I will begin with to say-
(1) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh, 1997(9)SCC 199, 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. ...”
Contrary to above, the experience is that the holders of public offices treat the authority in their hands, as one bestowing upon them, the status of a ruler rather than one in public service.
Statutory / Public authorities / Public officers, especially highly placed, soaked in arrogance of their powers, generally do not bother themselves to the complaint of Citizens, and their replies sometimes are deliberately illogical and evasive. This essay seeks to engineer an effective answer to deal with this deep menace.
(2) We, the people of India have so many rights, under the Constitution and under various Statutes, and I thought let us contemplate one more right, which is “Right of Reply”. It is my case that Citizens’ and every person has a right to receive proper reply, of the complaints made to public / statutory authorities.
(3) In fact, in the case of Salem Advocates Bar Association, Tamilnadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court, among other things, said - 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
In the above case strict duty is cast upon the Public authorities to make proper replies if they happen to receive any statutory notice, either under section 80 of CPC 1908, or under any other statute. I say, when a law recognizes a duty, correspondingly, law also recognizes a right.
(4) It is my case that Citizens’ / every person’s Right of “Reply” can be traced to preamble and to Article 14 of the Constitution of India and in numerous rulings made by our Constitutional courts. In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed that public authorities must exercise their discretionary powers in a reasoned and justified manner, failing to which leads to inescapable violence to Article 14 of the Constitution of India.
It is my case that Citizen’s / person’s “Right of Reply” is inherent in “Duty to reasoned exercise of discretion by Public authorities”, a duty which is consistently cast upon public / statutory authorities by our Constitutional Courts, in their series of judgments.
(5) It is my case that when the Courts, in their wealth of judgments, lay so much emphasize on recording of reasons by public authorities, in the discharge of their duties even when administrative in nature, the recording of reason in their decision itself presupposes the obligation of giving reply, and not only a mere reply but a reasoned reply. It cannot be said that – whereas authorities are under obligation to make reasoned reply but they are at liberty to not to make any reply.
(6) It is my case that in wealth of judgments, the Courts have insisted upon recording of 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 duly informed of the consideration of the public / statutory authorities underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote “thought” by the public / statutory authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
(7) When, in the case of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605, the Hon’ble Supreme Court held 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, then, it is my case that non-reply of any complaint received by any public /statutory authority, is a positive act of omission, an arbitrary, unfair and unjustified decision of that public / statutory authority to not to make a reply, thereby frustrating citizen’s fundamental right enshrined under Article 14.
(8) When, in the case of 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 that an act uninformed by reasons, is arbitrary, and arbitrariness is the very negation of the Rule of Law, it is my case that non-reply of any complaint received by State, is an act of omission of the State not informed by reason and thus arbitrary, and thus does not pass the test of Article 14.
(9) When in the case of Dwarkadas Marfatia versus Port Trust Bombay, reported in AIR 1989 SC 1642, it was held by the Hon’ble SC that every action of public authorities must be subject to rule of law and must be informed by reason and when there is arbitrariness in their acts and omissions, Article 14 springs in and judicial review strikes it down and thus whatever be the activity of the public authority, it should meet the test of Article 14, it is my case that when a public authority does not reply to my complaint, I can safely allege that the said public authority is acting arbitrarily, and Article 14 springs in and gives me the locus of being aggrieved and jurisdiction to the High court under Article 226 to strike down that alleged act of arbitrariness, i.e. the act of “un-replied compliant”.
(10) Similarly, when, in the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836, the Hon’ble Supreme Court said – Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached, it is my case that non-reply of any complaint received by any public /statutory authority implies that although mind was applied to the complaint and arbitrary decision was taken by the administrative authority that no reply should be made.
(11) Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same. It cannot be said that a person is left without a remedy to challenge any omission or inaction on the part of the authority. It may be informed that in a case, reported in AIR 2003 SC 1115, relating to grievance of the Public servant, the Hon’ble SC held that the “inaction” on the part of the authority can be challenged in the High Court by filing a WP under Article 226 of the COI.
(12) Discretion in reality means a power given to a person with the authority to choose between two or more alternatives or possibilities each of which is lawful and permissible. The concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike.
(13) I 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.
(14) I say that even our Constitution of India give so much importance to the people of India. 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.
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 fathers of our Constitution intend to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA. This announcement is intelligent, designed and purposeful.
There are three chief organs outlined in the Governing volume called Constitution of India - they are Legislature, the Govt and the Judiciary, and all these three organs derive their origin and all powers from this peoples' governing volume.
