I. This is a clarion call for Local Self-government in India by Mission Gurgaon Development which has put the Governments of Haryana and Rajasthan as also the Union of India upon notice. Legal notices to these authorities, in the past, have not been replied to, raising the obvious legal presumption that an unreplied legal notice merits.
II. This is a comprehensive demand under Section 80 of the Civil Procedure Code 1908 to all parties concerned at the three tiers of government in India to respond to the complaint of the citizens of India that they are being denied democratic polity and electoral equity guaranteed under the Constitution of India and the Statute.
III. Although it is issued under the name of Mission Gurgaon Development, a Gurgaon based think tank, it has the broad based support of all sections of civil society especially the voiceless poor and downtrodden, wherein the HUDA QUIT GURGAON MOVEMENT symbolic of the mess created by multiple unaccountable parastatal authorities, was launched on 02 October 2011 on the occasion of Gandhi Jayanti.
IV. Lakhs of poor in Gurgaon do not have BPL Cards. Even those few thousand who have BPL Cards are denied kerosene oil altogether and other items are pilfered and only a small trickle percolates to the needy. Education does not reach to these poor as there existence is not recorded on any official roll. Civil society is not allowed to have any statutory role in poor relief, as envisaged in national and international law and convention, even as administration laments extreme shortage of supervisory staff.
V. Public information of all letters/ contracts/ decisions/ draft rules at Local Self-government level continues to be held only in files and not put up immediately on the internet for all citizens to see and verify on ground, the tall claims of the administration. Draft rules at Local Self-government level are being selectively withheld even from the elected Mayor of the Corporation, for example the 2009 Draft Rules for Routine Working of Municipal Corporation of Gurgaon.
VI. Local Self-government is controlled by State of Haryana employees and not by Local Self-government employees making a mockery of the constitutional status of the Mayor and his councilors, even as a State Government employee; the Divisional Commissioner has unbridled power to suspend the Mayor without so much as a notice, in violation of basic structure doctrine and the law of the land.
VII. This call to arms to the citizens is supported by day to day problems as evidenced from the 31 annexures containing current newspaper reports from highly respected newspapers, highlighting the complete failure of the current, failed, non-participative and unreformed system of local self-government which has sunk to levels of anarchy, corruption and lack of transparency unparalleled in history.
VIII. The legal issues raised herein have strong legal backing as well, of retired and serving judges and constitutional benches of the Apex Court. The lack of support is at the political and bureaucratic levels at the Center, the State and Local Self-government.
IX. Reasoned reply is mandatory within 60 days and failure to so do is punishable with heavy fine recoverable from the salary of the individual defaulting officer of departments defaulting, upon whom fine may be levied by the courts in first instance. [Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344.]
Tower 1 Flat 1102, The Uniworld Garden,
Sohna Road, Gurgaon 122018 Haryana INDIA
Mobile: +919818768349 Tele: +911244227522
Jaago Re "Aaj Se Khilana Bandh, Pilana Shuru"
The Constitution Bench of the Apex Court has upheld in S.R. Bommai v Union of India 1994 AIR 1918, the position that local bodies are no longer mere local authorities subservient to diktat of State Governments but are full fledged governments having constitutional protection, as follows:
"5. It is an undeniable fact that the Constitution of India was ordained and established by the people of India for themselves for their own governance and not for the governance of individual States. Resultantly, the Constitution acts directly on the people by means of power communicated directly from the people.....
12....The constitutional philosophy of a free country is totally different from the philosophy of a similar law introduced for the governance of a country by its colonial masters....
17...It is in this context that this Court in State of W.B. v. Union of India, (1964) 1 SCR 371 observed at (SCR p. 397):
"The exercise of powers, legislative and executive, in the allotted fields is hedged in by the numerous restrictions, so that the powers of the States are not co-ordinate with the Union and are not in many respects independent."...
19. The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Secular Democratic Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In the people of India, therefore, vests the legal sovereignty while the political sovereignty is distributed between the Union and the States...
20....While dealing with the issues arising in that suit 3 (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1 State of Karnataka v. Union of India-Beg C.J., once again examined the relevant provisions of the Constitution and the Commissions of Inquiry Act, 1952, and observed in (AIR) paragraph 33 as under: (SCC p. 645, para 34)
"In our country, there is at the top a Central or the Union Government responsible to Parliament, and there are, below it, State Governments, responsible to the State Legislatures, each functioning within the sphere of its own powers which are divided into two categories, the exclusive and the concurrent. Within the exclusive sphere of the powers of the State Legislature is local government. And, in all States there is a system of local government in both urban and rural areas, functioning under State enactments. Thus, we can speak of a three tier system of Government in our country in which the Central or the Union Government comes at the apex....... It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of governmental powers of State and Central Governments, is overlaid by strongly 'unitary' features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government the executive power of appointing certain constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Governments.........".........
68. The Presidential power under Article 356(1) has also to be viewed from yet another and equally important angle. Decentralisation of power is not only valuable administrative device to ensure closer scrutiny, accountability and efficiency, but is also an essential part of democracy. It is for this purpose that Article 40 in Part IV of our Constitution dealing with the Directive Principles of State Policy enjoins upon the State to take steps to organise village panchayats and endow them with such powers and authorities as may be necessary to enable them to function as units of self governance. The participation of the people in the governance is a sine qua non of democracy. The democratic way of life began by direct participation of the people in the day to day affairs of the society. With the growth of population and the expansion of the territorial boundaries of the State, representative democracy replaced direct democracy and people gradually surrendered more and more of their rights of direct participation, to their representatives. Notwithstanding the surrender of the requisite powers, in matters which are retained, the powers are jealously guarded and rightly so. If it is true to say that in democracy, people are sovereign and all power belongs primarily to the people, the retention of such power by the people and the anxiety to exercise them is legitimate. The normal rule being the self-governance, according to the wishes expressed by the people, the occasions to interfere with the self-governance should both be rare and demonstrably compelling....
106. The Constitution decentralises the governance of the States by a four tier administration i.e. Central Government, State Government, Union Territories, Municipalities and Panchayats. See the Constitution for Municipalities and Panchayats : Part IX (Panchayats) and Part IX-A (Municipalities) introduced through the Constitution 73rd Amendment Act, making the peoples' participation in the democratic process from grass-root level a reality. Participation of the people in governance of the State is sine qua non of functional democracy. Their surrender of rights to be governed is to have direct encounter in electoral process to choose their representatives for resolution of common problems and social welfare. Needless interference in self-governance is betrayal of their faith to fulfil self-governance and their democratic aspirations. The constitutional culture and political morality based on healthy conventions are the fruitful soil to nurture and for sustained growth of the federal institutions set down by the Constitution.....
108.....The relative importance of entries in the respective lists to the VIIth Schedule assigned to Parliament or a State Legislature are neither relevant nor decisive though contended by Shri K. Parasaran. Indian federalism is in contradistinction to the federalism prevalent in USA, Australia and Canada....
126. For a political party or an Organisation that seeks to influence the electorates to promote or accomplishing success at an election for governance of parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-a-vis the Fundamental Rights and the Fundamental Duties in Part IV A and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of India transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain from violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socioeconomic and political justice, fraternity, unity and national integrity.......
