updated on 29-05-2011
Author: Sandeep Jalan (Advocate)
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West,
Mumbai 400056.
Email- legallyspeaking.jalan@gmail.com, sundeep_jalan@yahoo.co.in
CHAPTERS
1. INTRODUCTION
2. TYPES OF WRIT PETITIONS
3. LOCUS
4. JURISDICTION OF COURTS
5. SHORTCOMINGS OF PRESENT PIL FUNCTIONINGS
6. DUPLICATION OF LITIGATION
7. EVIDENTIAL VALUE OF NEWS REPORTS
8. GOVT TAKING ADVANTAGE OF ITS OWN SHORTCOMINGS
9. CASES INVOLVING INTERPRETATION OF LAWS
10. THE CONSTITUTION OF INDIA: Fundamental Duties & Rights
11. APPOINTMENT OF AMICUS CURIAE IN PILs
12. INTERVENING APPLICATION
13. OTHER PRACTICAL TIPS
14. MODEL FORMAT OF PETITION
15. PREPARATION & PROCEDURE FOR FILING PETITION IN THE COURT
16. DRAFT FORMAT OF NOTICE.
17. FORMAT OF PRECEIPE
18. Anatomy of Judicial Rejuvenation:
19. THE SIMPLE GREAT IDEA OF AWARDING PUNISHMENT
20. DISCRETIONARY POWERS OF MINISTER !!
21. WHAT IS RULE OF LAW AND WHAT IS NOT.
22. DISCLAIMER
CHAPTER -1- INTRODUCTION
Our system of governance is founded on the lofty principle of rule of law, wherein the Nation’s power is divided amongst three chief organs, each under a duty to conduct itself in a manner that subserves the common good of all and achieve the objectives of a welfare State. The checks and balances were put as inherent safeguards designed to ensure compliance with the maxim “Be you ever so high, the law is above you”. The dicta of the Constitution is crystal clear; namely, the goal of good governance. Having said this, the holders of public offices, however, treat the authority in their hands as one bestowing upon them, the status of a ruler rather than one in public service.
This blog originated in the felt need for a simple remedy that may be available to Citizens who has the occasion to face the illegal acts and omissions of public authorities including unattended complaints that are made to public officials / authorities; or those citizens facing harassment at the hands of Public officials / public authorities / police authorities.
Public Officials fascination to disregard of established laws, in neglect of their duties hardly requires to be stressed. Moreover, every other day, it is seen that the Govts., municipalities, are pregnant with Rules, Policies, Schemes, Projects which ordinarily are fanciful, unwarranted and annoying to masses. Then comes the related query -What is annoying act / decision. An act / decision of the govt, which produces anguish at the first thought and produces sense of absurdity at second thought, to all reasonable thinking man, may be called an annoying act / decision. And, this is how complaints of citizens come into being.
I take the liberty to presume that complaints made by Citizens of this country called India, to Public officials / authorities, ordinarily, are attended with- with great disrespect and sometime with hostilities. The Officials are found quite competent to throw away genuine complaints of Citizens. Complaints are attended, but like I maintain my personal gmail account.
The Public Servants / Officials were heard saying, (one may also call it various forms of passionate corruption) in the words of very learned Professor Upendra Baxi--
(1)As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner;
(2) As an Authority of Public Power- I may so act as to favour some and disfavour others;
(3) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
(4) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
(5) As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
(6) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
(7) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
(8) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction.
In modern democracies, wide powers vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinabove.
Nevertheless, in the backdrop of ancient Social contract, the satisfactory replies to complaints is not of some importance but of fundamental importance in State Citizen relationship, and therefore, our knowledge of ancient past may be of some help to be assertive for our rights in the present today.
And therefore, it seems to me of some necessity to dig this land holding laws and legislation, trace the evolution and development of law, the emergence of concept of subject & the ruler, and trace the origin of today's concept of Citizens & the State.
At the advent of Human Civilization, ‘Men’ were Sovereign in their own, in the sense that, they were free and were not subject to or bound by any law. Then, men were Ruled by their own conscience and not by codified laws and were even free to the extent of inflicting violence at their will & strength, i.e. Might is right was the scene. men were guided by own conscience and greed. An action not emanating from reason and the freedom to do as one pleases.
Great Philosopher Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.
With the great passage of time and centuries together, Codified laws evolved and were introduced in human life. Men came together, they voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the Rule of codified laws. The rule of codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alonwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.
Among various definitions of State given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE. Sovereignty is one of the chief attributes of Statehood. A Sovereign State is one which is subordinate to no one and is supreme over the territory under its control. The word State connotes three organs, namely- The Legislature, The Executive Government and The Judiciary. The 'State' is defined under Article 12 of constitution of India which includes every public authority established under law or under Constitution of India.
Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.
I also seek to recall an historic incident of Indian freedom struggle, occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year 1893, when in South Africa, while holding a First Class Compartment ticket and travelling in, Gandhi was thrown out of the train, for in those times “Blacks” were not allowed to travel in the First Class Compartment, notwithstanding they hold a valid ticket. It was 9.00 in the chill night. That designated “Black” sent a Telegram to the General Manager of the Railways and registered his complaint. The Complaint of that designated “Black” was attended, forthwith, the General Manager instructed the Station master to secure that complainant reaches his destination safely. Complainant was accommodated in the very next morning train to his destination.
And here, in the era of INDEPENDENCE and 21st Century of modern democracy, we have Citizens of Sovereign India, of whose complaint are ordinarily, attended with great disrespect and hostility.
At this point, some things must also be spoke about our constitutional democracy and its structure.
Our Democratic India is founded on Written Constitution. In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA, came into existence on 26th January 1950, is the supreme & fundamental governing volume. It is mammoth, defining every bit of governance for the very accomplishment of security of life and of property to all Indians residing wherever in any corner of the world territory. Supremacy of the Constitution – CIT versus Harijan Nigam 226 ITR 696
No second meaning – Article 14 – 178 ITR 97 (SC)
Constitution is the mechanism under which laws are to be made and is not merely an Act which declares what the law is to be – 7 judges Bench of the SC in India Cement Ltd versus State of TN- 188 ITR 690, 699(SC)
This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our Constitution propose to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA.
Whereas there are three organs of the “State” - they are Legislature, the Govt and the Judiciary, the origin & the authority of all these three organs can be traced from this peoples' governing volume. Every injunction of this governing volume represents the wishes and ambitions of our countless freedom fighters; and these three organs discharge their responsibilities within four corners of injunctions in this governing volume. These State organs, while in every exercise of their discretionary powers are obliged to take inspiration and guidance from this governing volume. The spirited adherence to the words of this governing volume is the first promise all men at State organs make to the people of India.
At this juncture- It comes to my mind that Bhagat singh, Bal gangadhar Tilak, Abdul Kalam Azad, sarojini Naidu, Mahatma Gandhi, Subhash Chandra Bose, and many countless brilliant laid down their entire life to seek freedom from British rule, not because for the sake that they were white Englishmen, but because these white Englishmen were practicing discrimination, inflicting merciless exploitation on Indian poor lot and devising suppressive penal laws towards Indians. The British govt decision making process were non transparent and Indians were not consulted. Britishers were told to go back not because merely we wanted our men at place of power but because it was seen that Britishers didn’t gave dignity of life to the Indians.
Our then national leaders thought that if INDIA will be ruled by its own people, there will not be any discrimination, there will be no exploitation and no suppression that is existing in British colony. It was thought that if Indians will rule, every policy of discrimination, exploitation & suppression will be repealed at the threshold.
In British times, then people were so scared of then police for they have assumably and presumably given super powers to arrest and put any one in the lock-up. Freedom fighters and inconvenient persons were put behind bars on the pretext of non bailability of offences.
However, nothing much has changed in modern Independent INDIA. We the people yet are so afraid of police for they have assumably and presumably continue to have super power to arrest and detain anyone in the lock up. In today Independent INDIA, a man is liable to be arrested merely on a complaint of non bailable offence if so registered with the police, unless the money or politics intervene.
Today, we have forgotten that these were the issues of liberty for which our then leaders and countless people have fought with the British. Our govt still blindly follow bailability of offences and interfere with most cherished i.e. liberty of a individual. Whereas we are though gifted with shield of landmark Judgment given by Hon Supreme Court in Joginder Kumar case in 1994, yet arrests are effected with fascination of ignorance. In Joginder Kumar case Supreme Court has nearly dismantled this bailable & non bailable system of arrest and has given clear guidelines for arresting any one. http://commonlaw-sandeep.blogspot.com/2009/06/final-word-on-law-of-arrests.html
HAVING SAID ALL ABOVE SOUNDING GREAT THINGS, THE GROUND REALITY REMAINS THAT THE MENACE OF UNATTENDED COMPLAINTS IS QUITE AMAZING. THEN WHAT TO DO, HOW TO DEAL WITH THIS MENACE OF UNATTENDED COMPLAINTS.
The remedy lies in us exploring the laws holding the land and asserting our rights in the Judicial forum. At this point, one may laugh at me wherein I suggest to move courts when it is admitted fact that moving court is a luxury which few can afford. And therefore, this literature is prepared to guide Citizens to file Writ in the High Court by themselves, without the help of advocate.
First of all, a NOTICE may be sent to concerned Public authority raising one’s grievance against it. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI) the Hon’ble Supreme Court took Judicial notice of the fact that the government and its agencies are the biggest litigants in the courts and are known to be a huge contributor to delays, in matters where it is a party – at various stages – from evading notices, replying to notices and replying without application of mind, unnecessarily appealing even when the laws are clearly in favor of the other side, etc.
The Court thus directed- “Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned that whenever any notice is received by them, they have to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated time. The replies shall be sent after due application of mind. Despite this, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him”. Please find a simple format of notice below.
Before I speak about Writ remedy, I will take liberty to speak few words about our Scheme of Justice. As we have seen above, in modern times, Peoples' Security and Progress are sought to be secured through codified laws and scheme of Justice is thus introduced to secure that Security and Progress. The whole scheme of Justice it appears in its most common acceptation implies the rendering of every man his due, that is- his rights. The exercise of adjudicating and declaring rights and legal obligation of parties, by employing laws of the land and the principle of equity, by a competent court of jurisdiction, may be called as the exercise of administering justice.
There are two system of administering justice to the aggrieved litigant. One is - inquisitorial system, is a legal system where the court or a part of the court is actively involved in determining the facts of the case; the Second is as an adversarial system where the role of the court is solely that of an impartial referee between parties.
India has adversarial form of Justice System that relies on the contest between each advocate representing his or her party's positions and involves an impartial person, usually a judge, trying to determine the truth of the case. When techniques of ascertaining facts and deciding legal issues are discussed, a central feature is seen as a confrontational style:
The two sides of litigation prepare and present their cases to the court, and a decision is reached on the basis of the two alternative versions of fact and law.
Now coming to real issue, that is, what is Writ Petition is all about.
The meaning of WRIT and meaning of Petition. Writ implies Power of the Constitutional Courts like the High Courts and the Supreme Court to give authoritative directions to any Public Authority, or to private persons, to do something or refrain from doing something. Petition means the making of Complaint to appropriate Court of law.
It is also important to understand basic difference between a regular Writ Petition and PIL Writ Petition. Whenever a person affected by any illegal act or omission of Public Officials or of any Public office, he may approach the High Court for issue of appropriate Writ (authoritative direction). However a person may approach the High Court for issue of appropriate Writ in the larger public interest even when he is directly not affected by illegal acts or omissions of Public Officials. I hope the difference is quite visible.
The true scope of Writ Jurisdiction of High Courts under Article 226 of the Constitution of India was so beautifully and neatly explained by Hon’ble Supreme Court in the case of Mohammed Hanif versus State of Assam (1969) 2 SCC 782- The Court said- In a proceeding under Article 226, the High Court is not concerned merely with the determination of private rights of the parties; the only object of such a proceeding under Article 226 is to ensure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.
The Writ Petition is kind of a remedy given to people of India for enforcement of their rights against the Govt and its various agencies, and in exceptional circumstances, the Writ Jurisdiction may be invoked against private persons who are discharging functions which are essentially of public nature, or say directly concerned with public welfare.
It is always desirable that one should not show haste in approaching Courts and sincere efforts should be made to explore alternate remedies provided under law or to get things done from Public Auth itself. Yet it is not permissible that one can knock the doors of Court as when he so wishes. Matter should be brought before the Court in most reasonable time. Moreover, it is mandatory to serve notice to Public authorities against which one intends to move in the court of law, except in compelling circumstances, reasons whereof to be recorded in the Petition.
In the exercise of Writ Jurisdiction, Writ of mandamus (Constitutional Courts gives authoritative directions to the State agencies to do something or refrain to do something) which forms 90% of Writ cases, High Courts, ordinarily, doesn’t resolve any dispute between parties to the case, but on palpable and striking establishment of (1) violation of fundamental rights; OR(2) violation or disregard of any provision of the Constitution or of Statutory provision; OR (3) of Illegal acts and Omissions of Public Officials/Authorities, gives direction to the public authorities concerned. Mandamus is a very wide remedy to reach injustice wherever it is found.
Unlike Lower Courts, in Writ cases, High Courts are not obliged to follow strict procedure that has to be followed in conventional Suit proceedings OR conforming to rigid process of establishing the guilt of the accused beyond reasonable doubt as in criminal trials. Thus writ cases ordinarily are expedited.
Hon Justice Krishna Iyer and Hon Justice P N Bhagwati marked the beginning of PIL in India in the year 1980.
Some of the important earliest PIL cases include-
1. Ratlam Municipality Case involving obligation of Municipal Corporation towards Citizens.
2. Bandhua Mukti Morcha Case regarding rights of quarry workers.
3. Asiad Workers Case regarding minimum wages of migrant labourers employed by Govt for construction purposes.
4. Case of Charles Shobhraj and Sunil Batra regarding torture in prison.
5. Case of 29000 undertrials prisoners languishing in prison of Bihar.
Time and again our Courts have taken judicial notice of mere letters and Telegrams received from concerned citizens and converted into PILs.
The Courts have power to grant compensation in appropriate cases involving gross and palpable violation of human rights. Even in deserving cases the Court may award Cost to Petitioners and at the same time may impose fine on Petitioners for misusing this Writ Jurisdiction of the Court for personal gains in the name of Public Interest.
The fact that process of Court is too complex for common man to understand easily, I am of strong view that whoever in time of extreme situations of life and death or where dignity of life being shattered by illegal action of any public official- one should directly approach the Chief Justice of High Court or before any Judge of any Court and should air his/her grievances across the court room. The victim may approach Chief Justice or before any other Justice of Bombay High Court at 11.00 am when Court proceedings began OR at 3.00 pm when Court proceedings resume after Lunch OR at 5.00 pm when Court Proceedings are concluded for the day.
CHAPTER -2- TYPES OF WRIT PETITIONS
There are five types of Writ Petitions can be made to High Courts and to Supreme Court.
They are-
1. Writ of Habeas Corpus: To seek release of a person from unlawful detention, whether by Police or by any private person.
When the Police arrests a person without following the due process of law as envisaged in Article 21 of the Constitution of India, the said arrests is illegal in the eyes of law and Writ of Habeas Corpus may be filed in the respective High Court.
(Guidelines given in Joginder Kumar case and in D K Basu case. )
AIR 1986 SC 494 (para 3)
Rudul; versus State of Bihar AIR 1983 SC 1086 (para 10-11)
Sebastin versus UOI AIR 1984 SC 1026 (para 7)
(1994) (supp) (1) SCC 500 (para 4)
2. Writ of Mandamus: To seek direction to the Govt/ any public authority, to do some act or to refrain from doing some acts. In exceptional cases, Writ can also be filed against private persons, but the relevant public authority must be made as a party.
The government to conduct its business of administration and governance with utmost economy with full realisation that the money it spends belongs to the people and they merely hold in trust. Meet the urgent emergent needs of the society that arise in the natural progression of life; arise in the changing social & economic development.
Bear in mind, in the investment of funds, the primary obligation to its citizens, whose money it holds in trust, without losing sight of the interest of the community as a whole; the funds to be deployed to the best advantage of the most needed section of the society, of course keeping in view other national priorities and obligations.
Objectives of any government in power to spread development widely and in particular to the rural areas and to the socially and economically backward classes with a view to reaching all needed persons in the country and providing them reasonable opportunities of livelihood.
It is the concern of the courts that public authorities are compelled to perform their duties if they are shown making default.
“The ultimate guarantee against abuse of power, legislature, judicial and executive, lies in the political and legal safeguards against such abuse, in a vigilant public opinion, and in the sense of justice in the people generally.”
Even now, it is not too late to retrieve the situation. It just needs innovation, courage, speedy action and prudent deployment of resources. Even politicians and bureaucrats have an incentive to improve things, for what is there to plunder in a graveyard? We need to address the crisis of confidence and restore optimism and sense of adventure that were the hallmarks of governance in Bihar fifty years ago.
In our country, law is like a holy religious text, which is optional to observe.
3. Writ of Certiorari: to seek quashing of Orders passed by Lower Court/ tribunals/ quasi judicial authorities who has refused to exercised the Jurisdiction vested in it, or who has acted where it has no Jurisdiction to pass Orders, or who has prima facie abused the Jurisdiction vested in it by passing Orders without following principles of natural justice and whose orders violate any law of the land or violate fundamental rights of the litigant.
Where Statutory Tribunal has committed an error of law apparent on the face of the Record. (1958) SCR 1240 (1269); AIR 1957 SC 232; AIR 1965 SC 1222; AIR 1959 SC 1089
Where proceedings have been taken under a law is ultra vires.
AIR 1969 SC 556 (559)
AIR 1965 SC 1321
AIR 1961 SC 1615 (1620)
Mandamus may be issued to compel a tribunal to hear and decide a particular matter, but not as to manner in which it is to decide. AIR 1968 SC 1223 (1227)
Once the HC has entertained the WP and decide the same, that cannot be disturbed at the appellate stage on the ground of availability of alternate remedy. L K verma versus HMT Ltd AIR 2006 SC 975
The fact that the aggrieved party has another adequate remedy may be taken into consideration by the superior court in arriving at the conclusion whether to exercise its jurisdiction. (1993) 1 SCC 22 (para 45)
AIR 1961 SC 609 (611); AIR 1954 SC 20.
4. Writ of Prohibition: to seek direction preventing Lower court / tribunal / quasi judicial authority from passing Orders where it has no Jurisdiction to pass Orders, or who is prima facie abusing the Jurisdiction vested in it by passing Orders without following principles of natural justice and whose orders will prima facie violate laws of the land or violate fundamental rights of the litigant. It may be noted that Writ of prohibition is issued prior to passing of orders by lower court or tribunal and Writ of Certiorari is issued after the passing of orders.
5. Writ of Quo Warranto: to seek removal of a Public servant who is unlawfully or is disqualified to assume that Public office and yet occupying that Public office.
Who is not lawfully entitled to such Public office.
APPOINTMENTS signifies an act of designating a person, such as a non elected public servant for some job or service. The power of an State as an employer is more limited than that of a private employer inasmuch as, State is directly subject to Constitutional limitations.
AIR 1966 SC 602 (605); AIR 1963 SC 268 (271)
In Karkare vs. Shavde (AIR, Nagpur, 1952, p. 330), Masehullah vs Abdul Rehman (AIR, Allahabad, 1953 p. 193) etc. Courts have held that any private citizen can file a petition of Quo Warranto to challenge the appointment of a public official even though his personal rights are not directly affected.
AIR 1982 DEL 83
AIR 1955 Hyd 36
AIR 1957 MP 60
Parity in opportunities in public employment is of great importance. The Country's social structure contain great many mismatches, which the framers of the Constitution have tried to minimize through Constitutional provisions.
Involve all people to the best of their capabilities in the working of the governance & administration of the nation to fulfil the promise made on the eve of 15th august 1947.
Promote amongst citizens of the country a sense of participation, pride and satisfaction through discharge of their duties with dedication towards achievement of the same promise of 15th august 1947.
Apart from above discussion, Writ jurisdiction of High Court may be invoked for the following purposes –
(1) FOR MAKING PUBLIC OFFICIALS/ AUTHORITIES STRICTLY OBSERVE PROVISIONS OF LAW, DISCHARGE THEIR LEGAL OBLIGATIONS / DUTIES, FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS AS CONTAINED IN OUR CONSTITUTION, AND FOR ENFORCEMENT OF STATUTORY RIGHTS, FOR OBSERVANCE OF MANDATE OF CONSTITUTION OF INDIA.
Mandamus will lie where the impugned decision is ultra vires the Statute. AIR 1963 SC 114.
Where statutory powers are used for extraneous purposes which shocks the conscience of the Court, it is malafide use of the power. AIR 1979 SC 49.
