpse of such actions in one other Novel of Mario Puzo namely "Last Don". However, such incident can be noticed in our society also where hardened criminals and leader of organized gang after earning plenty of unlawful wealth, money and prosperity had joined the political organization and other social organization as for their protection and recognition and achieved a status or high offices to protect themselves.
MAFIA IN INDIAN CONTEXT
25. During the course of hearing when the petitioner''s counsel raised a ground that private respondents are not entitled for mining contract as they are associates of Mafia then question cropped up who can be termed as Msafia or its associates. An affidavit was filed by Additional Director General of Police (Crime) Shri R.K. Tewari with a statement that the word Mafia has not been defined by the respondents in legal sense under the existing laws. However, various Government Orders including a circular issued by the Director General of Police dated 11.1.1993 was brought on record directing the police department to take appropriate action against the activities of mafia in the State of U.P. the copy of circular dated 11.1.1993 issued by Shri Prakash Singh, the then Director General of Police, U.P. has been filed as AnnexureCA2 to the affidavit dated 14.2.2005 sworned by Additional Director General of Police (Crime) filed alongwith application dated 15.12.2005 by the learned Chief Standing Counsel. In pursuance to order passed by this Court a meeting dated 7.12.2005 was convened by the Director General of "Police to consider and provide this Court a statement of account of the mafia activities. In the said meeting while considering the activities of Mafia in the State of U.P. a circular of Director General of Police dated 11.1.1993 was relied upon and reproduced. It has not been denied by the Director General of Police that activities of mafia in the State of U.P. is admitted fact as evident from outcome of meeting. A summary of which has been filed as AnnexureCA1 to the affidavit dated 14.12.2005 passed by the Additional Director General of Police (Crime). One of the major features which seems to come out from the said affidavit is that the police department does not maintain any record relating to the activities of Mafia or organized crime.
Relevant portion from the proceeding of said meeting (AnnexureCA1 to the affidavit dated 14.12.2005) is reproduced as under:
26. Being not satisfied with the statement placed on record by the State of U.P. with the consent of parties'' and in view of statement made at Bar Shri G.B.Pattanaik, Principal Secretary, Programme and Implementation Department, Government of U.P. was appointed as One Men Enquiry Committee to submit a report relating to Mafia and its activities in the State of U.P. He was directed to gather information not only from the various departments, local bodies and corporation of State of U.P. but also from the department of Central Government where contracts are given like Railways, National Highway etc. Shri G.B. Pattanaik, the Principal Secretary of the State Government after extensive consultation with various departments had submitted his report to this Court dated 26.4.2006, (in short hereinafter referred as ''Pattanaik Committee Report'') a copy of report was provided to State Government as well as Dr. Ashok Nigam, Additional Solicitor General of India to submit their response and also inform this Court as to what action the State or Union of India proposed to take against the Mafia activities. Additional Solicitor General of India has not submitted any reply or response to the notice of this Court though the copy of the report submitted by Shri G.B. Pattanaik was provided and notice was served.
27. Advocate General of State of U.P. has submitted a response and placed on record various notifications and Government Orders issued by the State of U.P. It has been stated that action has been taken by the Department of Geology and Mining to check the mafia activities. However, no reply has been given by the State of U.P. to the finding recorded by Shri G.B. Pattanaik in his report. It has also not been submitted by the State of U.P. that what action the Government has proposed to take against the Mafia in the State of U.P. keeping in view the finding recorded by the Committee. Only thing borne out from the reply is that the question relating to definition of word ''mafia'' should be assigned to State Law Commission.
28. Needless to say that similar plea was raised by learned Advocate General of the State of U.P. on 5th April 2006. By an order passed on same day dated 5th April, 2006 this Court had recorded a finding that law and order is a State subject and it shall always be open to the State Government to take appropriate step against the activities of Mafia including a reference to State Law Commission.
Till date inspite of statement made before this Court the State Government had not taken any step to approach the State Law Commission.
From the facts and circumstances stated hereinabove, it appears that only effective step taken by the State Government to curb the activities of Mafia in the State of U.P. relates to Circular dated 11.1.1993 issued by the then Director General of Police Shri Prakash Singh. The Director General of Police had admitted in his circular dated 11.1.1993 the involvement of Mafia or organized crime in ten fields.
Relevant portion from the said circular (English version) is reproduced as under:
"(1) To kill or to get somebody killed by taking money.
(2) To take supply and construction contracts in various Government Departments like P.W.D.
(3) To take forcible possession of vacant Government or private land or disputed land or buildings.
(4) To purchase the buildings under tenancy by exerting terror and thereafter forcibly evicting the tenants.
(5) To get permits for bus/taxi etc. illegally and to misuse the same.
(6) To get contracts for taxi/cycle stand etc. illegally in their name or in benami names and to collect money from it.
(7) To collect ransom illegally from markets, mandis and factories.
(8) To organize illegal acts like running of gambling dens and brothel houses.
(9) To recover ransom by abducting the members/children of rich families.
(10) To do all kinds of illegal acts by influencing politicians and with their support."
29. While submitting a report Shri Pattanaik had taken note of a statement made by Chief Minister who had given a clarion call to break the mafia political nexus and for that purpose requested the judiciary to provide necessary assistance. The Chief Minister further made a statement that criminalization of politics should be checked at by all means (page 4 of the report).
The report further reveals the various steps taken by the State Government to check the organized crime and drawn attention of this Court towards various circular issued by the State Government as well as the Director General of Police. The Pattanaik Committee while submitting a report had divided the activities of mafia or organized crime under the following heads:
(1) Criminal Mafia: indulges in hafta or Rangdari tax also involved in liquor trade, land deals, big contracts, allotment of land and flats recreation activities etc. and have got high political connections.
According to report, these mafias or persons involved in organized crime move in motorcade surrounded by private and police security and sometime they settle their score through violent means. Sometime involving in sensational gang warfare. They yield sufficient clout in corridors of power and ordinarily police shy to take action against them. They have got a direct or indirect link with political figures, administrators, judicial officers and so on.
(2) Finance and Land Mafia: involved in acquiring government property and vacant land and selling it to other needy persons. They also grab the private properties belonging either weaker section of the society or persons having no source to defend themselves.
(3) Religious Mafia: they exploit religious sentiments of the people and turned the religious places into powerful money churning establishment.
They also create communal tension and help the political bosses during course of election.
(4) Educational and Recreational Mafia: possess number of educational institution recreation and sports bodies symphonizing public money by getting fund from the State Government and Central Government for their vested interest.
(5) The Mining Mafia: antisocial elements have monopolized with their organized network in the mining field. They are not only mine in the leased area but venture in to forest land, government land beyond their allotted area of operation. They use machines, which are banned by the State Government. They captured Government mining contract with the assistance of hireups.
30. The Pattanaik Committee had proceeded to recommend following action to curb the Mafia activities, to quote:
"(1) It is customary for mafia groups to threaten prospective bidders and prevent them from purchasing tender, documents. To prevent such exigencies, all Govt. contract above Rupees one lac should be put on govt. web site and bid documents should be allowed to be downloaded. This would increase greater accessibility and more number of prospective bidders can participate in tendering process.
(2) Tender documents should be allowed to be filed on line (electronically) in addition to hard copies as is the practice at present.
(3) Opening of tenders should be carried out in a secure/centralized place say the Collectorate, for all Govt. departments. Adequate police and magisterial arrangementbe made. Deployment of police force should not only be adequate, it should be prepared to strike if need be.
(4) Verification of solvency (financial status)/Character has become perfunctory and meaningless. The present petition sprang from a false character certificate. Stringent action should be taken against officials who give incorrect certificates. Verification of police record should be more thorough and any suppression of information/facts should be severely dealt with.
(5) All such information should be made available on the website. Black listed contractors/mafias should also be mentioned so that they could be prevented from participating in future bidding.
(6) Many prospective contractors submit false financial status/solvency certificates. At times the same solvency certificate is used for may tenders. Some certificates should be, selectively got verified by specialized agencies. They should be confirmed from Bank/Income tax department.
(7) Centralized listing of contracts and financial status of contractors should be maintained electronically so that cross checking by various departments/in various tenders can be easily undertaken."
31. The Committee had further recommended following administrative measures should be taken for salutary effect, to quote.
"(1) No police security should be extended to any person, even if he is a public representative/howsoever important he may be if he is directly or indirectly involved in criminal activities.
(2) No one should be allowed to move in fleet of automobiles with private armed cover which intimidate/terrorize/over awe people.
(3)At the police station, a list of goondas in normally prepared and kept. Along with goonda, list of mafias should be prepared and should be made available to the general public through the official site (electronic medium) of the Police/Home department.
(4) There are media reports that mafias lodged in jails enjoy all comforts, have incessant visitors and use cell phones to run their criminal empires from the safe precincts of the jail, making mockery of the jail system. Strong action is needed to ensure that jails should not become a haven for mafias.
(5) Vide conferencing facilities should be introduced which would avoid the need of mafias stepping out of the jail who in the name of Court appearance come and collect their hafta. There are allegations that mafias on their way for appearance in Court have visited their home/other places and indulged in crimes also.
(6) All medical requirements of the mafias should be met inside the jail. Cool comforts of hospitals and medical college private wards have now become refuge of mafias. This practice should be discouraged.
(7) Trial of mafia may be carried out inside jail by fast track courts."
32. Apart from aforementioned recommendations the Pattanaik Committee had recommended for Establishment Of Mafia Control Coordination Committee and Establishment of Mafia/Organised Crime Control Authority. It has been suggested that the Mafia Control Coordination Committee should be the multifarious body and should be engaged in collection of necessary information relating to the organized crime and to take step for the detection and prevention. It has been further submitted that the Organised Crime Control Authority should be inducted to investigate the cases against mafia. The appointment of the head of the authority should be assured a tenure post of atleast three years.