154. While it is not possible to exhaustively catalogue diverse situation when the constitutional breakdown may justifiably be inferred from, for instance
(i) large-scale breakdown of the law and order or public order situation;
(ii) gross mismanagement of affairs by a State Government;
(iii) corruption or abuse of its power;
(iv) danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and
1. Mission Gurgaon Development,
H. No. 543, Sector 23, Gurgaon 122017, Haryana
2. Lt Col (Retd) S S Oberoi s/o late Capt HS Oberoi
Treasurer, Mission Gurgaon Development,
Flat No. 1102, Tower 1, Uniworld Garden
Sector 47, Gurgaon 122018, Haryana
1. Union of India through Secretary, Ministry of Urban Development, Government of India, Nirman Bhawan, New Delhi 110011
2. Ministry of Housing & Urban Poverty Alleviation, Government of India, Nirman Bhavan, New Delhi 110011, through its Secretary
3. Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, Krishi Bhavan, New Delhi 110011 through its Secretary
4. Ministry of Petroleum & Natural Gas, Shastri Bhavan, New Delhi 110001 through its Secretary
5, State of Rajasthan through its Chief Secretary, Govt of Rajasthan, Secretariat, Jaipur 302005
6. State of Haryana through its Chief Secretary, Govt of Haryana, Haryana Secretariat, Chandigarh 160003
7. Sh. Bhupender Singh Hooda, Hon'ble Chief Minister, Haryana, Kothi No. 1, Sector 3, Chandigarh 160003
8. Financial Commissioner & Principal Secretary to Govt. of Haryana, Urban Local Bodies Department, Haryana, Chandigarh 160017
9. Financial Commissioner & Principal Secretary to Govt. of Haryana, Town and Country Planning Department, Haryana, Chandigarh 160003
10. Director Urban Estates, Haryana, Sector 6, Panchkula 134106
11. Sh. Vimal Yadav, Hon'ble Mayor, Municipal Corporation of Gurgaon, House No. 78, Sarhol Village, Gurgaon 122001
12. Municipal Corporation of Gurgaon, through its Commissioner, Gurgaon 122001
13. The Collector-cum-Deputy Commissioner, Gurgaon, Government of Haryana, Mini-secretariat, Gurgaon 122001
14. Haryana Urban Development Authority, Sector-14, Gurgaon 122001 through its Administrator
15. Chief Medical Officer Gurgaon, Civil Hospital, Gurgaon 122001
16. District Food & Supplies Controller, Gurgaon, Food & Supplies Department, Govt of Haryana, Mini-Secretariat, Gurgaon 122001
17. P.W.D.(B&R) Gurgaon through its Executive Engineer I, Gurgaon 122001
18. Chief Fire Officer, Gurgaon, Sector 29, Gurgaon 122002
19. Superintending Engineer 'OP' Circle, Dakshin Haryana Bijli Vitran Nigam, Mehrauli Road, Gurgaon 122002
20. Ministry of Panchayati Raj, Government of India, Krishi Bhawan, New Delhi 110011 through its Secretary
21. State of Himachal Pradesh through its Chief Secretary, Govt of Himachal Pradesh, H.P. Secretariat, Shimla 171002
22. State Election Commission, Haryana, Nirvachan Sadan, Plot No. 2, Sector 17, Panchkula 134117 through its Secretary
(1) CHALLENGE TO VIRES OF ALL ACTIONS OF RAJASTHAN STATE CAUSING REDUCTION IN THE DEVOLVED SUBJECTS UNDER ARTICLE 243G OF THE CONSTITUTION OF INDIA, 1950 FROM 16 ITEMS IN 2003 TO 5 ITEMS IN 2011 IN VIOLATION OF BASIC STRUCTURE DOCTRINE
(2) BLATANT REFUSAL OF UNION OF INDIA TO FILE RESPONSE TO NOTICES RECEIVED ON 04.07.2011 & 11.07.2011 IN VIOLATION OF ARTICLES 141 & 142
(3) BLATANT REFUSAL OF STATE OF HARYANA TO FILE RESPONSE TO LEGAL NOTICE DATED 27.03.2010 & 15.12.2010 IN VIOLATION OF ARTICLES 141 & 142
(4) FAILURE OF HON'BLE CHIEF MINISTER TO ENSURE RESPONSE TO GURGAON CITIZENS MEMORANDUM OF CHARTER OF DEMANDS DATED 21.11.2009 AND LEGAL NOTICE DATED 27.03.2010
(5) CHALLENGE TO VIRES OF ALL HARYANA STATE STATUTES AND RULES THAT VIOLATE ARTICLES 141, 142 & 243 TO 243ZG OF THE CONSTITUTION OF INDIA, 1950 IN VIOLATION OF BASIC STRUCTURE DOCTRINE
I. Complete facts of the case
(1) Challenge to Vires, Rajasthan State
(2) Failure of Union of India to respond
(3) Failure of State of Haryana to respond
(4) Failure of Chief Minister of Haryana to respond
(5) Challenge to Vires, Haryana State
II. Provisions of law under which the public authority is obliged under the law
III. Legal Expectation
IV. Consequences that may follow
V. SC Judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India
VI. Post Script
(i) Himachal Pradesh Law Dept Order dt 28.11.2005
(ii) 2008 Foreword by former Chief Justice of India.
(iii) Legal Notice dt 27.03.2010
(iv) Whos in charge of Sohna Road? TOI dt 23.03.2011
(v) Enhancing Quality of Adjudication - P Sathasivan
Judge Supreme Court Speech dt 29.04.2011
(vi) Fire department ill-equipped to deal with highrise
infernos TOI dt 14.08.2011
(vii) MCG likely to meet on October 10 TOI dt 27.09.2011
(viii) Buses add to IFFCO Chk chaos TOI dt 29.09.2011
(ix) Gurgaon in grip of power crisis TOI dt 29.09.2011
(x) Industrial power costliest in Haryana TOI dt 29.09.2011
(xi) Minor torture spells trouble for police, told to pay Rs
25k TOI dt 29.09.2011
(xii) Over 50 bitten by stray dogs in Gurgaon every day
TOI dt 29.09.2011
(xiii) Hero Honda Chowk clearance priority Cops
TOI dt 30.09.2011
(xiv) MCG tightens norms for payment to contractors
TOI dt 30.09.2011
(xv) Small industries reeling under electricity crisis
TOI dt 30.09.2011
(xvi) Fruit prices skyrocket TOI dt 01.10.2011
(xvii) Despite festive season water, power cuts on
TOI dt 02.10.2011
(xviii) From today panchayats to get more powers in state
TOI dt 02.10.2011 Rajasthan
(xix) Quit Gurgaon Movement launched PRESS NOTE dt
(xx) DLF III road in a shambles, officials play blame game
TOI dt 03.10.2011
(xxi) Industrialists for state-wide umbrella body
TOI dt 03.10.2011
(xxii) Stop feeding monkeys, MCG tells residents
TOI dt 03.10.2011
(xxiii) Transfer power to MCG from HUDA RWAs
TOI dt 03.10.2011
(xxiv) Belaire and Park Place RWAs want to be heard
TOI dt 04.10.2011
(xxv) Ward 30 Councillor letter dt 04.10.2011 to HUDA
(xxvi) Gurgaon cracks whip on 55 security agencies
TOI dt 04.10.2011
(xxvii) Hero Honda Chowk needs FOB TOI dt 04.10.2011
(xxviii) City not ready for fire accidents HT dt 05.10.2011
(xxix) MCG meeting held to bridge gap between
councillors, staffers TOI dt 05.10.2011
(xxx) City does not have lab to test seized samples
HT dt 07.10.2011
(xxxi) House numbers changed yet again HT dt 07.10.2011
I. Complete facts of the case:
(1) CHALLENGE TO VIRES OF ALL ACTIONS OF RAJASTHAN STATE CAUSING REDUCTION IN THE DEVOLVED SUBJECTS UNDER ARTICLE 243G OF THE CONSTITUTION OF INDIA, 1950 FROM 16 ITEMS IN 2003 TO 5 ITEMS IN 2011 IN VIOLATION OF BASIC STRUCTURE DOCTRINE:
(a) The 73rd Constitutional Amendment Act identified 29 subjects that could be transferred to the panchayats under Article 243G. In Rajasthan, the Gehlot government (1998-2003) granted 16 subjects as recommended by a committee by the then home minister Gulab Singh Shaktawat to the panchayats on June 19, 2003 at the fag end of its tenure. But these were soon afterwards withdrawn by the Vasundhara Raje government, which constituted a committee under the then home minister Gulab Chand Kataria, in August 2004, to study the viability of the transferred powers. It recommended full devolution by 2007 but this was not done. The present government, which came back to power in 2008 has only on 02.10.2011 announced that it would devolve 5 subjects out of the 29 subjects mandated. In his Foreword for the book "Courts, Panchayats and Nagarpalikas" by KC Sivaramakrishnan, the former Chief Justice of India, MN Venkatachaliah observed:
"The clear mandate of the Constitutional 73rd and 74th Amendments is that the State Legislature will, by law, devolve various functions and tasks upon the panchayats and municipalities in such a manner that "the exercise of the executive, legislative and financial tasks in this regard are harmonised with the domain of the State." These amendments are rightly regarded as the Constitutional underpinnings for widening and deepening the roots of Indian Democracy. But the sad part is that despite the passage of one and a half decades, the process of decentralisation and devolution of power envisaged by the Constitution has been tardy. The wielders of political power and the bureaucracy have failed to bestow a decorous deference towards this constitutional mandate."