The Courts have made it clear that they cannot refuse to entertain for an appropriate Constitutional remedy where a fundamental right has been infringed. Basappa versus Nagappa AIR 1954 SC 440.
Fundamental Rights breached / threatened.
Tata Iron & Steel Co Ltd versus sarkar AIR 1961 SC 65 (68);
Kochunni versus State of Madras AIR 1959 SC 725 (729)
AIR 1965 SC 1321
AIR 1961 SC 1615 (1620)
MISCONDUCT- (1992) 4 SCC 54
Mandamus against Chief Justice of HC for his alleged action or inaction of administrative nature. AIR 1964 SC 1636; AIR 1979 SC 193
Mandamus will lie where the impugned decision is ultra vires (against the provisions) of the Statute. AIR 1963 SC 114.
Service Matters
Chandra versus UOI (1997) SCC 261 (para 99) No Service matter directly to HC / SC.
If however, the cause of action is an order of the tribunal which offends a fundamental right, not being a service matter. Zahir versus UOI (1993) 23 ATC 812
Threat of infringement of fundamental right is enough to justify the issue of writ. Simranjit Singh versus UOI 1993 1 UJ SC 32 para 7. (Headnote)
SOME OF THESE BELOW POINTS MAY BE CONSIDERED INCORPORATING IN THE PETITION SO AS TO CONVEY THE IMPORTANCE OF OBSERVANCE OF LAW.
All laws of any nature, whether Prohibitive or Regulatory or laws conferring Rights and Privileges, has only one objective to serve and that is creation of a better environment for everyone, individually and collectively, in an ever evolving society.
In cases, the letter of the law may appears to be unwarranted or as futile but it must be remembered that the letter so exist is the collective wisdom of the Representatives of the people. All Statutes or Laws so made and passed by Legislatures is to remedy the ill that has plagued the society. All Statutes comes into being with some policy and objective to be achieved.
Every statutory provision in a Statute comes into being after due deliberation and every letter of the law is employed with great caution and care; and with some purpose.
Words and Provisions found in enacted laws is no trivial. They are found for their notoriety and expediency, to regulate human behavior and promote society welfare. And no separate set of reasons needed to seek spirited observance of the law, for its mere presence in the books of law calls for forceful observance of it.
It is even not open to the Judges of the Supreme Court and the High Courts to act or give judgments in deviation from established laws.
It may be beyond one's wisdom to anticipate nor it is necessary for one to outline the consequences that may occasion due to patent violation of a statutory provision, for the consequences have already been deliberated at the time of passing of the statutory provision. It is suffice if one merely seeks the bare observance of the letter of the law in the spirit inherent in the letter of the law and preamble of the Statute.
It is simply not permissible to act contrary to the established laws on the pretext of some beneficial advantage that may accrue.
As everyone says that we live in a Rule of Law society. What we really mean by Rule of Law is that the Law which is established must be observed in all the circumstances except in cases where the Law itself is absurd and or arbitrary.
The present case is a demonstrative and living example of how a responsible…., are acting plainly in complete contravention of established laws.
The Office bearers of XXX are consciously indulging in illegality thereby disregard and undermine the Wisdom and Authority of Legislature; and their act constitutes the constructive contempt of the Indian Judiciary.
The bare act of XXX frustrates the foundation of Rule of Law society. Their act creates an impression in the societal people that the established laws may be disregarded at one's whims and fancies. The conscious neglect of established laws will occasion where the societal people will further lose respect for the laws.
Every letter of the Law must be observed with due respect, unless the same is declared by the competent Court of Jurisdiction as manifestly arbitrary and or absurd.
Above all, it can be argued- Should we not invoke doctrine of promissory Estoppel against all Public Servants of laws established for they take Oath of allegiance to Rule Of Law.
Oath of allegiance to rule of law implies that all holders of Public office make a positive promise to the People at large that they will abide by all laws in letter & spirit. Thus they all are stopped from acting contrary to established laws. This may be the essence of Promissory Estoppel of laws.
It should be alleged that every violation of conferred right and every duty failed is a Promise BROKEN.
Municipality of Ratlam versus Vardichand an unmatched landmark judgment which takes judicial notice of awesome complete corruption in public administration and therefore rules that the State functionaries must fulfil their constitutional and statutory obligations irrespective of money in their purse; sown seeds of PIL jurisdiction.
Strict adherence to constitutional dictates is our obligation for they are the longings of our freedom fighters to whom we owe our Independence. The people of India after independence are not free, they are bound by the dictates of the constitution of India.
(2) FOR ALL MATTERS CONCERNING LIFE & LIBERTY INCLUDING OF POLICE ATROCITIES, ENVIRONMENTAL ISSUES, WATER, AIR, NOISE POLLUTIONS, CRUELITY TO ANIMALS, FOR SPEEDY TRIALS, RIGHTS OF DISABLED PEOPLE, RIGHTS OF CHILDRENS, WOMENS, AND ANY ISSUE DIRECTLY TOUCHING UPON DIGNITY OF A HUMAN BEING..
The Constitution of India recognizes right to life and liberty to every person, except according to the procedure established by law. Article 21 & 14 are the most cherished fundamental rights of citizens. Article 14 guarantees equality to every person.
PIL may be filed to secure the proper administration of a Hospital or for its establishment in a needed locality. Peoples Union versus UOI 1992 (supp)(2) SCC 647 Para 5.
ARTICLE 14
The basic requirement of Article 14 is fairness in action by State. (2003) 5 SCC 437
AIR 1989 SC 549
AIR 2003 SC 2189
State of Maharashtra versus Chandrabhan. AIR 1983 SC 803.
Olga tellis versus BMC AIR 1986 SC 180
Dalmia cement Bharat Ltd versus UOI (1996) 10 SCC 104.
(3) FOR CHALLENGING GOVT BODIES FOR MAKING ANY ARBITRARY / DISCREMINATORY RULE / LAW OR TAKING ANY SUCH DECISION OR INTRODUCING FANCY SCHEME OR PROJECT OR SAY WHEN ABUSE OF DISCRETIONARY POWERS BY GOVT OR BY ANY OF ITS AGENCY.
By and large, any illegal or any absurd, or any arbitrary decision, or arbitrary framing of rule or law, by Govt or by any public authority, is the outcome of the arbitrary procedure followed in reaching to that decision. Therefore, as far as possible, not the arbitrary decision but the mode of reaching that decision should be challenged. There are Rules and or set guidelines that are to be followed while deciding or framing any rule or law or taking any decision.
Views of Robson are very pertinent here. According to him, within certain limits, the individual who exercise discretion is quite free. But if he ventures outside those frontiers , his power ends, if he takes into consideration matters fantastic and foreign to subject matter , if he decides the matter according to his will and private affection, then he is regarded as having failed to exercise any discretion at all.
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India.
Krishna Swami Vs Union of India. AIR 1993 SC 1407
The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.
Abuse is using the powers or position for which it is not intended. M Narayanan versus State of Kerala AIR 1963 SC 1116. PC Act 1987 section 5(1)(d).
Arbitrariness / Discretion--Delhi Transport Corp AIR 1991 SC 101.
Abuse has an element of lack of bonafides so as to cause harm to one or undeservedly benefiting another. AIR 1983 P & H 87.
The act or omission has to be wilful one to be termed as abuse of powers. Tarlochan Deb versus State of Punjab (2001) 6 SCC 260.
Exercise of powers, whether legislative or administrative, if found manifestly wrong or arbitrary, or if exercised on non consideration or non application of mind to relevant factors, is liable to be set aside. AIR 1988 SC 1737.
The concept of law in “a procedure established by law” as laid down under Article 21, is not just any law, but only that law which is just, fair and reasonable. AIR 1981 SC 746.
A legislation once suitable may be arbitrary or unreasonable subsequently with the passage of time. (1998) 2 SCC 1.
(4) FOR IMPLEMENTATION OF REPORTS OF COMMISSIONS AND COMMITTEES.
Many a times it is seen that Judges are apprehensive about giving reliefs sought in PILs on the ground that it will amount to encroaching upon province of Executives i.e. Govt and its agencies. --
Argument-- The Petitioner concur with Constitutional courts in exercising restraint to ensure that they do not encroach upon the province of Executives and legislatures.
Having said so, nevertheless, this court is duty bound to see that , by and large, safety and security of people are ensured. It may be beyond powers of Courts to suggest measures for any problem, yet this Court may direct State to record reasons as to why recommendations made by various Committees and Commissions manned by experts should not be accepted and implemented.
The alacrity with which we constitute various committees and commissions of enquiry is matched only by the inaction on the voluminous reports laboriously produced. Public trust and confidence is shaken by such ritualism and tokenism.
The Recommendations, spelled out hereinbefore, has its origin from the Collective Wisdom of our finest brains and from men of eminence in Public Life and there should be equally outstanding and compelling grounds to say that they do not deserve to be adopted or if they are not practical to be adopted. We need to institutionalize mechanisms for mandatory implementation so that public confidence and social cohesion are strengthened.
Moreover, while the Committee or Commission was constituted by the appropriate govt, a voice was heard in the form of promise- "we will seriously consider the Recommendations and implement the same without any loss of time, provided, they may not be implemented, if found not suitable, for which we will record our reasons for not implementing the same. Thus, my urge is promissory Estoppel, of State to record reasons for not implementing Commission / Committee Recommendations.
High level, extravagant brain storming and ailing Patient left un-administered. It was decided that they will continue to beg & suffer...
it is an indefinable something to be done, in a way nobody knows how, nobody knows when, that will accomplish what nobody knows that.
important to our collective future.
There is an excess of diagnosis and an absence of remedy. We can so clearly look at the problem and the roots of it.
Vineet Narain case
All India Judges case.
(5) FOR SEEKING DAMAGES / COMPENSATION –
AGAINST ILLEGAL DETENTION; RECKLESS AND NEGLIGENT ACTS OF PUBLIC OFFICIALS RESULTING IN LOSS OF LIFE OR OF PROPERTY OR OF PERSONAL LIBERTY TO A CITIZEN OR TO ANY OTHER PERSON.
(i) In Rudal Shah v State of Bihar , the Apex Court held that Writ courts while exercising jurisdiction under Art. 32 or 226 of the Constitution can award compensation and examplary cost for the violation of person's fundamental rights and for abuse of powers by the State. (1983) 4 SCC141: AIR 1983 SC 1086
(ii) The principle of accountability through compensation was reinforced by Apex court in Nilabati Behara v State of Orissa. The court laid down that concept of sovereign immunity is not applicable to the cases of violation of right to life and personal liberty guaranteed under Article 21 of Constitution.
In this case, the Apex Court held that a claim in public law for compensation for violation of human rights and abuse of power is an acknowledged remedy for the enforcement and protection of such rights. Every individual has an enforceable right to compensation when he is victim of violation of his fundamental rights and abuse of power. In such a situation the court observed, that leaving the victim to the remedies available in civil law, limits the role of constitutional courts as protectors and guarantors of fundamental rights of the citizens. Thus courts are under an obligation to make the State or its servants accountable to the people by compensating them for the violation of their fundamental rights.
In this case Article 9(5) of the International Covenant on civil and political Rights was considered. The said Article said that anyone who has been victm of unlawful arrest or detention shall have an enforceable right to compensation. This Article was referred to in support of the view that damages could be allowed under Article 32 & 226 of Constitution of India for violation of fundamental right enshrined in Article 21. India is a sigantory to this International Covenant. In Vishaka V State of Rajasthan the Apex court observed: Any International covenant not inconsistent with the fundamental rights and in harmony with its spirit with the Constitution of India, must be rad into to enlarge the meaning and content thereon to promote the object of Constitutional guarantee. (1993) 2 SCC 746
(iii) The Apex Court in Bhim Singh V State of J & K awarded examplary cost of Rs.50,000 on account of the authoritarian manner in which the police played with the liberty of the appellant. These measures are not damages in the strict sense of the term, for which only the Ordinary Civil court process is the remedy. These measures are only for making the fundamental rights of the people meaningful and effective. (1958) 4 SCC 677; AIR 1986 SC 494.
(iv) In SAHELI, A Women's Resource center v Commr of Police, a Writ was filed against the Govt for compensation on behalf of two poor women who had been mercilessly beaten by the landlord in collusion with the Police. The Court not only awarded Rs.75,000 as compensation but also opined that the amount can be recovered from the police officers responsible for the act. (1990) 1 SCC 422.
(v) In Lucknow development authority v M .K.Gupta the Apex Court held that when public servants by malafde, opperssive and capricious acts in performance of official duty causes injustice harassment and agony to common man, renders the State or its instrumentality liable to pay damages to the person aggrieved. And the State or its instrumentality is duty bound to recover the amount of compensation so paid from the public servant concerned. In this case compliance was to be reported to the Apex court. (1994) 1 SCC 24,
In Common Cause v UOI (1999) 6 SCC 667, the Apex Court empahtically stressed that Kasturilal case has, apart from being criticised, not been followed by the Apex court in subsequent cases and therefore much of its efficacy has been eroded . Same remark was also made in Chairman Rly Board v Chandrima Das (2000) 2 SCC 465.
The Apex Court in N Nagendra Rao v State of A.P. , observed that no civilized system can permit the executives to play with the lives of people and claim that it is entitled to act in any manner as sovereign. (1994) 6 SCC 205, 235
What is remarkable about these cases is that the Apex court has used the Writ Jurisdiction to award compensation to victims of State wrongful acts. Usually a victim has to start from the lower court to reach the Highest Bench. By using Writ Jurisdiction the remedy has been made cheap and fast. The obvious idea is to check the irresponsible and reckless behavior of authorities in dealing with people and putting brakes to growing misuse of power by the holder of authority and at the same time securing relief to the needy, victims of abuse of powers.
ILLegal Arrests – COMPENSATION
AIR 1983 SC 1086
AIR 1986 SC 494
(1997) 7 SCC 725
AIR 1984 SC 1026
Ghulam versus UOI AIR 1967 SC 1335 (1337)
(6) FOR PREVENTING OR CHALLENGING GOVT AND ITS INSTRUMENTALITY FOR MISAPPRPIATION OF TAX PAYER'S MONEY OR CHALLENGING ACTS WHICH RESULTS IN LOSS OF REVENUE TO THE EXCHEQUER.
We are a nation which houses about a billion human lives, some poor, some very poor, some rich, some grand rich. We all whether poor and rich, individually and collectively have given to ourselves a social document called the Constitution Of India. The universally cherished philosophy of equality of all humans can be found in Article 14 of our Constitution. It is not incorrect nor exaggeration if I were to say that every Citizen has right to secure prudent spending of every penny of public fund and has right to object misappropriation and has reasonable say in appropriation of public funds because every citizen equally own the corpus of the nation, has equal right to have public funds to be spend on his well being.
There are also some Supreme Court Judgments stated in Locus heading which may be used in this part.
The Supreme Court cautioned that with the change in socio-economic outlook, the Public Servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. If a Public Servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such Public Servant. Common Cause V Union Of India. AIR 1996 SC 3538.
(7) WHERE PROPER HEARING WAS NOT GIVEN BY ANY QUASI JUDICIAL OR BY ANY ADMINISTRATIVE AUTHORITY:
Courts do not sit in appeal over findings of Departmental inquiries. The role of the higher courts is restricted to ascertain whether the inquiry was fairly or properly conducted; once that is proved, the court will not interfere with the ultimate finding. The court will interfere only in cases where there is no evidence whatsoever to support the finding of guilt. (Kuldeep v Commissioner of Police 1999
2 SCC 10).
Hearing, however once given must be genuine and not formal or empty public relation exercise. In other words there must not be lip service to this rule or an audience allowed which tantamount to nothing. Swadeshi Cotton Mills V Union Of India. AIR 1981 SC 818.
With the proliferation of administrative law, administrative authorities are in some kind of cases replacing courts of law and that has made all the more necessary that such authorities should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of India AIR 1976 SC 1785
(8) WHERE THE QUASI JUDICIAL THOUGH FINDS THAT INJUSTICE WAS DONE TO YOU, YET DO NOT GIVE YOU RELIEFS PRAYED IN THE CASE:
In sant Raj’s Case the Labour Court found that the termination of service of the Appellants was bad and illegal but declined to grant the relief of reinstatement which should have ordinarily followed and instead in exercise of its discretion awarded one year’s wage as compensation in lieu of reinstatement on the ground that “the termination of service of each of the appellants was bona fide and not a colorable exercise of powers in accordance with service rules. The Supreme Court found an error apparent on the face of the record of the case inasmuch as if the termination of service was according to service rules and bona fide, it could not be simultaneously held to be illegal and invalid. The Apex Court therefore held that the discretion was exercised on irrelevant and extraneous considerations. Sant Raj Vs O. P. Singla AIR 1985
(9) WHERE QUASI JUDICIAL / ADMINISTRATIVE AUTHORITY TAKES ANY DECISION WHICH IS ABSURD BY ANY ORDINARY SENSE:
The legality of an administrative order may be challenged under 226 subject to exhaustion of alternate remedy. Gokulananda 92003) 6 SCC 465
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407
(10) WHERE ADMINISTRATIVE AUTHORITY DOES NOT RECORD REASON FOR ITS DECISION WHILE DECIDING THE RIGHTS OF A CITIZEN BEFORE IT.
The question as to whether an administrative authority should record reasons for its decisions has however come up for consideration before the Supreme Court in number of cases. Underlying the need the SC in Travancore Rayons Ltd Vs Union of India AIR 1971 SC 862 observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved and the mental process by which the conclusion is reached where a non judicial authority exercises a judicial function is obvious. Here in this case the order of the Central Govt in rejecting a Revision u/s 36 of the Central Excises & Salt Act 1944 merely stated that the Govt having carefully considered the points made by the Applicant saw no reason to interfere with the order. The order of the Central Govt being laconic (brief) was held to be vitiated.
The Supreme Court in Binapani Dei's case observed that if “there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentialsd of Justice be ignored and an order to the prejudice of a person is made, the order is a nullity. State of Orissa V Dr(miss) Binapani Dei AIR 1967 SC 1269;
In Srilekha Vidyarthi versus State of UP reported in AIR 1991 SC 537, it was held by the Hon'ble SC that in order to satisfy the test of Article 14, every State action must be informed by reasons and it follows that an act uninformed by reasons, is arbitrary and arbitrariness is the very negation of the Rule of Law.
Reasons must be recorded for exercising the powers even if the statute does not expressly enjoin upon the authority to do so. Consumer Action Group versus State of tamil Nadu, AIR 2000 SC 3060.
Schedule Caste and Weaker Sections Welfare Association (Regd) versus State of karnataka AIR 1991 SC 1117, it was observed by the SC that it is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. An order becomes arbitrary when there is absence of adequate reasons for such decision.
In M Krishna Swamy versus UOI (1992) 4 SCC 605 the SC held that non-recording of reasons by Staturory / public authority / functionary would render the decision arbitrary, unfair and unjust violating article 14 & 21 of the COI.
A right to reason is an indispensable part of a sound system of judicial review. Anusayaben versus Jt CIT 256 ITR 685.
Recording of reasons and disclosure thereof are not a mere idle formality.
Ajantha versus CBDT 102 ITR 281 (SC)
The assessing, appellate, Revisional, and enforcement authorities must pass speaking orders giving the basis for their decision.
Gautam versus UOI ITR 530 (SC);
Ajantha versus CBDT 102 ITR 281 (SC);
Cf CIT versus Pillah 63 ITR 411, 415 (SC);
TRO versus gangadhar 234 (ITR) 188 (SC);
The statutory authority must apply their mind to the case.
Bharat Nidhi versus UOI 92 ITR 1.
The statutory authority must observe this rule in its proper spirit; mere pretence of compliance with it would not satisfy the requirement of law.
Rasiklal versus CWT 121 ITR 219.
Again, in the cases of Gautam versus reported in UOI ITR 530 (SC); Cf CIT versus Pillah reported in 63 ITR 411, 415 (SC); TRO versus gangadhar reported in 234 (ITR) 188 (SC), the Hon’ble Supreme Court said that the Assessing, Appellate, Revisional, and Enforcement authorities must pass speaking orders giving the basis for their decision. Without reasons, a party may speculate why the tribunal made an adverse decision and may have difficulty in deciding whether to appeal or otherwise challenge the decision. Similarly the Reviewing or Appellate Court may have difficulty in understanding rational for a decision without reasons. Absence of reasons may create disturbing impression of injustice.
In the case of Bharat Nidhi versus UOI reported in 92 ITR 1, it was held that the statutory authority must apply their own mind to the case.
In the case of Rasiklal versus CWT reported in 121 ITR 219, it was held that the statutory authority must observe this rule (of giving reasons) in its proper spirit; mere pretence of compliance with it would not satisfy the requirement of law.