33. Since the finding recorded by the Pattanaik Committee has not been rebutted by the State Government or the Union of India and no inclination has been shown by the State or the Union of India to inform this Court as to what action they proposed to take against the mafia activities, this Court understood that the finding recorded by Pattanaik Gommittee is not disputed and remains unrebutted. Accordingly now it is admitted fact that not only in view of statement made by Chief Minister of the State but in view of finding recorded by the Pattanaik Committee the organized crime in the State of U.P. is a reality effects the people at large and Government is a moot spectator.
From the first time when it was noticed vide circular of the Director General of Police dated 11.1.1993 that organized crime is gradually rising in the State of U.P., none of the State Governments had taken care to take appropriate step to minimize or eradicate the mafia activities in the State of U.P.
The Pattanaik Committee report contains data of crime furnished by Inspector General of Police (Crime) vide letter dated 27.3.2006. In the year 2005 the number of incidents relating to organized crime has been disclosed as under:
1. Forcible occupation of Government or private land or properties 34
2. Murder by hired assailants 2
3. Crime relating to Rangdari tax 7
4. Incidents of kidnapping, abduction,2473
5. Abduction of children and members of the family of rich persons for ransom 72
6. Criminal cases registered against political persons 74
7. Unlawful activities done by criminal with the help of politicians 4
8. Crime relating to mining contracts 22
34. The figures provided by the Inspector General of Police (Crime) are the figures, which are available in the police record. It is of common knowledge that every crime committed in the society does not find place in the police record. Present scenario of the society seems to be horrible.
35. From the figure provided by the Inspector General of Police, Crime Branch it is evident that in the State of U.P. kidnapping has become an industry for the mafias and organized criminals.
Everyday 6.97 persons are kidnapped in the State of U.P. as evident from the figure provided by Inspector General of Police (Crime) (2473+72=2545/365=6.97)
36. While concluding his report the Pattanaik Committee has invited attention of this Court towards the report of Vohra Committee who submitted its report in the year 1993. The Vohra Committee had given certain recommendations to deal with organized crime. The Committee has further noticed that the Government of India had circulated draft Bill for the control of organized crime in various States but the same is pending with the State Government and no decision has been taken till date by the State legislatures. It is unfortunate that inspite of admitted fact that organized crime is increasing day by day not only in the State of U.P. but all over the country but no effort has been made to check the organized crime. This indicates the long hand of mafia who are over conscious to perpetuate the organized crime in the society and dispel any effort which may be made by State Government or the Union of India to curb their activities.
37. When one Manju Nath, an Officer of Indian Oil Corporation had tried to discharge his duty effectively he was killed by antisocial elements. In its edition dated 27.11.2005 Hindustan Times published news item which reveals that 50 per cent petrol pumps have been allocated to person having link with organized criminal i.e. mafia or members of political parties.
38. According to one other news item published on 15th April 2006 annexed with report submitted by the Pattanaik Committee indicates that on account of refusal to pay ransom a contractor of the public works department was killed by a hardened criminal.
39. The daring act of criminals can be seen from an incident happened in Lucknow on 30th of May 2006 when an officer of the rank of Deputy Superintendent of Police. Chowk area namelyShri Rajesh Sahni was tried to be killed by antisocial elements when he had tried to stop a jeep having black glass redbeaconed light. The Deputy Superintendent of Police had tried to save his life by hanging over theBonnet of jeep for 2 kilometers and then he was dropped in the Bungalow of SSP, Lucknow.
Relevant portion of the news item to have a glimpse as published in the Hindustan Times dated 31st May, 2006 is reproduced as under:.
"In an incident that sent shock waves in the city, five identically dressed youths drove a precariously perched CO Chowk Rajesh Sahni on the bonnet of their jeep with a ruling party flag in place straight into the SSP Office on Sapru Marg on Tuesday evening.
They covered the distance, two kilometers to be precise, from Qaiserbagh to the SSP Office (Where they finally dumped the CO) just like that, sending onlookers in a state of daze, wondering what on earth was happening to the struggling cop.
The CO''s only fault was that he dared to object to the jeep occupants using red beacon and hooters and then asking for the papers of the vehicle.
Significantly, SSP G.K. Goswami instead of dealing sternly with the goons, who claimed themselves to be the grandsons of Ram Manohar Lohia raised objection to medial persons demanding action against the ferocious five."
The Deputy Superintendent of Police had confirmed the aforementioned incident in his statement published in the newspaper "Times of India" dated 1.6.2006 (publication from Lucknow) to quote relevant portion from the news item:
"For starters, Sahani says: "It was some fourkilometerlong run that must have been completed in not more than 15 to 20 minutes But to me it was a seemingly endless nightmare." He does not forget to point out that he lived every single moment for it. "Nevertheless, I won''t prefer to relive it ever again," he said laughingly.
"After intercepting the jeep, the moment I asked them why had they installed a red beacon on their jeep, I could read their reaction. They appeared a hard nut to crack," Sahani says recapturing the nightmarish experience framed by frame.
"Bui oefore I could make my next move, I heard the jeep engine roar full throttle. In a reflex action, I jumped on the bonnet and grabbed a steel rod fixed right below the windscreen" he said."
The media reporting shows that it took 15 to 20 minutes to arrive the said jeep within the campus of Senior Superintendent of Police, Lucknow. Why the police personnel accompanying the Circle Officer, Chowk had not retaliated at initial stage by firing over the tire of jeep or taking appropriate step to stop the jeep? Why inspite of communication over the wireless thousands of police personnel serving in the city of Lucknow had not tried to block the movement of jeep? It appears that no one has come forward with bravery to stop the jeep. This shows the demoralize police force of the State. All this happens either because of apprehension that persons on board in the jeep have got political connections and nothing will happen to them or because of demoralization of police machinery for various reasons.
40. The incidents noticed by the Committee as well as the news items published in the various newspapers during the last few years shows the dare devil activities of the criminals associated with organized crime are starting and requires immediate action.
41. Thus in view of discussion and definition of "Mafia" discussed and considered hereinabove in Indian context it may be said that those persons may be treated as "Mafia" who has got a network of organized crime covering an individual field or multiple area having network either in a particular district or local area or area covering more than one district of a particular State or more than one State of the country may have international network. Such persons may be involved in contractual works directly or indirectly through their associates in a Government sector or in its local bodies, corporations, companies and other Government establishments drug trafficking, flesh trade, gambling as a source of their livelihood. In a democratic country the activities of "Mafia" may be involved in booth capturing during the course of election either to prevent the peoples to cast their votes or to compel the citizen to cast vote for a particular person or a party to strengthen the political connections and relationship. The mafia as well as "Mafioso may have their association and network in the political field as well as bureaucracy. They may have connection either.directly or through some scrupulous members of bar with the "blacksheeps" working in the judiciary also for the purpose of bail or acquittal in criminal cases. To declare a person "Mafia" it is not necessary that such persons should have got known criminal antecedent in police record. In case a person has got no sufficient source of livelihood or have got highly disproportionate assets to the known source of income and there is no reasonable explanation of the wealth accumulated with such persons and has got a network of such persons (Mafioso) involved in criminal activities or for any other unable purpose referred hereinabove, may be termed as "Mafia". There may be cases when under Rule in case "Mafia" could not get a Government contract, assignment or lease of certain work then he may sponsor other persons by providing necessary funds and assistance in collusion with authorities or politicians or some other influential persons (benami transactions). Such person can safely be termed as Mafioso and can be denied the contractual work by the Government or its local bodies or corporations or establishment or government bodies.
42. With intention to establish their command and show of their power, from the report submitted by the Pattanaik Committee as well as from the newspaper items, reveal that the first and initial steps taken by the persons involved in organized crime is the public show of their muscle power by in moving vehicle having 100 per cent blind glass with red or blue lights and show of arms and ammunitions. Even if public security has been provided by the State the members of organized crime or mafia used to show their might and right by displaying the unauthorized private body guards and movement of their vehicles in contravention of the provision contained in Motor Vehicle Act and Rules framed thereunder as well as Arms Act and Rules framed thereunder.
CERTAIN REMEDIAL MEASURES AGAINST "MAFIA"
43. As discussed hereinabove in Italy as well as in America efforts were made to eliminate or minimize the effect of "Mafia" RICO Act (supra) enacted in United States of America provides extended penalties for criminal acts performed as the part of ongoing criminal organization. It was enacted as "title IX of the Organized Crime Control Act, 1970". It shall be worthwhile to reproduce how the word "Racketeering activities in RICO Act has been defined, to quote:
"(1) "racketeering activity" means
(A) any act or threat involving murder, kidnapping, gambling, arson robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in Section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year,
(B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery). Section 224 (relating to sports bribery). Sections 471. 472 and 473 (relating to counterfeiting). Section 659 (relating to theft from interstate shipment) if the act indictable under Section 659 is felonious. Section 664 (relating to embezzlement from pension and welfare funds), Sections 891894 (relating to extortionate credit transactions), Section 1028 (relating to fraud and related activity in connection with identification documents), Section 1029 (relating to fraud and related activity in connection with access devices), Section 1084 (relating to the transmission of gambling information), Section 1341 (relating to mail fraud), Section 1343 (relating to wire fraud), Section 1344 (relating to financial institution fraud), Section 1425 (relating to the procurement of citizenship or nationalization unlawfully), Section 1426 (relating to the reproduction of naturalization or citizenship papers), Section 1427 (relating to the sale of naturalization or citizenship papers), Sections 14611465 (relating to obscene matter). Section 1503 (relating to obstruction of justice), Section 1510 (relating to obstruction of criminal investigations), Section 1511 (relating to the obstruction of State or local law enforcement), Sectiori 1512 (relating to tampering with a witness, victim, or an informant), Section 1513 (relating to retaliating against a witness, victim, or an informant). Section 1542 (relating to false statement in application and use of passport). Section 1543 (relating to forgery or false use of passport), Section 1544 (relating to misuse of passport), Section 1546 (relating to fraud and misuse of visas, permits, and other documents). Sections 15811591 (relating to peonage slavery, and trafficking in persons). Section 1951 (relating to interference with commerce, robbery, or extortion). Section 1952 (relating to racketeering), Section 1953 (relating to interstate transportation of wagering Paraphernalia), Section 1954 (relating to unlawful welfare fund payments), Section 1955 (relating to the prohibition of illegal gambling businesses), Section 1956 (relating to the laundering of monetary instruments), Section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity). Section 1958 (relating to use of interstate commerce facilities in the commission of murder forhire). Sections 2251. 2251A. 2252 and 2260 (relating to sexual exploitation of children). Sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), Sections 2314 and 2315 (relating to interstate transportation to stolen property), Section 2318 (relating to trafficking in counterfeit labels for phone records, computer programs or computer program documentation or packaging and copies of motion pictures or other audiovisual works), Section 2319 (relating to criminal infringement of a copyright), Section 2319A (relating to unauthoriz fixation of and trafficking in sound recordings and music videos of Iive musical performances), Section 2320 (relating to trafficking in goods or services bearing counterfeit marks), Section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), Sections 234123 (relating to trafficking in contraband cigarettes), Sections 2421(relating to white slave traffic),
(C) any act which is indictable under titlev29, United States code, Section 186 (dealing with restrictions on payments and loans to labor organizations) or Section 501 (C) (relating to embezzlement from union funds).