(b) Statement of Objects and Reasons appended to the Constitution (Seventy-second Amendment) Bill, 1991 which was enacted as the Constitution (Seventy-third Amendment) Act, 1992:
"1. Though the Panchayati Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.
2. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them."
(c) Article243G states:
"243G. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to—
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
(d) As observed by former Chief Justice of India, MN Venkatachaliah in his Foreword for the book "Courts, Panchayats and Nagarpalikas" by KC Sivaramakrishnan, "It is important that judges do realise the importance of the Constitutional mandate in interpreting the adequacy of legislations to translate the Constitutional phrase into reality and that in the background of this constitutional mandate the areas of legislative inadequacy become justiciable. In this background one of the strong strands of sustaining democracy is the need to provide a vigorous refreshment to the movement of noncentralisation of power envisioned by the 73rd and 74th Constitutional Amendments." Also, it is essential to note that in an ADDRESS BY HON'BLE MR. JUSTICE P.SATHASIVAM, JUDGE, SUPREME COURT OF INDIA AT THE SOUTH ZONE REGIONAL JUDICIAL CONFERENCE ON ENHANCING QUALITY OF ADJUDICATION ORGRANISED BY THE NATIONAL JUDICIAL ACADEMY AT BANGALORE ON 29.04.2011 it was observed:
"Restatement of Judicial Values
· If we are aiming for a society where justice is not delayed, where it is affordable by the common man, where rule of law is supreme, where fundamental rights are respected and fundamental duties are observed, we have to ensure that our law students, law teachers, practising lawyers, presiding Judges are of a very high standard.
· While it is an understood fact that Judges at any level of the judiciary must maintain the utmost of integrity and adhere to the highest standards of ethics, it is also important that the public are aware of the fact that these standards are being maintained.
· In December 1999, a conference of the Chief Justice's of all High Courts was held where they adopted the "Restatement of Values of Judicial Life" (Code of Conduct) which is not an exhaustive but an illustrative list of what is expected of a Judge. If these values are followed by the judicial officers at all levels of the justice dispensing machinery, it will give objectivity to the dignity of the post and will result in bringing together the lost faith of the people in the judiciary.
· This 'Restatement of Judicial Values' expect a Judge to maintain a degree of aloofness consistent with the dignity of his post, close relatives and acquaintances from the bar are not allowed to appear before him, he is not to decide matters relating to family member or a close friend, he is not to engage in trade and business, he should not seek any financial benefits attached to his office unless it is clearly available, etc.
· The Full Court Meeting of the Supreme Court in 1997 also adopted the resolution in respect of declaration of assets to be made by every Judge.
· All these are the instances of the efforts taken by the members of the judiciary to keep the sanctity of their judicial functions alive and to ensure good character and impartiality of a judicial officer thereby ensuring the quality improvement in the process of adjudication.
Judging the Judges
· To ensure independence of judiciary, remedial action against Judges who do not follow the Restatement of Values of Judicial Life and against whom complaints are received pertaining to discharge of his judicial functions or misconduct outside the Court, is a matter of In-House procedure.
· Thus it is not left on the civil society to Judge the Judges on the above front. However, a Judge's role in the society, that is to adjudicate, can be judged by its people. Thus a Judge can be fairly criticized on his knowledge of law or judgment writing skills or his appreciation of evidence. Thus a judicial officer should aspire to be impeccable regarding the above core judicial skills.
· A Judge primarily interacts with the public through his or her judgments and the same should be carefully crafted in order to enhance the quality of communication. Every order or judgment, no matter how brief, should be a reasoned decision and these reasons should be clearly reflected in the judgment. At the same time a long judgment with superfluous theory, citations and dicta adversely affect the clarity of the law and leads to further confusion and litigation.
· Hence, a Judge should meticulous craft every decision and include only that material which is needed to lend credence to his or her decision. The judgment is also a reflection of the conscience of a Judge, who writes it, and evidences his impartiality, integrity and intellectual honesty. The judgment writing provides tradition of moral integrity and social utility.
· Appreciation and Interpretation of facts, laws, evidence and statues are the skills that can only be excelled by experience and knowledge, it is important to note their importance while deciding a matter.
· A Judge is expected to have a nodding acquaintance with all subjects that come up before him and can not be excused for lack of familiarity with certain areas of law. He has to be an avid reader.
The Indian Judicial system is constantly exposed to new challenges, new dimensions and new signals and has to survive in a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today.
The task of a Judge is to give meaning to the constitutional values and keeping in mind the constitutional text, history and social ideals. The function of a Judge is to give concrete meaning and application to our constitutional values. The task of a Judge should be seen as giving meaning to our public values and adjudication as the process through which that meaning is revealed and elaborated. Constitution adjudication is the most vivid manifestation of the function.
As has been mentioned earlier, the stress is not on the fact that we do not have solutions to tackle the problems upfront with the judicial machinery. It is not lack of vision but lack of efforts that is absent to build a perfect and unblemished adversarial system. We will have to continue the reform and our efforts in the direction till we achieve our aim of making the judiciary efficient and restore the public faith in the judicial system."
(e) Hence "sustaining democracy" is the raison d'etre for devolution of the mandated 29 powers to the panchayats. Statement of objects and reasons mentions Article 40 and Article 243G establishes that devolution of powers shall "endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government". The clear constitutional mandate is therefore to devolve all 29 powers, else the State shall be in clear violation of basic structure doctrine. The former Chief Justice of India, MN Venkatachaliah was constrained to observe, "These amendments are rightly regarded as the Constitutional underpinnings for widening and deepening the roots of Indian Democracy. But the sad part is that despite the passage of one and a half decades, the process of decentralisation and devolution of power envisaged by the Constitution has been tardy. The wielders of political power and the bureaucracy have failed to bestow a decorous deference towards this constitutional mandate."