The Hon’ble Supreme Court in the case reported in AIR 1979 SC 429, quoting Lords Halsbury – said, Discretion means when it is said that something is to be done within the discretion of the authorities, and that something is to be done according to the rules of reason and justice, and not according to private opinion, but according to law and not by humour.
In an English case Associated Provincial Picture House Ltd Vs Wednesbury Corp, LORD GREENE, MR observed that it is an established law that a Person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.
An American Supreme Court Justice B. CARDOZO in his book The Growth of the Law, opined – Complete freedom- unfettered and undirected- that never is. A thousand limitations- the product some of statute, some of precedent, some of vague tradition or of an immemorial technique- encompass and hedge us even when we think of ourselves as ranging freely and at large.
Justice RAND in a Canadian case observed that in Public Regulations there is no such thing as absolute and untrammelled discretion, that is that action can be taken on any ground for any reason that can be suggested to the mind of the administrator.
In the case of Ramdas Shriniwas Nayak V Union of Union reported in AIR 1995 BOM 235, the Hon’ble Bombay high Court, quoting the words of LORD CAIRNS, said, “Where a power is deposited with a Public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied of the condition upon which they are entitled, the power ought to be exercised, and the court will require it to be exercised.
In the case of U.P. State Road Transport Corporation V Mohd Ismail reported in (1991) 3 SCC 239, the Hon’ble Supreme Court viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally.
In Breen Vs Amalgamated Engineering Union, LORD DENNING MR, observed that the giving of reasons is one of the fundamentals of good administration.
In the case of Ajantha versus CBDT reported in 102 ITR 281 (SC), the Hon’ble Supreme Court held that Recording of reasons and disclosure thereof are not a mere idle formality.
In the case of The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of India reported in AIR 1976 SC 1785, the Hon’ble Supreme Court held and said that due to proliferation of administrative law, administrative authorities are in some kind of cases replacing courts of law and that has made all the more necessary that such authorities should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.
In the case of Maneka Gandhi Vs Union of India reported in AIR 1978 SC 597 at page 613, the Hon’ble Supreme Court held that the reasons if disclosed would be open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court.
In the case of Madhya Pradesh Industries Ltd Vs Union of India reported in AIR 1966 SC 671, the Hon’ble Supreme Court, Justice SUBBA RAO in a dissenting judgment once observed that if tribunals can make orders without giving reasons, the said powers in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power. But if reasons for an order are given it will be an effective restraint on such abuse.
In the case of Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala reported in AIR 1961 SC 1669, the Hon’ble Supreme Court held that the quasi judicial authorities are enjoined with the duty and responsibility to see to it that in adjudicating upon proceedings which come up before them they pass properly reasoned orders so that those who are affected by such orders are assured that their case have received proper consideration at the hands of the said authorities and that such decisions have been reached according to law and have not been the result of caprice, whim or fancy and have been reached on ground of policy or expediency.
In the case of Govt of India Vs Maxim A Lobo reported in (1991) 190 ITR 101, it was held that an order of Quasi Judicial nature without reasons is a wholly defective order in the eyes of law.
In the case reported in AIR 1983 P & H 87., the Punjab High Court observed that abuse has an element of lack of bonafides so as to cause harm to one or undeservedly benefiting another.
In the case of Balraj Taneja V Sunil Madan, it was observed that a Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order.
In the case of Maharashtra State Board of Secondary and Higher Education versus K S Gandhi reported in (1991) 2 SCC 716, it was held by Hon’ble Supreme Court that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. Reasons exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an in-built support to the conclusion/decision reached. When an order affect the right of a citizen or a person irrespective of fact whether it is quasi judicial or administrative order and unless the rule expressly or by necessary implication excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment, decree has justly meet out justice to the aggrieved person.
In the case of Consumer Action Group versus State of tamil Nadu, reported in AIR 2000 SC 3060, theHon’ble Supreme Court said that Reasons must be recorded for exercising the powers even if the statute does not expressly enjoins upon the authority to do so.
There is some Australian authority to support the need to give reasons. In 1949, the High Court of Australia held that if a Minister was under a duty to act in a quasi judicial manner in revoking a license the minister would have to disclose to the licensee his reasons for wishing to do so. Election Importing Co. Pty Ltd versus Courtice (1949) 80 CLR 657
English Judge LORD HUDSON in the landmark Padfield’s Case was of the view that although it is true that the Minister is not bound to give his reasons for refusing to exercise his discretion, yet when the circumstances indicates a genuine complaint for which the appropriate remedy is provided, the Minister would not escape from the possibility of control by Mandamus (a Writ) for adopting a negative attitude without explanation. Padfield Vs Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 1 ALL ER 694.
The Petitioners say that our system of governance is founded on the lofty principle of rule of law, wherein the Nation’s power is divided amongst three chief organs, each under a duty to conduct itself in a manner that subserves the common good of all and achieve the objectives of a welfare State. The checks and balances were put as inherent safeguards designed to ensure compliance with the maxim “Be you ever so high, the law is above you”. The dicta of the Constitution is crystal clear; namely, the goal of good governance.
(11) WHERE QUASI JUDICIAL AUTHORITY PASS ORDERS WITHOUT STATING REASONS IN THE ORDER:
Without reasons, a party may speculate why the tribunal made an adverse decision and may have difficulty in deciding whether to appeal or otherwise challenge the decision. Similarly the Reviewing or Appellate Court may have difficulty in understanding rational for a decision without reasons. Absence of reasons may create disturbing impression of injustice.
The Courts have insisted upon recording reasons by administrative authorities on the premise that such a decision is subject to judicial review and the courts cannot exercise their duty of review unless courts are advised of the consideration underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote thought by the authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
The reasons if disclosed would be open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court. Maneka Gandhi Vs Union of India AIR 1978 SC 597 at page 613.
An order of Quasi Judicial nature without reasons is a wholly defective order in the eyes of law. Govt of India Vs Maxim A Lobo (1991) 190 ITR 101
Fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi judicial or administrative act. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment, decree has justly meet out justice to the aggrieved person. Maharashtra State Board of Secondary & Higher Secondary Education Vs K.S. Gandhi (1991) 2 SCC 715
A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order. [ Balraj Taneja V Sunil Madan, AIR 1999.]
The quasi judicial authorities are enjoined with the duty and responsibility to see to it that in adjudicating upon proceedings which come up before them they pass properly reasoned orders so that those who are affected by such orders are assured that their case have received proper consideration at the hands of the said authorities and that such decisions have been reached according to law and have not been the result of caprice, whim or fancy and have been reached on ground of policy or expediency. Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala AIR 1961 SC 1669
(12) WHERE YOU ALLEGE THAT QUASI JUDICIAL / ADMINISTRATIVE AUTHORITIES HAVE NOT COMPLIED TO THE PRINCIPLES OF NATURAL JUSTICE WHILE DECIDING AN CASE / ISSUE, SO RAISED IN THE NOTICE / OR IN THE WRIT PETITION.
There are two fundamental and elementary rules to decide a Case and they are- a person must be heard before punished and the other- no one can be a judge in his own case. It implies that an opportunity must be given to both the parties to the case before reaching to any conclusion; and having regard to the ordinary human behaviour, a person deciding the case should be a neutral. The test is not where the person deciding is actually biased but the test is if there is likelihood of being he become biased. So, a father Judge, though of very high ethics and principle, cannot preside over the seat of a Judge involving his son. These fundamental rules are called as Natural justice(NJ).
The Soul of Natural Justice is fair play in action, in every exercise of discretion. Rules of Natural Justice operate as checks on the freedom of administrative actions. Although adherence to it may often prove to be time consuming yet that is the price one has to pay to ensure fairness in administration. Where a Statute confers wide powers on an administrative authority coupled with side discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural Justice are devised for ensuring fairness and promoting satisfactory decision making. Its non observance invalidates the exercise of power, save certain acts.
It has been upheld by the Apex Court that violation of rules of natural Justice results in arbitrariness which is the same as discrimination and where discrimination is the result of State action, it is violation of Article 14. Union of India V Tulsiram Patel AIR 1985 SC 1416.
The Principles of natural Justice forms part of Art.14 of Constitution of India. Dr K C Malhotra V The Chancellor, H P University, Shimla AIR 1995 HP 156 (DB).
Whenever a Complaint is made before a Court that Principles of Natural Justice has been not observed, the Court has to decide whether the observance was necessary for a just decision on the facts of that case.
In India, the Apex Court has time and again equated the principles of natural justice with fairness in action. In D K Yadav Vs JMA Industries Ltd, the SC Observed that in arriving at a decision, the procedure adopted must be just, fair and reasonable in particular circumstances of the case.
In matters involving civil consequences, any decision or Order has to be made consistently with rules of natural justice. State of Orissa V Dr (Miss) Binapani Dei AIR 1967 SC 1269.
Every Authority, Quasi Judicial, or administrative or Executive, should act fairly, reasonably and in a just manner, when the result of the exercise of powers is likely to affect any person or visit him with civil consequences. A K Kraipak V Union Of India AIR 1970 SC 150.
Likewise, where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, such rules would apply. Baldev Singh V State of Himachal Pradesh (1987) 2 SCC510.
Comes with this the associated question: What is a Civil Consequence ? “ Civil Consequences undoubtedly cover, viewed the SC in Mohinder Singh Gill case, infraction of not merely property or personal rights, but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.
In cases therefore where an order is made in violation of rules of natural justice, relief under Art. 226 of the Constitution will not be denied. Titaghur Paper mills Co Ltd V State of Orissa AIR 1983 SC 603.
While examining any order passed by any statutory auhtority or tribunal, the court is to be guided by statutory provisions. AIR 2000 SC 2723.
Apart from above discussion, it is profitable to know what is Judicial Review.
Judicial Review is the most potent weapon in the hands of Judiciary to maintain rule of Constitution. Sampath Kumar versus UOI AIR 1987 SC 386.
State is to obey the law, more so the Constitution. Judicial Review of administrative action is an essential part of the rule of law. (1997) 4 SCC 430.
Judicial Review is the heart and Soul of the Constitutional Scheme. (2000) 8 SCC 437
Judicial Review: Only the decision making process is subject to judicial review. The decision itself cannot be assailed unless it has violated any statutory or constitutional provision. (2003) 9 SCC 592.
A Reference made by the Govt under section 10 of the Industrial Disputes Act 1947 may be examined by the HC to ensure whether the relevant consideration has been duly taken note of. Moolchand Khairati versus Ram Hospital (2002) 10 SCC 708.
Mere assertion or allegations are not enough. He who seeks judicial review must also establish illegality, irrationality and procedural improprietory. Indian Railway Construction Co Ltd AIR 2003 SC 1843.
CIT versus Mahindra & Mahindra 1983 (4) SCC 392
(1974) 4 SCC 3
(1988) 4 SCC 59
It has always been said that judicial review, generally speaking, is not directed against a decision, but is directed against a decision making process. UOI versus Upendra Singh (1994) 3 SCC 357.
Irrationality / Illegality / Procedural improprietory / Disproportionality
B C Chaturvedi versus UOI (1995) 6 SCC 749
Ranjit Thakur versus UOI (1987) SC 2386
UOI versus Upendra Singh (1994) 3 SCC 357
Delhi Science Forum versus UOI (1996) 2 SCC 405
CHAPTER -3- LOCUS
Locus means Right of a Person as aggrieved to approach Court of law. Many of the points in Locus are obtained from exhaustive and tireless deliberation made by one of the most respected Parliamentarian Shri Arun Shorie in landmark Kamla case in the 1980. One may incorporate points as applicable to his/her case. However if the case is regular Writ Petition where one agitate its own grievances, then the Petitioner is not required to state locus points as mentioned below.
1) In the light of eternal words of Preamble of Constitution of India, for being giver of Constitution of India; In the light of fundamental right of Freedom to speech and expression read with fundamental duties enshrined in Article 51A, Locus of a Citizen of India in matters apparently in the nature of Public interest is fairly established.
2) It is recognized that Acts are legislated to be implemented and therefore, that, in case the specific mode prescribed in the Act proves insufficient, citizens can approach the Courts to ensure the fulfillment of legislative intent.
3) In N.N. Chakravarty Vs. Corporation of Calcutta (AIR Calcutta 1960, p. 102 at p. 112) it was held that a tax payer has a right to control deliberations of the Corporation as "meetings of the Corporation must necessarily cost money in establishment expenses, the cost of printing, the cost of correspondence and in various other ways. Apart from this," the Court held, "the waste of time involved necessarily causes financial loss to the Corporation indirectly." As the petitioner was a tax payer it was his money that was being wasted. Accordingly, he had a right to move the Court.
Similarly, in Vardarajan vs. Salem Municipality, (AIR, 1973, Madras, p. 55) it was held that a tax payer could challenge the decision of the municipality to erect a statue even when this was being donated out of private funds as, once erected, the statue would have to be maintained and thus the taxes collected from the rate payer would in some part be used for the purpose.
4) Courts have recognized that in several circumstances, while the responsibility of moving the Courts is that of the State, the State may not be inclined to initiate action and that in such cases, the general rule as well as specific provisions of laws apart, third parties must be given an opportunity to initiate corrective action. In criminal cases, for instance, the general position is that as crime injures all of society the State alone on behalf of all is to be the master of prosecution.
But, to cite just one instance, in PSR Sadanand vs Arunachalam (AIR, Vol. 67, June 1980, 856) a five judge bench of this Hon'ble Court recognized that for various reasons the State may not pursue a criminal case as it should and that, therefore, a private party should be allowed to initiate and pursue a criminal case where allowing it to do so will be in the public interest, where the State has not pursued a case for reasons which do not bear on the public interest but are prompted by private influence, malafide and other extraneous considerations (see, ibid, paras 14 and 26).
5) In Karkare vs. Shavde (AIR, Nagpur, 1952, p. 330), Masehullah vs Abdul Rehman (AIR, Allahabad, 1953 p. 193) etc. Courts have held that any private citizen can file a petition of Quo Warranto to challenge the appointment of a public official even though his personal rights are not directly affected.
6) The fact that our stake is shared by thousands does not, as Lord Denning has observed (QB, 1973, I. at p. 649), dilute our interest in the matter.
7) Finally, it isn't just that the petitioners are qualified as well as duty bound to do so, the Hon'ble Court itself is, I most humbly submit for your Lordships' consideration, in a sense duty bound to hear us. For the Honourable judges, even though holding the high office of judges, are still citizens and are thereby, like the petitioners themselves, bound by Article 51A that prescribes the Fundamental Duties of each citizen of India. They too must do all they can-and at a minimum this includes what is within their immediate and unqualified power to do, that is to hear other citizens who bring facts that have a bearing on the matter to their notice-to abide by and respect the ideals of the Constitution.
8) The order embodied in the Constitution and various laws framed under it is the concern of every citizen as a breakdown of that order shell jeopardize our existence as a free and cohesive society and this injure every citizen. This stake in the order is sufficient to provide standing to a citizen to draw the attention of Courts to developments that endanger that order.
9) Violation of the Constitution and of laws, including the non-enforcement of their provisions, endangers the order embodied in them and so becomes a fit subject on which a citizen may move the Courts.
10) Laws are not passed merely for being passed but for being implemented. The mere fact that an objective has been embodied in the Constitution or a law itself indicates that the Constituent Assembly and the relevant legislature wanted it to be achieved. The Courts thus have a direct interest in ensuring that the objectives are realized and citizens have the right as well as duty to approach the Courts to ensure that everything necessary is done to see that the objectives so embodied are achieved. Where officers of the State who have been charged in the first instance with the responsibility to implement the laws fail to do so, citizens have the right and duty to approach the Courts to ensure implementation and the Courts have a right and a duty to hear them.
11) In Nabaghan vs Sadananda (AIR, 1972, Orissa, p. 188) members of the general public who worship or who have the right to worship the deity (and in view of our laws this must automatically include everyone) were recognized as persons who had a sufficient interest in the appointment of trustees and the proper management of the temple's or estate's affairs.
12) I recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy Vs. Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials.
"The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. ... The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new 'enforcement' dimension, not merely through some provisions of the Cr.P.C.... but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Court and follow up legislation direct them to do is defied or decried wrongfully. The wages of violation are punishment, corporate and personal..." (Ratlam Municipality vs Vardichand and others, AIR Supreme Court, 1980, October, paras 16, 24).
Correspondingly the Courts must weigh the extent to which a citizen or a group of citizens not directly affected but motivated by the public interest is willing and able to do the homework necessary to assist the Courts and his ability and willingness to do the requisite homework must be an important requirement as well as an important criterion to afford standing to those who want to intervene in the public interest.
13) The Courts are today one of the few forums left in which rational discourse is still possible. Should they not have the opportunity to salvage what can still be salvaged, the opportunity to further the public weal?
14) A case such as this falls squarely within the ambit of these rulings.
15) Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and Kesavananda Bharati, expressed the view:
"The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability.
16) The question is not whether we should repose faith in the Courts but whether or not it is the duty of the Courts to ensure that provisions of the Constitution and the laws are implemented.
17) One of the major problem with the State and its instrumentalities is that they, ordinarily do not lend its ears to the voice of common man and Courts sometimes did listen to him.
18) If a plaintiff with a good case is turned away merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law.
19) Courts tend to take the position that if on merits the matter is worth considering it should not be turned down merely on some technicalities regarding standing.
20) The criteria for judging the intrinsic importance of an issue must be the gravity and the generality of the eventual cumulative effects of the act of negligence, not the personal, direct, immediate effects and citizens who have a special concern for or who are specially equipped to alert the Courts about the eventual effects must be given the opportunity to bring facts to the attention of the Courts in the public interest.
21) It is indeed in that we are less likely to and less organized to take up or sustain long legal battles in the interests of others. A case in India is certain to take much, much longer than in a country like the US or Canada and thus the number who will stay the course-even if the commitment and resourcefulness were identical-is liable to be much smaller. Moreover, few will take advantage of liberal precedents like M.V. Dabholkar (op. cit.) or Sadhanantham (op. cit.) simply because few will hear of them. Finally, taking up cases in the public interest is much more likely to invite reprisal and harassment from the State and predators in India than in Western democracies.
(22) Last and not the least, the Courts asking locus of a Petitioner in PIL Writ Jurisdiction is akin to asking locus of every man who has sacrificed his life in freedom struggle of nation.
CHAPTER -4- JURISDICTION OF COURT
Jurisdiction implies Authority of Courts to hear certain matters and give definitive & binding authoritative Judgment / Orders. There are three kinds of jurisdiction of courts'. One is subject matter jurisdiction, second is territorial jurisdiction and third is pecuniary (value of suit) jurisdiction. Any court embarking upon to adjudicate upon any dispute or issue must have all three jurisdiction. Pecuniary jurisdiction is not applicable in all cases but subject matter & territorial jurisdiction exist in every kind of litigation.
It is imperative to state here that Jurisdiction of courts to entertain and pass authoritative binding orders is not of some importance but it is of fundamental importance. Whenever we intend to knock the courts of law, the Judges must be sufficiently satisfied that they have the Jurisdiction to hear the case placed before them for adjudication; and the Presiding Judge is empowered to pass authoritative binding orders.
High Courts has under Article 226 of Constitution of India and Supreme Court has under Article 32 of Constitution of India, possess powers and obligations to issue Writ (authoritative directions) to the Govt/any Public Authority. The Jurisdiction ambit of High Courts is much wider than Supreme Court, in that, High Courts under Article 226 has Jurisdiction to entertain cases of violation of fundamental rights as well as of statutory rights, sometimes even contractual rights, whereas Jurisdiction of Supreme Court under Article 32 can be invoked only for enforcement of fundamental rights.
In AIR 1999 SC 1723 at page 1734, the SC observed thus - “27..... Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court, its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.
In K N Guruswamy's case (1955) 1 SCR 305; AIR 1954 SC 592, the Apex Court said that there can be no doubt that the Writ is maintainable even if the right to relief arose out of an alleged breach of contract where the action challenged was of a public authority invested with Statutory powers.
In State of Himachal Pradesh V Raja Mahendra pal, the Apex court said as- “... the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of fundamental rights or legal rights but not for the mere contractual rights arising out of an agreement particularly in view of the efficacious alternative remedy. The Constitutional court should insist upon the party to avail of the same instead of invoking extraordinary writ jurisdiction of the court. This however does not debar the court from granting the appropriate relief to a citizen under peculiar and special circumstances notwithstanding the existence of alternative efficacious remedy.