(15) Also, it is my case that, when the Hon’ble Chief Justice of India Shri S H Kapadia on 15.05.2010 warned the PIL Petitioners that they must first issue notice to the Govt / Public authority before moving courts, and therefore, we the People expect, in principle and in equity, that if that public authority / 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 direct that the Govt / Public authority to effectively deal with the issue raised in the complaint / notice.
(16) Recording of reasons will show application of mind and probably this recording of reasons is the only remaining visible safeguard against possible misuse of powers conferred upon administrators of a nation.
(17) I 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 traveling 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 sometimes with hostility.
(18) It is my case that grievance of the people must be promptly and properly attended instead of waiting and allowing for it to be translated into court litigation.
(19) It is my case that the giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
(20) It is my case that a complaint to any public / statutory authority is the most legitimate incident of a democracy.
(21) I / we also invite attention to the national Litigation Policy [For short NLP]. I am of view that Wednesday, the June 23rd, 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 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.
(22) It is finally my / our case that satisfactory replies to complaints are not of some importance but of fundamental importance in State Citizen relationship.
And therefore, it is necessary to 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
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.
And therefore, in the backdrop of this ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that complaints made to State will be replied.
(22) And where public / statutory authorities don’t reply to complaints, or reply in interplay of words and in genius pretence, than, in my view, the appropriate approach may be, if at all the aggrieved person wishes to move the court of law, to only request said High Court to direct that public / statutory authority to make a Reasoned reply to the Petitioners herein of their complaint dated 00.00.0000. The recording of reasons must not only be intelligible but which will also deal with the substantial points which has been raised therein in the complaint and cover other relevant points and eschew irrelevancies and reply which demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public / statutory authority on the issue raised in the said complaint have been reached according to law.
(23) The most important advantages is that if Writ is filed for this limited purpose, than it may be disposed off in the first hearing, because for passing this order, the Court may not even hear the concerned Public / Statutory authority and may straight away pass order. Secondly, if any such order is passed, than that public / statutory authority is bound to make a reasoned and proper reply, in a time bound manner.
(24) It may be stated here that all persons aggrieved by the acts and omissions of public authorities may not have easy access to High Court. In that condition, a Civil Suit for Injunction may be filed before the District Court, seeking necessary reliefs. But before filing Suit, one is obliged to give notice under section 80 of CPC, 1908, to the concerned Public authority.
Pls find file attached of -
Format of Complaint which may be used;
Format of Writ Petition which may be used;
Relevant wealthy Judgments are discussed in format of Writ Petition.
Sandeep Jalan
Advocate
Mumbai.
Complaint
(If one intends to file a Suit, then state here "Notice under section 80 of CPC, 1908")
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
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 under which the public authority is
obliged under the law to take action
Legal Expectation
The consequences that may follow
National Litigation Policy
I have a “Right of Reply”
Brief / Complete facts of the case for which the Complaint is sought to be given. Mention other relevant points as you think necessary.
Relevant provisions of law under which action is sought in this complaint. (It is not very necessary to state the law, but it is desirable to make an impressive and alarming complaint)
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.)
Important case laws/ judgments those 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 act. If the public authority is a Central Govt body: 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: (make changes as applicable in one’s case)
(a) The specific query which needs your explanation is:
(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 hereinbefore.
(c) The Public authority is requested, in the light of National Litigation Policy, briefed hereinafter, if deemed necessary, 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 my / our submissions made herein; and after applying its mind to it, has reasons to believe 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 from appropriate Govt Dept/ Govt officer reaffirms that submissions made here by me / 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. The recording of satisfaction must not only be intelligible but which will also deal with the substantial points which has been raised herein and cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
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 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 Writ Petition before High Court, 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 and many other countless judgments given by our Constitutional courts, to direct you to record reasoned reply to me / us.
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.
I have Right of Reply:
I will begin with to say-
(1) A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh, 1997(9)SCC 199, 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. ...”
Contrary to above, the experience is that the holders of public offices treat the authority in their hands, as one bestowing upon them, the status of a ruler rather than one in public service.
Statutory / Public authorities / Public officers, especially highly placed, soaked in arrogance of their powers, generally do not bother themselves to the complaint of Citizens, and their replies sometimes are deliberately illogical and evasive. This essay seeks to engineer an effective answer to deal with this deep menace.
(2) We, the people of India have so many rights, under the Constitution and under various Statutes, and I thought let us contemplate one more right, which is “Right of Reply”. It is my case that Citizens’ and every person has a right to receive proper reply, of the complaints made to public / statutory authorities.