(2) BLATANT REFUSAL OF UNION OF INDIA TO FILE RESPONSE TO NOTICES RECEIVED ON 04.07.2011 & 11.07.2011 IN VIOLATION OF ARTICLES 141 & 142
(a) In his address at the National Judicial Academy at Bangalore on 29.04.2011, referred to above, Hon'ble Justice P. Sathasivam, Judge, Supreme Court of India observed:
"Notice and response u/s 80 of CPC is a conciliatory step towards settlement
Dialogue, negotiations and conciliation are inbuilt in the CPC since its inception. Section-80 of CPC is a provision to initiate conciliation and gives an opportunity to the Government to settle the matter amicably prior to institution of a suit in the court. A statutory notice of 2 months before the proposed action under section 80 Civil Procedure Code 1908 is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell potential outsider why the claim is being resisted. The underlying object is to curtail litigation and is also to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well.
Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. Government of India and State Governments are the largest litigants in India.
A litigation policy for the State involves settlement of governmental disputes with citizens in sense of conciliation rather than in a fighting mood. Indeed it should be a directive on the part of the State to empower its law officer to take steps to compromise disputes rather than continue them in court. Supreme Court of India had emphasized that Governments must be made accountable by Parliamentary Social audit for wasteful litigate expenditure inflicted on the community by inaction.
The Government, government departments or statutory authorities are defendants in a large number of suits pending in various courts in the country. But in a large number of cases either the notice neither is replied to or in the few cases where a reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 CPC and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well. A proper reply can result in reduction of litigation between the State and citizens.
Having regard to the existing state of affairs the Supreme Court of India has directed that all Government, 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 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. This direction of Supreme Court shall put the Government authorities in a conciliation mode and promote early settlement of disputes.
Government as a party delays matters
· The government is known to be a huge contributor to delays, in matters where it is a party – at various stages – from evading notices, replying to notices and replying without application of mind, unnecessarily appealing even when the laws are clearly in favour of the other side.
· Government as party to litigations contributes to the pendency and also delay in disposals. Government to avoid litigations may set up grievance cells so that all grievances, particularly, small grievances can be settled to avoid litigation, which consumes more time and public money.
· Government may consider utilization of alternative modes of dispute redressal including pre and postlitigation methods to amicably sort out the disputes with the citizens.
· Insofar as the Government is concerned, the appeals to the High Court be permitted only when point of law is involved. Efficient law officers at all levels shall be appointed and all vacancies of such law officers be filled up considering vacancy position six months in advance.
· Bureaucrats shall be trained to respect and promptly implement all orders and judgments of the Courts to avoid contempt petitions and second round of litigations. They be asked to adhere to rule of law in administrative matters to avoid unnecessary litigations.
· Administration be made transparent and the officers accountable. Adherence to international covenants and declarations adopted and ratified by the country be made mandatory.
· The National Litigation Policy is based on the recognition that Government and its various agencies are the pre-dominant litigants in courts and Tribunals in the country. Its aim is to transform Government into an Efficient and Responsible litigant. This policy is also based on the recognition that it is the responsibility of the Government to protect the rights of citizens, to respect fundamental rights and those in charge of the conduct of Government litigation should never forget this basic principle."
(b) Item 11 under the TWELFTH SCHEDULE (Article 243W) is "Urban poverty alleviation" and hence the defendant No. 3, Municipal Corporation of Gurgaon had the constitutional obligation for the purpose. In the suit, Sunita Kataria and others v. State of Haryana and others regarding failures in delivery of rations to BPL Card holders notice was issued by Civil Judge (Sr Div), Gurgaon and received by Ministry of Urban Development, Government of India, Ministry of Housing & Urban Poverty Alleviation, Government of India and Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, on 04.07.2011, but all three have failed to file the mandatory response till date in terms of the Apex Court judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344. The net result is that the National Litigation Policy is violated with impunity and "the object underlying Section 80 CPC and similar provisions gets defeated." The petitioners had prayed as follows:
"(a) permanently restrain the defendants No. 1 to 2 their agents, representative, successors etc. from interference with defendant No. 3 in carrying out the activities of poor relief and other Urban Poverty Alleviation Measure by passing a decree of permanent injunction in favour of the plaintiffs and against the defendants No. 1 & 2, and
(b) pass a decree of mandatory injunction thereby directing the defendants No. 1 & 2 to handover entire records concerning poor relief and other Urban Poverty Alleviation Measure to defendant No. 3.
(c) Pass a decree of mandatory injunction thereby directing the defendant no. 1 & 2 to prepare the BPL Cards in concerned wards under the supervision and prior approval of the ward councilor concerned.
(d) pass such orders as may be considered necessary for just decision of the point of law at question under Part IX-A and Article 243-ZF of the Constitution of India, so as to enable effective local self governance by the people of Gurgaon on activities constitutionally mandated to be done only by a constitutionally created local government, that is, Municipal Corporation of Gurgaon, thereby eliminating to great extent poor un-coordinated governance by myriad parallel authorities thus providing fertile ground for malfeasance and grave hindrance to the citizen in his day to day life, as articulated in the recent judgment in case CWP 24526 of 2009 V Shivaprasad v. State of Kerala, decided by Kerala High Court at Ernakulam on 09.02.2011."
(c) There was a vital question in dispute in this matter and it can better be explained by reproducing paragraph 13 of the suit, called BPL suit for short:
"13. The Supreme Court was apprised in an indirect manner of the lowly status of municipalities in S.R. Bommai v. Union of India, 1994 AIR 1918, 1994(3)SCC 1 at AIR Page 2075 Para 262:
"S/Shri Soli Sorabjee, Ram Jethmalani and Shanti Bhushan, learned counsel for the petitioners submitted, on the other hand, that the action of the president under Article 356 is not beyond judicial scrutiny. The Constitution does not create any such immunity and it would not be desirable to infer any such immunity by a process of reasoning or as a matter of self-restraint by this Court. The power has been used more often than not for purposes other than those contemplated by Article 356. The provision has been abused Repeatedly over the years reducing the State Governments and the State Legislatures to the status of mere municipalities."
That the 9 judge Constitution Bench in S.R. Bommai ibid was aware that Article 356(1) is applicable pari materia to urban local bodies post the 74th CAA becomes evident from AIR Page 1979 Para 68:
"68. The Presidential power under Article 356(1) has also to be viewed from yet another and equally important angle. Decentralisation of power is not only valuable administrative device to ensure closer scrutiny, accountability and efficiency, but is also an essential part of democracy. It is for this purpose that Article 40 in Part IV of our Constitution dealing with the Directive Principles of State Policy enjoins upon the State to take steps to organise village panchayats and endow them with such powers and authorities as may be necessary to enable them to function as units of self governance. The participation of the people in the governance is a sine qua non of democracy. The democratic way of life began by direct participation of the people in the day to day affairs of the society. With the growth of population and the expansion of the territorial boundaries of the State, representative democracy replaced direct democracy and people gradually surrendered more and more of their rights of direct participation, to their representatives. Notwithstanding the surrender of the requisite powers, in matters which are retained, the powers are jealously guarded and rightly so. If it is true to say that in democracy, people are sovereign and all power belongs primarily to the people, the retention of such power by the people and the anxiety to exercise them is legitimate. The normal rule being the self-governance, according to the wishes expressed by the people, the occasions to interfere with the self- govemance should both be rare and demonstrably compelling."
A combined reading of the 73rd CAA and 74th CAA (alongwith statement of objects and reasons) with paras 68 and 262 of S.R. Bommai (ibid) AIR Pages reveal that Section 37A of the Haryana Municipal Act, 1994 harks back to the rule of law of British Raj in that a State Government employee (himself under the control of a Chief Minister who may be from a different political persuasion than the Mayor and his team) is authorised to suspend an elected representaive of the people without recourse to available independent judicial forum, (in many states the Lok Ayukta, an independent judicial forum decides suspension matters of Mayor and his team) thus hacking away at the independence of the elected Corporation as frowned upon by the Apex Court in S.R. Bommai (ibid) at AIR Page 2082 Para 283 and Page 1943 Para 8(see below):
"37A (1) The Commissioner of the Division may suspend Mayor, Senior Deputy Mayor and Deputy Mayor of a Corporation where-
(a) a case against him in respect of any criminal offence is under investigation, enquiry or trial, if in the opinion of the Commissioner of the Division, the charge made or proceedings taken against him, are likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of a character;
(b) during the course of an enquiry for any of the reasons for which he can be removed under section 37, after giving him a reasonable opportunity of being heard.
