IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENTS :Lokayukt
Organization Madhya Pradesh
DECLARATION
(Under Rule 25 of Chapter X)
The copies
as required by Rule 25 of Chapter X
of the High Court of Madhya Pradesh
Rules, 2008, have served upon Clerk of office of the Special Police Establishment, Lokayukt, Bhopal at PM on 2018 in Jabalpur.
PLACE : JABALPUR
DATE : ADVOCATE FOR
PETITIONER
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENT :Lokayukt
Organization Madhya Pradesh
I N D E X
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S. No.
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Description of documents
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Annexure
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Pages
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1.
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DECLARATION (Under Rule 25 of
Chapter X)
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1
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2.
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Index
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2
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3.
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Chronology
of Events
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3 & 4
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4.
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Memo
of Writ petition with affidavit
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5 TO 37
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5.
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List
of documents.
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38
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6.
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Copy of the reply dated 11.09.2017 received under the
provisions of section 6 (1) of the Right to Information Act, 2005 from Madhya
Pradesh East Zone Electricity Distribution Company Limited
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P-1
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39 TO 76
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7.
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Copy of the reply dated 25.09.2017 received under the
provisions of section 6 (1) of the Right to Information Act, 2005
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P-2
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77 TO 156
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8.
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Copy of the reply dated 02.11.2017 received under the
provisions of section 6 (1) of the Right to Information Act, 2005 from Madhya
Pradesh East Zone Electricity Distribution Company Limited
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P-3
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157 TO 164
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9.
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Copy
of the representation dated 22.11.2017 submitted by the petitioner
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P-4
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165 TO 167
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10.
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VAKALATNAMA
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168
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11.
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COURT
FEE
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169
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PLACE : JABALPUR
DATED :
ADVOCATE FOR PETITIONER
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF
2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENT :Lokayukt
Organization Madhya Pradesh
CHRONOLOGY OF EVENTS
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S.No
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Date
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Events
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1.
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11.09.2017
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Under the
provisions of section 6 (1) of the Right to Information Act, 2005 petitioner
received a reply from Madhya Pradesh East Zone Electricity Distribution
Company Limited regarding the abuse of official position by the accused
persons to obtain gain for themselves.
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2.
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25.09.2017
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Under the
provisions of section 6 (1) of the Right to Information Act, 2005 petitioner
received a reply from respondent authority regarding the abuse of official
position by the accused persons to obtain gain for themselves.
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3.
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02.11.2017
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Under the provisions of section 6 (1) of the Right to
Information Act, 2005 petitioner received a reply from Madhya Pradesh East
Zone Electricity Distribution Company Limited regarding the abuse of official
position by the accused persons to obtain gain for themselves.
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4.
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22.11.2017
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Petitioner submitted a
representation dated 22.11.2017 regarding the abuse of
official position by the accused persons to obtain gain for themselves seeking
registration of criminal case against all the accused persons.
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5.
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Petitioner
preferred a Writ Petition under Article 226 of the Constitution of India
against in-action on the part of the respondent authority in not deciding the
representation of the petitioner before the Hon’ble High Court of Madhya
Pradesh Principal Seat at Jabalpur.
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PLACE : JABALPUR
DATED : ADVOCATE FOR PETITIONER
Format No. 7
(Chapter X, Rule
23)
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN, aged
about 54 Years, S/o Mr. SWARROP CHANDRA JAIN, Occupation :
Government Servant, R/o GF -1, Datt Complex, Gorakhpur, Jabalpur (Madhya
Pradesh). Airtel : 8349034434
VERSUS
RESPONDENTS : LOKAYUKT ORGANIZATION MADHYA
PRADESH, Through the Secretary, Sultania Road, F-Block , Old
Secretrate, SBI Square, Bhopal – 462 001, (Madhya Pradesh). Phone : 0755 - 254
0939, Email- lokayuktmp@yahoo.in.
(Writ Petition
under Article 226 of the Constitution of India).