(3) In fact, in the case of Salem Advocates Bar Association, Tamilnadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court, among other things, said - 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
In the above case strict duty is cast upon the Public authorities to make proper replies if they happen to receive any statutory notice, either under section 80 of CPC 1908, or under any other statute. I say, when a law recognizes a duty, correspondingly, law also recognizes a right.
(4) It is my case that Citizens’ / every person’s Right of “Reply” can be traced to preamble and to Article 14 of the Constitution of India and in numerous rulings made by our Constitutional courts. In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed that public authorities must exercise their discretionary powers in a reasoned and justified manner, failing to which leads to inescapable violence to Article 14 of the Constitution of India.
It is my case that Citizen’s / person’s “Right of Reply” is inherent in “Duty to reasoned exercise of discretion by Public authorities”, a duty which is consistently cast upon public / statutory authorities by our Constitutional Courts, in their series of judgments.
(5) It is my case that when the Courts, in their wealth of judgments, lay so much emphasize on recording of reasons by public authorities, in the discharge of their duties even when administrative in nature, the recording of reason in their decision itself presupposes the obligation of giving reply, and not only a mere reply but a reasoned reply. It cannot be said that – whereas authorities are under obligation to make reasoned reply but they are at liberty to not to make any reply.
(6) It is my case that in wealth of judgments, the Courts have insisted upon recording of 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 duly informed of the consideration of the public / statutory authorities underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote “thought” by the public / statutory authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
(7) When, in the case of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605, the Hon’ble Supreme Court held 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, then, it is my case that non-reply of any complaint received by any public /statutory authority, is a positive act of omission, an arbitrary, unfair and unjustified decision of that public / statutory authority to not to make a reply, thereby frustrating citizen’s fundamental right enshrined under Article 14.
(8) When, in the case of 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 that an act uninformed by reasons, is arbitrary, and arbitrariness is the very negation of the Rule of Law, it is my case that non-reply of any complaint received by State, is an act of omission of the State not informed by reason and thus arbitrary, and thus does not pass the test of Article 14.
(9) When in the case of Dwarkadas Marfatia versus Port Trust Bombay, reported in AIR 1989 SC 1642, it was held by the Hon’ble SC that every action of public authorities must be subject to rule of law and must be informed by reason and when there is arbitrariness in their acts and omissions, Article 14 springs in and judicial review strikes it down and thus whatever be the activity of the public authority, it should meet the test of Article 14, it is my case that when a public authority does not reply to my complaint, I can safely allege that the said public authority is acting arbitrarily, and Article 14 springs in and gives me the locus of being aggrieved and jurisdiction to the High court under Article 226 to strike down that alleged act of arbitrariness, i.e. the act of “un-replied compliant”.
(10) Similarly, when, in the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836, the Hon’ble Supreme Court said – Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached, it is my case that non-reply of any complaint received by any public /statutory authority implies that although mind was applied to the complaint and arbitrary decision was taken by the administrative authority that no reply should be made.
(11) Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same.. It cannot be said that a person is left without a remedy to challenge any omission or inaction on the part of the authority. It may be informed that in a case, reported in AIR 2003 SC 1115, relating to grievance of the Public servant, the Hon’ble SC held that the “inaction” on the part of the authority can be challenged in the High Court by filing a WP under Article 226 of the COI.
(12) Discretion in reality means a power given to a person with the authority to choose between two or more alternatives or possibilities each of which is lawful and permissible. The concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike.
(13) I 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.
(14) I say that even our Constitution of India give so much importance to the people of India. 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.
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 fathers of our Constitution intend to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA. This announcement is intelligent, designed and purposeful.
There are three chief organs outlined in the Governing volume called Constitution of India - they are Legislature, the Govt and the Judiciary, and all these three organs derive their origin and all powers from this peoples' governing volume.
(15) Also, it is my case that, when the Hon’ble Chief Justice of India Shri S H Kapadia on 15.05.2010 warned the PIL Petitioners that they must first issue notice to the Govt / Public authority before moving courts, and therefore, we the People expect, in principle and in equity, that if that public authority / 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 direct that the Govt / Public authority to effectively deal with the issue raised in the complaint / notice.
(16) Recording of reasons will show application of mind and probably this recording of reasons is the only remaining visible safeguard against possible misuse of powers conferred upon administrators of a nation.
(17) I 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 sometimes with hostility.
(18) It is my case that grievance of the people must be promptly and properly attended instead of waiting and allowing for it to be translated into court litigation.
(19) It is my case that the giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
(20) It is my case that a complaint to any public / statutory authority is the most legitimate incident of a democracy.
(21) It is finally my / our case that satisfactory replies to complaints are not of some importance but of fundamental importance in State Citizen relationship.