(3) Any person aggrieved by an order passed under sub-section (1) may, within a period of thirty days from the communication of the order, prefer an appeal to the Government."
The Supreme Court in S.R. Bommai (ibid) noted with approval, a judgment of the Pakistan Supreme Court, the requirement of changed condition post British Raj at AIR Page 2082-2083 Para 283:
"...In Abul Ala Mabsoodi v. Govt. of West Pakistan, Cornelius C.J.,[PLD (1964) SC 673]... The scope for exercise of personal discretion is extremely limited. ... As I have pointed out, if the section be construed in a comprehensive manner, the requirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the government agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument, i.e., that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same States, it can hardly be tolerated."
The Supreme Court in S.R. Bommai (ibid) held as regard the statutory tenure of Chief Minister. AIR Page 1943 Para 8:
"8. Since my learned brothers have elaborately dealt with the constitutional provisions relating to the issue of the Proclamation and as I am in agreement with the reasoning given by B.P. Jeevan Reddy, J., it is not necessary for me to make further discussion on this matter except saying that I am of the firm opinion that the power under Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the constitutional balance. Further if the Proclamation is freely made, then the Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State."
On pari materia Article 356(1) (already held at AIR Page 1929 Para 68 to be applicable to State vis-à-vis Union), the stability of tenure of a Mayor vis-à-vis the State Govt. is just as applicable under Article 356(1) as stability of tenure of Chief Minister vis-à-vis Union Government at the Centre."
(d) In the suit Nisha Singh and another v. State of Haryana and others regarding illegal acquisition of municipality land, notice was issued by Civil Judge (Sr Div), Gurgaon and received by Ministry of Urban Development, Government of India, on 11.07.2011, but it has failed to file the mandatory response till date in terms of the Apex Court judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344. The petitioners had prayed as follows:
"(i) By declaring notifications issued by the defendant No. 5 as null and void and not binding on the plaintiffs as well as proforma defendant No. 10.
(ii) To direct the defendants No. 1 to 5 to handover the possession of suit land to proforma defendant No. 10 as per law and 74th Constitutional Amendment Act in accord with Sections 2 (52A), 3(2), 57, 161(1) (g) and 164 (b) of Haryana Municipal Corporation Act, 1994 and Articles 141, 243W and 243ZF of the Constitution of India.
(iii) To direct the defendant no. 5 not to release the compensation amount to the owners of the acquired land till final decision of the suit.
(iv) To decide the other points of law at question regarding validity of Land Acquisition Act, 1894, Haryana Dholidhar, Butimar, Bhondedar, and Muqararidar (Vesting of Proprietary Rights) Act, 2010 (Act No. 1 of 2011), supremacy of Municipal Corporations over parallel bodies in matters of its core competence specified in Sections 41. 42 & 43 of Haryana Municipal Corporation Act, 1994 and whether the allotment of land acquired for public purpose to private developers for residential/ commercial development violates Sections 44B & 40 (1) (a) of Land Acquisition Act, 1894, notwithstanding anything contained in Sections 38A & 39 in PART VII thereof."
(3) BLATANT REFUSAL OF STATE OF HARYANA TO FILE RESPONSE TO LEGAL NOTICE DATED 27.03.2010 IN VIOLATION OF ARTICLES 141 & 142
(a) A legal notice was served to the State Government and others on 27.03.10 for not holding elections within the constitutionally mandated six months period. There has been no response at all even after the State Election Commission, Haryana forwarded a copy of the legal notice to the State Government under intimation to Mission Gurgaon Development vide letter No. SEC/2ME/2010/893 dated 17.04.10 "with the request to take necessary action in the matter." In fact after being advised in a meeting with State Election Commissioner, Haryana, Lt Col (Retd) S.S. Oberoi personally met the Financial Commissioner & Principal Secretary to Govt. of Haryana, Urban Local Bodies Department, Haryana to request him to accede to advise of the State Election Commissioner, Haryana to reply to legal notice. However this officer sidestepped the issue, and started discussing unrelated issue of garbage disposal in Gurgaon, on the specious plea that the Minister would not agree to such a course. The concerned minister is none other than the Chief Minister of the State who holds the key portfolio of Law & Legislative. But till date there has been no response as mandated in terms of the Apex Court judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344.
(b) Himachal Pradesh Law Department No. LLR-E(9)-2/2004-Leg. dated 28.11.2005 states:
"Kindly refer to D. O. No. 10(11)/2000-Leg-II dated 22-09-2005 from Shri T. K. Vishwanathan, Secretary, Government of India, Ministry of Law and Justice, Legislative Department, Shastri Bhawan, New Delhi on the subject cited above. The Hon'ble Supreme Court has given certain directions to the State Governments in paras 40, 41 and 75 of the judgment referred above and asked for a report to the Court within four months. Paragraphs 40, 41 and 75 of the judgment are reproduced as under :—
"40. Section 80(1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two months period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various Courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underline section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the ex-chequer as well. Proper reply can result in reduction in litigation between State and citizen. In case proper reply is sent either the claim in the notice may be admitted on area of controversy curtailed or the citizen may be satisfied on knowing stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of section 80.
41. These provisions cast an implied duty on all concerned Governments and States and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, we direct all concerned Governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceeding against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notice 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, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the Government and direct it to take appropriate action against the concerned Officer including recovery of cost from him.
75. A copy of this judgment shall be sent to all the High Courts through Registrar Generals. Central Government through Cabinet Secretary and State Governments, Union Territories through Chief Secretaries so that expeditious follow up action can be taken by all concerned. Registrar General, Central Government and State/Union Territories shall file the progress report in regard to the action taken within a period of four months."
In view of the above directions of the Hon'ble Apex Court, I am to request you to nominate, within a period of 15 days, a nodal officer for your department who shall be made responsible to ensure that replies to notices under section 80 of the Code of Civil Procedure or similar provisions are sent within the period stipulated in a particular legislation including all other important notices issued by the various courts in the States. It is further clarified that the replies of all other important notices issued by the various Courts and Tribunals be also similarly dealt with on priority to avoid any embarrassment to the Government failing which the defaulting Officer/Official shall also be amenable to the disciplinary action in addition to the recovery of cost awarded by the Courts/Tribunals. The replies shall be sent after due application of mind. If the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind the Court may award heavy cost against the Government and direct it to take appropriate action against the concerned officer including recovery of cost from him. The directions given by the Hon'ble Apex Court in paragraphs referred to above, be followed strictly and any violation thereof shall be viewed seriously."