No Constitutional court should limit its powers under Article 226. It is a guarantee provided by the Constitution makers against arbitrary and discriminatory action. Wherever the injustice is large, a Writ petition should be entertained. The Rule of exhaustion of alternate remedy is only of caution and necessity but that rule does not control the plenary powers of this Court. Consequently. The reference should be answered by holding that writ Jurisdiction is permissible to be invoked but the extent of the interference would depend upon facts & circumstances of each case.
There is no straight jacket formula which can be evolved for deciding as to whether the writ Jurisdiction of this court would be available or not. There are disputes and differences which are incapable of precise classification.
The doors of this court cannot be shut to a Party unless - the Petitioner has a alternate remedy, which without being unduly onerous, provides an equally efficacious remedy. Again, the High court does not generally enter upon a determination of questions which demand an elaborate examination of evidences to establish the right to enforce for which the writ is claimed.
There are self imposed restrictions on the exercise of plenary & constitutional powers. In other words, when the main relief is not sought against these bodies, yet, they have been impleaded as parties and the dispute is mainly and essentially private parties involving purely private law, then, writ petition is not a remedy.
Writ Petitions are definitely maintainable upon the Petitioners demonstrating an error apparent on the face of the record or perversity on the part of the statutory authority, so also their orders were being vitiated on account of arbitrariness and malafides, then intervention by this court is always permissible.
Some of the issues for which the Jurisdiction of High Court under Article 226 of the Constitution of India may be invoked for issuance of Writ against any Public authority- of State govt or of Central Govt. are-
CHAPTER -5- SHORTCOMINGS OF PRESENT PIL FUNCTIONING:
1) Despite the Petitioner make out a water tight case, the Respondent Govt comes out with strange, novel and fancy arguments. The case is sometime dragged on for years. The issue which needs immediate attention and need to be resolved at war footing is put in Cold storage.
THE ARGUMENT CAN INCLUDE:-
Before proceed to pass any Orders, this Hon Court may please foresee the consequences that may ensue for not granting the relief; and also foresee the developments that may take place, if they conclude to grant relief.
The Petitioners has to the best of their knowledge, ability and belief, has made out a prima facie case for the relief sought hereinbefore. The facts stated are self explanatory and self evident and the rights claimed, by way of relief and prayers, are unambiguous and not unlawful.
The State should file an affidavit stating that they have no solution for this problem.
The Hon Court should ensure that the Respondent make a diligent reply. The Hon Court may in its discretion deem criminal contempt of the Court if Respondents are found making unreasonable excuses in filing replies in pursuant to Court Orders. [Section 2(c) (ii)(iii) ]
By affording a reasonable opportunity of being heard to the Respondents to have their say but only by written submissions, in a time bound manner, the Petitioner respectfully prays Hon. Court to proceed to pass plain Orders on the basis of facts stated, rights claimed and submissions of the Respondents.
The Petitioners states that by no stretch of imagination it can be said that the rights/reliefs claimed are unconstitutional or the rights/relief claimed are unwarranted or the rights claimed are unjustified. Yet, the Hon.Court may think otherwise and may deny the rights/reliefs so claimed and in that event the Hon.Court may please be so generous to incorporate in its order, plain reasons for denying the rights/relief claimed. The Petitioners most respectfully seek not the bare remark of the Court but the reason on account of which it deemed fit to refuse the reliefs sought.
With significant legitimacy, intelligent propositions may be put forth to deny relief claimed, yet, in the light of likely benefits that shall accrue, there is more wisdom to grant reliefs as would advance people interest.
However this social order is complex and deep rooted, yet that cannot be a ground to shy away. And perhaps this is for what govt exists.
In every exercise of discretion, reasons are to be recorded while reaching to a particular decision, so that rule of man does not take march over rule of law.
The Order of this Hon Court may set the things in order and may prevent the things to reoccur and refusal to intervene may surely allow things to reoccur.
Though it is true that this Hon court has the practice of conversing with big names in big issues, and it may appear that this 'little man' petitioner is asking too much…nevertheless, legitimate and just reliefs. The Petitioner is conscious of the fact that he being an ordinary citizen seeking astronomical reliefs. The Petitioner may also be accused of being ignorant on the complexities involved in the issue so raised. The Petitioner is only conscious of the fact that human life is precious, and believe that it pains when hungry and it is shivering merely at the thought of being rendered homeless.
In a world where gigantic scientific and phenomenal technological achievements command our administration it is no wisdom to say that we lack intelligence to resolve any problem.
The Sovereign Govt is a worthy institution capable of solving all ills, if they desire so. The Govts should not underestimate their capabilities for they are Sovereign. There is nothing which they cannot do. Like Govts of all developed nations, our govt with all their constitutional, statutory, inherent and coherent powers, it is well within their powers to address any issue. It can be said with near certainty that there is nothing which our Govt cannot do.
The Petitioners are inclined to state and your Lordship will appreciate that quick fire judgment of this court shall develop organized faith of the people in this institution. I respectfully hope that the Hon'ble Court shall give a definitive and conclusive Order in this matter.
The Last word…Every structured judgment of this court is a social event.
2) Given the understanding, the civil society instead of approaching Law courts, prefer to protest for the simple reason that the Courts have rendered themselves incapable of giving speedy justice. Instances are not wanting where the Govt play mischief with Court orders.
THE ARGUMENT MAY INCLUDE:-
In the backdrop of, Many a times conclusive orders of the court are not complied with; and Time and again even courts have shown their inability to monitor implementation of their Orders, The Hon Court while passing Orders, interim or final may direct –
"Appellant/Respondents Govt/ Public Authority to update their website about Court's directions so given and action taken in pursuant thereof;
As long as the Appellant's/ Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged."
The Petitioners most respectfully states and your Lordship will appreciate that by not adopting a course of action stated hereinbefore would in effect consign national ills to continue and grow.
3) Sometime Counsels trip Petitioners on mere technicalities.
THE ARGUMENT CAN INCLUDE:-
A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. [ Saiyad Mohd. V Abdulhabib, (1988) 4 SCC 343.]
A Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Rules of Procedure are intended to be a handmaid to the Administration of Justice and they must therefore be construed liberally and in such manner as to render the enforcement of substantive rights effective. . [Ram Manohar Lal Vs NBM Supply, AIR 1969.]
On the question of Jurisdiction, one must always have regard to the substance of the matter and not to the form of the Suit. [Bank of Baroda V Motibhai, AIR 1985.]
Common sense should not be kept in the cold storage when pleadings are construed. Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[ Noronha V Prem Kumari, AIR 1980.]
We cannot be oblivious of facts of life, namely the parties in Courts are mostly ignorant and illiterate, unversed in Law. Sometimes there Counsels are also inexperienced and not properly equipped, and the Court should endeavor to ascertain the truth to do justice to the parties. [ Pahali Raut V Khulana Bewa, AIR 1985.]
Justice Sethi stated, "In a Country like Ours where people consider Judges only second to God, efforts be made to strengthen that belief. [ Anil Rai V St Of Bihar, AIR 2001.]
Every venial defect or error not going to the root of the matter cannot be allowed to defeat justice or afford an excuse to the Govt or a public officer to deny just claim. [Jones V Nicholls, (1844) 13 M & W 361.]
4) It is evidently seen the great uncertainty lurking on the faces of litigants for the outcome of their cases before the court and one of the reason for this I could imagine is:
Sometime orders passed by judges are devoid of reasoning, inasmuch as, they do not explain in the order as how they come to pass this Order, i.e. they sometime do not pass mandated reasoned orders. The advocates and counsels hardly object to this practice however unreasoned order may results suicidal for their client.
The litigants must fight for reasoned orders of the Court for- It is obligatory under law for every Judicial authority to pass reasoned Orders. Reasoned Orders are inescapable in the entire scheme of administration of Justice. Reasons disclose how the mind is applied to the subject matter for a decision and reveal a rational nexus between the facts considered and conclusions reached. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order. Judgment , decree has justly meet out justice to the aggrieved person. Reasoned decisions are vital for the purpose of showing that he is receiving justice.
A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order. [ Balraj Taneja V Sunil Madan, AIR 1999.]
The Hon SC strongly objected to the practice of High Courts passing final orders without reasoned judgments. [St of Punjab V Jagdev Singh Talwandi, AIR 1984.]
Written/ Verbal Submissions may be incorporated in the Petition as the facts of the case so demand.
CHAPTER -6- DUPLICATION OF LITIGATION
Whenever a Petition is filed on a subject matter, which has already been deliberated upon and the directions had been given for compliance but Respondents have not paid heed to orders of the Court, the Petitions can safely be said to be unwarranted and avoidable, the Petition can safely be said to be causing loss of precious time of the Court, though at the instance of the Respondents.
It is safe to allege that many of the Court Orders, concerning matter of utmost public importance, do not see light of the day.
The State Organs either simply put the Orders in the Shelf or come out with novel arguments for their failure in complying with Court Orders. It is safe to say that the Sovereign State with their Constitutional, Statutory and inherent powers, are capable of complying with Court orders. Also, the Hon’ble Court never compel the doing of an impossibility.
Instances are not wanting where people are constrained to knock the doors of Justice in cases where the issues which has already caught the attention of the court, deliberated upon and conclusive Orders has been passed but are not complied with.
Had the Respondents acted diligently, reasonably and responsibly, the Petitioners shall not have the occasion to knock the doors of Justice.
PLAIN CONSEQUENCES
1. The Judges are constrained to engage themselves in unwarranted litigations resulting in contentious and meritous issues fails to log the wisdom of the judges.
2. We live in a time where millions of cases are pending in various Courts where deserving litigants may be waiting for their turn to obtain justice.
3. The whole labour involved in Petitioning to deliberation comes to none when Wisdom of the Judges, read Conclusive Orders, do not see light of the day.
Litigations seeking reliefs on issues which has already been heard, deliberated upon and conclusive orders been passed, should reach the Court but at the peril of the Respondents. The above Respondents must be subject to exemplary fines for causing waste of precious time of the Court and for their willful disregard and disobedience of the Court's Order; for their act which tends to belittle, to degrade or to obstruct, interrupt, prevent or embarrass the administration of justice. Obviously Respondents have to pay the same from their own pocket. It is safe to say that no absurdity shall occasion if Respondents are placed at par with the Petitioners.
CHAPTER -7- EVIDENTIAL VALUE OF NEWS REPORTS
It has become the practice of Govt and its instrumentalities to undermine the evidential value of News Reports.
Argument—In the light of section 81 of Indian Evidence Act which regard that News Report shall be presumed as Evidence; and The Press and registration of Books Act which cast a positive obligation on Editors of Publishers for content of News Reports, the Petitioners states that the Hon Courts has not in anyway undermined the efficacy of news report in evidential jurisprudence. The Hon Court has restricted news report applicability only in criminal cases where the guilt of the accused has to be proved beyond reasonable doubt. The Hon Court said, the liberty of a man cannot be jeopardized on mere news reports unless substantiated.
If necessary, make Editor of the Newspaper as one of the Respondents and ask them to substantiate content of their news report.
CHAPTER -8- GOVT TAKING ADVANTAGE OF ITS OWN SHORTCOMINGS
Many a times it is seen that Govt take advantages of its own failures i.e. they are short of Staff and many other fancy submissions; Or Govt simply plead inability to solve problem because of its massive and cannot be solved.
The Petitioners with pedigree of education and scars of experience anticipates that whilst Govt of India might invoke “Infeasibility theory” to say it is impossible to ……. and thus the Petitioners crave leave to borrow the words, uttered in context to Human rights, of Indian Nobel Laureate Amartya Sen, Published in the Journal The New Republic, Feb.04, 2009. He said, “Indeed, if feasibility were a necessary condition for people to have a right , then not just the social and economic rights, but all rights, even the right to liberty would be nonsensical, given the infeasibility of ensuring the life and liberty to all. We cannot prevent the incidence of murder every day. Nor, with even the best efforts, we cannot stop all mass killings, as in New York on Sepember 11, or in London, Madrid, Bali, and more recently in Mumbai. The confusion in dismissing claims to human rights on grounds of incomplete feasibility is this: a not fully realized right is still a right, calling legitimately for remedial action. Non realization does not make a right a non right. Quite the contrary, it motivates further social action.
Time and again it is seen that Public Authorities plea paucity of funds as reason for their inability to fulfill their constitutional and statutory duties. Putting rest to this controversy in totality, in a landmark judgment given by Hon.SC in Municipality of Ratlam V Vardichand(1980)
The Hon. Court, thru Justice Krishna Iyer, Categorically rejected the contentions of Municipality, the plea of Paucity of funds as defense, for its failure in the due discharge of public duties.
The Court Said,
"Statutes operates against Statutory bodies and Others regardless of the Cash in their coffers even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions.
Otherwise a profligate Statutory body or pachydermic Govt. Agency may legally defy duties under the Law by urging in self defense a self created bankruptcy or perverted expenditure budget. That cannot be."
Moreover, the Petitioners will further say that it is not only theoretically desirable but also practically feasible to........................................................ provided political will and concerted action are mobilized.
The observation of Hon'ble Supreme Court in All India Judges' Association case (2002) 4 SCC 247 assume great significance here. First of all, I will take you to para 3(iv) “The contention with regard to the financial burden likely to be imposed by the directions in question, is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden.”
It is commonly seen that Govts in PIL cases allege that by liberally interpreting laws and giving sweeping orders to the Govt, Judiciary is encroaching upon the province of Govt and Legislature. The observation of Hon'ble Supreme Court deserves mentioning here. In the same All India Judges Association case cited hereinabove, the Hon'ble Court said- Para3 (iii) By giving the directions in question, this Court has only called upon the Executive and the Legislature to implement their imperative duties. The Courts do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them.... The further directions given, therefore, should not be looked upon as an encroachment on the powers of the Executive and the Legislature to determine the service conditions of the judiciary. They are directions to perform the long overdue obligatory duties.
CHAPTER -9- CASES INVOLVING INTERPRETATION OF LAWS
In the field of Interpretation of Statutes, the Court always presume that the legislature inserted part of it with a purpose and the legislative intention is that every part of the statute should have effect. [ Sankar Ram & Co. V Kasi Naikar, (2003) 11 SCC 699]
When the words are capable of giving a plain meaning, it is said that the Courts should not busy themselves with supposed intention or with the policy underlying the Statute. [Pakala NArayaanaswamy V Emperor, AIR 1939 PC 47]; Justice Gajendragadkar in Gurmej Singh V Pratap Singh Kairon, AIR 1960.]
The essence of law lies in its spirit , not in its letter for the letter is only the external manifestation of the intention that underlies it.
In the words of Justice Krishna Iyer, “to be literal in meaning is to see the skin and miss the soul. Otherwise, a bare mechanical interpreattion of the words and application of the legislative intent devoid of concept of purpose will render the legislature to be vain.
The observation of Justice Das Gupta also deserves to be noted. The intention of the legislature has always to be gathered by words used by it, giving to the words- plain, normal, grammatical meaning. If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will givwe effect to the purpose the legislature may reasonably be considered to have had , will be put on the words, if necessary even by modification of the language used.
In the Words of Mukherjee, CJ, the Legislation, both Statutory and Constitutional is enacted, it is true, from experience of evils and laws are brought in to suppress that evil. It is the duty of the Court to make such construction of a Statute which shall suppress the mischief and advance the remedy.
Where literal construction or plain meaning causes hardship, futility, absurdity or uncertainty, the purposive or contextual construction may be preferred to arrive at a more just, reasonable and sensible result.
Every law is designed to further the ends of human welfare and not to frustrate it on mere technicalities. Though the function of the Court is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interprete the legislation by liberally interpreting the statute.
In given circumstances, it is permissible for Courts to have functional approach and look into the legislative intention and sometimes it may be even necessary to go behind the words of an enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile.
In Union of India V Tulsiram Patel, it has been held that a liberal interpretation of Article 14 & 21 of the Constitution readily brings into requirements of natural justice to administer actions against a person. It has become an implied principle of law that any order having civil consequences should be passed only after following the principles of natural justice. Article 14 of the Constitution is said to be the Constitutional guardian of Principles of natural Justice because Article 14 requires that the State and every Public Authority or instrumentality of the State must act reasonably in public interest and fairly.
An important observation made by Lord Denning, the most respected Judge of England which has been cited as approval by the Supreme Court is very important here. Denning L J. Said, “When a defect appears , a Judge cannot simply fold his hands and blame the draftman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give force and life to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
In McDowell & Co Ltd V Commercial Tax Officer , Chinappa Reddy, J. Observed: “In our view, the proper way to construe a taxing staute, while considering a device to avoid tax, is not to ask whether the provision should be construed literally or liberally, nor whether the transaction is real and not prohibited by statute, but whether the transaction is a device to avoid tax and whether the transaction is such that the judicial process may accord its approval to it. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the Court to take stock to determine the nature of the new and sophisticated legal device to avoid tax ........”
In the words of Justice Ramaswamy, "the Purpose of interpretation is to sustain the law. The Courts must interpret the words or the language of the Statute to promote public good and to interdict misuse of power. [ Aslam babalal Desai V St of Maharashtra (1992) 4 SCC 272]
CHAPTER -10- THE CONSTITUTION OF INDIA: Fundamental Duties.
Article 51A.
It shall be the duty of every citizens of India-
(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.]
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years]
Fundamental Rights of Citizens and of other Residents of India.
1) All laws which were in force earlier and also all laws which will be made in future has to be in compliance of fundamental rights conferred on the citizen by this Constitution, and any law which tends to curtail fundamental rights shall be void.( Article 13 )
2) Equality before law. ( Art. 14 )
3) prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. ( Art.15 )
4) Equality of opportunity in matters of Public employment.( Art.16 )
5) Abolition of untouchability.(Art.17 )
6) Abolition of titles: National Awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan Padma Shri does not include Titles. (Art.18 )
7)Freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to practice any profession or to carry on any occupation, trade, or business ; subject to certain restriction such as a citizen in exercising these rights must keep in mind the security, Integrity, and Sovereignty of the Nation, friendly relations with the Foreign States, Public order, decency or morality, contempt of court, defamation, or incitement to an offence etc.(Art. 19 )
8) Certain protection in respect of accusation of any offences.(Art.20)
9) Protection of Life and personal liberty : The right to life includes Right to life with Dignity. ( Art.21 )
10) The State will provide free and compulsory education to all children to the age of 6 to 14 yrs.( Art 21 A )
11) Protection against arrest and detention in certain cases : A person who is arrested cannot be detained in custody unless he is informed of grounds of his arrest and he has right to consult and be defended by a legal practitioner of his choice.
A person who is arrested and detained in custody must be produced before a nearest Magistrate within 24 hrs of such arrest.
12) Trafficking in human beings, slavery, begging and other similar forms of forced labour are prohibited. ( Art.23 )
13) Prohibition of employment of children of the age up to 14, ( Art.24 )
14) Freedom of practice, profess and propagation of religion subject to certain restrictions such as public order, morality and health and other Fundamental rights.( Art.25 )
15) Freedom to manage religious affairs subject to certain restrictions of public order, morality, health etc.( Art.26 )
16) Freedom as to payment of taxes for promotion of any particular religion.( Art.27 )
17) Freedom as to attendance at religious instruction or religious worship in certain educational institutions.( Art.28 )
18) Protection of interests of minorities ( Art. 29 )
19) Right of minorities to establish and administer educational institutions.( Art.30 )
20) The right to move Supreme court or the High court by appropriate proceedings for the enforcement of these fundamental rights is guaranteed.( Art 32 & 226 )
CHAPTER -11- APPOINTMENT OF AMICUS CURIAE IN PILs
One may relieve himself from PIL case.
A request can always be made to the Judge to appoint Amicus Curie (called a Friend of the Court) if you are finding it difficult to continue with your case. The Court in deserving important cases may appoint Amicus Curie. Also there is one Order (Criminal Writ Petition 1679 of 2007) of Bombay high Court by Hon Justice Bilal Nazki in which he on his own appointed Amicus curie when he found that the Petitioner is not going ahead properly with the case. (Although it was a case where the Judge has appointed Amicus Curie against the wishes of Petitioner)
Also, Employing the analogy of Hon Supreme Court Case No.: Appeal (civil) 919 of 2007, Date of Judgment: 23/02/2007 in the role of good Samaritan in bringing accident victims to the hospitals wherein they encouraged the Citizens to bring the accident victim to the hospitals and said that the responsibility of that Samaritan ends as soon as he leave the person at the hospital. The duty of giving desired treatment is obviously the prime duty of the Doctors there.
Similarly, when PILs of large public importance are brought before the Court by any concerned citizen, the citizen however may pursue the case he has brought to the notice of the Court, yet it becomes the duty of Judges to operate upon the case with utmost urgency.
Also, by virtue of section 32 of The Advocates Act 1961, a person, by executing a special Power of Attorney, in favour of any individual, who is not a advocate / lawyer, may appoint any person of his/her choice to represent him/her in the Court of law.