(D) any offense involving fraud connected with a case undertime 11 (except a case under Section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying. selling or otherwise dealing in a controlled substance or listed chemical (as defined in Section 102 of the Controlled Substances Act), punishable under any law of the United States,
(E) any act which is indictable under the currency and Foreign Transactions Reporting Act,
(F) any act which is indictable under the Immigration and Nationality Act, Section 274 (relating to bringing in and harboring certain aliens), Section 277 (relating to aiding or assisting certain aliens to enter the United States), or Section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or
(G) any act that is indictable under any provision listed in Section 2332b(g)(5)(B).�
44. The RICO Act further defines unlawful debt as well as prohibited activities which for convenience reproduced as under:
"(6) "unlawful debt" means a debt
(A) incurred or contracted in gambling activity which was in violation of the law of the United States, a State or political subdivision thereof, or which is unenforceable under State or Federal law in whole or in part as to principal or interest because of the laws relating to usury, and
(B) which was incurred in connection with the business of gambling in violation of the law of the United States, a State or political subdivision thereof, or the business of lending money or a thing of value at a rate unsurious under State or Federal law, where the usurious rate is at least twice the enforceable rate;
Prohibited activities
(a) It shall be unlawful for any person who has received any income derived directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of Section 2, Title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities or any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise''s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this Section.
45. Though being Foreign Act the definition reproduced hereinabove has got "no applicability in our country but since there is no special and specific enactment or statutory provision in our country to prohibit the "Mafia" activities or punish such persons, while interpreting Government Orders in question or providing guidelines for the Government or in case State Legislature or Parliament pleases to enact such law then we can be benefited from provision of RICO Act coupled with American and Italian experience in this field. Apart from RICO Act witnesses have been protected by Witness Protection Act in the United States of America.
46. It has been settled by Apex Court by catena of judgments vide AIR 1964 SC 1722. Commissioner of Income Tax. Kerala v. M/s. Malayalam Plantation Ltd. Quilon (Para 8). AIR 1968 SC 1504. Godhara Borough Municipality. Godhara v. Godhara Electricity Co. Ltd., (Paras 8 and 9). AIR 1977 SC 153 the Nawn Estates (P) Ltd, v. C.I.T. West Bengal (Paras 8 to 16). AIR 1959 SC 1049 the Indian Molasses Co. (Private) Ltd, v. The Commissioner of Income Tax WestBengal (Paras 15 to 23). J.T. 1999 (4) SC 520. Union of India v. The Motion Pictures Association and others (Paras 16 and 17). AIR 1966 SC 955. Assistant Collector of Customs. Calcutta v. Sitaram(Para 18) that construction of Indian statutes by sobered use of foreign decisions of the countries following the same system of jurisprudence as ours and rendered on statutes in pan material has been permitted in Indian Courts.
The assistance of such decisions shall be subject to language used in Indian statute, Act, Rules or regulations and relevant circumstances. The guidance of foreign decisions may be used only in the absence of any binding Indian decisions. In a celebrated book, "Principles of Statutory Interpretation" by Justice G.P. Singh. learned author had observed as under (extract from para 303304):
"The assistance of such decisions is subject to the qualification that prime importance is always to be given to the language of the relevant Indian Statute, the circumstance and the setting in which it is enacted and the Indian conditions where it is to be applied and that it is not to be forgotten that there is always an element of risk in taking ready and hasty assistance from such decisions. In other words, "statutory construction must be homespun even if hospitable to alien thinking." And when guidance is available from binding Indian decisions, reference to foreign decision may become unnecessary."
After considering the Apex Court judgments learned author (supra) had again proceeded to held as under (extract from page 305):
"The same attitude of respect with caution has been followed by the Supreme Court after advent of the Constitution which because of incorporation of fundamental rights has given more access to American precedents. It cannot be denied that our Courts have gained considerable assistance from foreign decisions in interpreting certain provisions of our Constitution."
The learned author (supra) had again proceeded to observed as under (extract from page 306):
"Apart from the link of English Common Law and Jurisprudence and similarity of political thought, the use of English language as authoritative text of Indian Statutes is another factor which obliges the Indian Courts in taking recourse to foreign precedents of English speaking countries."
47. In view of above, since learned counsel for the parties had not pointed out any authoritative binding law or precedent, which may define the "Mafia" or ''Mafioso", the assistance may be taken from Italian and American experience as well as statutory provisions and law laid down by the Government and Courts of these countries to define the "Mafia" in the context of our country. Needless to say that on account of liberalization policy and orientation towards consumerism by the Government without any reasonable restriction or screening in last ten years our country is drifting gradually towards capitalism to some extent. Accordingly this country may also suffer with all those evils or problems which have been experienced by Italy. United State of America or the other European countries.
48. It is the duty of Government, State and Central to check "Mafia" activities not only in the mining field but also in other department like Lok Nirman Vibhag (PWD) Irrigation. National Highway, Forest, Railways Corporations Local bodies. Defence contract and all other departments where the contracts are given by the Government and its corporation either on lease or by public auction or tender or otherwise.
49. Heavy duty lies on the constitutional functionaries of all the three wings of the Government to take firm and strict actions against organized crimes within the frame work of law otherwise it will be too late. "Bhasmasur" had not spared his own creator "Lord Shiva". At one point of time the persons who are protecting "Mafia" may themselves become victim of the same organization or person at later stage whenever such protector or promoters are out of "power". The constitutional functionaries holding high offices in legislature, judiciary and bureaucracy of a country should be fair, honest with commitment to serve the nation. The empire of darkness, chaos and insecurity may be created in a country where there is some sort of weakness among the constitutional functionaries.
Lord Krishna in famous treatise "Gita" said, to quote: "[Chapter III verse 21]
It means "whatsoever a great man does, the same is done by others as well." Dr. Radhakrishnan while interpreting this verse of Gita said, to quote:
"Common people imitate the standards set by the elect. Democracy has become confused with disbelief in great men. The Gita points out that the great men are the path makers who blaze the trail that other men follow. The light generally comes through individuals who are in advance of society. They see the light shining on the mountains heights while their fellows sleep in the valley below. They are, in words of Jesus, the ''salt'', the ''leaven'', the ''light'' of human communities. When they proclaim the splendour of that light, a few recognize it and slowly the many are persuaded to follow them."
Once Mahatma Gandhi said ''my life is my message''. Whether the life of the substantial number of the today''s constitutional functionaries of our country may be message to the peoples to follow them in the same manner? Persons holding constitutional posts can not escape from their liability under the garb of ''personal life''.
50. Apart from pollution at apex level there is one more reason why a country or society may suffer from complex problems by the increase of corruption, crime and casteism or warmth of muscle power.
In the "Manusmiriti", Manu says
"It is difficult to find a man who behaves according to law voluntarily. The people behave as they should, only on account of the fear of punishment."
The aforementioned words from the "Manusmiriti" reflects the experience of human race of ages, it is because of lack of fear of punishment, wrong doers indulge into malpractices and causes serious damage to society and nation at large. Persons whosoever may be, from a common citizen to the highest constitutional functionaries, may commit wrong or may indulge into malpractices or can cause serious damage to the peace and harmony or public property of a country or society in case he/she thinks that nothing will happen to him in case he or she breaches the law. It is the fear of punishment which kept a man within the ambit of the fourcorner of a civilized society.
Professor Morris K. Holland of University of California, Los Angeles in his book Introductory Psychology remarked that a man is by nature aggressive. Aggression seems to be universally present in animal and human life though what is true for one person may not be true for other. But some social scientist believes that the beast in us peers out whenever civilization fails to control our aggressiveness. The author remarked that large scale human destruction may appear at any time when social control breaks down.
It shall be worthful to quote what PLATO has aid relating to the human nature; to quote:
"Man when perfected is best of animals but when separated from the law and justice he is worst of all."
51. In the post independent India while framing law our legislature or other constitutional functionaries who have been at the helms of affairs had closed their eyes to the complex social realities of our country and human psychology. No efforts has been made to take the help of social scientist or psychologist who are well conversed with the behavioural science. That is why neither constitutional nor statutory duties or the fundamental duties as provided under Article 51A of the Constitution of India are being complied with in letter and spirit. The mandate of our Constitution could not be achieved and things have become more worst.
52. Shri U.S. Misra, the then Director, Central Bureau of Investigation in an Article "India empowered to me is national cleanup starting with our bureaucracy" had shown his deep concern over the alarming corruption in bureaucracy and given certain suggestions. The alarming situation as noticed by Shri U.S. Misra, Director, Central Bureau of Investigation as reflects by the Article published in "The Indian Express dated 28th October, 2005 is reproduced as under:
"First, there was this corrupt civil servant who retired with all benefits. He also enjoyed a reputation for efficiency and honesty; he never faced a single vigilance inquiry throughout his fruitful career.