(c) In CWP No. 22303 of 2010 titled Matdata Jagrookta Manch and others v. State of Haryana and others regarding illegal registration of voters, notice was issued to State of Haryana by the Punjab & Haryana High Court on 15.12.2010 for 01.03.2011, but State of Haryana neither sought additional time nor filed the mandatory response on 01.03.2011 in terms of the Apex Court judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344. The petitioners had prayed as follows:
i) Issue a writ, order or direction, especially for the issuance of a writ in the nature of mandamus directing the Respondents to enquire into non-availability and/or misplacement of some of the protected election records of years 2006 to 2009 of Haryana Assembly Constituency 77, Gurgaon and sale and/or destruction of records of years 2004 and 2005 in violation of Rule 32 (1) (d) to (i) of the Registration of Electors Rules 1960, and inform this Hon'ble Court of action taken against persons held responsible;
ii) Further issue a writ in the nature of mandamus directing the Respondents to implement election law, rules, guidelines and instructions of the Election Commission of India as they may apply to the State Electoral Machinery in Haryana for elections to the Parliament, State Legislature and to the local bodies and panchayats.
iii) Further issue a writ to strike down provisions of Haryana Municipal Corporation Delimitation of Ward Rules, 1994 to the extent that they exclude the jurisdiction of the State Election Commission, Haryana, thereby violating Article 243G of the Constitution of India read with Article 243O, Article 243ZA and Article 243ZG.
(d) By refusing to reply to the legal notice dated 27.03.2010, and by neither seeking additional time for filing nor filing response, timely, by 01.03.2011, in CWP No. 22303 of 2010 titled Matdata Jagrookta Manch and others v. State of Haryana and others, there has been a very serious violation of the above stated law in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344, amounting to causing failure of democracy in the State of Haryana, even dismissing the advice of a constitutional authority, the Haryana State Election Commission, to take necessary action, on said legal notice, in accordance with law. The Courts may well award heavy cost against the Government and direct it to take appropriate action against the concerned officers including recovery of cost from them, for these repeated and blatant acts of omission to file the mandatory replies.
(4) FAILURE OF HON'BLE CHIEF MINISTER TO ENSURE RESPONSE TO GURGAON CITIZENS MEMORANDUM OF CHARTER OF DEMANDS DATED 21.11.2009 AND LEGAL NOTICE DATED 27.03.2010
(a) As the first among the elected leaders in the State of Haryana it was a moral requirement, for the Chief Minister, who also holds the concerned portfolio of Law, that reply should have been given to the memorandum presented by the distressed citizens of Gurgaon through the Deputy Commissioner Gurgaon on 21.11.2009. In Haryana, believe it or not, there is massive dearth of ministerial talent for the Chief Minister holds most money making departments, (1) Administration of Justice, (2) Architecture, (3) Development & Panchayats, (4) General Administration & Administrative Reforms, (5) Home, (6) Jails, (7) Information, Public Relations & Cultural Affairs, (8) Personnel & Training, (9) Raj Bhawan Affairs, (10) Town & Country Planning and Urban Estates, (11) Law & Legislative, (12) Transport, (13) Electronics & Information Technology, (14) Printing & Stationery, (15) Tourism, (16) Civil Aviation, (17) Hospitality and (18) any other department not specifically allotted to any Minister.
(b) As regards legal notice dated 27.03.2010 there has been failure to comply with the mandate of Apex Court judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, (2005) 6 SCC 344.
(5) CHALLENGE TO VIRES OF ALL HARYANA STATE STATUTES AND RULES THAT VIOLATE ARTICLES 141, 142 & 243 TO 243ZG OF THE CONSTITUTION OF INDIA, 1950 IN VIOLATION OF BASIC STRUCTURE DOCTRINE
(a) The following paragraphs set out the acts/ rules/ notifications which, amongst others, that may come to notice later or even during the legal proceedings, upon receipt of reply from the State of Haryana, are under challenge for violation of basic structure doctrine.
(b) Haryana Government Notification No.18/1/95/2008-3C1 dated 2nd June 2008, resulting in the automatic dismissal of the elected Municipal Council Gurgaon, and its re-constitution as the Municipal Corporation Gurgaon without issue of mandatory public notice seeking objections of citizens sought to be included, for the first time, in the Municipal Corporation Gurgaon, unilaterally set up by this dictatorial fiat/ conditional legislation in violation of basic structure doctrine.
(c) Haryana Govt order No. 19/4/2008-6CI dated 20th June 2008 constituting an adhoc Body Under Rule-4 of the Haryana Municipal Corporation delimitation of Ward Rules 1994 to submit report by 31st July 2008, which failed to include persons proportionately representative of the new areas sought to be added to the newly forming Municipal Corporation Gurgaon in violation of basic structure doctrine.
(d) Violation of Article 243U (3) (b). Haryana Govt Notification No. Leg. 36/2008 dt 10th October 2008 provides: "Haryana Act No. 34 of 2008" For the proviso to subsection (4) of section 4 of Haryana Municipal Corporation Act, 1994, the following proviso shall be substituted, namely:- "Provided that the first election to the Corporation constituted after the commencement of this Act may be held within a period of one year of its being notified as a Corporation." The said amendment violates "Article 243U(3) An election to constitute a Municipality shall be completed,-(a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution:" and also breaches the Statement and Objects of the 74th Constitutional Amendment Act, 1992 Clause 3(f) - "fixed tenure of 5 years for the Municipality and re-election within six months of end of tenure. If a Municipality is dissolved before expiration of its duration, elections to be held within a period of six months of its dissolution;". Haryana Act No. 34 of 2008 for amendment of sub-section 4 of Section 4 of the Haryana Municipal Corporation Act, 1994 to extend the period within which elections must be held (this is 6 months under Article 243U) from mandated 6 months to one year, without first amending the Constitution of India, also violates Judgement dated 19.10.2006 of the Apex Court in case No. Appeal (Civil) 5756 of 2005-Kishan Sing Tomar V/s Municipal Corporation of the city of Ahemdebad wherein it was held:
"Article 243-U .... (3) An election to constitute a Municipality shall be completed, ........ (b) before the expiration of a period of six months from the date of dissolution:"...... Taking into account these factors and applying the principles of golden rule of interpretation, the object and purpose of Article 243-U is to be carried out."
(e) In Kishan Sing Tomar (supra) the Supreme Court ruled "From the reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by State Legislatures provided the same do not encroach upon the plenary powers of the said Election Commissions. The State Election Commissions are to function independent of the concerned State Governments in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities. Article 243 K (3) also recognizes the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission "such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). It is accordingly to be noted that in the matter of the conduct of elections, the concerned government shall have to render full assistance and co-operation to the State Election Commission and respect the latter's assessment of the needs in order to ensure that free and fair elections are conducted. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the concerned State Government in discharging its constitutional obligation of holding the elections to the Panchayats or Municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate. Taking into account these factors and applying the principles of golden rule of interpretation, the object and purpose of Article 243-U is to be carried out."
(f) The Haryana Municipal Corporation Election Rules, 1994 are applicable to the newly formed Municipal Corporation of Gurgaon, notified on 02.06.08 and, in the absence of verifiable electoral rolls of the Election Commission of India in Gurgaon, last revised intensively as far back as 2002, the provisions of Rules 4 to 11 of Haryana Municipal Corporation Election Rules, 1994 were fully applicable for preparation of the first electoral roll of this newly formed Municipal Corporation, but the provisions of Rules 4 to 11 of Haryana Municipal Corporation Election Rules, 1994 were ignored by Respondents. The State Election Commission, Haryana failed to apply the provisions of Rules 4 to 11 of Haryana Municipal Corporation Election Rules, 1994 which were fully applicable for preparation of the first electoral roll of the newly formed Municipal Corporation in May 2011, and opted to utilize the badly corrupted and unverifiable electoral rolls of the Election Commission of India in Gurgaon. Parliament has made laws right from the inception of the Republic creating independent Delimitation Commissions with the participation of the Election Commission of India, thus ensuring that elections in independent India were never delayed on grounds of incomplete delimitation. Second Administrative Reforms Commission has rightly opined that a separate Delimitation Commission for local governments is completely unnecessary. A constitutional authority like State Election Commission, Haryana, already entrusted under the statute with delimitation work of the State, can easily undertake this exercise and the government can provide the broad guidelines for delimitation either by law or by Rules. Once delimitation is carried out by SECs, State Governments cannot delay the conduct of elections on the plea of incomplete delimitation exercise, as has been the case of Municipal Corporation of Gurgaon, where elections could not be held within six months as constitutionally mandated in Articles 85(1), 174(1), 243E and 243U, and were excessively delayed beyond 35 months after its constitution on 02.06.08 till 15.05.2011 on account of unconscionable delay in ward delimitation by the State Government. [Kishansing Tomar v Municipal Corporation of the City of Ahmedabad AIR 2007 SC 269]. The following questions of law, among others, shall therefore arise:
A. Whether or not the provisions of Haryana Municipal Corporation Delimitation of Ward Rules, 1994 to the extent that they restrict jurisdiction of the State Election Commission, Haryana, to one of consultation rather than concurrence in terms of Sections 6 & 32 of the Haryana Municipal Corporation Act, 1994, violate Article 243G of the Constitution of India read with Article 243O, Article 243ZA and Article 243ZG as also the Apex Court judgment in Kishansing Tomar v Municipal Corporation of the City of Ahmedabad AIR 2007 SC 269.