(1) The "Kings Counsel" and the "little Petitioner" stand but on different footing. It is not seen not even in a single instance where the State has appreciated and welcomed the move of petitioner for bringing before the Hon'ble Court issue of Public importance and they merely chose to indiscriminately oppose the petition on whatever ground that comes to their mind. Sometime strange allegation of busybody of the petitioner/ motive, define Kings Counsel's averments, instead of speaking on merit of the facts of the case.
(2) However the Petitioner is concerned for the good of the society like any other concerned man, but the Petitioner is short of money, time and knowledge to handle court litigation which some time run into years. Yet the short of money, time and knowledge should not come in way of society interest.
CHAPTER -12- INTERVENING APPLICATION
An Intervening Application can be filed wherein a PIL is going on in the Court on a subject matter in which if one has something to say or to bring before the Court his/her point of view, or to bring before the Court any important record. The procedure is by and large the same as in case of filing fresh PIL, besides incorporating necessary details about PIL going in the Court. In intervening application, the petitioners of PIL are also to be made Respondents.
CHAPTER -13- OTHER PRACTICAL TIPS-
1. The petition should not be stretched with too many issues and reliefs, for it loses focus. The petition should be very brief and to the Point. Only material points should be incorporated. As far as practicable, raise one issue at a time and seek one relief. The issue raised must be prima facie, striking to the eye and so the relief sought. In PILs- the issue addressed must be palpably identifiable; striking to eyes, relief sought must be brief and objective. (Very Imp)
2. Always fix responsibility/liability on one Public authority. Authorities have a tendency to pass responsibility from one to another.
3. The language may be little aggressive yet decorum must be maintained. Harsh language and general allegations against Respondent govt should be avoided unless you have conclusive proofs to them.
4. Argue when it is desirable and not when there is room for it. Respondent govt Counsels ordinarily give lot of opportunity to engage in useless arguments. One must take care not to deviate from core issue. (Very Imp)
5. Stress on only one/two strongest point which is very difficult for the authorities to answer. (Very Imp)
6. News paper clippings, Question and Answers of parliament, Comptroller and Auditor General Reports, respective govt web sites may be useful resources for gathering evidences and other useful statistical information.
7. Also, there are some very good web sites where valuable information may be available. The Organizations include ANHAD, CHRI, Common cause, I government, Info change India, India Together, Journeys for change, Kiva, Karthikeya Shodhan, Land for the Tillers' Freedom, Lok raj sangthana, Lok sevak sangh, People for transparency, Prakruti, PUCL, PUDR, Servants of the People Society (SOPS), Transparency International India, Unltdindia, UJaS, whistleblowers India, world cow wealth.
8. The Hon Court may be requested to appoint a Committee to monitor implementation of directions so given or in the alternative the respondents shall be directed to update its website about slew of directions so given and action taken in pursuant.
9. Whenever judges resort to abusive language to Petitioner, the Petitioner may humbly plead, "Remarks of Hon justice may please be recorded in the orders."
10. Invite attention of the Judge by saying- May I Invite the attention of this Hon'ble court / May I Invite the attention of My Lordship.
11. Arguments before the Court are ordinarily in English. For arguing in Hindi or Regional language, permission before sitting judge may be obtained.
12. If you are not satisfied with order of the Court or you are not given the reliefs sought, than either Review Petition may be filed with the same High Court or Appeal may be made before the Supreme Court. Always insist the Court to make reasoned order. If order is ambiguous or if is not self explanatory as to why the Reliefs were not given by this Hon Court, make “Speaking to the minutes ” application to seek clarity Order from the Court may be made.
13. However it must be stated that I am not approval of present complex procedural way of functioning of our Courts, yet unless a new system evolve, we have obey the present system. Yet this PIL means can be used to bring forth an accessible system.
14. Modern words have clothed reality. The grim reality by effective words and photographs should be brought close to the judges’ eyes so that he can himself see and feel the situation. Like for example it is not suffice to cry that rights have been violated but the grim picture of consequences resulted from that violation of right must be brought to the notice of the court.
15. The entire philosophy of submissions in petitions should be talking of massive benefits that will accrue to respondent state agency if the measures so implemented.
16. All likely objections that Respondent may raise should be anticipated and tactfully acknowledged in the petition and if possible answer them. Also, our serious contentions may become the issues to be decided by court.
17. It may happen that your case may not come for the hearing for some time. In that situation an formal request, by way of Preciepe (format is attached below) should be made before the Court of Chief Justice requesting him to give urgent hearing of the case and the reasons for the urgent hearing must clearly be made out.
18. It may happen that while the matter is pending before the Court and the Respondent are acting in such manner as to defeat the purpose of seeking relief from the Court. In that situation, Notice of Motion in Original Jurisdiction & Civil Application in Appellate Jurisdiction should be filed for immediate hearing of the case. Also, the issue can be formally mentioned before the Court (Judge) seeking urgent hearing. Also, if the Petitioner seeks to amend the Petition or if he want to add something more to the Petition, the same can be done by filing Chamber Summons.
CHAPTER -14- MODEL FORMAT OF PETITION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
INDEX
Sr.NO. DATE PARTICULARS PAGE NO.
1. PROFORMA
2. SYNOPSIS
3. POINTS, AUTHORITIES & ACTS
4. THE PETITION
5. VERIFICATION
6. MEMO OF APPEARANCE
7. MEMORANDUM OF REGISTERED ADDRESS
8. LIST OF DOCUMENTS
9. EXHIBIT ‘A’
10. EXHIBIT ‘B’
11. EXHIBIT ‘C’
12. EXHIBIT ‘D’
13. EXHIBIT ‘E’
14. EXHIBIT ‘F’
15. AFFIDAVIT IN SUPPORT.
16. CERTIFICATE
( This is the first page of the Petition)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
(IN PERSON).
____________________________________________________________________
Office Notes, Office Memorunda of
Corom. Appendices. Court’s order or Court’s of Judge’s
Direction and prothonarty’s order orders.
(This page is called proforma as stated in the Index. In this page, the Presiding Judge records important points that emerged during course of hearing. Three pages of proforma are to be placed. This proforma is to be numbered as (A) (B) (C) )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
(IN PERSON).
____________________________________________________________________
Office Notes, Office Memorunda of
Corom. Appendices. Court’s order or Court’s of Judge’s
Direction and prothonarty’s order orders.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
(IN PERSON).
____________________________________________________________________
Office Notes, Office Memorunda of
Corom. Appendices. Court’s order or Court’s of Judge’s
Direction and prothonarty’s order orders.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
S Y N O P S I S
Narrate date wise very very briefly chronology of events / important facts that led to the filing of this PIL.
DATE: This PIL is filed.
(signed)
Petitioner No.1
In Person
(Page D, E, F)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL /APPELLATE CIVIL JURISDICTION
PIL /WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
THE POINTS TO BE URGED
State here (very)important points that you intend to argue in the Court
These below points may be incorporated depending upon circumstances of each case.
1.In modern times, Peoples' Security and Progress are sought to be secured through codified laws and scheme of Justice is thus introduced to secure that Security and Progress.
2.Whereas the Respondent has voluntarily promised to abide himself to the laws of the land and is wilfilly abstaining from it.
3.The whole scheme of Justice is a quest for truth and Advocates & Counsels though speak on behalf of their Clients, yet in reality, they assist the Court in reaching the truth and administer Justice.
4.A Judge stands firmly as a thick wall between “Little Man” and “mighty transgressing State”.
5.This PIL is filed not to win a case but to cure a disease, a disease of allergy to rule of law.
THE AUTHORITIES TO BE CITED
1. The Constitution Of India.
2. Any High Court or Supreme court Judgment used in the Petition.( Also, the copy of that Judgment must be annexed in the Petition as Exhibit.)
In our constitutional scheme, the High Courts and Supreme court are courts of Record and orders / judgments passed by them are deemed as law of the land. And therefore, the said high court or supreme court order may also be used as law as stated in point no.8 hereinafter.
THE ACTS TO BE RELIED UPON
1. The Acts/Statutes/Rules which is relied upon in your case, if any.
(signed)
PETITIONER NO.1,
IN PERSON
(page G, H, I ..)
Court fee Stamps are to be affixed here [Rs.Two hundred & fifty]
(Leave half page space for affixing Rs.250 court fee stamp.)
(page 1 of Petition)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL / WRIT PETITION NO. OF 2010
IN THE MATTER OF
Article 226, of the Constitution of India
AND
XXXXXX(VERY BRIEFLY in four lines SUBJECT MATTER)
AND
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Rule 4(c) OF THE BOMBAY HIGH COURT
PUBLIC INTEREST LITIGATION RULES, 2010.]
PIL Petition No.---------------- / 2011
Cause Title
Petitioner(s) The name, age, father/husband's name, occupation and complete address (with FAX number, mobile number, PAN number, National Unique Identity number and e-mail address, if any);
Respondent(s) The name, age, father/husband's name, occupation and complete address (with FAX number, mobile number and e-mail address if known.
PUBLIC INTEREST LITIGATION PETITION
THE HONOURABLE CHIEF JUSTICE AND OTHER PUISNE JUDGES OF THE HONOURABLE HIGH COURT OF JUDICATURE AT BOMBAY
THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED MOST RESPECTFULLY SHEWETH.
1. Particulars of the Cause / Order against which the Petition is made :-
(a) Subject matter in brief................................................................
(b) Purpose of filing this PIL / Writ Petition: The Petitioners states the central purpose of filing this PIL / Writ Petition is to ..........
(c) The Petitioner is aggrieved / the main grievance of the petitioner is that – make out your chief grievance in very very brief one paragraph. (state here the acts and omissions of Respondents which led to the filing of this Writ / PIL Writ)
2. Particulars of the Petitioner(s):—
(a) Give the social / public standing, professional status and public spirited
Antecedent of the petitioner(s); if the petitioner is a social action group or organization, the names of the office-bearers must be furnished. (1) The Petitioner No.1 is a (brief introduction of each Petitioner). The Respondent No.1 is a (name of the Public Auth and its assigned primary function).
(b) Locus of the Petitioners: The petitioner comes to this Hon'ble court with clean hands and with neat prayers, armed with limited knowledge of law and position of law with regard to issue at hand and presents his case for the kind consideration of this court.The Petitioners also seeks to satisfy this Hon'ble court that Petitioners has locus to knock the doors of this Court for appropriate reliefs. The Petitioners so as to establish their Locus, advances their arguments as humble submission for the kind consideration of this Hon'ble Court.
(i) That a combined reading of eternal words of Preamble of Constitution of India, for being giver of Constitution of India, fundamental right of Freedom to speech and expression and fundamental duties enshrined in Article 51A, Locus of a Citizen of India, in matters apparently in the nature of Public interest, is fairly established. (Point for PIL only)
(ii) That the violation of the Constitution and of laws, including the non-enforcement of their provisions, endangers the order embodied in them and so becomes a fit subject on which a citizen may move the Courts. (Point for PIL only)
(iii) That Laws are not passed merely for being passed but for being implemented. The mere fact that an objective has been embodied in the Constitution or a law itself indicates that the Constituent Assembly and the relevant legislature wanted it to be achieved. The order embodied in the Constitution and various laws framed under it is the concern of every citizen as a breakdown of that order shell jeopardize our existence as a free and cohesive society and this injure every citizen. This stake in the order is sufficient to provide standing to a citizen to draw the attention of Courts to developments that endanger that order. (Point for PIL only)
(iv) Where officers of the State who have been charged in the first instance with the responsibility to implement the laws fail to do so, citizens have the right and duty to approach the Courts to ensure implementation and the Courts have a right and a duty to hear them. (Point for PIL only)
(v) The petitioners humbly recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy Vs. Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials.
The Hon'ble Apex Court said, "The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. ... The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new 'enforcement' dimension, not merely through some provisions of the Cr.P.C.... but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Court and follow up legislation direct them to do is defied or decried wrongfully. The wages of violation are punishment, corporate and personal..." (Ratlam Municipality vs Vardichand and others, AIR Supreme Court, 1980, October, paras 16, 24).
(Point for PIL only)
(vi) That one of the major problems with the State and its instrumentalities is that they, ordinarily do not lend its ears to the voice of common man and Courts did listen to him. The Courts are today one of the few forums left in which rational discourse is still possible. Should they not have the opportunity to salvage what can still be salvaged, the opportunity to further the public weal? (Point for PIL only)
(vii) That in matters of larger public interest, unlike conventional adversarial litigations, the Litigants do not gaze at each other but they look together in same direction. The Petitioner are in no mood of litigation with his own Govt. for it involves merely allegations and denials and further allegations and further denials, resulting in toll of valuable time of the Court and having regard to the fact that PILs drag on for years, for one reason or the other, invariably, the very object of approaching the law courts gets defeated. There is no quest to undermine the authority of administration and of the State. (Point for PIL only)
(viii) The question is not whether we should repose faith in the Courts but whether or not it is the duty of the Courts to ensure that provisions of the Constitution and the laws are implemented. (Point for PIL only)
(ix) Courts tend to take the position that if on merits the matter is worth considering it should not be turned down merely on some technicalities regarding standing. (Point for PIL only)
(x) The criteria for judging the intrinsic importance of an issue must be the gravity and the generality of the eventual cumulative effects of the act of negligence, not the personal, direct, immediate effects and citizens who have a special concern for or who are specially equipped to alert the Courts about the eventual effects must be given the opportunity to bring facts to the attention of the Courts in the public interest. (Point for PIL only)
(xi) That finally, it isn't just that the petitioners are qualified as well as duty bound to do so, the Hon'ble Court itself is, I most humbly submit for your Lordships' consideration, in a sense duty bound to hear us. For the Honourable judges, even though holding the high office of judges, are still citizens and are thereby, like the petitioners themselves, bound by Article 51A that prescribes the Fundamental Duties of each citizen of India. They too must do all they can-and at a minimum this includes what is within their immediate and unqualified power to do, that is to hear other citizens who bring facts that have a bearing on the matter to their notice-to abide by and respect the ideals of the Constitution. (Point for PIL only)
(xii) And thus, Petitioners humbly submit that PIL is not a case to be won, but a disease to be cured. (Point for PIL only)
More points about Locus may be referred to points stated hereinbefore in Chapter 3.
(c) The Petitioners herein says that this Hon'ble Court has Jurisdiction to hear this matter and give binding orders to the Respondents herein. Under Article 226 of the Constitution of India, the aggrieved person may approach & invoke the Jurisdiction of High Court, for enforcement of fundamental rights or statutory rights, enforcing Statutory duties, against the 'State' as defined in Article 12 of the Constitution; and also against private person, but only in exceptional circumstances.
May I emphasize here that in Writ Jurisdiction, it is very important that Court must be satisfied that the case at hand is a fit case for which this Hon'ble court must invoke its extra-ordinary writ jurisdiction. If the Court is satisfied, half the battle is won.
PLEASE NOTE / PLEASE NOTE / PLEASE NOTE
Please refer Chapter 4 JURISDICTION OF HIGH COURT – “The issues for which the Jurisdiction of High Court under Article 226 of the Constitution of India may be invoked for issuance of Writ against any Public authority- of State govt or of Central Govt” and add here relevant Supreme court order in this Jurisdiction paragraph.
Please incorporate relevant Supreme Court order, depending upon the issue you have raised in the Petition.
2. State if the petitioner or any of the petitioners when there arc more than one, is or has been involved in any other civil, revenue, Criminal litigation in any, capacity before any Court or Tribunal and if so, complete details of such litigation including the subject matter thereof must be stated.
3. Declaration and undertaking of the Petitioner(s):—
(1). That the present petition is being filed by way of public interest litigation and the petitioner(s) does not/do not have any personal interest in the matter (if there be any personal interest, disclose the nature and extent of such interest). The petition is being filed in the interest of..............(give the nature of such interest and particulars of the class of persons or the body for whose benefit the petition is filed).
(2). That the entire litigation costs, including the advocate's fee and other charges are being borne by the petitioner(s) (if sources of finance for the litigation is any other, state so with complete particulars) (permanent Account Number with the Income Tax Department, wherever available, should also be disclosed).
(3). That a through research has been conducted in the matter raised through the petition (all the relevant material in respect of such research shall be annexed with the petition).
(4). That to the best of the petitioner(s) knowledge and research, the issue raised was not dealt with or decided and that a similar or identical petition was not filed earlier by him/it (in case, such an issue was dealt with or a similar or identical petition was failed earlier, state its status or the result).
(a). That the petitioner/petitioners has/have understood that in the course of hearing of this petition the Court may require any security to be furnished towards costs or any other charges and the petitioner/ petitioners shall have to comply with such requirements.
(b). The Petitioners herein states that it is of utmost importance that this Hon'ble court must adequately be satisfied that the case herein involves violation of rights of the Petitioner/ the issue involves the public authorities/ public officials have failed in due discharge of their official duties, so that this Hon'ble court can safely invoke its extraordinary writ jurisdiction and pass authoritative orders to the Respondents in the light of prayers claimed in the Petition. Thus the petitioner respectfully begins with relevant facts of the case as-
State bare facts of the case that has led to the filing of this Writ / PIL Writ. The facts should be bare and should not include any kind of allegations or criticism of the Respondents herein.
(c) The Petitioners herein states that the courts would insist upon solid factual base for their seeking reliefs spelled out in the Prayer clause and the material placed before the Hon'ble Court must be such as to clearly demonstrate the illegal acts and omissions of the Respondents herein that merits an appropriate order / direction by this Hon'ble Court.
Reproduce every prayer / relief one by one and advance arguments / reason / why this Hon'ble court must grant this Relief.
(a) Prayer / Relief:
Argument advanced as why this Hon'ble court must grant this Relief.
(b) Prayer / Relief:
Argument advanced as why this Hon'ble court must grant this Relief.
(c) Prayer / Relief:
Argument advanced as why this Hon'ble court must grant this Relief.
(d) Prayer / Relief:
Argument advanced as why this Hon'ble court must grant this Relief.
The arguments advanced above may include-
The Laws of the land as on today-- the reality holding the land as on today.
The consequences flowing from non compliance to law of the land.
If the prayer is about seeking some kind of punishment, either by way of fine or suspension of the Respondents herein, the arguments apart from other points, may include -
(a) The Petitioners, respectfully add here that in 1897, Justice Holmes, an American Jurists issues a paper in which he put forward a novel way of looking at law. He says- if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things in deviation to established laws.
(b) Sir Lionel Fox, an acclaimed Penologist of 20th century England quotes the example of an 18th Century Judge who passed sentence of death saying, “You are to be hanged not because you have stolen a sheep, but in order that others may not steal.” He continued, “Executions are intended to draw spectators, and if they don’t, Executions do not serve their purposes.”So evident is the truth of this perciptible simple logic, if applied generously by presiding Hon'ble Judges, may virtually end disorder in the society.
(c) Clearly the absence of law is not a problem in our country but its compliance and where offenders of law are found a step ahead of law. While preventive mechanism are well in place, only a certain punishment can curb the occurrence of such disrespect to laws of the land)
(d) The issues that emerges in the case at hand for this Hon'ble court to dwell upon are:
A. Whether the case at hand is a fit case for this Hon'ble Court to invoke its extra-ordinary writ jurisdiction.
B. Whether “principal allegations made by the complainant”, as outlined in the points… against the Respondents herein appears genuine & correct.
C. Whether Petitioners herein has satisfied this Hon’ble Court about the due compliance of various ingredients / components of applicable section of law at hand, which brings home, either the right of the complainant or the guilt of the Respondents herein.
D. Whether facts of the case & supporting evidences indicates the infringement of rights of the complainant, in the light of the position of law.
E. Whether conduct of the Respondents herein, in the matrix of facts of the case & settled position of law, indicates the frustration of enacted laws / indicates the failure of duties enjoined by law on them.
G. XXXXXXX
H. YYYYYYY
5. Source of information:—
Declare the source of information of the facts pleased in the petition and as to whether the petitioner/petitioners has/have verified the facts personally, if yes, in what manner ?
6. Nature and extent of injury caused/apprehended.
7. Any representation etc. made:—
State whether any representation has been made in regard to the cause to the concerned authority (if yes, Details of such representation and reply, if any, from the authority concerned along with the copies thereof; if not, reason for not making such representation).
(a) Please provide details of notice served upon the Respondents, and their replies if any. If no notice is served, then record reasons here as why there was urgency or any other reason for not serving the notice before moving the court.)
Moreover, had the Respondents acted diligently and responsibly, the Petitioners shall not have the occasion to knock the doors of Justice. The Judges are constrained to engage themselves in unwarranted litigations resulting in contentious and meritous issues fails to log the wisdom of the judges. And avoidable litigations should reach the Court but at the peril of the Respondents.
