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 laws. 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.
For getting self
protection and avoiding misery and pain, humans voluntarily entered into a
contract and surrendered their individual sovereignty to State sovereignty, and
opted to subject themselves to laws of the land. A Sovereign State is one which
is subordinate to no one and is supreme over the territory under its control. This
is how the ancient Social contract between Men & State came into being. The
State in the legal sense implies the Nation.
And in the
backdrop of this ancient social contract, every Society & every citizen has
certain basic assumptions to take it for granted from the State that-
a)
His
Life & Property will be protected and his liberty will be preserved;
b)
He
can appropriate for his own use what he has earned by his own labour and what
he has acquired under the existing economic and legal order;
c)
That,
others will act with due care and will not cast upon him an unreasonable risk
of injury;
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 weak and aged;
i)
That,
therefore, whenever, there is breach of aforesaid expectations, and when the
complaints is made to the “State”, it will be duly replied. Article 12 of
Constitution of India defines “State” as a every Public functionary, whether
State Govt / Central Govt / Municipal body / Statutory bodies / Any
instrumentality / Agency of the Govt etc.
However, the
experience is revolting. Public authorities / Public officers, especially
highly placed, soaked in arrogance of their powers, generally do not bother
themselves to the complaint of Citizens, and the experience is that, their
replies, most of times, are deliberately illogical and evasive. The experience
is that the holders of public offices treat the authority in their hands, as a
ruler rather than one in public service. The Officials were often heard saying,
in the words of Legal legend Professor Upendra Baxi--
a)
As
an Authority of 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;
b)
As
an Authority of Power, I may so act as to favour some and disfavour others;
c)
As
an Authority of 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;
d)
As
an Authority of 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;
e)
As
an Authority of Power, 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 of Power, I may use my power to help you only if I am gratified in
cash or in kind;
g)
As
an Authority of Power, I may choose to use my power only after a good deal of
delay and inconvenience to people;
h)
As
an Authority of 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.
The author
entertains the belief that Citizens / persons have a sovereign right to receive
proper reply, of the complaints / Notice / Representation made to Statutory /
Public authorities.
The Citizens’ 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. The Article 14 of the Constitution of India guarantees
to every person, the equality before law and equal protection of laws. Failure
to reply to complaints would inevitably amount to arbitrariness on the part of
authorities. The Apex Court in the case of State of Tamilnadu versus K Shyam
Sunder [AIR 2011 SC 3470] have observed to say that any action that is
arbitrary must necessarily involve negation of equality, and thus Article 14
springs into action and strike down such action.
The Apex Court
in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [AIR
2005 SC 3353] have ruled that all public authorities / public officials must make
a reasoned reply to the notices received by it.
In a case before
it, the Bombay High Court took the judicial notice of the fact that Public
authorities do not respond to the representations made to them, resulting in
cases being filed in the Court. The Hon’ble Court directed that the
representations made must be decided within 90 days from the date of making it.
[WP (C) No. 8348 / 2009 – date of judgment – 25.01.2010.] [WP (C) 6731 / 2012 –
date of decision – 21.12.2012.]
An Office
Memorandum issued by Ministry of Personnel, PG and Pension, Dept of
Administrative Reforms and Public Grievances, No. 46013 / 7 / 2000 / O & M,
dated 08.09.2000 /, inter alia, states that, as a general rule no official
shall keep a case / file pending with him / her for more than 7 working days,
unless higher time limit is prescribed for specific types of cases. It may be
stated here that every complaint made also translate into a “file”.
In the case of
The Rajasthan State Industrial Development And Investment Corporation Versus
Subhash Sindhi Cooperative Housing Society Jaipur [AIR 2013 SC 1226] the Apex
Court observed to say that “During the hearing of the case if it is pointed out
to the court that the party has raised the grievance before the
statutory/appropriate authority and the authority has not decided the same, it
is always warranted that the court may direct the said authority to decide the
representation within a stipulated time by a reasoned order”.
In a case before
it, the Delhi High Court directed the Registrar of Companies to pass a speaking
order after hearing the company. [Hardicon Ltd. Versus Registrar Of Companies –
(2009)]
I will conclude
with a short interesting tale…Gandhi’s journey towards Mahatma. Whereas we as a
Nation religiously admire and cherish the ideals of Mahatma Gandhi, it is also
important to know how his journey began towards Mahatma.
In the year
1893, when in South Africa, while holding a First Class Compartment ticket and
traveling in, Mohandas was thrown out of the train, because in those times
“Blacks” were not allowed to travel in the First Class Compartment,
notwithstanding they may hold a valid ticket. It was 9.00 in the chilled 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, and the General Manager instructed the Station Master to
secure that the complainant reaches his destination safely. The complainant was
accommodated in the very next morning train to his destination. This incident
shook his conscience, and aroused in him the revolt against the British Rulers.
And here in the
era of Independent India, and modern democracy of 21st century, the
complaints of people are ordinarily attended with avoidance, annoyance and
sometimes with hostility.
Many of us
believed that making complaint before administration is a futile exercise
because they have a tendency of not responding. In this backdrop, it is
informed that we have a very powerful law in place in Maharashtra State.
If you have any
grievance or if you have any legitimate work to be done in any Maharashtra
Govt. dept., you may record your complaint or your representation before the
concerned dept. The said dept. is obliged by law (Maharashtra Transfers and
duties Act, 2006) to look into your complaint / representation and take
“decision and action” within maximum period of 90 days.
The Complaints
to “State” is the most basic incident of any democracy; and a reply to
citizen’s complaint is recognition of democratic era and symbolizes and
underlines the essence of democracy; and the grievance of the people must be
promptly and properly attended instead of waiting for it to be translated into
court litigation.
Sandeep Jalan
Advocate
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
https://www.litigationplatform.com/
Thank you.
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