B. Whether a constitutional body, State Election Commission, appointed under Article 243G read with Article 243ZA, Article 243O and Article 243ZG, to oversee local body elections in the State can be altogether excluded from the delimitation exercise by promulgating Rules which exclude the State Election Commission, in a manner that the State Election Commission is reduced to watching helplessly as elections are delayed many years beyond the constitutional time limit of six months given to the State Election Commission to hold the elections. [Kishansing Tomar v Municipal Corporation of the City of Ahmedabad AIR 2007 SC 269]
C. Whether the provisions of Articles 85(1), 174(1), 243E and 243U, which are pari materia, shall be deemed to have been violated whenever elections are not held within six months as constitutionally mandated in Articles 85(1), 174(1) and 243U, and where elections were excessively delayed beyond 35 months after constitution of Municipal Corporation of Gurgaon from 02.06.08 till 15.05.2011 on account of unconscionable delay in ward delimitation. [Kishansing Tomar v Municipal Corporation of the City of Ahmedabad AIR 2007 SC 269]
D. Whether an error of more than 10 percent in electoral rolls continuing for over ten years is excessive and unjustly defeats the ends of democratic polity. [HELD: "Even in the counteraffidavit, filed on behalf of the Election Commission, it has been stated that the error may be 2 or 2½ per cent. This percentage, though looks small, is very material in an election fought by multiplicity of political parties and independent candidates as is notoriously the case in India." Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman AIR 1985 SC 1233]
E. Whether the following duties form part of the direct duties of a State Election Commission and not the State Government of the day as asserted at Paragraph 2.33 of the November 2006 "Report of the Working Group of the Planning Commission & Ministry of Panchayati Raj on Democratic Decentralisation & PRIs" (and re-iterated by Second Administrative Reforms Commission, in its Sixth Report of October 2007):
(a) Preparation of electoral rolls,
(b) Delimitation of constituencies
(c) Assignment of reservations for elected representatives,
(d) Assignment of reservations for leadership positions in Panchayats,
(e) Determining qualifications of candidates to contest,
(f) Conduct of elections,
(g) Disqualification of sitting members and trying of election disputes
(In Kishansing Tomar v Municipal Corporation of the City of Ahmedabad AIR 2007 SC 269 the Supreme Court ruled "The State Election Commissions are to function independent of the concerned State Governments in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and Municipalities.")
(g) Notification dated 10.09.10 and the Notification dated 04.10.10 in supersession of the Notification dated 10.09.10, of the Ward Delimitation in respect to Municipal Corporation of Gurgaon are liable to struck down on the ground that the Haryana Municipal Corporation Delimitation of Ward Rules, 1994 violate the fundamental right to equality before the law of the citizens of Gurgaon and on the ground of violation of sub-rule (1) of Rule 3 and sub-rule (3) of Rule 4 of Haryana Municipal Corporation Delimitation of Ward Rules 1994. The voter rolls of Gurgaon have become unintelligible to the staff of the Respondents and Electoral Registration Officer, Gurgaon, had, at a public meeting held at Gurgaon on 19.08.2011, publicly stated, in the hearing of all present, including the Respondent No. 5 and Petitioners that even 500 plus BLOs proposed to be deployed will be unable to produce a workable voter roll under this procedure; the officer responsible for re-numbering of houses, Joint Commissioner, Municipal Corporation of Gurgaon, publicly stated that he needs at least six months to complete the work of numbering as each house has 3 to 5 different numbers depending upon the purpose, namely, house tax, electricity department, water department, old numbers and new numbers. The revision of voter rolls of any type is infeasible without first fixation of house numbers by the authority, namely, Municipal Corporation of Gurgaon. Fixation of tens of thousands of house numbers in the numerous unapproved colonies shall take substantial time. Any voter rolls as outcome of ongoing summary revision (of intensive nature) shall be exercise in futility considering that any one or more than one of the 5 different house numbers of each house have been used and continue to be used causing complete chaos in the voter rolls which show even the members of the same family residing together in 2 to 3 different wards/ parts/ booths/ sections, by using different house numbers for the same house. Further the Haryana Municipal Corporation Delimitation of Ward Rules, 1994 are liable to be struck down on the ground that they are contrary to the provisions of the Constitution of India upon a harmonious construction, pari materia, indicated within parentheses, of [Articles 81, 82, 243 (f), 243C, 243P (g), 243R, 243S - seats to be fixed after every census], [Articles 85 (1), 174 (1), 243E, 243U - six months rule], [Articles 102, 191, 243F (1), 243V (1) - disqualifications], [Articles 103, 192, 243F (2), 243V (2) - decision on disqualification], [Articles 324 to 328, 243K, 243ZA - superintendence, control and direction in electoral matters, one general electoral roll, basis adult suffrage, delimitation, law making by Parliament and State Legislatures], [Articles 329, 243O, 243ZG - validity of delimitation laws and election petitions], [Articles 330 to 334, 243D, 243T - seats for scheduled castes etc]. as also the judgement of the Supreme Court, in Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad & Ors, 2007 AIR 269, as, in the absence of following suggested amendments (so as to ensure constitutional role of State Election Commission pari materia constitutional role of Election Commission of India vide Section 11 of the Delimitation Act, 2002 [Act 33 of 2002] read with Articles 81, 82, 85, 102, 103, 174, 191, 192, 243E, 243F, 243K, 243O, 243U, 243V, 243ZA, 243ZG, 324 to 334 of the Constitution of India) in the Haryana Municipal Corporation Delimitation of Ward Rules, 1994 the same are contrary to the provisions of the Constitution of India:
In the Notification:
"NOTIFICATION The 3rd August, 1994.
No. S.O.60/H.Ordi. 4/94/S. 6/94- In exercise of the powers conferred by Section 32 and in consultation with the State Election Commission read with Section 6 of the Haryana Municipal Corporation Ordinance, 1994 , and all other powers enabling him in this behalf, the Governor of Haryana hereby makes the following rules to provide for and to regulate the matters for the purpose of holding elections of members namely:-"
"Haryana Municipal Corporation Ordinance, 1994"
"Haryana Municipal Corporation Act, 1994"
Add Rule 4 (1) (e):
"Nominee of State Election Commissioner ...Member Secretary"
Add at the end of para 4 (3):
"in ratio proportion of area wise population"
Add at the end of Rule 8:
"through the State Election Commission"
In Rule 9:
"The Government shall"
"The Government, after obtaining concurrence of the State Election Commission shall"
In Rule 10:
"the Government shall publish its final order"
"the Government, after obtaining concurrence of the State Election Commission shall publish its final order"
Add new Rule 12 (pari materia Section 11 of the Delimitation Act, 2002 [Act 33 of 2002]):
12. Power to maintain delimitation orders up-to-date.—(1) The State Election Commission may after consultation with the State Government, from time to time, by notification in the Official Gazette of the State,—
(a) correct any printing mistake in any of the orders made by the Government with the concurrence of the State Election Commission under Rule 10 or any error arising therein from an inadvertent slip or omission; and
(b) where the boundaries or name of any district or any territorial division mentioned in any of the said orders are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the orders up-to-date, so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification.