Second, there was this corrupt bureaucrat who faced a case of disproportionate assets (possessing assets beyond his known/declared sources of income). The case was investigated and chargesheeted in two years. The trial (sictrial) dragged on for nearly two decades. He retired from service and dies before the end of trail (sictrial). The fruits of his corruption accrued to his family.
Third, a very famous tycoon started his life as all ordinary dealer, but rose up through systematic serial bribery of public servants in almost every sector to become one of the most successful industrialists in about twenty years."
Shri U.S. Misra, the then Director, Central Bureau of Investigation (supra) had further proceeded to observe as under:
* There''s negligible social stigma attached to the archetypal upperworld ''suite crime'' of corruption like ''contractfixing'', ''policyfixing'', ''legislationfixing'' etc. than to archetypal underworld ''street crimes'' like ''contractkilling'', ''theft'' etc.
* The network of dishonest and corrupt public servants is more extensive and more formidable than that of the honest public servants.
* Efficiency is valued more than ethics; or, in other words, ends justify the means.
* There are no formulae or quickfix solutions for curbing corruption, least of all the laws and one may do well to bear in mind the experience of Imperial Rome which had so many laws against corruption but was finally ruined only by corruption.
* It remains the sworn enemy of integrity, which is imperative for the survival of a country in the long term for as that grand patriarch of democracy, Edmund Burke, once wrote, "in a state long corrupt, liberty cannot survive".
However, as discussed hereinabove the admitted corruption in the bureaucracy or other wings of the Government neither can be minimized nor can be rooted out unless the country is run by honest, fair and nationalist constitutional functionaries (persons holding constitutional posts in legislature, bureaucracy and judiciary). The inefficiency and corruption always flows from the top followed by lower limb of the Government. In case the upper strata is fair and honest then bottom can be corrected and set to right without any problem.
53. From the history of ''Mafia" right from Italy to United States of America or in other part of the world, it can not be ruled out that for financial dominance and control, the Mafia not only indulge into unlawful activities or monopolizing the contractual assignment, but they influenced the political setup of a country also in one or other form to perpetuate their activities with the use of muscle power. This has been noted by Richard Quinney in an article under the title Crime Control in Capitalistic Society: a critical philosophy of legal order edited by Lan Taylor, Paul Walton, Jock Young in a text book under title Critical Criminology in the following words:
"Criminologists and legal scholars generally neglect the State as a focus of inquiry. In failing to distinguish between civil society and the political organization of that society, they ignore the major fact that civil society is secured politically by the State and that a dominant economic class is able by means of the State to advance its own interests. Or when the State is admitted into a criminological or legal analysis, it is usually conceived as an impartial agency devoted to balancing and reconciling the diverse interests of competing groups in the society...................
Several basic observations must be made in a critical analysis of crime control in the capitalist State. First, there is the question of the nature of the State, that is the complexity of that which we call the State. Second, is the problem of how the dominant economic class relates to this State, that is how that class becomes a ruling class and how the State Government in relation to the ruling class. Third, we must observer the development of the State in reference to capitalist economy."
54. Needless to say that without political patronage, bureaucratic help and assistance the survival of "Mafia" in a country can not be possible. A famous Tamil Poet TIRUKKURAL 2000 years back had said that the "tyrannical rulers are worst than habitual murderers".
The same poet again said "the wealth of the ruler which is difficult to access and harsh in disposition is like being guarded by the devil". (Tirukkural Expressed in English, author Deputy Registrar. K. Kannan page 56 and 57)
55. As discussed hereinabove WhiteCollar Crime is also one of the measure adopted by "Mafia" to give strength to their financial dominance. Sutherland stressed that Whitecollar Crime (in short hereinafter referred as the WCC) was merely approximate and nothing definitive. It has got five elements;
(a) It was a crime
(b) Committed by persons of respectability
(c) Of high social status
(d) In the course of his occupation.
However, the ingredients notices by Sutherland has gone to sea change. Now WCC includes public welfare offences, control of companies which pases from one group of shareholder to other with or without amalgamation of acquiring and the acquired company, monopolistic and other restrictive practices in various fields by unfair activities like bribery, kickbacks and other corrupt practices, tax frauds etc. In the capitalistic countries the important aspect of WCC is to be found in monopolistic and anticompetitive character of free enterprise, competition and the very possibility of setting up in private business and government contracts.
56. On account of liberalization policy adopted by Government since last almost ten years and brooming of consumerism as well as unfettered display, discourse and presentation in media of various items relating to sex, consumer goods and thoughts or views without any screening and visualizing their effect on mankind, the allurement and run for materialistic gain though not suits to this country has enhanced the white collar crime manifold.
57. The effect of caste, creed and religion as well as corruption and multi dimensional facet of the Indian society provides a platform for increasing "Mafia" activities in the absence of any effective preventive law. On account of growing unemployment and loss of feeling to Nation and society coupled with ineffective infrastructures and "will power" to punish the guilty had also created platform to run the "Mafia" activities including the MCC and terrorism. Thus the "Mafia" has a great deal to do social factors like high unemployment, widespread lack of confidence in the competence of law enforcement authorities, distrust of the state, on account of corruption, castesim and inefficiency. The people''s distrust among the elected leaders and other constitutional functionaries and feeling among the business community that they can achieve their object only by unfair method had increased the dominance of muscle power in the society.
Public money has been always "Mafia''s" main target in Italy and America in Italy it has been believed by "Mafias" that everything have got its price and most of the politicians and other constitutional functionaries can be bought Public contracts are assigned in exchange for bribes and kickbacks. Everybody expects a substantial kickbacks. In business, money laundering is a way of life. All these ingredients which are part of "the new Mafia in Italy and America are borne oat from the material available on Internet. In such a climate, the Pizzo (protection money) and narcotics trades are little more than a side show. More or less all these ingredients are gradually peeping into Indian Society. Accordingly it is high time when the State as well as Central Government should wake up to frame law and issue appropriate order or notification so that things may not be out of control.
58. In this country more than 85 (eighty five) per cent accused get acquitted. Nobody can suggest that all such persons who got scot free are necessarily innocent. But cases against them remain unproved for want of evidence. Many crimes are committed in circumstances in which the only eye witness has died as a result of the crime. There are also victimless crimes such as bribery or Hawala where the other party was also a beneficiary and is therefore not willing to testify against the accused. In cases against the hardened criminals and influential constitutional functionaries or ''Mafias'' the witness are terror stricken and dare not open their: mouths against them. The provision in Code of Criminal Procedure permitting the accuseu to enter the witness box has proved totally futile. Burden only lies on prosecution to prosecute. The provision contain in Article 20(3) of the Constitution of India that no person accused of any offence shall be compelled to be a witness against himself, protect the Mafia as well as hardened criminals. On account of complexity of crime particularly relating to financial dominance and monopoly, time has come when appropriate amendment should be made in Article 20(3) of the Constitution of India.
In the United States in Griffin v. California (380 US 609 (1965)) it was held that selfincrimination guarantee forbids either comment by the prosecution on the accused''s silence or instructions by the Court that such silence is evidence of guilt. In Griffin (supra) the judgment was by majority and three of the judges given dissenting judgment choosing to live in minority (six out of nine judges protected the right of accused''s silence).
In ordinary criminal cases the protection under Article 20(3) of the Constitution of India may be maintained but when a person or body of a person acquired huge wealth or property with undisclosed wealth or asset then in such cases burden should be shifted on the person who is prosecuted under the law time being inforced or by legislating new law or by amending the present law to shift the burden on the accused to explain his assets by cogent and material evidence. In the absence of reasonable explanation the properties of such persons may be confiscated by appropriate proceedings as done in America under RICO Act, rather by promulgating more stringent law in this country keeping in view the facts and circumstances and ground realities of our country.
59. The necessity to amend Article 20(3) of the Constitution of India or to frame such law is reflected from various Apex Court judgments relating to Sections 91, 93 of Code of Criminal Procedure, Section 5 Identification of Prisoners Act 1920 medical examination of persons of the accused, compulsion to give specimen of writing or the impression of foot or palm, thumb or fingers, Section 45G of the Banking Regulation Act and Section 240 of the Companies Act vide: AIR 1965SC 1251. State of Gujarat v. Shyam Lal. AIR 1980 SC 185. Kuttan v. Ramakrishnan. (196)3 SCR 116. Dastagirv. State of Madras. AIR 1958 Allahabad 119''."Ram Swarup v. State. AIR 1958 Punjab 294. Pakhar Singh v. State. 1954 SCR 1077. Sharmav. Satish. AIR 1961 SC1808. State of Bambay v. Kathi Kalu. AIR 1967 Madras 263. Collector of Customs v. Kotumal. AIR 1964 SC 1552. Joseph v. Narainan. AIR 1961 SC 29. Narain Lal v. Maneek.
In all these cases Apex Court had liberally interpreted the protection guaranteed under Article 20(3) of the Constitution to meet the ends of justice.
60. What Karl Marx had said relating to dialectical materialism may be a question of discussion, doubt or controversy while considering as to which form of Government shall suit in a particular country, but atleast for one purpose it has got significance when we proceed to consider the dominance of muscle power or "Mafia" in a society. The Karl Marx had given emphasis over the method by which a society utilizes natural resources and produces the goods by which it lives and for Marx it is the mainspring of its existence (ref. "History of Political Theory", Fourth Edition by George H. Sabine, page 690,1975 print).
Accordingly, it can not be ruled out that the economic order in a country more or less decides the social structure of a society. According to Karl Marx the mode of production in material life determines the general character of social, political and spiritual process of life (ref. Sabine (supra) page 698).