1. Particulars of the
Cause/ Order against which the petition is submitted:
(1) Date of Order
/ Notification/ Circular / Policy/ Decision Etc. : NIL
(2)
Passed in (Case Or File Number) : NIL
(3)
Passed by (Name and Designation of the
Court, Authority, Tribunal Etc.) : NIL
(4)
Subject – matter in
brief: A public servant is expected to perform his duty fairly in order
to achieve the purpose which is intended to be achieved by him on the
entrustment of the duty upon him. Duty is like a debt. It must be discharged
without delay or demur and without bias. Bias is like a drop of poison in a cup
of pure milk. It is enough to ruin it and vitiate the whole action. Decision of the Hon’ble Supreme Court in the
case of State of Andhra Pradesh V/s T. Suryachandra Rao reported in (2005) 6
SCC 149 is pertinent as to meaning of the word fraud in public Law and abuse of
power. Relevant portion reads thus :
11. ……………………………………………………But
"fraud" in public law is not the same as "fraud" in private
law. Nor can the ingredients, which establish "fraud" in commercial
transaction, be of assistance in determining fraud in Administrative Law. It
has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for
Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of
common law as to effect of fraud while determining fraud in relation of
statutory law. "Fraud" in relation to statute must be a colourable
transaction to evade the provisions of a statute.
"If a
statute has been passed for some one particular purpose, a court of law will
not countenance any attempt which may be made to extend the operation of the
Act to something else which is quite foreign to its object and beyond its
scope. Present day concept of fraud on statute has veered round abuse of power
or mala fide exercise of power. It may arise due to overstepping the limits of
power or defeating the provision of statute by adopting subterfuge or the power
may be exercised for extraneous or irrelevant considerations. The colour of
fraud in public law or administration law, as it is developing, is assuming
different shades. It arises from a deception committed by disclosure of
incorrect facts knowingly and deliberately to invoke exercise of power and
procure an order from an authority or tribunal. It must result in exercise of
jurisdiction which otherwise would not have been exercised. The misrepresentation
must be in relation to the conditions provided in a section on existence or
non-existence of which the power can be exercised. But non-disclosure of a fact
not required by a statute to be disclosed may not amount to fraud. Even in
commercial transactions non-disclosure of every fact does not vitiate the
agreement. "In a contract every person must look for himself and ensures
that he acquires the information necessary to avoid bad bargain. In public law
the duty is not to deceive. (See Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers,
(1992 (1) SCC 534).
12. In that
case it was observed as follows:
"Fraud
and collusion vitiate even the most solemn proceedings in any civilized system
of jurisprudence. It is a concept descriptive of human conduct. Michael levi
likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to,
'wing me into the easy-hearted man and trap him into snares'". It has been
defined as an act of trickery or deceit. In Webster's Third New International
Dictionary fraud in equity has been defined as an act or omission to act or
concealment by which one person obtains an advantage against conscience over
another or which equity or public policy forbids as being prejudicial to
another. In Black's Legal Dictionary, fraud is defined as an intentional
perversion of truth for the purpose of inducing another in reliance upon it to
part with some valuable thing belonging to him or surrender a legal right; a
false representation of a matter of fact whether by words or by conduct, by
false or misleading allegations, or by concealment of that which should have
been disclosed, which deceives and is intended to deceive another so that he
shall act upon it to his legal injury. In Concise Oxford Dictionary, it has
been defined as criminal deception, use of false representation to gain unjust
advantage; dishonest artifice or trick. According to Halsbury's Laws of
England, a representation is deemed to have been false, and therefore a misrepresentation,
if it was at the material date false in substance and in fact.---------------------------------------"
By preferring this petition under Article 226 of the
Constitution of India invoking the extraordinary writ jurisdiction of this
Hon’ble High Court by calling in question the legality, validity, propriety and
correctness of the in-action on the part of the respondent authorities in not taking
any action into the allegation in complaint submitted by petitioner. From
pillar to post petitioner, being the vigilant citizen, knocked every door for
the redressal of her grievances but at the end petitioner surrenders himself
before this Hon’ble High Court to seek justice as litigation is the last resort
when governments completely disregard the rule of law. Whether petitioner is
entitled to get the reply from the respondent authority ? is the question involved in this writ
petition.
It is to be
seen whether after enquiry if it is found that the allegation with respect to
abuse of position for obtaining any gain or favour is proved, any report is
required to be given by the Lokayukt against the petitioner or not. For the
purposes, the scope of conducting such investigation by the Lokayukt is
required to be examined. The Madhya PradeshLokayukt Evam Up-Lokayukt
(Investigation) Rules, 1982 (herein after referred to as 'Rules') have been
framed in this respect. The word 'investigation' is defined in Rule 2(iv) of
the Rules, which reads thus :
"2(iv)
"Investigation" means any enquiry or other proceeding in connection
with the complaint, but does not include a preliminary enquiry."