And therefore, it is necessary to 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
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.
And therefore, in the backdrop of this ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that complaints made to State will be replied.
Thanking you in the anticipation of your effective action in this regard.
With Regards
xyz.
Attachments (if any)
(a)
(b)
The format of Writ Petition
Brief introduction about Writ Petition:
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.
A aggrieved seeking intervention of the law court, in fact, appeals to the judicial conscience of the sitting judge, to do that which all prudent man will do in the circumstances of the aggrieved case.
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.
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 reported in (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.
FORMAT OF PETITION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & 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. AFFIDAVIT IN SUPPORT.
11. CERTIFICATE
( This is the first page of the Petition)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
___________________________________________
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. This proforma is to be numbered as (A) (B)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
S Y N O P S I S
Narrate date wise very briefly chronology of events / important facts that led to the filing of this Writ.
DATE:
00.00.0000 A Complaint was recorded to the Respondent herein.
00.00.0000 Reply (if any) received from the Respondent herein.
00.00.0000 This Writ is filed.
(signed)
Petitioner No.1
In Person
(Page C)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
THE POINTS TO BE URGED
State here (very) important points that you intend to argue in the Court
(1) The Petitioners say that Citizens’ Right of “Reply” can be traced to preamble and the Article 14 of the Constitution of India and in numerous rulings made by our Constitutional courts. In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed that public authorities must exercise their discretionary powers in a reasoned and justified manner, failing to which leads to inescapable violence to Article 14 of the Constitution of India.
(2) It is the case of the Petitioners that in wealth of judgments, the Courts have insisted upon recording of 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 duly informed of the consideration of the public / statutory authorities underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote “thought” by the public / statutory authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
THE AUTHORITIES TO BE CITED
1. The Constitution Of India.
2. Any High Court or Supreme court Judgment used in the Petition. 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 D, E, F.)
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 / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
IN THE MATTER OF
Article 226, of the Constitution of India
AND
Article 14 of the Constitution of India
AND
Unjustified and arbitrary conduct of
Respondent herein, thereby
Violating fundamental right of the
Petitioner as enshrined under Article
14 of the Constitution.
AAAA,
Complete address …Petitioner(s)
Versus
BBBB …Respondent(s),
Complete address
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. Brief introduction of the Petitioners and Respondents:
2. The grievance of the petitioner is that – the Respondents herein are exhibiting utter disregard to the complaint / Notice / Representation sent to them by the Petitioners herein, thereby frustrating fundamental right of the Petitioners enshrined under Article 14 of the Constitution of India. It is the case of the Petitioners that non reply to Citizens’ complaint / Notice / Representation leads to violation of Article 14 of the Constitution of India. Therefore, it is the case of Petitioners that Citizens / persons have a constitutional right to reply from Statutory / Public authorities.
3. The Petitioners submit that grievance of the Citizens / persons must be promptly and properly attended instead of waiting for it to be translated into court litigation, for neglecting to attend cause avoidable waste of time and money. It must be remembered that it does no credit to the State to be involved in large number of disputes as an oppressive ruler. The giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
4. The Petitioners say that facts leading to the filing of this Petition are few and simple.
(a) State very briefly the bare facts of the issue that has been agitated in the complaint to the Respondent herein.
(b) Give details about complaint recorded to the Respondents.
(c) Give details of reply, if any received from the Respondents, and state why the said reply was illogical and evasive and the complaint needs proper application of mind to the substantial point raised in the complaint.
5. The Petitioners say that Citizens’ / persons have a right to receive proper reply, of the complaints / Notice / Representation made to Statutory / Public authorities and the Petitioners, with leave of this Hon’ble Court, advances their argument in support of the contention that Citizens’ / persons have a Right of Reply.
(A) The Petitioners say that Citizens’ Right of “Reply” can be traced to preamble and the Article 14 of the Constitution of India and in numerous rulings made by our Constitutional courts. In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed that public authorities must exercise their discretionary powers in a reasoned and justified manner, failing to which leads to inescapable violence to Article 14 of the Constitution of India.
It is the case of the Petitioners that Citizen’s “Right of Reply” is inherent in “Duty to reasoned exercise of discretion by Public authorities”, a duty which is consistently cast upon by our High Courts and by our only Supreme Court, in their series of judgments.
It is the case of the Petitioners that when the Courts, in their wealth of judgments, lay so much emphasize on recording of reasons by public authorities, in the discharge of their duties even when administrative in nature, the recording of reason in their decision itself presupposes the obligation of giving reply, and not only a mere reply but a reasoned reply. It cannot be said that – whereas authorities are under obligation to make reasoned reply but they are at liberty to not to make any reply.