And whereas the Hon’ble Chief Justice of India Shri S H Kapadia has on 15.05.2010 warned the PIL Petitioners that they must first issue notice to Executives before moving courts and therefore we the People expect that, in principle and in equity, if Executive govt turn a blind eye to the notice and if one has to move court for justice, then this Hon'ble court will also find the occasion to impose deterrent cost on the Respondent Executives. The copy of News Report can be found at this link: http://timesofindia.indiatimes.com/India/First-demand-justice-from-executive-then-move-PIL-before-courts-SC/articleshow/5931766.cms
(b) The Petitioners crave leave to submit some humble submissions for kind appreciation of this Hon'ble Court that – (optional point)
(i) In many respects, we now live in a society that is only formally democratic, as the great mass of citizens have minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena."
(ii) The bare act of omissions of Respondents frustrates the foundation of Rule of Law society. Their act creates an impression in the societal people that the established laws may be disregarded at one's whims and fancies. The conscious neglect of established laws will occasion where the societal people will further lose respect for the laws.
(iii) Shouldn’t the Petitioners invoke doctrine of promissory Estoppel of laws established against all Public Servants, for they take Oath of allegiance to Rule Of Law. Oath of allegiance to rule of law implies that all
Public officials while at the time of taking charge of any Public office, makes a positive promise to the People at large that they will abide by laws of the land, in letter & spirit. Thus they all are stopped from acting contrary to established laws. This may be called Promissory Estoppel of laws. The Petitioners further says that every legal duty failed is a Promise broken by the Public servant concerned.
(iv) In a world where gigantic scientific and phenomenal technological achievements command our administration it is no wisdom to say that we lack intelligence to resolve any problem. The Sovereign Govt is a worthy institution capable of solving all ills, if they desire so. The Govts should not underestimate their capabilities for they are Sovereign. There is nothing which they cannot do. Like Govts of all developed nations, our govt with all their constitutional, statutory, inherent and coherent powers, it is well within their powers to address any issue. It can be said with near certainty that there is nothing which our Govt cannot do. Moreover, given the powers they have, it cannot be accepted they cannot do it.
(v) It has become the practice of Govt and its instrumentalities to undermine the evidential value of News Reports and Courts has concurred in some of the of occasions. In the light of section 81 of Indian Evidence Act which regard that News Report shall be presumed as Evidence; and The Press and registration of Books Act which cast a positive obligation on Editors of Publishers for content of News Reports, the Petitioners states that the Hon Courts has not in anyway undermined the efficacy of news report in evidential jurisprudence. The Hon Court has restricted news report applicability only in criminal cases where the guilt of the accused has to be proved beyond reasonable doubt. The Hon Court said, the liberty of a man cannot be jeopardized on mere news reports unless substantiated.
(vi) Many a times it is seen that Govt take advantages of its own failures i.e. They claim that they are short of Staff and many other fancy submissions; Or Govt simply plead inability to solve problem because of its massive and cannot be solved. The Petitioners with pedigree of education and scars of experience anticipates that whilst Govt of India might invoke “Infeasibility theory” to say it is impossible to ……. and thus the Petitioners crave leave to borrow the words, uttered in context to Human rights, of Indian Nobel Laureate Amartya Sen, Published in the Journal The New Republic, Feb.04, 2009. He said, “Indeed, if feasibility were a necessary condition for people to have a right , then not just the social and economic rights, but all rights, even the right to liberty would be nonsensical, given the infeasibility of ensuring the life and liberty to all. We cannot prevent the incidence of murder every day. Nor, with even the best efforts, we cannot stop all mass killings, as in New York on September 11, or in London, Madrid, Bali, and more recently in Mumbai. The confusion in dismissing claims to human rights on grounds of incomplete feasibility is this: a not fully realized right is still a right, calling legitimately for remedial action. Non realization does not make a right a non right. Quite the contrary, it motivates further social action.
(c) The Petitioners, most respectfully, crave leave to state that, whereas this PIL is filed for the enforcement statutory duties, submit, humble submissions for kind appreciation of this Hon'ble Court, on the the most cherished rule of law in our democratic society. (optional point)
(i) Great Philosopher Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.
(ii) With the great passage of time and centuries together, Codified laws evolved and were introduced in human life. Men came together, they Voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the Rule of codified laws. The rule of codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alonwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.
(iii) Jeremy Bentham (1748-1832) of England, John Austin (1790-1859) again of England, Savigny of Germany, Puchta (1798-1856), Hugo Grotius (1583-1645), Immanuel Kant (1724- 1804), Scabelling (1775-1854), Kohler (1849-1919), Roscoe Pound (1870-1964), Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399 B.C.), Arsitotle (384-322 B.C.), Thomas Acqinas ( 1225-1274), Duguit (1859-1928), Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering (1818-1892) significantly contributed to today's modern concept of codification of laws and emergence of State Citizenship relationship.
(iv) Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.
(v) Among various definitions of State given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE
(vi) Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He said- it is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose.
(vii) And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that-
(a) His Life & Property will be protected and his liberty will be secured;
(b) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;
(c) That others will act with due care and will not cast upon him an unreasonable risk of injury;(7) The issues that emerge before this hon'ble to dwell upon are:
(d) That others will not commit any intentional aggression upon him;
(e) That people with whom he deals will carry out their undertakings and will act in good faith;
(f) That he will have security as a job holder;
(g) That State will bear the risk of unforeseen misfortune;
(h) That State will bear the burden of supporting him when he becomes aged;
(viii) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration – every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”
(ix) Our Democratic India is founded on Written Constitution and founding fathers and mothers established in the Constitution- both the ideals and the institutions & processes for achieving them. Human security and progress are sought to be secured through codified Laws and its enforcement.
(x) In India, the contemporary democratic set up and functional relationship between the State organs comprising the Legislature i.e. The MPs & MLAs, The Executives i.e. Govt which acts as an Agent between the People and its Representatives, and the Judiciary, the watch dog of the Rights of the People, is such that the People choose their Representatives and authorize them to make laws and authorize them to institute Government for administration of the Country.
(xi) And therefore the Representatives in turn make laws for the welfare of the people and appoint agent in the name of Govt to implement the laws made by them. The role of the Judiciary is to ensure that the laws made by the Legislatures are implemented by the Govt in letter and spirit.
(xii) Laws are made and passed by Legislatures which represents wishes of the people and the govt who acts on behalf of legislatures voluntarily takes oath and undertakes to fulfill the wishes of people as they administer laws and perhaps this is the premise why ministers and bureaucrats including the Judges are called Public Servants and Legislatures are not deemed as Public Servant ordinarily, except in cases of Corruption.
(xiii) This Hon'ble Court may appreciate that, while presiding & dwelling upon and adjudicating a case before it, the injunctions and mandate embodied in the Constitution of India is of first importance to them, for Judges themselves owe their origin, derive their authority and discharge their powers and responsibilities within ambit of this Constitution. The injunctions & mandate incorporated in the laws & legislation made and passed by competent Parliament and State Legislature, the off-spring of Constitution itself, therefore becomes of immediate importance to the Judges while presiding & dwelling upon and adjudicating a case before it, for it entails the cherished Rule of law society.
(xiv) Words and Provisions found in the Constitution of India or in the enacted laws are no trivial. They are found for their notoriety and expediency, to regulate human behaviour and promote society welfare. And no separate set of reasons needed to seek spirited observance of the law, for its mere presence in the books of law calls for forceful observance of it.
(xv) All Statutes or Laws so made and passed by Legislatures is to remedy the ill that has plagued the society. All Statutes comes into being with some policy and objective to be achieved. Every statutory provision in a Statute comes into being after due deliberation and every letter of the law is employed with great caution and care and with some purpose. It is settled that Legislation, both Statutory and Constitutional, are enacted from experience of evil.
(xvi) A fortune of time, money and wisdom is invested in enacting laws democratically and this whole exercise is passionately thrown overboard at the mere fascination of an irresponsible man when knowingly acting in clear breach of that law established. It goes without saying that all laws are enacted in the backdrop of immense expediency.
Disobedience to Rule of law is a social disease to which judges are specialist surgeon to which they should operate without any loss of time. PIL is filed not to win a case but to cure that social disease.
(xvii) It is of first importance of every Govt and its various instrumentalities to implement and administer the Laws so made by the Parliament and the State Legislatures.
(xviii) "To oppose or challenge the illegal acts & omissions of government does not mean one is against the country or the people that the government supposedly represents. Such opposition should be called what it really is: democracy, or democratic dissent, or having a critical perspective about what our leaders are doing.
(8) Ground for this Petition:
(a) This PIL petition is filed with the purpose of securing compliance to letter of the law.....
(b) The Petitioner submit that this Petition is necessitated and relief prayed should be granted in view of the total disregard for the law established. The Petitioners further submit that the issues aforementioned have been simmering for far too long and unless effective measures are taken.....
(c) The petitioners states that there is no other Petition / application is pending in any Court or before Hon. Supreme Court
(d) The Petitioners has no other efficacious remedy except to approach this Hon’ble court for reliefs set out hereinafter.
(e) The Petitioners rely on Documents, list whereof is annexed hereto.
(f) The Petitioners have paid the necessary Court fee.
(g) The petitioners states that this is a PIL / Writ Petition.
8. Delay, if any, in filing the petition and explanation therefor :—
(State exact period within which the petition is filed after accrual of cause of action thereof; and if there be delay in filing the petition explanation therefor)
9. Documents relied upon.
10. Relief (s) prayed for:— (Specify the relief (s) prayed for)
The Petitioners herein therefore humbly prays to this Hon'ble Court-
(a) To settle the issues, either in affirmation or in negative, raised in this case as spelled out in para 8 of the Petition.
That this Hon'ble Court may please to issue a Writ of Continuous Mandamus or a Writ in the nature of mandamus or any other Writ, Order or Direction, directing-
(b) The Respondent No.1 shall be directed….. (relief you are seeking from this court ).
(c) The Respondent No.1 however has legally and validly entered into & occupied the public office but while it has willfully abstained from due discharge of its duties thereby jeopardized its lawful continuation and therefore its appointing authority i.e. the..... shall be directed to assist this Hon'ble court as if this Court can issue a Writ of Quo warranto whereby Respondent No.1 can be removed from its services when it is found wilfully abstaining in due discharge of its duties.
(d) Moreover, In the backdrop of, many a times conclusive orders of the court are not complied with; and time and again even courts have shown their inability to monitor implementation of their Orders, it is humbly suggested that the Hon Court while passing Orders, interim or final may direct –Respondent No.1 to update their website about Court's directions so given and action taken in pursuant thereof. The website may be updated every time. As long as the Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged." Website address of Respondent is: http://www..com/
(e) In the light of point 5 of the Petition, the Respondent No.1 to satisfy to this Hon'ble court as why replies to the notice of Petitioners were not made and if Respondent No.1 failed to satisfy this Hon'ble Court, then Hon'ble court, in the light of Supreme court Judgment in Salem case as cited hereinbefore, is requested to impose exemplary cost on Respondent No.1.
(f) Pass such other and further orders as this Hon’ble Court may deem proper and expedient in the Public interest.
(g) For expeditious hearing of this Petition.
(Urgent / Interim Relief may be sought from this Hon’ble Court till this Writ is finally adjudicated by this Hon’ble Court.)
(A) The Petitioners herein humbly states that the rights/reliefs claimed herein are not unconstitutional or the rights/relief claimed are not unwarranted & unjustified. Yet, the Hon.Court may think otherwise and may deny the reliefs so claimed and in that event the Hon.Court may please be so generous to incorporate in its order, reasons for denying the relief claimed. The Petitioners respectfully submit that Reasoned Orders are inescapable in the entire scheme of administration of Justice. Reasons disclose how the mind is applied to the subject matter for a decision and reveal a rational nexus between the facts considered and conclusions reached. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment , decree has justly meet out justice to the aggrieved person. Reasoned decisions are vital for the purpose of showing that one is receiving justice. And therefore, it is humbly prayed that this Hon'ble Court pass a reasoned and speaking order in this case.
(B) The Petitioners respectfully submit that whereas it is seen that advocates trip Petitioners on non compliance to minor technicalities, and therefore it is humbly reiterated the observation of our Constitutional courts in this regard that--
(i) A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. [ Saiyad Mohd. V Abdulhabib, (1988) 4 SCC 343.]
(ii) A Party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Rules of Procedure are intended to be a handmaid to the Administration of Justice and they must therefore be construed liberally and in such manner as to render the enforcement of substantive rights effective. . [Ram Manohar Lal Vs NBM Supply, AIR 1969.]
(iii) Common sense should not be kept in the cold storage when pleadings are construed. Parties win or lose on substantial questions, not on technical tortures and Courts cannot be "abettors".[ Noronha V Prem Kumari, AIR 1980.]
(iv) Every venial defect or error not going to the root of the matter cannot be allowed to defeat justice or afford an excuse to the Govt or a public officer to deny just claim. [Jones V Nicholls, (1844) 13 M & W 361.]
(C) The Petitioner’s grievance is that there are inordinate delays in the dispensation of justice in the country today. The Petitioner’s grievance is also that the impact of these delays and the denial of justice - is the cumulative loss of public confidence in the judiciary, and a resort to lawlessness and violent crime as a method of negotiating disputes. The petitioner humbly submit that lawyers and litigants sometimes misrepresent facts, and yet get away, and this results in delays. Section 193, IPC (punishment for perjury and fabrication of false evidence) provides for both imprisonment and fine, and yet, is seldom invoked. Litigants still get away with inconsistent statements and obvious lies in court, without any consequence at all.
Therefore it deserves mentioning here the observations of Hon’ble Supreme Court in T. Arivandandam v. T. V. Satyapal reported in (1977) 4 SCC 467 : (AIR 1977 SC 2421):
"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints....... if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11. C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C. P. C.
An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot clown at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. Similar observation even hold good for frivolous and untenable defense.
The petitioners herein thus exposes himself to the law of the land if he is found knowingly to present facts which are not true. This Hon’ble Court is requested to invoke section 193 of IPC 1860 of perjury if the respondents are found presenting facts which are not true, or facts which are inconsistent in their pleadings. (optional point)
(D) The Petitioners humbly states that he/ she is ill equipped in resources and time to engage in long battles of litigation with mighty administration and public authorities and thus release his right of personal hearing and therefore request this Hon Court to decide matter by affording a reasonable opportunity of being heard to the Respondents to have their say by filing Affidavit in Reply, in a time bound manner and proceed to pass Orders on the basis of facts stated, rights claimed and submissions of the Respondents, if any. (Optional point)
(E) The Petitioners herein humbly submits that many of the Court Orders, concerning matter of utmost public importance, do not see light of the day and that it is seen that many a times orders of this court are not complied with; and time and again even courts have shown their inability to monitor implementation of their Orders. The State Organs either simply put the Orders in the Shelf or come out with novel arguments for their failure in complying with Court Orders. It is safe to say that the Sovereign State with their Constitutional, Statutory and inherent powers, are quite capable of complying with Court orders. Also, the Hon.Court never compel the doing of an impossibility.
The Consequences of non compliance of Court orders are that the Judges are constrained to engage themselves in repeated litigations resulting in contentious and meritous issues fails to log the wisdom of the judges. We live in a time where millions of cases are pending in various Courts where deserving litigants may be waiting for their turn to obtain justice. The whole labour involved in Petitioning to deliberation comes to none when Wisdom of the Judges, read Conclusive Orders, do not see light of the day.
And therefore, the Petitioners, for the kind consideration of this Hon'ble Court request that the Hon Court while passing Orders, interim or final may direct – Respondents Public Authority to update their website about Court's directions so given and action taken in pursuant thereof; As long as the Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged."
(F) The Petitioners most respectfully states and your Lordship will appreciate that by not adopting a course of action stated hereinbefore would in effect consign national ills to continue and grow. The Last word…Every structured judgment of this court is a social event.
(G) The Hon’ble Court is prayed to record in its Judgment / order, the scope & ambit of ‘these’ legal terms & phrases, which forms part of the statute laws and other applicable legal incidents in this case.
11. Interim order, if prayed for:—
(Give the nature of interim order prayed for with reasons)
12. Caveat:—
That no notice has been received of lodging a caveat by the opposite party or
Notice of caveat has been received and the copy of this petition together with the annexure (if any) have been supplied to the caveator.
Place .
Dated
(signed)
1. Mr AAAAAA
Petitioner No.1
(signed)
2. Mr KKKKKK.
Petitioner No.2
(signed)
3. Mr LLLLLLLLL
Petitioner No.3
(Signature)
Advocate for Petitioner(s).
VERIFICATION
I,---------------------------------------------the Petitioner No. do hereby on solemn affirmation state and declare that what is stated in the paragraphs -------------------to----------------is true to my own knowledge and belief and what is stated in paragraph-------------is based on the information and legal advice which I belief to be true and correct.
(Solemnly affirmed at Mumbai) This day of 20
Before me.
Advocate for the Petitioners.
High Court of Judicature at
Bombay,
Dated this day of 2011.
MANGESH S. PATIL,
Registrar (Judicial-I).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
MEMO OF APPEARENCE
To,
The Prothonotary & Senior Master (FOR ORIGINAL JURISDICTION)
The Registar General (FOR APPELLATE JURISDICTION)
The Hon. Bombay High Court,
Mumbai- 400 032.
Dear Sir / Madam
Please enter the appearance of the Petitioner No.1, 2, & 3 in the above Petition in Person.
Our Address for service is as under:
Mr. AAAAAAAA
Addrss:
(signed)
(1) Mr AAAA,
Petitioner No.1
(signed)
(2) Mr KKKKK,
Petitioner No.2
(signed)
(3) Mr LLLLLLL,
Petitioner No.3
Dated this day of , 2010
(signed)
Petitioner No.1
In Person
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
MEMORANDUM OF REGISTERED ADDRESS
(1) Mr. AAAAAAAAAAAAAA )
Address: aaaaaaaaaaaaaaaaaaa )
(2) Mr KKKKKK )
Address: wwwwwwwwwwww )
(3) Mr LLLLLLLL )
Address:xxxxxxxxxxxxxxxxxxxx ) .............PETITIONERS
(1) The BBBBBBBBBBB )
Address: )
(2) The CCCCCCCCCCCCCC )
Address: ) ............RESPONDENTS
To,
The Prothonotary & Senior Master (FOR ORIGINAL JURISDICTION)
The Registar General (FOR APPELLATE JURISDICTION)
The Hon. Bombay High Court,
Mumbai- 400 032.
Dear Sir / Madame,
Be pleased to register our address for service as hereunder:
(signed)
1. Mr AAAAAA
Petitioner No.1
(signed)
2. Mr KKKKKK
Petitioner No.2
(signed)
3. Mr LLLLLLL
Petitioner No.3
Dated this day of , 2010
(signed)
Petitioner No.1
In Person.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
LIST OF DOCUMENTS
1. Exhibit “A” to “F” to the Petition.
2. Documents referred to and relied upon in the Petition.
Dated this day of . 2010
(signed)
Petitioner No.1
IN PERSON.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBBBB & OTHERS ….RESPONDENTS
PETITIONERS’ AFFIDAVIT
I, AAAAA, the Petitioner No.1 above named, aged about ...do hereby beg to state on solemn affirmation as under:
1. The petitioners have filed the present petition inter-alia for various reliefs as more particularly set out in the petition. I repeat, reiterate and adopt the statements made in the petition as if the same are incorporated herein and form part of the present affidavit. I crave leave to refer to and rely upon the papers and proceedings in the petition when produced. I state that there is urgency in the matter.
2. In the said circumstances, I say and submit that the petitioners are entitled for the reliefs as prayed for and if the same are not granted, irreparable loss and harm would be caused to the petitioners. I say and submit that this petition be made absolute with cost.
Solemnly affirmed at Bombay )
This day of . 2010
(signed)
PETITIONER NO.1
In Person
Before Me,
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
Mr. AAAAAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBBBBBBBBBBb & OTHERS ….RESPONDENTS
CERTIFICATE
To,
The Registrar General,( For appellate Side)
The prothonotary & Senior Master ( For Original Side)
The Hon'ble Bombay High Court,
Mumbai - 400032
The Present Petition is filed to.....A VERY BRIEF NOTE WHY THIS Writ Petition IS FILED.
Therefore this Writ Petition is filed for which this Court has Jurisdiction and therefore be placed before the concerned bench as per High Court Rule 636(1)(b).
Dated this day of . 2010
(signed)
Petitioner No.1
In Person.