Again the word 'complaint' is mentioned in Rule
6 of the Rules. The power to regulate proceedings in investigation is conferred
on Lokayukt and Up-Lokayukt under Rule 15 of the Rules and then the provisions
are made in Rule 17 of the Rules for direction by the Lokayukt or Up-Lokayukt.
If while conducting the investigation it is found that element of abuse of
position so as to obtain any gain or favour is established, specific direction
could have been given by the Lokayukt in this respect to the investigating
authority.
2. A declaration that
no proceeding on the same subject matter has been previously instituted in any
Court, Authority or Tribunal, if instituted, the Status or result thereof,
along with copy of the Order:
Petitioner declares that no proceeding
on the same subject matter has been previously instituted in any Court,
Authority or Tribunal.
3. Details of the
remedied exhausted :
The petitioner declares that he has
availed all statutory and other remedies.
4. Delay, if any, in
filing the petition and explanation therefor
From pillar to post petitioner, being
the vigilant citizen, knocked every door for the redressal of his grievances
but at the end petitioner surrenders himself before this Hon’ble High Court to
seek justice as litigation is the last resort when governments completely
disregard the rule of law.
5.
Facts of the Case :
1.
Petitioner is a peace loving national
of India and entitled for the all the benefit and fundamental rights as
enshrined in Part III of the Constitution of India. Respondents are the
instrumentality of state within the meaning of Article 12 of the Constitution
of India and therefore amenable to the writ jurisdiction of this Hon’ble High
Court.
2. Any person
aggrieved by an action of a public functionary can file a complaint. Besides
any other person even if not aggrieved can also send a complaint to the
Lokayukt for enquiry if he feels that any public servant is guilty of an
allegation described in the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam,
1981. Under this Adhiniyam there is no bar against any government servant
filing complaint against another government servant. A complaint may be
presented to the Secretary to the Lokayukt or can be sent under registered
post. Lokayukta may order an enquiry suo-motu also.
3.
A complaint can be made against any public servant defined in
Section 2 (g) of the Lokayukt Evam Up-Lokayukt Adhiniyam, 1981. According to
this sub-section the following functionaries have been defined as public
servant:-
Section
2(e) Chief Minister, Deputy Chief Minister, Minister, Minister of State, Deputy
Minister, Parliamentary Secretary and shall include Neta Pratipaksha.
Sec.
2(g) "Public servant"; means a person falling under any of the
following categories, namely:-
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i.
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"Minister" means a member of the Council of Ministers
by whatever name called for the State of Madhya Pradesh.
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ii.
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A person having the rank of Minister but shall not include
Speaker and Deputy Speaker of the Madhya Pradesh Vidhan Sabha;
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iii.
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"Officer" means a person appointed to a public service
or post in connection with the affairs of the State of Madhya Pradesh.
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iv.
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An officer of an Apex Society or Central Society with the
meaning of clause(1-1) ,read with clauses (a-1),(c-1)and (z) of Section 2 of
the Madhya Pradesh Co-operative Societies Act, 1960.
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v.
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Any person holding any office in, or any employee of:-
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vi.
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4.
A complaint can be made against any public servant with regard to
an allegation which is defined in Sub-section (b) of Section 2 of Madhya
Pradesh Lokayukt Act, 1981. The definition of allegation is re-produced below:-
"allegation"
in relation to a public servant means any affirmation that such public servant,
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(i)has abused his position as such to obtain any gain or favour
to himself or to any other person or to cause undue harm to any person;
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(ii)was actuated in the discharge of his functions as such
public servant by improper or corrupt motives;
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(iii)is guilty of corruption; or
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(iv)is in possession of pecuniary resources or property
disproportionate to his known source of income and such pecuniary resources
or property is held by the public servant personally or by any member of his
family or by some other person on his behalf.
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5. Under the provisions of section 6 (1)
of the Right to Information Act, 2005 petitioner received a reply from Madhya
Pradesh East Zone Electricity Distribution Company Limited regarding the abuse
of official position by the accused persons to obtain gain for themselves. Copy
of the reply dated 11.09.2017 received under the provisions of section 6 (1) of
the Right to Information Act, 2005 from Madhya Pradesh East Zone Electricity
Distribution Company Limited is filed herewith and marked as Annexure P-1. Under the
provisions of section 6 (1) of the Right to Information Act, 2005 petitioner
received a reply from respondent authority regarding the abuse of official
position by the accused persons to obtain gain for themselves. Copy of the reply
dated 25.09.2017 received under the provisions of section 6 (1) of the Right to
Information Act, 2005 is filed herewith and marked as Annexure P-2. Under the provisions of section 6 (1) of the
Right to Information Act, 2005 petitioner received a reply from Madhya Pradesh
East Zone Electricity Distribution Company Limited regarding the abuse of
official position by the accused persons to obtain gain for themselves. Copy of
the reply dated 02.11.2017 received under the provisions of section 6 (1) of the
Right to Information Act, 2005 from Madhya Pradesh East Zone Electricity
Distribution Company Limited is filed herewith and marked as Annexure P-3.