61. However, the mode, manner or means to achieve materialistic output should be fair just and proper. It can not be achieved unless the constitutional functionaries are not elected or appointed on merit without being influenced by caste, creed, religion or for extraneous considerations. They can not serve nation without dedication, honesty and commitment to nation "Means" play important role to achieve better end". The constitutional functionaries are like guardians in a country. They cannot escape from their liability. They can not defend themselves from their liability under the garb of personal life or difficulties. Once father of nation Mahatama Gandhi had said, to quote:
"There are such a close connection between the means and the end that it is difficult to say which of the two is role important. Or we may say that the means is the body and the end is the soul. The end is invisible, the means is visible. Now we shall have the pleasure of demonstrating this great truth, (extract from the Selected Works of Mahatma Gandhi, Vol IV p. 328)"
Pandit Jawahar Lal Nehru had reiterated the words of Mahatma Gandhi in the following words:
"Even if the end is right but the mens are wrong it will vitiate the end or divert us in a wrong direction. Means and ends are thus intimately and inextricably connected and cannot be separated."
62. Fora better means and, betterend, Mahatama Gandhi had suggested that the constitutional functionaries of the Government should be above the board. He had proceeded to say (supra), to quote:
"Today you have worn on your head a crown of thorns. The seat of power is nasty thing. You have to remain ever wakeful on that seat. You have to be more nonviolent, more humble and more forbearing. Minister may not make private gains either for themselves or for their relatives or friends. The leaders have the reins and the disposal of millions of rupees is in their hands. They have to be vigilant. They must be humble. People often think nothing of net keeping their words. They should never promise what they cannot do. Once a promise is made, it must be kept at all cost. (Selected Works of Mahatma Gandhi)
Again Mahatma Gandhi had proceeded to say (supra), to quote:
"The legislative assemblies should be their only lawmakers. Ministers were liable to be changes at will. Their acts should be subject to review by their courts. They should do all in their power to make justice, cheap, expeditious and incorruptible.......
The minister should be completely free from all the prejudices against any caste or creed and from any favouritism towards his old relatives and friends. This private life should be so simple that it inspires respect, or even reverence. Bungalows and motor cars should be ruled out, of course if he has to go far or on an urgent business, he should certainly use a car but its use should be definitely very limited, I see that the car may perhaps be quite necessary. The members of ministers'' family including children should do all the household works themselves, servants should be used as sparingly as possible. These rooms should be not furnished with expensive foreign made furniture, such as sofas, cupboards and chairs especially at present, when crores of his countrymen do not have a single cotton mattress to sit upon or even a piece of cloth to wear."
63. The guidelines provided by the Mahatma Gandhi referred hereinabove equally applicable to constitutional functionaries of all the three wings of the Government. It is the dilution in the character and morality of the constitutional functionaries as the root cause of present scenario of society where persons associated with the organized crime are moving in the society without any hindrance and occupying higher posts.
FINDING ON THE PRESENT CONTROVERSY
64. From Section 11 of the Act, it is evident that while granting mining lease the competent authority shall consider the financial resources, nature and quality of the technical staff employed or to be employed by the applicant and the investment which the applicant proposed to make in the mines and other related matters. Rule 6 creates a bar for awarding of mining contract to a person against whom exists outstanding dues. In case, mining contract can be given only in case no mining dues are outstanding against the applicant. Under Rule 7, the District Officer, has got power to hold the enquiry to the related issues provided under the Act and Rules. Under Rule 9A mining contract for sand excavation may be granted to the persons with preferential right whose family has been engaged since ages in the excavation of sand or Morrung for their livelihood or the persons belonging to socially and educationally Backward Classes like Mallah, Kewat, Bindusar etc. In the present case, the finding of fact recorded by the Committee indicates that against Mohd. Khalid Khan outstanding mining dues to the tune of Rs.96,00,000/ (ninety six lacs) has been remain unpaid for several years. Shri Ram Pal has been held as a servant of Mohd. Khalid Khan and Shri Aslam Khan is said to be his cousin brother. Once under Rule Mohd Khalid Khan was not entitled for mining lease because of outstanding dues then he has got no right to acquire the mining contract through private respondents. What cannot be done directly, can not be done indirectly is a settled proposition of law.
65. Under Section 11, not only the financial resources should be seen but the nature of quality of technical staff available to applicant or which may be employed by an applicant and the investment which the applicant proposed to make should also be done. Even if a person has got few bighas of land or he possess some joint property shall not create a ground for grant of mining lease unless the specific finding is recorded to the effect that the applicant possess not only the sufficient financial resources to meet out future contingencies but he has got sufficient amount in Bank and in cash which can be invested to meet out the requirement of mining work. Existence of only case in hand by an applicant may not be a ground for grant of mining lease as such financial assistance may be granted by mafias of the respective field Proper course is to look into the Bank Account or Post Office Account of an applicant which shall show the financial capabilities. His or her association with antisocial elements relation and so many other things which it proved or inferred may create a ground for denial of mining lease or contract. Sometime financial soundness to meet out the requirement of mining contract may not create a ground to award mining contract. Any recommendation by influential persons, politicians may be a ground for denial of mining contract.
66. In the present case, while passing the impugned orders no finding has been recorded relating to the availability of financial resources coupled with available fund with the applicants at the time of sanctioning of mining lease. In the case of Ram Pal a false character certificate has been issued by the district administration seems to under the influence of member of Ruling Party.
67. Under Section 19A of the Contract Act any agreement caused by undue influence shall be voidable and it shall be open to a party to set aside such contract. Under Section 23 of the Contract Act the consideration or object of an agreement shall not be lawful in case it is founded by immoral actions or opposed public policy.
For convenience Section 19Aand Section 23 of the Contract Act is reproduced asunder:
"19A: Power to set aside contract induced by undue influence
When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.
Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just."
23. What considerations and objects ars lawful, and what not
The consideration or object of an agreement is lawful, unless
it is forbidden by law, or
is of such a nature that, if permitted, it would defeat the provisions of any law, or
is fraudulent; or
involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
68. In case any contract is awarded to a person influenced by extraneous reasons like political consideration, threat, or for extraneous reasons or considerations then such contract or agreement may be set aside at later stage when the fact brought on record by any person or it comes into the knowledge of the State Government. Authorities have got no right to award a contract through lease or agreement or in any other manner under political influence or for extraneous reasons is or considerations.
Similarly, in case whenever a tender is invited for doing certain contractual work and in case the bidders are stopped to submit their tenders or participate in auction proceeding in any manner, to extend undue advantage to a person then acceptance of tender or awarding of contract in such circumstances shall be against public policy. Accordingly, in case where a tender is invited or a public auction to do certain work is held and members of organized criminal gang of mafia interferes with such auction in any manner whether by threat to proposed bidder or by manipulating things in such a manner so that mafia so or any other person who has got closed relation with such mafia or organized gang may be given contract then awarding of contract to such person shall be against public policy even if the person concerned has given highest bid or the lowest one as the case may be.
Awarding of contract to mafia or mafiaso or White Collar Criminals affect the society at large. Accumulation of wealth in the hand of Mafia or White Collar Criminals often is utilized to perpetuate crime including antisocial or anti national activities in the society and sometime to help the terrorist activities.
69. According to Lord Fruro (Egerton V. Brownlow (Earl), (1953) 10 ER 359; 94 RR 1.), public policy is that principle of law which holds that no subject can lawfully do, that which has tendency to be injurious to the public or is against the public good.
Kerala High Court in a case reported in AIR 2003 Ker 191, M.K. Usman Koya v. C.S.Santha held that to quote;
"The term ''public policy'' has an entirely different and more extensive meaning from the policy of law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent."
While considering the scope of public policy doctrine in Tender v. St. John Mildmay, (1938)AC 1, 12. Lord Atkin pointed out that if public policy of enforcing a contract to do lawful acts is to be maintained, it must be defeated only where there is a practical danger of injury to the public by enforcing the particular class of contracts, that there must be general tendency to harm. The doctrine should be invoked only in clear cases in which the harm to the public is substantially incontestable and does not depend on the idiosyncratic inferences of a few judicial mind.
Thus, within the sphere of contract the doctrine of public policy operates as a rule of law. A contract repugnant to it shall not be permissible and void irrespective of the wishes of the parties.
70. While considering the trial of Antonio narrated by Shakespeare in the Merchant of Venice, Lord Denning had commented in his book "Leaves from my Library" (page 30 to 32) that agreement between shylock and Antonio relating to debt of three thousand ducats and in default of payment within stipulated period, forfeiture of bond with a pound of flesh was against public policy. The condition contained in the agreement empowering Shylock to take a pound of flesh from any part of the body of Antonio was against public policy. However, though in the story the claim of Shylock was decided by literal interpretation of the contract but according to Lord Denning the conditions incorporated in the contract to the extent it relates to the pound of flesh was against public policy.
In view of above, awarding of contract as discussed hereinabove to the members of organized gang of criminal or mafia or mafiaso or their associates is against the public policy. Even if a contract is awarded in ignorance of involvement of mafia, such contracts are liable to be cancelled by State or its local bodies and for that purpose there may be a clause in the agreement for contract or lease.
71. In view of above, so far as Shri Ram Pal is concerned, at the face of record, it appears that the mining lease was granted to him for political considerations. Character certificate was issued by the district administration seems to be under political compulsion based on unfounded facts. Inspite of involvement in criminal cases the district administration had issued the certificate declaring that no criminal case is pending against, Shri Ram Pal. This is very sorry state of affair.
72. So far as financial resources of Mohd. Aslarn and Shri Ram Pal are concerned both of them seems to have lack of such resources. There is nothing on record which may indicate that they have got sufficient fund either in the Bank Account or in the Pass Book of the Post Office or otherwise to execute mining work. Merely by saying that they have got certain properties in joint name or they have got resources to meet out the requirements shall not be sufficient. In such cases it shall always be necessary to establish from material evidence that applicant has got sufficient existing fund earned from his own resources and also has got sufficient means to meet out the present and future requirements. In case, a person fail to satisfy this test then no mining contract can be given and it shall be amount to noncompliance of Rule 11.