It is the case of the Petitioners that in wealth of judgments, the Courts have insisted upon recording of 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 duly informed of the consideration of the public / statutory authorities underlying the action under review. A statement of reasons serves purposes other than judicial review inasmuch as the reasons promote “thought” by the public / statutory authority and compel it to cover the relevant points and eschew irrelevancies and assures careful administrative consideration.
The Petitioners respectfully invite the attention of this Hon’ble Court to some Rulings.
(i) When, in the case of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605 the Hon’ble Supreme Court held that non-recording of reasons by Statutory / public authority / functionary would render the decision arbitrary, unfair and unjust violating article 14 & 21 of the COI. 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, then, it is the case of the Petitioners that non-reply of any complaint received by any public /statutory authority, is a positive act of omission, an arbitrary, unfair and unjustified decision of that public / statutory authority to not to make a reply, thereby frustrating citizen’s fundamental right enshrined under Article 14.
(ii) When, in the case of 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 that an act uninformed by reasons, is arbitrary, and arbitrariness is the very negation of the Rule of Law, it is the case of the Petitioners that non-reply of any complaint received by “State”, is an act of omission of the State, not informed by reason and thus arbitrary, and thus does not pass the test of Article 14.
(iii) When in the case of Dwarkadas Marfatia versus Port Trust Bombay, reported in AIR 1989 SC 1642, it was held by the Hon’ble SC that every action of public authorities must be subject to rule of law and must be informed by reason and when there is arbitrariness in their acts and omissions, Article 14 springs in and judicial review strikes it down and thus whatever be the activity of the public authority, it should meet the test of Article 14, it is the case of the Petitioners that when a public authority does not reply to Citizens’ complaint, one can safely allege that the said public authority is acting arbitrarily, and Article 14 springs in and gives me the locus of being aggrieved and jurisdiction to the High court under Article 226 to strike down that alleged act of arbitrariness, i.e. the act of “un-replied compliant”.
(iv) In the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836, AIR 1974 SC 87, the Hon’ble Supreme Court said – Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached.
The Hon’ble Supreme Court in the above case, in the words of Justice M.H.Beg, “administration has to work in people's interest, with caution and care. Its activities may prejudice interest of a citizen, but that causing of prejudice must be reasoned. Recording of reasons will show application of mind and probably this recording of reasons is the only remaining visible safeguard against possible misuse of powers conferred upon administrators of a nation. “Reasons are the links between the materials on which certain conclusions are based. Therefore, when they are absent, the Court would always enforce the statement of reasons to be recorded so that it can adjudicate upon the dispute before it.
(v) Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same.. It cannot be said that a person is left without a remedy to challenge any omission or inaction on the part of the authority. It may be informed that in a case, reported in AIR 2003 SC 1115, relating to grievance of the Public servant, the Hon’ble SC held that the “inaction” on the part of the authority can be challenged in the High Court by filing a WP under Article 226 of the COI.
In the light of above observations of Hon’ble SC, it is the case of the Petitioners that non-reply of any complaint received by any public /statutory authority implies that although mind was applied to the complaint and arbitrary decision was taken by the Statutory / Public authority that no reply should be made.
The Petitioners say that Public authorities, in their assumed unfettered discretion, may decide – right or wrong, but I think, even in their assumed unfettered discretion, they have no discretion to say – I will not even reply to your notice / complaint. And when their replies are devoid of reasoning, it is as good as no reply.
(B) Without prejudice to rely on above submissions, the Petitioners say that the preamble of the Constitution of India recognizes the true authority of people of India. In the 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.
This epic governing volume makes a categorical announcement in the introductory passage (Preamble) that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our Constitution intend to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA. This announcement is intelligent, designed and purposeful.
Whereas there are three chief organs of the Indian Nation - they are Legislature, the Govt and the Judiciary, and all these three organs derive their origin and all powers 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.
In the light of the philosophy of the Constitution of India, more particularly cherished in preamble, the Petitioners argues that the people of India, Citizens and Persons has right to reply from Statutory / public authorities, whenever complaint or any representation is made to them.
(C) Without prejudice to rely on above submissions, the Petitioners further invite the attention of this Court to the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, wherein 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.”.
(D) Without prejudice to rely on above submissions, the Petitioners further argue that when the Hon’ble Chief Justice of India Shri S H Kapadia on 15.05.2010 warned the PIL Petitioners that they must first issue notice to the Govt / Public authority before moving courts, and therefore, we the People expect, in principle and in equity, that if that public authority / govt turn a blind eye to the notice / complaint / representation, and if one has to move court for justice, then this Hon'ble court will also find the occasion to direct that concerned Govt / Public authority to first effectively deal with the issue raised in the complaint / notice / representation.