(2) Every notification under this Rule shall be laid, as soon as may be after it is issued, before the Legislative Assembly of the State.
(h) Upon receipt of replies from all concerned authorities/ parastatals on issues raised in Subjects (1) to (5) and as per enclosed annexures relating to individual authorities/ parastatals concerned more directly, additional challenges would be raised to vires of other Haryana statutes/ rules from which arises the following question of law upon these statutes:
"Does or does not Part IX-A of the Constitution provide supremacy to Municipal Corporations in certain matters of its core competence specified in Sections 41, 42 & 43 of Haryana Municipal Corporation Act, 1994 to the exclusion of all other parallel bodies such as HUDA, HSIIDC, PWD, DTCP etc on and after 31.05.1994 vide Article 243-ZF of the Constitution of India read with Section 43(1) (k) of Haryana Municipal Corporation Act, 1994, Section 13 of the Haryana Urban Development Authority Act, 1977 and such like provisions of Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, The Haryana Apartment Ownership Act, 1983, The Haryana Co-operative Societies Act, 1984, Haryana Industrial Promotion Act, 2005 & The Haryana Development and Regulations of Urban Areas Act, 1975." [CWP 24526 of 2009 V Shivaprasad v. State of Kerala decided by Kerala High Court at Ernakulam on 09.02.2011]
II. Provisions of law under which the public authority is obliged under the law to attend the nature of the Complaint narrated hereinbefore and to take needed action in this regard:
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.
III. Legal Expectation:
(a) Provide opinion of Law Departments of Union/ State concerned on questions of law raised at para (5) (f) A to E at Pages 33-36 and (5) (h) at Page 40 in true spirit of conciliation envisaged in the National Litigation Policy.
(b) Detailed para wise substantive reply to the challenges raised to vires of certain statutes and legislation.
(c) Detailed para wise substantive reply to other points and issues at stake as evidenced by flaws noticed in the numerous annexures, which have not been explained in detail, only so as to avoid too much verbosity and excessive length of this legal notice.
IV. The consequences that may follow: This is to inform you that your failure to comply to legal expectation as stated hereinbefore, may compel us to institute legal Proceedings as permissible under the law, including Remedy under Writ Jurisdiction, at your personal cost, taking aid of law settled by Hon'ble Supreme Court of India in below Salem Advocate Bar Association, Tamilnadu Vs. Union of India case.
Moreover, we will specifically plead before the Court of law to remove you from the present public office because you have voluntarily abstained yourself in performing your legal duties, the duties which you have voluntarily undertaken & promised to perform while assuming charge of this Public Office. The Writ of Quo-Warranto is resourceful enough to take care of this relief.
V. SC Judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India: I wish to inform you that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court, among other things, has observed and directed:
"…The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.
Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.
The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.".
Please take this complaint as our notice under section 80 of CPC 1908.
Thanking you in the anticipation of your effective action in this regard.
Mission Gurgaon Development
Bhawani Shankar Tripathy Maj Gen Satbir Singh, SM
General Secretary President
Lt Col (Retd) Sarvadaman Singh Oberoi
(1) Whereas you are a Public Servant and therefore this is to inform you about some of the offences relating to obligations of public servants in the discharge of their official duties.
Section 166 of India Penal Code declares that when a Public Servant, in the discharge of his official duty, knowingly refuses to do what he is under obligation to do under the law and knowing that thereby he will cause injury to any person, commits the offence under this section. Section 44 of Indian Penal Code defines the scope of Injury within the meaning of offences defined under Indian Penal Code. Injury implies the doing of any act causing unlawful- harm to reputation, harm to property, causing mental alarm, Bodily harm.
Section 167 of Indian Penal Code declares that When a Public Servant who has the responsibility of preparing any document or translating any document, knowingly prepares any document incorrrectly or knowingly translate incorrectly, knowing that his such act will cause injury to any person, commits offence under this section.
Section 217 of Indian Penal Code declares that when a Public Servant, in the discharge of his official duty, acting contrary to law, knowingly conduct himself in such a manner, thereby knowing that his act will--
(a) save a person from any legal punshment or to secure lesser punishment for that person to which he is liable for;
(b) save a property from forfeiture or charge to which that property is liable to, commits offence under this section.
Section 218 of Indian Penal Code declares that when a Public Servant, in the discharge of his official duty, who has been charged with the duty of preparation of any Record or any Writing, knowingly prepares incorrectly such record or writing, with the knowledge that by preparing such incorrect Record or Writing he will cause (a) loss or injury to Public or to any person (b) save a person from any legal punshment or to secure lesser punishment for that person to which he is liable for; (c) save a property from forfeiture or charge to which that property is liable to. Commits offence under this section.
Section 220 of Indian Penal Code declares that When a Public Servant, who by reason of his holding that Office, is empowered to prosecute a person for criminal offence or who is empowered by law to take a person under confinement, exercise his such powers against a person, knowing that he is by exercise of such powers acting contrary to law, and knows that he should not prosecute the person or knows that he should not put the person under confinement, commites offence under this section.
Section 191 of Indian Penal Code declares that when a person, who is under legal obligation, either on oath or under any provision of law, to state the truth, to declare upon any subject, knowingly makes false statement, the statement which he believes that it is false or he believes that it is not true, commits the offence under this section. Offences relating to making false statement in the sworn Affidavits, written statements and applications comes within the purview of this section.
Section 196 of Indian Penal Code declares that When a person give or attempt to give any evidence as true or genuine evidence, knowing that the evidence he is giving is false or fabricated, to obstruct in the course of justice, commits the offence under this section.
Section 199 of Indian Penal Code declares that when a person, voluntarily makes a declaration to a Court or to any public Servant, who are bound to take such declaration as evidence, and the person knowingly makes false statement in such declaration, the statement which he believed it to be false or he believed it to be not true. Also, the false statement so made must touch a point material to the object of such declaration, commits the offence under this section.
(2) Few words about Discretionary powers of the Public Servant:
Discretion being an element in all powers, but 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.
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.
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407
LORD GREENE, MR in Associated Provincial Picture House Ltd Vs Wednesbury Corp observed that it is a established law that a Person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.
The abuse of discretionary power is like saying- "as an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable.
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. Union of India Vs Mohan Lal Capoor (1973) 2 SCC 836
The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.
In our humble view- The basis of every law or every rule OR EVERY EXERCISE OF DISCRETION or every decision govt or govt agencies take, is on the premise of greatest good of the greatest number of people. The forms of accountability may differ but the basic idea remains the same that the holders of High Public Office must be able to publicly justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people. Every exercise of Power depend on this ideal for its validity.
A note was struck by Apex Court in Superintending Engineer, Public Health, U.T. Chandigarh V Kuldeep Singh when it observed: "Every Public servant is a trustee of the society; and in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ..."
Truth resides in every human heart, and one has to search for it there, and to be guided by truth as one sees it. But no one has a right to coerce others to act according to his own view of truth. - Mohandas Gandhi
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