73. One of the more features, which have been brought on record by the petitioner''s counsel, is that Mohd. Aslam Khan is an Advocate registered with Bar Council of U.P. How an Advocate can apply for mining lease being a privileged person under the Advocate Act. The lease was granted by an order dated 8.2.2005. When this fact was argued by the petitioner''s counsel, Mohd. Aslam Khan submitted that an application dated 1.7.2005 moved to surrender the registration certificate to the Bar Council of U.P. this shows the sorry state of affair prevailing in the bar. Once there is statutory bar under the Advocate Act and Rules framed thereunder to the effect that an Advocate registered with the State Bar Council shall not be entitled to do any business or trade, then any application or tenders submitted by an Advocate for awarding of contract or lease shall deem to be submitted by an incompetent person and such application shall liable to be rejected. Application moved by Mohd. Aslam Khan at later stage shall not validate the order passed by the District Magistrate granting the mining lease. Being an Advocate registered with Bar Council of U.P Mohd. Aslam Khan was not competent to submit an application under the Act or Rules for mining lease. Accordingly on this ground also the order passed by the District Magistrate granting lease to Mohd. Aslam Khan, is not sustainable under law.
74. Keeping in view the facts and circumstances of the case and the enquiry report submitted by the Committee, it can not be ruled out that private respondents were engaged by Mohd. Khalid Khan to obtain mining contract. It can be reasonably inferred that the private respondents Shri Rarn Pal and Mohd. Aslam were financed by Mohd. Khalid Khan to acquire mining contract to secure his interest.
It has been submitted by respondents that grant of character certificate corelate with the legal mining or illegal mining. It has been further submitted by respondents that in view of law laid down in a case reported in 2000 (18) LCD 273. Avadhesh Kumar Sharma v. Union of India and others, respondents shall be entitled for grant of mining lease. The argument advanced by the respondents counsel seems to be misconceived. Once the Government Order prohibits grant of mining lease to Mafia then the provision of compulsory furnishing of character certificate shall always be corelate with the criminal antecedent and association with criminals or Mafia. The facts and circumstances of the case of Avadhesh Kumar Sharma (supra) does not extent any help to the private respondents and not applicable under the facts and circumstances of the present case. Merely because respondents had deposited the stamp paper shall not extent any right for grant or continuance of mining lease.
In view of above, both the writ petitions deserve to be allowed and the impugned orders are not sustainable under law.
FINDING ON "MAFIA"
75. As discussed hereinabove the report of Pattanaik Committee is remain unrebutted. The observation made by Shri G.B. Pattanaik in his report has neither been rebutted by the State Government nor by the Union of India inspite of time granted by this Court. Accordingly, existence of organized crime in the State of U.P. rather in the country is a reality. The steps taken by the then Director General of Police Shri Prakash Singh vide circular dated 11.1.1993 was kept in record of police department without followup action. Circular relating to influence of mafia in mining department was issued on 16.10.2004 after a long lapse of time. However, no efforts have been made by the State Government since 1993 to check the influence of mafia and organized crime in various spheres of the Government. There seems to be lack of will power among the constitutional functionaries including political personalities who have been at the helm of affair.
76. After having series of consultation with various departments of the State and Central Government the Pattanaik Committee had submitted the report and observed that the long hand of organized criminals had acquired monopoly not only in the mining department but also in the Lok Nirman Vibhag, Irrigation, railways, national highway, forest and other local bodies and corporation of the State and Central Government for their financial dominance. They have got support from hireups. They have high political connections as well as intrusion in all the three wings of the Government. The organized criminals does not permit the witness to make a statement against them in the Courts even if they are prosecuted in the Court of law.
77. Unexplained and disproportionate assets lying in the hands of organized gangs having monopoly in the contracts of various departments are utilized to hire the unemployed youths to save their vested interest. The money so collected are also used to prevent voters to cast their votes or to cast fake votes to support their political bosses.
78. The sum and substance is that the organized crime flourishes with the aid of financial dominance by monopolizing government contracts. Accordingly, it is necessary that the awarding of contract or lease not only in mining department but in all the departments of the State Government or the Central Government and their local bodies should be done in such a manner so that members of organized criminal gang or Mafia or White Collar Criminals may not avail such contracts or their influence may be minimized.
79. The movement in motorcade surrounded by police as well as private security with Blue or red Beacon lights are the visual activities which the members of organized crime do to create a fear psychosis in the mind of public to show their dominance in the society. Apparent, violation of Rules under Motor Vehicle Act or Arms Act are the first step ordinarily which in Indian context mafia used to do.
80. Once a person holding high political office or any other office in all the three wings Government have been provided police security then there is no justification to have personal security guards for a public show. The arms licence are granted for personal security and not for public show. Undoubtedly, arms can be used in case some crime happens in the presence of arms licensee but it does not mean that licence holder of an arm should carry it with a person in motorcade or on road for public show or to show muscle power. The arm licensee can not use the arms to create fear in the public while moving collectively in motorcade alongwith other arms licensee. A licence can be cancelled for violation of any condition provided in the specified form of the licence. Form 111 A relates to grant of licence for possession and carrying by a retainer arms and ammunition. A condition has been provided that arms shall not be carried out to a fair religious procession or public assemblage or within the campus or precincts of any educational institution. For convenience Condition No.6 is reproduced as under;
Condition No.6:
The licensee shall not carry any arms covered by this licence otherwise than in good faith for the purpose of sport/protection/display and save where he is specially authorized in his behalf by the District Magistrate concerned, he shall not take any such arms to a fair, religious procession or other public assemblage [or within the campus or precincts of any educational institution].
81. Similar condition has been provided in Form III under condition No.5.
According to subsection 3(a) of Section 17 of the Arms Act, a licence can be cancelled in case for any reason a person is unfit to hold the licence. Carrying of arms collectively in motorcade while moving alongwith a political person or any other persons of the society more so when State had provided police security to such person is in no way justifiable. A person who is holding an office in any wing of the Government or otherwise got the police security then there is no justification to permit such persons to move with personal armed personnel in a motorcade. A reasonable inference may be drawn that it has been done to create fear in the public with intention to show muscle power which is not permissible under the letter and spirit of the Indian Constitution.
82. Though violation of provisions contained in Motor Vehicle Act and Rules framed thereunder may result into minor penalty but their impact is higher and gives a wrong message to the peoples. It further reflects that a section of society has got privilege to violate the law as suits them.
By using 100 per cent non visual glass on side window and unauthorized red or blue lights and hooters the members of organized criminal gang, mafia or mafiaso want to show the public at large their muscle power as well as creating fear psychosis in the society. By moving100 per cent non transparent glass the member of organized crime conceal them selves from public eye view. They can not be identified or stopped by the traffic police or intelligence agency or other wings of the police department. Non visual glass protect the kidnappers from public eye view.
83. Right to livelihood, right to quality of life, right to live with dignity, right against torture and custodian violence are also fundamental rights guaranteed under Article 21 of the Constitution of India. Right to quality of life, right to live with dignity can not be achieved unless citizens spent fearless life in the country. Thus right to fearless dignified life is the part and parcel of quality of life. In other words right to live a dignified fearless life is a fundamental right guaranteed under Article 21 of the Constitution of India.
84. In a case reported in 1997 (9) SCC 377. Air India Statutory Corporation v. United Labour. Hon''ble Supreme Court held that social justice, quality and dignity of a person are cornerstones of social democracy. Citizens have got right to live with minimum standard of health economic security and civilized living while sharing the available infrastructure and resources according to their capacity, social and cultural heritage. It shall be the duty of State to take appropriate step to make the life and dignity of a person real and meaningful. In a socialistic democracy governed by Rule of law no one is big or small. For convenience relevant portion from the judgment of Air India Statutory Corporation v. United Labour (supra) is reproduced as under;
"Social justice, equality and dignity of person are cornerstones of social democracy. The concept of "social justice" which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social Justice" is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devoid to mitigate the sufferings of the poor, weak, dalits, tribal and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane condition of work and leisure to workman are the pat of his meaningful right to life and to achieve self expression of his personality and to enjoy the life with dignity. The State should provide facility and opportunities to enable them to reach at least minimum standard of health, economic security and civilized living while sharing according to their capacity, social and cultural heritage."
50. Alf essential facilities and opportunities to the poor people are fundamental means to development, to live with minimum comforts, food, shelter, clothing and health. Due to economic constraints, though right to work was not declared as a fundamental right, right to work of workman, lower class, middle class and poor people is a means to development and source to earn livelihood. Though, right to employment cannot, as a right, be claimed but after the appointment to a post or an office, be it under the state, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and other concomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. Democracy offers to everyone as a doer, an exerted an developer and enjoyer of his human capacities, rather than merely as a consumer of utilities. In a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the Labour, would all harmoniously be blended to serve larger social interest and public purpose."
85. The Universal Declaration Of Human Right 1948 specifies more than two dozen rights required to be protected by Governments who are the members of United Nations. The Protection of Human Rights Act, 1993 defines human rights, means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in International Convention on Civil and Political Rights and International Convention on Economic, Social and Cultural rights which were adopted by the General Assembly of the United Nations on 16.12.1966. The said Act was made by Parliament "having regard to the changing social realities and growing concern in India and brought about issues relating to human rights with a view to bring about greater accountability and transparency in enforcement of laws of the nation.
86. Now it has been settled by the Apex Court that citizens have got right against torture and custodian violence vide D.K. Basu v. State of West Bengal. 1997 (1) SCC 416. right to quality of life vide 2001 (61SCC 496. Hinch Lal Tewari v. Kamala Devi and Right to live with dignity vide 1997 (9) SCC 377. Air India Statutory Corporation v. United Labour.
87. It follows as a corollary that the quality of life and right to live with dignity includes the right to live a fearless dignified life. Movement of armed persons in the streets or roads of a city or in public place, in motorcade with or without non visual glasses or with unauthorized red light, hooters creates fear in the public mind. Accordingly, collective movement of armed personals even if they have got licence for the arms which they possess alongwith political or other persons with or without police security creates fear psychosis in the society and affects the quality of life and dignity of individual. Any fear created by the members of organized criminal gang or mafia or other persons which may cause fear in the mind of peoples can not be justified in any way and is violative of fundamental right guaranteed under Article 21 of the Constitution of India.