(E) Without prejudice to rely on above submissions, the Petitioners invite attention of this Hon’ble Court to the national Litigation Policy [For short NLP]. The Petitioners is of view that Wednesday, the June 23rd, 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 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.
(F) Without prejudice to rely on above submissions, the Petitioners further say that satisfactory replies to complaints is not of some importance but of fundamental importance in State Citizen relationship.
And therefore, it is necessary to 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.
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.
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.
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.
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
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.
And therefore, in the backdrop of this ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted that-
(i) His Life & Property will be protected and his liberty will be secured;
(ii) 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;
(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;
(iv) That others will not commit any intentional aggression upon him;
(v) That people with whom he deals will carry out their undertakings and will act in good faith;
(vi) That he will have security as a job holder;
(vii) That State will bear the risk of unforeseen misfortune;
(viii) That State will bear the burden of supporting him when he becomes aged;
(ix) That the State will make a reply to subjects’ complaint / representations.
(6) The Petitioners say that in democracy, every holder of public office is accountable ultimately to the people. Such accountability is enforced through a system of laws and rules, which the elected representatives of the people enact in their legislatures. Ethics provides the basis for the creation of such laws and rules. It is the moral ideas of people that give rise to and shapes the character of laws and rules. Any legal system emanates from a shared vision of what is good and just.
Good governance is not a mirage or a utopian concept. It only signifies the way an administration ameliorates the standard of living of the members of its society by creating, and making available, the basic amenities of life; providing its people security and the opportunity to better their lot; instils hope in their hearts for a promising future; providing, on an equal & equitable basis, access to opportunities for personal growth; affording participation and capacity to influence, in the decision-making in public affairs; sustaining a responsive judicial system which dispenses justice on merits in a fair, unbiased and meaningful manner; and maintaining accountability and honesty in each wing or functionary of the Government.
(7) The Petitioners say that the experience is that the holders of public offices treat the authority in their hands, as one bestowing upon them, the status of a ruler rather than one in public service.
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 specified hereinafter.
The Public officials are heard saying, (one may also call it various forms of passionate corruption) in the words of very learned Professor Upendra Baxi –
(a) As an Authority, 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;
(b) As an Authority- I may so act as to favour some and disfavour others;
(c) As an Authority- 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;
(d) As an Authority- 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;
(e) As an Authority- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
(f) As an Authority- I may use my power to help you only if I am gratified in cash or in kind;
(g) As an Authority- I may choose to use my power only after a good deal of delay and inconvenience to people;
(h) As an Authority- 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.
(8) The Petitioners submit that Discretion in reality means a power given to a person with the authority to choose between two or more alternatives or possibilities each of which is lawful and permissible.
Discretion is a Science or understanding to discern (to distinguish) between falsity and truth; between right and wrong, between shadow and substance, between equity and pretence and not to do according to wills and private affections.
The concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike.
Discretion allowed by the statute to the holder of an office is intended to be exercise according to the rules of reason and not according to personal opinion.
Discretionary powers are never absolute. Even if a statutory pronouncement state explicitly that the discretion it grants is absolute, this discretion is interpreted as requiring the holder of the authority to act strictly according to some procedure such as granting a hearing and acting impartially and acting in such a way to achieve the goal of the legislation for which the authority has been granted. Discretionary powers are always coupled with duties.
If a decision on a matter is so unreasonable that no authority could ever have come to it, then the courts can interfere. The repository of discretion must be prepared to justify in court the reasonableness of his belief and in arriving at a decision in the exercise of his discretionary powers. It is not enough to say that the discretion was exercised honestly by the authority.
The vesting of discretion is the unspoken but inescapable, silent command of our judicial system and those who exercise it will remember that discretion when applied to a court of Justice means sound discretion guided by law.
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.
The reasons employed not only are intelligible but which will also deal with the substantial points which have been raised. What is of utmost importance is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.
The very requirement of reasons will put the authority on alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion.
Reasoned decision may bring in little inconvenience to the authorities concerned for it is little more time consuming, one may argue. But I feel that there is no other way to exercise discretion and discharge duties entrusted upon the authorities.
(9) The Petitioners is anxious 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 sometimes with hostility
The Petitioners further say that the Complaints to any Public authority is the most legitimate incident in any democracy. A reply to citizen’s complaint is recognition of democratic era and the said replying authority thereby expresses his gratitude to the actual authority of a citizen in a modern democratic set-up. A reply to citizens’ complaints establishes true respect for the actual authority of citizens in a democracy. A reply to citizen’s complaint symbolizes and underlines the essence of democracy.