PIL
Writ Petition Under Article 226 of Constitution of India.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL WRIT PETITION NO. OF 2010
Mr. AAAAAAAA & OTHERS .... PETITIONERS
V/S
THE BBBBBBBBBB & OTHERS ….RESPONDENTS
PIL WRIT P E T I T I O N
DATE THIS DAY OF
Mr. AAAAAAAAA
Address:
IN PERSON
(This page is called Docket. This is the last page of the Petition.
CHAPTER -15- Notes to Format of Writ / PIL Writ
1. If Public Auth to whom Respondent is made, is situated within Mumbai city than Bombay High Court (BHC) has Original Jurisdiction and if it is situated outside Mumbai city, then BHC has Appellate Jurisdiction. If Respondents are situated both in Mumbai and outside Mumbai, than the Court will have Original Jurisdiction.
2. In every PIL / Writ Petition, if it involves any agency of the State Govt, than the Chief Secretary of respective State Govt must be made as one of the Respondents. If the matter involve any Central Govt public Authority than Union of India ( Govt of India) must be made as one of the Respondents.
If matter involves Railways, then General Manager of Ministry of railways should be made as Respondents.
3. Remove the word PIL if it is not a PIL.
CHAPTER -16- PREPARATION OF PETITION
(1) Petition has to be made on ledger paper (green colored A3 sized) in Two sets. Margin of 1.5 inches on either side of page must be provided. Lettering should be double spaced. Both front and back page can be used while making print out. Petition has to be prepared in English. If any exhibits are in language other than English, than English translated copy must also be annexed.
(2) Judicial Stamp fee is to be affixed for Rs.250/-. The same can be obtained from vendors at High Court premises and some also sit outside HC premises. Judicial Stamp fee of Rs.5/- to be affixed on Affidavit.
(3) Relevant documents, news clippings, and other documentary evidences to be annexed with Petition. If they are not annexed, state in the petition, it will be produced before the Court while hearing of the case. While you are attaching documents state- Hereto marked and annexed EXHIBIT ‘A’ as copy of ……. While documents or reports are referred but because it would be very bulky to attach the same to the Petition, then state- The Petitioners crave leave to refer and rely upon when produced. Thus while during hearing, keep those documents / reports for court’s reference. All Exhibits on both sets are to be put stamp of “True copy” and to be signed by the Petitioner who is going for Affirmation. Also, verification page of 2nd set & Memo of Appearance of 2nd set is to be marked as True copy and to be signed by the petitioner going for filing.
(4) A presentation form is to be attached to the Petition. (Available with WRIT CELL)
(5) The Petition is to be binded with a light mint blue card board paper.
(6) After preparing petition in two sets, and affixing Stamps, it needs to be stitched. The same can be done on 3rd floor of main building of high Court, at Writ Cell (Appellate) and also at first floor of original side of Writ Cell, annexed building.
(7) There may be more than one Petitioner to the case. All the Petitioners has to sign on three documents- (1) At the end of Petition and before Verification heading; (2) Memo of Appearance; (3) Memo of Registered Address). Any one of the Petitioner is required to go for filing and all may not go. The Petitioner who is going for filing should carry with him Pan card, Driving License or any other proof of address and identification. That Petitioner has to sign before the Affirmation Officer at Verification heading (at the end of petition).
CHAPTER -17- PROCEDURE for filing.
Filing begins with affirmation before designated Officer. Also, instead of affirmation before the designated officer, the Petition may be Notarized.
1) Affirmation of Petitioner is to be done at ground floor of Annex Building (exactly opp. to main bldg of HC, in the same premises). There is a separate room for this. Keep Passport/Driving license/PAN card for verification at Affirmation Counter.
2) After Affirmation, the Petition (Original case) should be taken to WRIT CELL (Original) at Third floor of Annex Building; The Petition (Appellate case) should be taken to WRIT CELL (Appellate) on 3rd floor of main building of high Court.
In Original Jurisdiction Petition is to flagged at WRIT CELL (Original) at Third floor of Annex Building; No such flagging is required in Appellate Cases.
The presentation form as stated hereinbefore should be filled up with the help of clerks at WRIT CELL. Lodging no. for Original cases and Stamp Number for Appellate cases are then issued.
3) There are Objections/corrections if any in the Petition are to be removed/ made. In Appellate cases Objections/ corrections are removed at the time of submitting only. In Original cases, the man at WRIT CELL (Original) will be helpful.
After removing objections/making corrections, the man at WRIT CELL will give Writ / PIL no. The Writ / PIL no. for Appellate cases is the same as Stamp number.
4) After getting the Writ / PIL no, the xerox copies of petition is to be served to all the Respondents named in the Petition. Three copies are to be given to State Govt or any of its agencies like the Municipal corp. These three copies can be served at respective Original or Appellate offices of Govt pleaders, situated at ground floor of High Court PWD building, same premises. All other Respondents are to be served one copy only. Proper acknowledgements of serving must be kept in record. In Central Govt Respondents, the three copies are to be served at Room no. 242, 2nd floor, of Aaykar Bhavan, opposite churchgate station.
5) Depending upon the urgency of cases, a formal request, as aforesaid, (it is called mentioning) can be made before Chief Justice for urgent hearing of the case. Mentioning is made. When the Court proceedings began at 11.00 AM and also at 3.00 PM after Lunch hours and at 5.00 when the court concludes for the day. The Judges hear these formal requests for first five- ten minutes and give date for the hearing, depending upon the merit of the case. The request letter is called Preceipe. Format of Preciepe is give in later part of this blog.
However it is important that prior notice of this mentioning must also be served upon Respondents and if Respondents remain absent, the Court must be brought to the notice of the same. All kinds of reliefs like taking adjournments for just reasons can be obtained thru this mentioning.
6) It is important to keep track as when the case will come for the hearing. The Officer before objections are removed may be asked to know how one has to keep track on dates of hearing.
7) For the first time the case come for preliminary hearing / admission of PIL. The Petitioner is then given opportunity to explain before the Judges as why he has come to the Court and what is the element of larger Public interest in this PIL. The Petitioner thus, without getting nervous, should slowly and I repeat, slowly and clearly, spell out very briefly the subject matter and element of Public Interest. If Judges are convinced, it is the Respondent now who has to answer.
8) Considering that Process of Court involves too many things and it is practically not possible to incorporate every aspect here and it is suggested to make enquiry before the Enquiry Counter on ground floor of Annex Building.
CHAPTER -18- PLEASE FIND FORMAT of NOTICE, OF COURSE MAKE APPLICABLE CHANGES DEPENDING ON FACTS OF YOUR CASE.
Complaint / Notice (for Public Official / Authority)
From,
The name & address of the Complainant
To,
The Designation & Address of the Public Official / Authority
(Complaint must be given to a person who is legally entitled to receive & is directly responsible to solve the issue raised in the Complaint)
Subject of the Complaint / Notice
INDEX
Particulars
Page No.
Brief / Complete facts of the case
Relevant provisions of law
Application of law to facts of the case
Important case laws/ judgments
Provisions of law under which the public authority is obliged under the law
Legal Expectation
The consequences that may follow
National Litigation Policy
SC Judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India
Important Points Revisited
Attachments
Post Script
Dear Sir / Madam
Brief / Complete facts of the case for which the Complaint / Notice is sought to be given. State other relevant points as you think necessary.
Relevant provisions of law: under which the person against whom action is sought in this complaint / Notice, who is acting contrary to law.
Application of law to facts of the case:
Narrate how the acts and omissions of the person against whom action is sought in this complaint is acting against the provisions of law stated above. The facts of the complaint must follow the language of the section and must be in conformity and in line with the provisions of law. (It is not very necessary to state the law, but it is desirable to make an impressive and alarming complaint)
Important case laws/ judgments that are relevant to circumstances of the present case. (if any available)
Provisions of law under which the public authority is obliged under the law to attend the nature of the Complaint narrated hereinbefore and take needed action in this regard.
and
Section 14 of General Clauses Act 1897: Powers conferred to be exercisable from time to time.- (1) Where, By any (Central Act) or Regulation made after the commencement of this Act, any power is conferred then (unless a different intention appears) that power may be exercised from time to time as occasions requires. This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January, 1887.
Legal Expectation:
(a)
(b) The public authority is requested, in all seriousness and with due care and attention, make an inquiry into facts of the case and other submissions made herein.
(c) The Public authority is requested, in the light of National Litigation Policy, briefed hereinafter, to obtain appropriate legal opinion from appropriate Govt Dept/ Govt Officer, about merit of the submissions made by me / us in the background of facts of the case, so as to avoid unwarranted litigation in the court of law against the Government functionaries.
(d) However, if the Public authority, in all seriousness and with due care and attention, after taking into consideration our submissions made herein and after applying its mind to it, has reasons to believe that and is satisfied that submissions made here by me/us are devoid of merit, and / or the legal opinion obtained by public authority in this regard reaffirms that submissions made here by us are devoid of merit, then, the Public authority may please record its such satisfaction, and please make a reply to me/us about such satisfaction, within 30 days of receipt of this Complaint / Notice. You are also requested to please refer to “Discretionary powers of the Public Servant” briefed under the heading Post Script.
Some Court Rulings in context to Inquiry:
In Eswara Rice Mills versus Dy Commissioner Shimoga, 1985 CrLJ 944 (Kant), the Court said- The words when the officer has “reason to believe” suggest that the belief must be based upon relevant material and considerations. There must be application of mind and it must appear from the record that there has been an application of mind. Such prima facie satisfaction must be recorded.
In K Krishan Nair versus State of Kerala, ILR 1979 Ker 130 : 1979 Ker LT 34 : 1979 CrLJ (NOC) 116 (Ker), the Court said- In this context, it is worthy of notice that statute more often than not requires the Magistrates or Police or the authority to give reasons. Reasons are differentr from conclusions. The reason is based on material, and the logical process by which conclusion is reached.
In S K Sundaram AIR 2001 SC 2374 : (2001) 2 SCC 171 : 2001 CrLJ 2932 (SC) the Court said- It is not enough if he just make a show of an inquiry. The Inquiry expected of him is of such a depth as a reasonable and prudent man would make worth the genuine intention and efforts in knowing the truth.
In Kailas Sizing Works versus Municipality of Bhivandi & Nizampur, AIR 1969 Bom 127 the Court said- A person acting in pretence is acting not in good faith.
The consequences that may follow: This is to inform you that your failure to comply to legal expectation as stated hereinbefore, may compel me/us to institute legal Proceedings as permissible under the law, including Remedy under Writ Jurisdiction before High Courts, at your personal cost, taking aid of law settled by Hon'ble Supreme Court of India in Salem Advocate Bar Association, Tamilnadu Vs. Union of India case. You may also please refer to “offences relating to public servants in the discharge of their official duties” briefed under the heading Post Script.
Moreover, I / we may specifically plead before the Court of law to remove you from the present public office because you have voluntarily abstained yourself in performing your legal duties, the duties which you have voluntarily undertaken & promised to perform while assuming charge of this Public Office. The Writ of Quo-Warranto is resourceful enough to take care of this pleading.
National Litigation Policy
I / we invite your attention to the national Litigation Policy [For short NLP]. I / we am /are of view that Wednesday the June 23, 2010, 14:14 Indian Standard Time is one of a historic moment for India when Dr.M.Veerappa Moily, Minister of Law and Justice released a Document called National Litigation Policy.
The principal aim of this Policy is to transform Government into an Efficient and Responsible litigant. “EFFICIENT LITIGANT” under the Policy is desired as focusing on the core issues involved in the litigation and addressing them squarely; and Managing and conducting litigation in a cohesive, coordinated and time-bound manner.
“RESPONSIBLE LITIGANT” under the Policy is desired as, which in my view is more important, that litigation will not be resorted to for the sake of litigating. This Policy, in point no. 2. of Chapter II of Vision / Mission exhorts that Government must cease to be a compulsive litigant. The easy approach, “Let the court decide,” must be eschewed and condemned.
It is equally remarkable to note that when this policy, in the very first point of Vision / Mission reaffirms that it is the responsibility of the Government to protect the rights of citizens and those in charge should never forget this basic principle.
This Policy, in point no. 4(A) of Chapter II of Vision / Mission delves the responsibility on Heads of various Departments, Law Officers and Government Counsel, and individual officers to secure the strict implementation of this Policy.
In the light of this National Litigation Policy, the (Public authority) is empowered to take appropriate legal opinion about the merit of the submissions made by us in the background of facts of the case, so as to avoid unwarranted litigation in the court of law against the Government functionaries.
SC Judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India: I wish to inform you that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court, among other things, has observed and directed “…
The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.
Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.
The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.
It may happen that the High Court also, like the Supreme Court had questioned the Prime Minister Manmohan Singh's silence on application received from Subramanium Swamy on 2G Scam, may question – why you have remained silent -EXPLAIN
Important Points Revisited
Thanking you in the anticipation of your effective action in this regard.
With Regards
xy
Attachments (if any)
(a) Copy of letter addressed to Bombay High Court.
(b)
PLEASE NOTE / PLEASE NOTE / PLEASE NOTE
THIS BELOW SC ORDERS MAY BE ADDED IN THE NOTICE DEPENDING UPON NATURE OF THE ISSUE YOU HAVE RAISED IN THE NOTICE.
FOR CHALLENGING GOVT BODIES FOR MAKING ANY ARBITRARY / DISCREMINATORY RULE / LAW OR TAKING ANY SUCH DECISION OR INTRODUCING FANCY SCHEME OR PROJECT OR SAY WHEN ABUSE OF DISCRETIONARY POWERS BY GOVT OR BY ANY OF ITS AGENCY.
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407
The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.
FOR PREVENTING OR CHALLENGING GOVT AND ITS INSTRUMENTALITY FOR MISAPPRPIATION OF TAX PAYER'S MONEY OR CHALLENGING ACTS WHICH RESULTS IN LOSS OF REVENUE TO THE EXCHEQUER.
The Supreme Court cautioned that with the change in socio-economic outlook, the Public Servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. If a Public Servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such Public Servant. Common Cause V Union Of India. AIR 1996 SC 3538.
WHERE PROPER HEARING WAS NOT GIVEN TO YOU BY ANY QUASI JUDICIAL OR BY ANY ADMINISTRATIVE AUTHORITY:
Hearing, however once given must be genuine and not formal or empty public relation exercise. In other words there must not be lip service to this rule or an audience allowed which tantamount to nothing. Swadeshi Cotton Mills V Union Of India. AIR 1981 SC 818.
With the proliferation of administrative law, administrative authorities are in some kind of cases replacing courts of law and that has made all the more necessary that such authorities should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of India AIR 1976 SC 1785
WHERE THE QUASI JUDICIAL THOUGH OBSERVES THAT INJUSTICE WAS DONE TO YOU, YET DO NOT GIVE YOU RELIEFS PRAYED IN THE CASE:
In sant Raj’s Case the Labour Court found that the termination of service of the Appellants was bad and illegal but declined to grant the relief of reinstatement which should have ordinarily followed and instead in exercise of its discretion awarded one year’s wage as compensation in lieu of reinstatement on the ground that “the termination of service of each of the appellants was bona fide and not a colorable exercise of powers in accordance with service rules. The Supreme Court found an error apparent on the face of the record of the case inasmuch as if the termination of service was according to service rules and bona fide, it could not be simultaneously held to be illegal and invalid. The Apex Court therefore held that the discretion was exercised on irrelevant and extraneous considerations. Sant Raj Vs O. P. Singla AIR 1985
WHERE QUASI JUDICIAL / ADMINISTRATIVE AUTHORITY TAKES ANY DECISION WHICH IS ABSURD BY ANY ORDINARY SENSE:
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407
WHERE ADMINISTRATIVE AUTHORITY DOES NOT RECORD REASON FOR ITS DECISION WHILE DECIDING THE RIGHTS OF A CITIZEN BEFORE IT.
The question as to whether an administrative authority should record reasons for its decisions has however come up for consideration before the Supreme Court in number of cases. Underlying the need the SC in Travancore Rayons Ltd Vs Union of India AIR 1971 SC 862 observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved and the mental process by which the conclusion is reached where a non judicial authority exercises a judicial function is obvious. Here in this case the order of the Central Govt in rejecting a Revision u/s 36 of the Central Excises & Salt Act 1944 merely stated that the Govt having carefully considered the points made by the Applicant saw no reason to interfere with the order. The order of the Central Govt being laconic (brief) was held to be vitiated.
The Supreme Court in Binapani Dei's case observed that if “there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentialsd of Justice be ignored and an order to the prejudice of a person is made, the order is a nullity. State of Orissa V Dr(miss) Binapani Dei AIR 1967 SC 1269;
WHERE QUASI JUDICIAL AUTHORITY PASS ORDERS WITHOUT STATING REASONS IN THE ORDER:
The reasons if disclosed would be open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court. Maneka Gandhi Vs Union of India AIR 1978 SC 597 at page 613.
An order of Quasi Judicial nature without reasons is a wholly defective order in the eyes of law. Govt of India Vs Maxim A Lobo (1991) 190 ITR 101
Fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi judicial or administrative act. Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment, decree has justly meet out justice to the aggrieved person. Maharashtra State Board of Secondary & Higher Secondary Education Vs K.S. Gandhi (1991) 2 SCC 715
A Judgment/ Order must be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the suit should clearly be reflected in the Judgment/Order. [ Balraj Taneja V Sunil Madan, AIR 1999.]
The quasi judicial authorities are enjoined with the duty and responsibility to see to it that in adjudicating upon proceedings which come up before them they pass properly reasoned orders so that those who are affected by such orders are assured that their case have received proper consideration at the hands of the said authorities and that such decisions have been reached according to law and have not been the result of caprice, whim or fancy and have been reached on ground of policy or expediency. Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala AIR 1961 SC 1669
WHERE YOU ALLEGE THAT QUASI JUDICIAL / ADMINISTRATIVE AUTHORITIES HAVE NOT COMPLIED TO THE PRINCIPLES OF NATURAL JUSTICE WHILE DECIDING AN ISSUE, SO RAISED IN THE NOTICE / OR IN THE WRIT PETITION.
It has been upheld by the Apex Court that violation of rules of natural Justice results in arbitrariness which is the same as discrimination and where discrimination is the result of State action, it is violation of Article 14. Union of India V Tulsiram Patel AIR 1985 SC 1416.
The Principles of natural Justice forms part of Art.14 of Constitution of India. Dr K C Malhotra V The Chancellor, H P University, Shimla AIR 1995 HP 156 (DB).
Whenever a Complaint is made before a Court that Principles of Natural Justice has been not observed, the Court has to decide whether the observance was necessary for a just decision on the facts of that case.
In India, the Apex Court has time and again equated the principles of natural justice with fairness in action. In D K Yadav Vs JMA Industries Ltd, the SC Observed that in arriving at a decision, the procedure adopted must be just, fair and reasonable in particular circumstances of the case.
In matters involving civil consequences, any decision or Order has to be made consistently with rules of natural justice. State of Orissa V Dr (Miss) Binapani Dei AIR 1967 SC 1269.
Every Authority, Quasi Judicial, or administrative or Executive, should act fairly, reasonably and in a just manner, when the result of the exercise of powers is likely to affect any person or visit him with civil consequences. A K Kraipak V Union Of India AIR 1970 SC 150.
Likewise, where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, such rules would apply. Baldev Singh V State of Himachal Pradesh (1987) 2 SCC510.
Comes with this the associated question: What is a Civil Consequence ? “ Civil Consequences undoubtedly cover, viewed the SC in Mohinder Singh Gill case, infraction of not merely property or personal rights, but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.
In cases therefore where an order is made in violation of rules of natural justice, relief under Art. 226 of the Constitution will not be denied. Titaghur Paper mills Co Ltd V State of Orissa AIR 1983 SC 603.
FOR SEEKING DAMAGES / COMPENSATION AGAINST ILLEGAL DETENTION; RECKLESS AND NEGLIGENT ACTS OF PUBLIC OFFICIALS RESULTING IN LOSS OF LIFE OR OF PROPERTY TO A CITIZEN / ANY OTHER PERSON.
(i) In Rudal Shah v State of Bihar , the Apex Court held that Writ courts while exercising jurisdiction under Art. 32 or 226 of the Constitution can award compensation and examplary cost for the violation of person's fundamental rights and for abuse of powers by the State. (1983) 4 SCC141: AIR 1983 SC 1086
(ii) The principle of accountability through compensation was reinforced by Apex court in Nilabati Behara v State of Orissa. The court laid down that concept of sovereign immunity is not applicable to the cases of violation of right to life and personal liberty guaranteed under Article 21 of Constitution.