A person who claim police protection must be ready not to carry with him a collective band of armed personals either in motorcade or while moving on the roads. Such persons should chooses either the police protection or private guards with prior approval of District Magistrate of the districts in accordance to statutory provisions and rules framed under the Arms Act. Once a person has been provided police protection then such person will have no right to move with private armed personnel. Licence of arms licensee of such persons can be cancelled by District Magistrate who forms an assembly alongwith motorcade or group of persons who possesses police protection or official body guard.
88. Whosoever breaks the law like having side window, having 100 per cent nontransparent glass with unauthorized Red light and hooters should not be provided official police security. Thus who breaks law can not be permitted to enjoy the fruits of facilities available under law at the cost of state exchequer.
89. After receipt of Pattanaik Committee''s report on 26th of April, 2006, this Court was pleased to pass following order:
"Sri G.B. Patnaik, the officer appointed by this Court has submitted a report in compliance of the Court''s order. The report is of dated 24th of April, 2006. since, it is a first case of its own kind, this Court is seized with the controversy to interpret the word ''Mafia" being raised by parties'' counsel, it shall be appropriate that the version of Union of India may also come on record.
Smt. Bulbul Godiyal, learned counsel for the petitioners is permitted to implead the Union of India as respondent No.4 during the course of day.
Let a copy of the report submitted by Sri G. B. Patnaik be provided to the learned Advocate General as well as parties'' counsel as well as Dr. Ashok Nigam, Additional Solicitor General of India within a period of one week. The Additional Solicitor General of India as well as learned Advocate General and the learned counsel for the parties are permitted to submit their response, if any, keeping in view the report submitted by Sri G.B. Patnaik within a period of 3 weeks. It is expected that while submitting their versions, learned Advocate General as well as learned Additional Solicitor General of India shall come forward with categorical averments relating to modus operand of "Mafia" as well as to how they propose to define the word ''Mafia".
The report submitted by Shri Patnaik shows that the activities of "Mafia" has not only spreaded its tentacles in the various departments, organizations, local bodies or corporations of the State of U.P. but also in the various departments of Central Government like Railways, National Highway etc. Accordingly, learned Advocate General as well as Additional Solicitor General of India may submit their version as to what steps the State Government or the Union of India had taken or proposed to take to check the activities of Mafia in their respective jurisdiction.
Additional Solicitor General of India as well as Advocate General may submit the copies of various Government Orders or decisions taken by the Central Government as well as State Government to curb the activities of "Mafia".
Office shall provide the copy of present order to Dr. Ashok Nigam, Additional Solicitor General of India as well as to learned Advocate General of the State alongwith present order within a week. The original report shall be kept in a sealed cover by the Registrar of the Court.
Registry is directed to keep the copy of report submitted by Shri G.B. Patnaik in the Library of High Court at Allahabad as well as at Lucknow titled as "REPORT ON MAFIA IN THE STATE OF U.P. BY G.B.PATNAIK. I.A.S." SUBMITTED IN PURSUANCE TO COURT''S ORDER PASSED IN WRIT PETITION NO.5018 (MS) OF 2005.
As submitted by learned Advocate General list this case on 26.5.2006.
Personal appearance of Shri G.B. Patnaik as well as other officers is exempted till further order of this Court.
Interim order shall continue till next date of listing.
26.4.2006
AKS/5018(MS)/2005.
Let a copy of this order be provided to learned counsel for the parties on payment of usual charges within 3 days from today.
AKS/5018(MS)/2005."
90. No reply has been submitted by the Union of India and State has also not denied categorical findings recorded by Pattanaik Committee. On 26.52006 by this Court after hearing the parties passed the following order:
"Inspite of service of notice alongwith copy of report submitted by Shri G.B. Patnaik, Principal Secretary, relating to activities of Mafia, neither learned Addl. Solicitor General of India is neither present nor he has submitted any response. Learned Advocate General of U.P. has submitted response in compliance of order dated 26.4.2006 passed by this Court and further he had proceeded to submit that Media has given wrong impression to public by incorrect reporting relating to the pendency of present controversy in this Court.
Heard the learned counsel for the parties. Judgment reserved.
It shall be open to the parties'' counsel to submit the written arguments within a period of two weeks from today. It shall further not be necessary for the office to keep the enquiry report in a sealed cover. The original report may be tagged with the present record."
91. Since, existence of organized crime, activities of mafia and mafiaso is a reality in public life and has not been denied by the State of U.P. as well as Union of India hence, whether this Court should be silent spectator without issuing any direction to the State to secure for the citizen the quality of life with dignity or a fearless dignified life, more so when neither the State Government nor the Union of India had informed this Court as to what action they proposed to take against organized crime/Mafia.
92. The sole purpose of all the three wings of the Government is to secure the people''s interest and to serve the people of the country. In case, the other two wings fail to discharge their duties in accordance to constitutional mandate, then this Court can not be a moot spectator while discharging extraordinary jurisdiction under Article 226 of the Constitution of India.
93. In the case of D.K. Basu (supra) Hon''ble Supreme Court had proceed to held as under:
"The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens? The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities."
94. According to Latin phrase ''Ubi jus, ibi remedium'' means there is no wrong without a remedy. Law expects that in every case where a man is wronged and endamaged, he must have a remedy. A mere declaration of invalidity of an action shall not be sufficient to meet the constitutional mandate.
95. As held hereinabove, right to life, right to live with dignity, right to equality of life are fundamental rights guaranteed under Article 21 of the Constitution of India. Right to life and right to equality of life with dignity includes a fearless dignified life. The citizens of the country have got right to live with dignity without fear of organized crime or antisocial elements or Mafia.
96. In the event of any difficulty, Courts have got power to pass procedural order though specifically not contemplated by a statute. In a case reported in (2002) 5 Supreme Court Cases 440. Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others. Hon''ble Supreme Court had held as under:
"Sometimes when a difficult situation arises it may demand such directions being made as would pragmatically meet the needs of the situation and resort can be had to the inherent powers of the Court, if need be. Krishna Iyer, J. in Newabganj Sugar Mills Co. Ltd. v. Union of India held (at SCC p. 123, para 6) "the difficulty we face here cannot force us to abandon the inherent powers of the Court to do" and he quoted Jim R Carrigantosay: "The inherent power has its roots in necessity and its breadth is coextensive with the necessity." H.R. Khanna, J. observed in Jaipur Mineral Development Syndicate v. CIT(SCCp.511 para 5)"
It has been held by the Constitution Bench of Apex Court in a case reported in 2005 (3) SCC 551. Pratap Singh v. State of Jharkhand that Part 3rd of the Constitution protects substantive as well as procedural rights. Implication, which arises therefrom, must be effectively protected by the judiciary.
97. In view of above, Government of U.P. is directed to take appropriate steps keeping in view the finding recorded by Pattanaik Committee expeditiously. It shall be appropriate that report of Vohra Committee should be discussed by the State Legislatures and the draft Bill submitted by the Government of India to check the organized crime may be placed before the house of legislatures with appropriate amendment keeping in view the findings recorded by the Pattanaik Committee. It shall also be appropriate that Union of India may consider to place a bill in Parliament for protection of witnesses as well as to legislate new law at the pattern of RICO Act existing in the United State of America to check the organized crime. It shall be further appropriate that Union of India may consider to amend Article 20(3) of the Constitution of India in appropriate manner, so that a person involved in corruption cases or organized crime possessing huge wealth may be questioned by the Investigating Agencies or the Court of Law. Union of India as well as State Government are further directed to consider to amend the Arms Act and Rules framed thereunder in appropriate manner to create embargo and check the movement of armed personnel collectively either as body guard or otherwise.
The Union of India as well as the State Government are further directed to consider to amend the Motor Vehicle Act and Rules framed thereunder as well as the Arms Act and Rules framed thereunder to provide severe punishment. Similarly, restriction may be imposed on the persons who have been provided police security not to move with armed personnel or private bodyguards. In case they do not then police protection provided by the State should be withdrawn.
98. The Union of India as well as the State Government may make appropriate provision in the column of service book so that performance of the officers and employees relating to eradication of the activities of mafia, organized crime or White Collar Crime may be indicated in the service record while granting the annual entry.
99. The Union of India as well as State Government may also consider to provide power to Central Bureau of Investigation at par with FBI of America to deal with organized crime/Mafia and if necessary a separate central agency may be created to deal with organized crime and White Collar Criminals throughout India. It shall be appropriate that there should be a separate wing of Police dealing with law and order and prosecution coupled with the investigation.
So far as the movement of vehicle with unauthorized blue or red light, window glasses without any visibility, hooters etc are concerned, has already been adjudicated by Division Bench of the Court (of which I am aMember) in Writ Petition No.3648 (MB) of 2006, Sudarsha Avasthi v. State of UP. and others) decided on 23.6.2006 hence call for no intervention under the present writ petition.
100. Lord Denning had rightly said in his famous treatise "The discipline of Law" (page 61), to quote:
"Our procedure for securing our personal freedom is efficient, but our procedure for preventing the abuse of power is not."
The new generation after opening eyes moves in the same direction, which it feels and notices from the happenings in the society. It is the duty of constitutional functionaries to give the coming generation a fearless dignified life with equal opportunity in every field of life failing which the existence of peace and harmony in the society shall become an eutopian thought. Activities of Mafia, organized crime, discriminatory treatment suffered by the young generation for any reason whatsoever in the matter of contractual assignment or employment shall increase the crime graph up to optimum level and shall give birth of a society where "might" shall be "right".