(10) The Petitioners finally say that grievance of the people must be promptly and properly attended instead of waiting for it to be translated into court litigation, for neglecting to attend cause avoidable waste of time and money. It must be remembered that it does no credit to the State to be involved in large number of disputes as an oppressive ruler. The giving of satisfactory reply is a healthy discipline for all who exercise powers over others.
11 The Petitioners say that, considering the very limited nature of relief prayed, no prejudice of any nature would cause to the Respondents, if the Court passes orders even without hearing the Respondents herein. The Petitioners say that it is the concern of the courts that public authorities are compelled to perform their duties if they are shown making default.
12. Ground for this Petition: This petition is filed wherein the Respondents have failed in their duty to make a proper reply to Petitioner’s Complaint / Notice / Representation, thereby frustrating Petitioners fundamental right enshrined under Article 14 of the Constitution of India, more specifically illustrated in para 5(A) to (F) hereinbefore.
13. The petitioners states that there is no other Petition / application is pending in any Court or before Hon. Supreme Court
14. The Petitioners has no other efficacious remedy except to approach this Hon’ble court for reliefs set out hereinafter.
15. The Petitioners rely on Documents, list whereof is annexed hereto.
16. The Petitioners have paid the necessary Court fee.
17. The petitioners state that this is a Writ Petition.
18. The Petitioners herein therefore humbly prays to this Hon'ble Court-
(a) That this Hon'ble Court may please to issue a Writ of Mandamus or a Writ in the nature of mandamus or any other Writ, Order or Direction, directing the Respondent No.1 herein to make a proper reply to Petitioner’s Complaint / Notice / Representation made to it dated … The Hon’ble Court may direct the Respondents No1 to show cause why heavy cost should not be imposed on it for its not replying to Petitioners complaint / Notice / Representation, as envisaged in Salem Advocates Bar Association case discussed hereinabove.
(b) That in the event this Hon’ble Court is pleased not to grant relief prayed in clause (a) above, than, the Petitioners pray that, in the interest of justice, the Hon’ble Court make out a clear and unequivocal speaking Order, detailing the reasons and clearly mentioning the assumptions being made / considered for not granting the relief prayed in clause (a) above. The Hon’ble Court, in its discretion, may declare that Statutory / public authorities are at liberty to make no replies to Citizens / persons’ complaint / Notice / Representation made to them.
(c) Pass such other and further orders as this Hon’ble Court may deem proper and expedient in the Public interest.
(d) For expeditious hearing of this Petition.
(signed)
1. Mr AAAA
Petitioner No.1
(signed)
2. Mr KKKKKK.
Petitioner No.2
Place:
Date:
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 2011
Before me.
Deponent
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & 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 in the above Petition in Person.
Our Address for service is as under:
Mr. AAAA
Address:
(signed)
(1) Mr AAAA,
Petitioner No.1
(signed)
(2) Mr KKKKK,
Petitioner No.2
Dated this day of , 2011
(signed)
Petitioner No.1
In Person
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
MEMORANDUM OF REGISTERED ADDRESS
(1) Mr. AAAA )
Address: aaaaaaaaaaaaaaaaaaa )
(2) Mr KKKK )
Address: wwwwwwwwwwww ) .............PETITIONERS
And
(1) The BBBB )
Address: )
(2) The CCCC )
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 / Madam,
Be pleased to register our address for service as hereunder:
(signed)
1. Mr AAAAAA
Petitioner No.1
(signed)
2. Mr KKKKKK
Petitioner No.2
Dated this day of , 2011
(signed)
Petitioner No.1
In Person.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
LIST OF DOCUMENTS
1. Exhibit “A” to “B” to the Petition.
2. Documents referred to and relied upon in the Petition.
Dated this day of . 2011
(signed)
Petitioner No.1
IN PERSON.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
AFFIDAVIT
I, AAAAA, the Petitioner No.1 above named, Adult, Hindu, Indian Inhabitant, aged about .......do hereby state on solemn affirmation as under:
1. The petitioners have filed the present petition inter-alia for 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.
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 . 2011
Before Me,
(signed)
PETITIONER NO.1
In Person
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
CERTIFICATE
To,
The Prothonotary & Senior Master ( For Original Side)
The Registrar General,( For appellate Side)
The Hon'ble Bombay High Court,
Mumbai - 400032
1. The Present Petition is filed wherein Respondents are exhibiting utter disregard to the complaint sent to them by the Petitioners herein, thereby frustrating fundamental right of the Petitioners enshrined under Article 14 of the Constitution of India, and seeking relief by way of this Writ Petition to direct the Respondents to make a proper reply to the Petitioners herein.