In this case, the Apex Court held that a claim in public law for compensation for violation of human rights and abuse of power is an acknowledged remedy for the enforcement and protection of such rights. Every individual has an enforceable right to compensation when he is victim of violation of his fundamental rights and abuse of power. In such a situation the court observed, that leaving the victim to the remedies available in civil law, limits the role of constitutional courts as protectors and guarantors of fundamental rights of the citizens. Thus courts are under an obligation to make the State or its servants accountable to the people by compensating them for the violation of their fundamental rights.
In this case Article 9(5) of the International Covenant on civil and political Rights was considered. The said Article said that anyone who has been victm of unlawful arrest or detention shall have an enforceable right to compensation. This Article was referred to in support of the view that damages could be allowed under Article 32 & 226 of Constitution of India for violation of fundamental right enshrined in Article 21. India is a sigantory to this International Covenant. In Vishaka V State of Rajasthan the Apex court observed: Any International covenant not inconsistent with the fundamental rights and in harmony with its spirit with the Constitution of India, must be rad into to enlarge the meaning and content thereon to promote the object of Constitutional guarantee. (1993) 2 SCC 746
(iii) The Apex Court in Bhim Singh V State of J & K awarded examplary cost of Rs.50,000 on account of the authoritarian manner in which the police played with the liberty of the appellant. These measures are not damages in the strict sense of the term, for which only the Ordinary Civil court process is the remedy. These measures are only for making the fundamental rights of the people meaningful and effective. (1958) 4 SCC 677; AIR 1986 SC 494.
(iv) In SAHELI, A Women's Resource center v Commr of Police, a Writ was filed against the Govt for compensation on behalf of two poor women who had been mercilessly beaten by the landlord in collusion with the Police. The Court not only awarded Rs.75,000 as compensation but also opined that the amount can be recovered from the police officers responsible for the act. (1990) 1 SCC 422.
(v) In Lucknow development authority v M .K.Gupta the Apex Court held that when public servants by malafde, opperssive and capricious acts in performance of official duty causes injustice harassment and agony to common man, renders the State or its instrumentality liable to pay damages to the person aggrieved. And the State or its instrumentality is duty bound to recover the amount of compensation so paid from the public servant concerned. In this case compliance was to be reported to the Apex court. (1994) 1 SCC 24,
In Common Cause v UOI (1999) 6 SCC 667, the Apex Court empahtically stressed that Kasturilal case has, apart from being criticised, not been followed by the Apex court in subsequent cases and therefore much of its efficacy has been eroded . Same remark was also made in Chairman Rly Board v Chandrima Das (2000) 2 SCC 465.
FOR REMOVAL OF PERSONS OCCUPYING PUBLIC OFFICE THOUGH NOT QUALIFIED TO OCCUPY THE SAME. (WRIT OF QUO WARRANTO)
In Karkare vs. Shavde (AIR, Nagpur, 1952, p. 330), Masehullah vs Abdul Rehman (AIR, Allahabad, 1953 p. 193) etc. Courts have held that any private citizen can file a petition of Quo Warranto to challenge the appointment of a public official even though his personal rights are not directly affected.
LETTER 2
To,
The Hon.Chief Justice & the Companion Justices of Hon. ….. High Court.
Regarding: Strict enforcement of law established by Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39
Hon’ble the Chief Justice,
A notice is served to ……..(name of the Public authority) for …..(very briefly the issue raised in that notice.
Also, we humbly submit that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39 the Hon'ble Supreme Court has observed and directed “… Wherever the statutory provision requires service of notice as a condition precedent for filing of Cases, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice.
The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80… These provisions cast an implied duty on all Governments and States and statutory authorities concerned to send appropriate reply to such notices.
Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.
If Public Officials will act diligently, reasonably and responsibly, the writer will not have the occasion to knock the doors of Justice. The Public officials are impressed about this letter to this Court, in the hope that they will reply to the notice while properly addressing the points so raised. Enclosed, please find copy of a legal notice letter sent to Public Official.
We are of the view that - the Petition so if filed, can safely be said to be avoidable, the Petition can safely be said to be causing loss of precious time of the Court, though at the instance of these Respondent Public officials.
The Hon'ble Chief Justice, I am impelled to produce some classical observation of Apex Court merely reflecting the scale of corruption in our country.
(1) They said - “……….They have developed an utter disregard for law, nay – a contempt for it; the feeling that the law is meant for lesser mortals and not for them. The Courts in this country have been trying to combat this trend with some success as the recent events show. But how many matters we can handle ? How many of such matters are still there ? The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals. Can the courts alone do it ? Even so, to what extent, in the prevailing state of affairs ? Not that we wish to launch a diatribe against anyone in particular, but judges of this country are also permitted, we presume, to ask in anguish, “What have we made of our country in less then fifty years ? Where has the respect and regard for law gone ? And who is responsible for it ? DDA Vs Skipper Construction Co. (1996) 4 SCC 622, 645, 646.
(2) In Vineet Narain Vs Union of India, the apex court went on to emphasize that when it comes to corruption, as it exists at different levels, proves to be both powerful and stubborn to stall any real or superficial moves in that direction. In other words – politico bureaucratic wall proves to be impregnable against all possible onslaught against corruption. Judicial response has been slow and varied but that is the only response available at the moment. There is no premium on honesty. Everything is a matter of manipulation. Being a soft State – everything is circumvented and manipulated. In the name of eliminating corruption we see shadow boxing.
(3) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration – every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”
(4) The Supreme Court Bench in Aug.2008, hearing an issue of unauthorised occupation of official Bunglows by some members of Parliament , during arguments, Justice Agrawal said: “The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don’t apply their mind, rather they don’t have a mind. They don’t have guts to differ with the opinion of the clerks We are fed up with this government. There is no accountability and nobody bothers about laws or guidelines. Nobody in the government works and the whole government has become non-functional. That is why PILs are filed.” Justice Singhvi intervened to say: “God alone will have to help this country.” Justice Agrawal said, “Even God will not be able to help this country. God is a mute spectator as he also feels helpless. Our country’s character has gone. We are helpless.”
It is expected that this Hon'ble Court will find the occasion to reverse this trend of growing lawlessness in the society and will strictly enforce the Law established by Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39, in the event Public officials refuses to reply notice as per law established by Hon'ble Supreme Court in cited case hereinbefore.
And whereas the Hon’ble Chief Justice of India Shri S H Kapadia has on 15.05.2010 warned the PIL Petitioners that they must first issue notice to Executives before moving courts and therefore we the People expect that, in principle and in equity, if Executive govt turn a blind eye to the notice and if one has to move court for justice, then this Hon'ble court will also find the occasion to impose deterrent cost on the Respondent Executives.
Thanking you,
From
Mr ABC
Encl.1) Copy of notice addressed to the public authority concerned.
CHAPTER -18- FORMAT OF PRECEIPE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS CIVIL ORIGINAL / APPELLATE JURISDICTION
PIL / WRIT PETITION NO. OF 2010
AAAAAAAAA & Ors. ……Petitioners.
Versus
BBBBBBBBBBBBBB & Ors. ……Respondents.
PRECEIPE
To,
The Registrar General,( For appellate Side)
The prothonotary & Senior Master ( For Original Side)
The Hon'ble Bombay High Court,
Mumbai - 400032
Dear Sir / Madam
I will mention today the above referred Preceipe For expeditious hearing before the bench of Hon'ble The Chief Justice. (Briefly state about urgency of matter)
Kindly do the needful as directed.
Thanking you,
Yours faithfully,
(signed)
Petitioner
In Person.
(Preceipe is used for early hearing of case, notice of motion, civil application, chamber summons etc)
Anatomy of Judicial Rejuvenation:
1. Strict Scrutiny while admission of Cases, plaint and appeals. Imposition of heavy cost on litigants if they indulges in evidently untenable or frivolous plaint or defences.
2. Strict adherence to max three adjournment rule (Order 17, Proviso to Rule 1(1) Civil Procedure Code 1908.
3. Litigant must be vulnerable to Perjury if they knowingly make false submissions before the Court; and vulnerable to criminal contempt of Court if they in anyway try to obstruct the process of the Court;
4. Courts passing reasoned Orders;
5. At least where govt is one of the Litigant, it should be asked to upload in its website- action taken in pursuant to direction given. (E-Governance.)
CHAPTER -19- THE SIMPLE GREAT IDEA OF AWARDING PUNISHMENT
The business of the legislator is to prevent and reduce crime & mischief in the society. Punishment to delinquency is one of the agency available to him for this purpose.
I begin with the words of Sir Lionel Fox, an acclaimed Penologist of England. He quotes the example of an 18th Century Judge who passed sentence of death saying, “You are to be hanged not because you have stolen a sheep, but in order that others may not steal.” He continued, “Executions are intended to draw spectators, and if they don’t, Executions do not serve their purposes.”
It is said that if by punishing one offender, there is hope of deterring other prospective offenders, then such punishment will certainly help in economize in human misery. Also, the punishment must also bring in some kind of shame to the delinquent so as to make deterrence demonstrative.
Offenders are to suffer by punishment not because they were malignant or mischievous, but because others may not behave malignant and mischievous.
The punishment is imposed by authority which the delinquent respect and to which he pays allegiance and therefore regards him as a title of judge. It then becomes the job of the judges to guarantee damage to the delinquent.
However, the deterrence is zero if there is no certainty to the punishment. The gravitation of sin to sorrow should be as certain and analogous as that of earth to the sun.
There seems to be an instinctive feeling in most of men that a person who has done an injury should be punished for it. However, in the light of above settings, the valid reason for punishing delinquency is not to avenge injury caused, but to prevent future injury to someone else. And, therefore, if it is true that, “if one is to be hanged so that others may not steal”, then I go to the Court of law not to get justice for self but for the good of the society.
Punishment is thus a method of forcing good behavior.
So evident is the truth of this simple great idea, that if made to realize to presiding judges, will bring good deal of peace in the society.
I will therefore insist that, whoever, when files a petition of complaint or appeal before any judicial or before any quasi judicial forum, alleging delinquency and seeking punishment for the same, then, the above proposition of punishment must be made demonstrative in their so petition or appeal.
CHAPTER -20- DISCRETIONARY POWERS OF MINISTER !!
I produce here one landmark English case – The padfield Case [1968] AC 997, decided by one of the most celebrated Judge of England- Lord Denning. This is how Lord Denning dealt with the case before it. His Lordship said-
“It is plain to me that by these provisions parliament has provided machinery by which complaints of farmers can be investigated by a committee which is independent of the board and by which those complaints, if justified, can be remedied. No other machinery is provided. This case raises the important question: How far can the Minister reject the complaint out of hand ? Is the Minister at liberty in his unfettered discretion to withhold the matter from the committee of investigation and thus refuse the farmers a hearing by the committee ? And by refusing a hearing, refuse a remedy ? Mr Kemp, who appeared for the Milk Marketing Board, contended that the Minister need not consider the complaint at all. He could throw it into the waste paper basket without looking at it. The Solicitor General did not support this argument It is clearly untenable. The Minister is under a duty to consider every complaint so as to see whether it should be referred to the committee of investigation. I can well see that he may quite properly reject some of the complaints without more ado. They may be frivolous or wrong headed: or they may be repetitive of old complaint already disposed of. But there are others which he cannot properly reject. In my opinion every genuine complaint which is worthy of investigation by the committee of investigation should be referred to that committee. The Minster is not at liberty to refuse it on grounds which are arbitrary or capricious. Nor because he has a personal antipathy to the complainant or does not like his political views. Nor on any other irrelevant ground.
It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as he likes, regardless of right or wrong. Nor does it mean that courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievances should be remedied. When Parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have complaint investigated without good reason.
But it is said that Minister is not bound to give any reason at all. And that, if he gives no reason, his refusal cannot be questioned. So why does it matter if he gives bad reason ? I do not agree. This is the only remedy available to a person aggrieved. Save, of course, for Questions in the House which Parliament itself did not consider suitable. Else why did it set up a committee of investigation ? If the Minister is to deny the complainant a hearing- and a remedy- he should have at least good reason for his refusal: and when asked, he should give them. If he does not do so, the Court may infer that he has no good reason. If it appears to the Court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him- or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him – the court has power to interfere. It can issue a mandamus to compel him to consider the complaint properly.
CHAPTER – 21- WHAT IS RULE OF LAW AND WHAT IS NOT.
Our Democratic India is founded on Written Constitution and founding fathers and mothers established in the Constitution- both the ideals and the institutions & processes for achieving them.
In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme & fundamental governing volume. It is nearly self contained as to broad principles of governance. It is mammoth, defining every bit of governance for the very accomplishment of security of life and of property to all Indians residing wherever in any corner of the world territory.
This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our Constitution propose to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA.
The origin & the authority of the Indian legislatures, of the Indian govt, of the Indian judiciary and of the Indian bureaucracy flow from this peoples' governing volume. Every injunction of this governing volume represents the wishes and ambitions of our countless freedom fighters; and Indian law makers, Indian government, and the Indian judges discharge their responsibilities within four corners of injunctions in this governing volume. These State organs, while in every exercise of their discretionary powers, take inspiration and guidance from this governing volume.
And therefore, every bit of word, whether by guidance or by mandatory injunction, contained in this governing volume, can safely be taken as, will bring prosperity to people of India when adhered to it, in letter and spirit. The spirited adherence to the words of this governing volume is the first promise all men at State organs make to the people of India.
In India, the contemporary democratic set up and functional relationship between the State organs comprising the Legislature i.e. The MPs & MLAs, The Executives i.e. Govt which acts as an Agent between the People and its Representatives, and the Judiciary, the watch dog of the Rights of the People, is such that the People choose their Representatives and authorize them to make laws and authorize them to institute Government for administration of the Country.
And therefore the Representatives in turn make laws for the welfare of the people and appoint agent in the name of Govt to implement the laws made by them. The role of the Judiciary is to ensure that the laws made by the Legislatures are implemented by the Govt in letter and spirit.
Laws are made and passed by Legislatures which represents wishes of the people and the govt who acts on behalf of legislatures voluntarily takes oath and undertakes to fulfil the wishes of people as they administer laws and perhaps this is the premise why ministers and bureaucrats including the Judges are called Public Servants and Legislatures are not deemed as Public Servant ordinarily, except in cases of Corruption. Also, the Govts, ordinarily, are not a law making body but a law enforcing body. They are entitled to make laws only to the extent to further the objectives of laws made by our Legislatures.
Laws are not passed merely for being passed but for being implemented. The mere fact that an objective has been embodied in the Constitution or a law itself indicates that the Constituent Assembly and the relevant legislature wanted it to be achieved. The order embodied in the Constitution and various laws framed under it is the concern of every citizen as a breakdown of that order shell jeopardize our existence as a free and cohesive society and this injure every citizen. This stake in the order is sufficient to provide standing to a citizen to draw the attention of Courts to developments that endanger that order.
All Statutes or Laws so made and passed by Legislatures is to remedy the ill that has plagued the society. All Statutes comes into being with some policy and objective to be achieved. Every statutory provision in a Statute comes into being after due deliberation and every letter of the law is employed with great caution and care and with some purpose. It is settled that Legislation, both Statutory and Constitutional, are enacted from experience of evil.
Words and Provisions found in the Constitution of India or in the enacted laws are no trivial. They are found for their notoriety and expediency, to regulate human behaviour and promote society welfare. And no separate set of reasons needed to seek spirited observance of the law, for its mere presence in the books of law calls for forceful observance of it.
It may be beyond one’s wisdom to anticipate nor it is necessary for one to outline the consequences that may occasion due to patent violation of a statutory provision, for the consequences have already been deliberated at the time of passing of the statutory provision. It is suffice if one merely seeks the bare observance of the letter of the law and the spirit inherent in the letter of the law. As everyone says that we live in a Rule of Law society. What we really mean by Rule of Law is that the Law which is established must be observed in all the circumstances except in cases where the Law itself is absurd and or arbitrary. Every letter of the Law must be observed with due respect, unless the same is declared by the competent court of Jurisdiction as manifestly arbitrary and or absurd.
It is of first importance to the Govts and its various instrumentalities to implement and administer the Laws so made by the Parliament and the State Legislatures. It is even not open to the Supreme Court and the High Courts to act or give judgments in deviation from established laws. However, the bare act of State or its instrumentality in contravention of established laws frustrates the foundation of Rule of Law society.
Moreover, Should I not invoke Promissory Estoppel of laws against all Public Servants including all Constitutional functionaries for they voluntarily took Oath of allegiance to Rule of Law. May I also say that every legal duty cast upon is a positive promise made to the people.
Moreover, in my firm view, every Public Servant invariably speak letter of the law meaning that as soon as he assumes charge of that designated public office, he deemed to have said & promised all what is written on the statutes. Like for example, Instead of stating the letter of the law, Can I have the liberty of stating- “The Chief Justice of Bombay High Court has promised and emphatically said, “Tell us if you face any misbehaviour or any difficulty in getting Justice at Lower Courts or Tribunal, I have, under Article 227 of Constitution of India, unqualified Power of superintendence over all courts and tribunals throughout the territories in relation to which I exercises jurisdiction. I will do the needful.” The Chief Justice further exhorts and reiterates that Section 14 of General Clauses Act 1897 empowers me to exercise my powers from time to time as occasions requires.
I would also like to say that the failure of the Public officials or their illegal acts of omissions and negligence should actually be read as their positive decision Like for eg., the govt has decided that childrens should continue to beg; people may continue to live on footpath; the corrupts should continue to have all substantial legal protection against prosecution for corruption.
This Hon'ble Court may appreciate that, while presiding & dwelling upon and adjudicating a case before it, the injunctions and mandate embodied in the Constitution of India is of first importance to them, for Judges themselves owe their origin, derive their authority and discharge their powers and responsibilities within ambit of this Constitution. The injunctions & mandate incorporated in the laws & legislation made and passed by competent Parliament and State Legislature, the off-spring of Constitution itself, therefore becomes of immediate importance to the Judges while presiding & dwelling upon and adjudicating a case before it, for it entails the cherished Rule of law society.
The question sometimes occasion, " Do Sovereign Indian Govt can take refuge in paucity of money as defences in their inability to perform Statutory duties so entrusted." The Answer is NO.
In this regard, the Observation and Judgment by Legendary Hon.Justice Krishna Iyer in Ratlam Municipality case is, though unfortunately not trend setting, nevertheless is inspiring. The Hon Court, taking Judicial notice of magnitude of Corruption in State Administration, Said, "The Criminal Procedure Code (as in the instant case) operates against Statutory bodies and Others regardless of the Cash in their coffers even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions.
The Court continued - Likewise, Sec 133 of the said Act has no saving clause when the Municipal council is penniless. Otherwise a profligate Statutory body or pachydermic Govt. Agency may legally defy duties under the Law by urging in self defences a self created bankruptcy or perverted expenditure budget. That cannot be."
Also, the existence of legislative pronouncement duly gazetted by the appropriate Government also pre-supposes that appropriate government is equipped to carry out the injunctions and mandate of the legislative pronouncement.
I also recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy vs Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials. "The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. ... The Courts thus have a direct interest in ensuring that the objectives are realized and citizens have the right as well as duty to approach the Courts to ensure that everything necessary is done to see that the objectives so embodied are achieved.
What is not Rule Of Law ?
To illustrate I need to borrow the wisdom of Dr Upendra Baxi, one of the finest Indian Legal mind.
(1) As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner.
(2) As an Authority of Public Power- I may so act as to favour some and disfavour others;
(3) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
(4) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
(5) As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
(6) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
(7) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
(8) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction;
In modern democracies, wide powers vest with Legislators, Judges and with Administrators, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinbefore.
In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where life decisions are taken in closed chambers of Ministers & Bureaucrats.
"To oppose or challenge the illegal acts & omissions of government does not mean you are against the country or the people that the government supposedly represents. Such opposition should be called what it really is: democracy, or democratic dissent, or having a critical perspective about what our leaders are doing. Either we have the right to democratic dissent and criticism of these acts & omissions or we all lie down and let the leader do what is best, while we follow uncritically, and obey whatever he commands. That's just what the Germans did with Hitler, and look where he got them.
THE FINAL WORD: In the words of Michael Parenti, a prolific American author and charismatic speaker, "To oppose the policies of a government does not mean you are against the country or the people that the government supposedly represents. Such opposition should be called what it really is- democracy, or democratic dissent, or having a critical perspective about what your leaders are doing. Either we have the right to democratic dissent and criticism of these policies or we all lie down and let the leader, the Fuhrer, do what is best, while we follow uncritically, and obey whatever he commands. That's just what the Germans did with Hitler, and look where it got them."
CHAPTER – 22-
DISCLAIMER: Though due care has been observed, yet some discrepancies may have crept in. The Writer incurs no liability whatsoever, if readers’ incurs any loss of any nature, while using this material. The readers may take help of Legal experts where they feel necessary.