In a book "The psychology of Intelligence" by Jean Piaget, learned author had observed as under:
"The human being is immersed right from birth in a social environment which affects him just as much as his physical environment. Society, even more, in a sense, than the physical environment, changes the very structure of the individual, because it not only compels him to recognize facts, but also provides him with a readymade system of signs, which modify his thought; it presents him with new values and it imposes on him an infinite series of obligations. It is therefore quite evident that social life affects intelligence through the three media of language (signs), the content of interaction (intellectual values) and rules imposed on thought (collective logical or prelogical norms),"
101. In view of above the present writ petition is allowed and decided in the following manner:
(1) A writ in the nature of certiorari is issued quashing the impugned orders dated 15.7.2005 and 8.2.2005 as contained in Annexure 1 and 2 to the Writ Petition No.5018 (MS) of 2005 and Impugned orders dated 13.7.2005 and 8.2.2005 as contained in Annexure1 and 2 to the Writ Petition No.5153 (MS) of 2005 with natural consequences. District Magistrate, Bahraich is directed to proceed afresh in accordance to law keeping in view the observations made in the present judgment to award mining contract or lease as the case may be.
(2) Since neither the State nor the Union of India had rebutted the finding of Pattanaik Committee (supra) and have also not come forward with a proposal to combat the organized crime, hence till effective law is legislated to check the organized crime keeping in view the observation made hereinabove, a writ in the nature of mandamus is issued commanding the opposite parties no.1 to 4 as under:
(i) Let recommendation of Pattanaik Committee relating to the grant of contract as reproduced in Para 30 of the present Judgment may be enforced forthwith. Apart from enforcement of recommendation of Pattanaik Committee as contained in para 3.0 of the present judgment, the State Government is further directed to issue appropriate Government Order or Circular providing that every contractor tender costing two lacs or more shall not be accepted by the department of State Government or its local bodies or corporations unless and until ''no objection certificate'' is provided by the Income Tax Department, Trade Tax Department, District Magistrate and Superintendent of Police of the district. No contract should be accepted unless the contractor furnishes a character certificate given by Superintendent of Police or Senior Superintendent of Police of the district concerned as well as District Magistrate of the district relating to antecedent of the contractor as well as financial capabilities to do the contractual work; Government may provide necessary format for that purpose.
(ii) Every Government agreement must contain a clause to indicate that even after awarding of contract or lease of work by the Government or its local bodies or corporation, in case it comes to light that the person concern (contractor) has been actively associated with mafia or some unsocial elements or organized crime or is a Mafia or Mafiso then the contract or lease, so granted, shall be cancelled after serving a show cause notice.
(iii) The agreement of the contract should also contain enabling clause with power to rescind the contract or lease as the case may be in case it borne out from the record or it is proved that some of the prospective bidders were threatened or prevented from participating in the bid or they were prevented to submit their tenders then in such case, contract shall be cancelled and fresh assignment shall be given after inviting fresh tenders. As far as possible Government shall ensure that physical presence of prospective bidders may not be made necessary. As observed by Pattanaik Committee tenders or bids may be given by Email, registered post or other electronic mode.
(iv) In case prospective bidder or contractor submits a complaint stating that he or she has been threatened with dire consequences in case he or she participates in a bid or submit tender, then the Head of the District Police or the State Government shall immediately provide appropriate security to such person for reasonable period and shall register an FIR for investigation in accordance to law.
(v) Since the movement of armed personnel collectively alongwith the persons holding whatsoever post, office or designation, creates fear psychosis in public as discussed hereinabove, the State Government is directed to ensure that those who used to move with private armed personnel should not be given official or police security. Such persons shall not be entitled to claim police security from the State Government. Similarly, those persons who form an assembly or move collectively alongwith persons having police security shall not be entitled to possess armed licence and District Magistrate of the district concerned will have right to cancel their fire arm licenses. The State Government may issue appropriate order or circular accordingly. It is necessary also because as held hereinabove "right to live a dignified fearless life" is a fundamental right guaranteed under Article 21 of the Constitution of India.
(vi) The State Government is directed to constitute or establish an Organised Crime Control Authority in the State of U.P. headed by an officer not below the rank of Principal Secretary with minimum two other members namely Additional director General of Police (Law and Order) and Additional Director General of Police (Mafia) empowering it to receive complaint and make investigation or to investigate the charges relating to Government contracts, lease or agreement where the involvement and malpractices of mafia or organized criminal is suspected. In every district of the State a Committee should be constituted to hold an enquiry relating to the involvement of mafia in the contracts relating to Government, its local bodies and corporations. Appropriate regulatory rules of guidelines may be framed by the State Government forthwith and Government order may be issued accordingly.
(vii) Since, admittedly, no information is being collected and retained in the office of Director General of Police or Inspector General of Police (Crime) relating to the organized crime and its member, as well as White Collar Criminals, the State of U.P. is directed to link the office of Director General of Police with computer network (in case already not done) and an officer of the rank of Additional Director General of Police may be deputed to deal with organized crime. Mafia and White Collar criminals as separate wing. All Superintendent of Police of the State of U. P. are directed to collect necessary information relating to the organized crime and the names of persons involved in such crime and forward the same to Additional Director General of Police appointed to deal with organized crime. Station House Officer of respective Police Station in the State of U.P. shall collect the necessary information relating to the organized criminals of their jurisdiction and shall forward the same to the Superintendent of Police who in turn shall forward the same to the Additional Director General of Police (Mafia or organized crime). The information so collected shall be used to check organized crime. The State of U.P. is directed to provide necessary fund for establishment of computer network in the Police Department managed by skill hand expeditiously. All necessary information relating to the various crime referred in the present judgment or otherwise should be collected by creating various heads in a prescribed format by the police department. The information shall include not only the criminal activities or organized gang or Mafia but also the detail of their assets and properties and associates of mafia, telephone numbers, address, their modus operandi etc. While collecting such data the various circumstances and nature of the crime enumerated in RICO Act referred in present judgment may be taken into consideration. For this intelligence Network may be given necessary strength by the Government of U.P.
Appropriate steps may be taken so that citizen may lodge First information report through email/fax or other electronic modes.
(viii) The incident of every kidnapping for ransom and organized crime should be recorded in the service book of Station House Officer of the area concerned by the Superintendent of Police of the respective districts. In case, any Station House Officer fails to check the reoccurrence of kidnapping for ransom or organized crime then he or she shall be liable for removal from the said post. Every incident of kidnapping for ransom should be recorded in the service book of Station House Officer of the Police Stations by the Senior Superintendent of Police/Superintendent of the Police of the district concerned and for that purpose appropriate column should be provided in the service book.
(ix) The State Government as well as Union of India is further directed to take special care not to permit an Advocate registered with the State Bar Council to indulge into contract works. Any application moved by an Advocate for mining lease or contract work to any department of the State, its local bodies or corporation should be out rightly rejected.
Even if after the awarding of contract it borne out from the record and comes into the knowledge of the competent authority that contract has been awarded to an Advocate then such contract or assignment should be immediately cancelled. Advocate Act does not permit an Advocate to enter into any other business or trade or service being a privileged profession. Let the Union of India as well as the State of U.P. issue a circular accordingly.
(x) Union of India and Railways are directed to take appropriate steps expeditiously to check the involvement of Mafia or Mafiso or members of organized criminals gang, in Railway contract as well as other Government contracts and local bodies, corporations including National Highway and other establishments keeping in view the finding recorded by the Pattanaik Committee and observation made in the present judgment.
Since, interference by Mafia or members of Organised Crime has been noticed by Pattanaik Committee in the railways contracts and to some extent in the contracts of national highway and other Central Government organizations and are rising with alarming rate it shall be appropriate that Government of India may constitute Organised Crime Control Authority with ample power to rescind the contract in case it has been awarded to the member of organized gang of criminal or mafia. The Government of India and Railways are further directed to take appropriate steps expeditiously to use, information technology and technical knowledge so that physical presence of the contractors may not necessary to raise bids and the contract awarded to Mafia, or members of organized criminal gang may be cancelled.
(xi) The Union of India is further directed to take appropriate measures and steps expeditiously in the light of observation made in the present judgment to check the involvement of mafia in the Government contracts, lease or permits.
It shall be appropriate that Union of India may take suitable steps either by making a reference to the Law Commission or by directing the Law Department to prepare a draft to enact an Act on the pattern of RICO Act existing in the United State of America to check and control the organized crime in the country. The Union of India shall forward the copy of present judgment as well as copy of report of Pattanaik Committee to the Central Law Commission.
(xii) Keeping in view the statement made by Chief Minister of the State and the statement given by Advocate General of the State of U.P. referred hereinabove in the present judgment the State of U.P. is directed to make a reference to the State Law Commission to submit a recommendation to State Government within specified time for enactment of an Act keeping in view the observation made in the present judgment and RICO Act or MOCC Act (Maharastra Organised Crime Control Act) to check the organized crime or activities of mafia in the State of U. P. After receipt of recommendation from Law Commission of the State, the State Government is directed to proceed ahead to legislate an Act to check the organized crime in the State of U.P. While making a reference to the State Law Commission the State Government shall forward the copy of the present judgment as well as the report of Pattanaik Committee.
The aforementioned directions issued by this Court are not final and have been issued to meet out the immediate requirement in public interest, as the State has not come forward with a proposal to combat organized crime It shall be open to the State Government as well as Union of India to legislate law or frame Rules or issue appropriate Government Order or circular keeping in view the observation made in the present judgment expeditiously in public interest as well as to combat the rise of organized crime.
Writ petition is allowed accordingly. No order as to costs.
Let appropriate action be taken by the State of U.P. in compliance of aforementioned directions and appropriate Government Order or circular may be issued within a period of three months. The Chief Secretary. Government of U.P. is directed to file his personal affidavit after implementing the aforementioned direction on or before 1st November 2006. Director General of Police is also directed to file his personal affidavit accordingly after Implementing direction and issuing appropriate circular required to be done at his end by the aforesaid date.
Office shall send a copy of the present judgment to the Chief Secretary, Government of U.P as well as Advocate General of State of U.P. for compliance within a week.
Let a copy of the present judgment be forwarded to the Additional Solicitor General, Government of India, Dr. Ashok Nigam, Shri Manik Sinha, learned Counsel for the Railways, Chairman of Railway Board and Secretary of Law and Justice and Secretary, Department of Home, Government of India within a week for appropriate action.
Registry shall list the present petition on 3rd of November, 2006 for the purpose of consideration of compliance report.
(Petition allowed)