2. 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 . 2011
(signed)
Petitioner No.1
In Person.
Writ Petition
Under Article 226 of Constitution of India.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2010
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THE BBBB & OTHERS ….RESPONDENTS
WRIT P E T I T I O N
DATE THIS DAY OF 2011
Mr. AAAA
Address:
IN PERSON
(This page is called Docket. This is the last page of the Petition.
Notes to Format of 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 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.
3. If matter involves Railways, then General Manager of Ministry of railways should be made as Respondents.
PREPARATION OF PETITION
(1) Petition has to be made on ledger paper (green colored foolscap 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) All Exhibits on both sets are to be put stamp of “True copy” (at the bottom on the last page of every exhibit) and to be signed by the Petitioner who is going for Affirmation / Notarized. 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 and to be duly filled. (Available with WRIT CELL)
(5) The Petition is to be binded with a light mint blue card board paper. (This blue cover is available in Room No.18, ground floor, Bombay High Court main building)
(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, just before Verification clause; (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.
PROCEDURE for filing
(1). Filing begins with affirmation before designated Officer. Also, instead of affirmation before the designated officer, the Petition may be Notarized. 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 Side) should be taken to WRIT CELL (Original) at first floor of Annex Building; The Petition (Appellate Side) should be taken to WRIT CELL (Appellate) on 3rd floor of main building of high Court.
(3) In Original Jurisdiction, Petition is to flagged at WRIT CELL (Original) at First floor of Annex Building; No such flagging is required in Appellate Cases.
(4) 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.
(5) 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 lodging. In Original cases, after lodging, the Petition is assigned to an Officer who draws the objections in the Petition. The objections so drawn are to be complied with. Objections are technical shortcomings in the Petition.
(6) After removing objections/making corrections, the man at WRIT CELL will give number of the Petition.
(7) After getting the Writ, the copy of petition is to be served to all the Respondents named in the Petition. Three copies are to be given to State / Central Govt. Copies to State Govt can be served at respective Original or Appellate offices of Govt pleaders, situated at ground floor of High Court PWD building. 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.
(8) 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.
(9) Depending upon the urgency of cases, a formal request, (it is called Mentioning for urgent circulation) can be made before Bench of Chief Justice for urgent hearing of the case. This 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 minutes and give date for the hearing, depending upon the urgency and merit of the case. The request letter is called Preciepe. Format of Preciepe is given in later part of this essay.
(10) If the Court allows urgent hearing, than, a proper notice must be served upon the Respondents to inform them that the matter will come up for hearing on such a date.
(11) For the first time the case come for preliminary hearing for admission. The Petitioner is then given opportunity to explain before the Judges as why he has come to the Court and what his grievance against the Respondents is.
FORMAT OF PRECEIPE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL / APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. OF 2011
Mr. AAAA & OTHERS .... PETITIONERS
V/S
THEBBBB & OTHERS ….RESPONDENTS
PRECEIPE
To,
The Prothonotary & Senior Master ( For Original Side)
The Registrar General,( For appellate Side)
The Hon'ble Bombay High Court,
Mumbai - 400032
Dear Sir / Madam
I will mention today the above referred Preciepe For expeditious hearing before the bench of Hon'ble Justice………. (Briefly state about urgency of matter)
Kindly do the needful as directed.
Thanking you,
Yours faithfully,
(signed)
Petitioner
In Person.
DISCLAIMER: Though due care has been observed in framing this format, yet some discrepancies may have entered in. The Writer incurs no liability of whatsoever nature, if readers’ incurs any loss of any nature, while using this material. The readers are clearly advised to obtain guidance of Legal experts or of any other person before they use this format.
It is also requested that if you find any discrepancy of any nature in this format, or if you have suggestion to improve upon this, please inform me at legallyspeaking.jalan@gmail.com. If you find this format useful, consider to share it with your friends & relatives.
Thanks.
Sandeep Jalan, Advocate,
Mumbai,
India.
4 comments:
Thank you for a thought-provoking post, Sandeep.
Warm Regards,
Krish
Hi Sandeep: Thanks a ton for your selfless untiring work.
God bless you abundantly and give you the strength to do even more.
The best
Francis Dias
Sir!
a good job. Very useful and meaningful to people like me who do social service and want to learn more things in life!
congrats!
Dr V thanumoorthy
radha52@gmail.com
A very noble work indeed. If only 10 percoent of our advocates had this sense of social responsibility our society would have been really a great palce to live in!
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