6.
Petitioner submitted a representation
dated 22.11.2017 regarding the abuse of official position by the accused persons to obtain gain for
themselves seeking registration of criminal case
against all the accused persons. Copy of the representation dated 22.11.2017
submitted by the petitioner is filed herewith and marked as Annexure P-4. Madhya Pradesh East Zone Electricity
Distribution Company Limited is a statutory Electricity
Supply Company constituted under Section
5 of the Electricity (supply) Act, 1948 (hereinafter referred
to as the 'Supply Company'). Petitioner is
challenging the most arbitrary and illegal in-action on the part of the
respondents authorities in not deciding the representation. Hence this petition
on following grounds amongst the others :
6. Grounds urged :
1.
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. ...”
2.
Contrary to
above, the experience is that the holders of public offices treat the authority
in their hands, as one bestowing upon them, the status of a ruler rather than
one in public service. Statutory / Public authorities / Public officers,
especially highly placed, soaked in arrogance of their powers, generally do not
bother themselves to the complaint of Citizens, and their replies sometimes are
deliberately illogical and evasive.
3.
It is the case of
the Petitioner that Citizens’ have a right to receive proper reply, of the
complaints made to public / statutory authorities.
4.
The Petitioner
submit that in the case of Salem Advocates Bar Association, Tamilnadu Vs. Union
of India (UOI), (2005) 6 SCC 344, the Hon’ble Supreme Court, among other
things, said – Judicial notice can be taken of the fact that in a large number
of cases either the notice is not replied to or in the few cases where a reply
is sent, it is generally vague and evasive. It not only gives rise to avoidable
litigation but also results in heavy expenses and costs to the exchequer as
well.
5.
A proper reply
can result in reduction of litigation between the State and the citizens. In
case a proper reply is sent, either the claim in the notice may be admitted or
the area of controversy curtailed, or the citizen may be satisfied on knowing
the stand of the State. In the above case strict duty is cast upon the Public
authorities to make proper replies if they happen to receive any statutory
notice, either under section 80 of CPC 1908, or under any other statute. I say,
when a law recognizes a duty, correspondingly, law also recognizes a right.
6.
It is the case of
the Petitioner that 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. In wealth of the Judgments delivered by our Courts, it
is repeatedly affirmed that public authorities must exercise their
discretionary powers in a reasoned and justified manner, failing to which leads
to inescapable violence to Article 14 of the Constitution of India.
7.
The Petitioners
submits that Citizen’s “Right of Reply” is inherent in “Duty to reasoned
exercise of discretion by Public authorities”, a duty which is consistently
cast upon public / statutory authorities by our Constitutional Courts, in their
series of judgments.
8.
It is the case of
the Petitioner that when the Courts, in their wealth of judgments, lay so much
emphasize on recording of reasons by public authorities, in the discharge of
their duties even when administrative in nature, the recording of reason in
their decision itself presupposes the obligation of giving reply, and not only
a mere reply but a reasoned reply. It cannot be said that – whereas authorities
are under obligation to make reasoned reply but they are at liberty to not to
make any reply.
9.
It is the case of
the Petitioner that in wealth of judgments, the Courts have insisted upon
recording reasons by administrative authorities on the premise that such a
decision is subject to judicial review and the courts cannot exercise their
duty of review unless courts are duly informed of the consideration underlying
the action under review. A statement of reasons serves purposes other than
judicial review inasmuch as the reasons promote “thought” by the authority and
compel it to cover the relevant points and eschew irrelevancies and assures
careful administrative consideration.
10.
When, in the case
of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605, the Hon’ble Supreme
Court held that any action, decision or order of any statutory or public
authority bereft of reasoning would be arbitrary, unfair and unjust violating
article 14 of the Constitution of India, then, it is the case of the Petitioner
that non-reply of any complaint received by any public /statutory authority, is
a positive act of omission, an arbitrary, unfair and unjustified decision of
that public / statutory authority to not to make a reply, thereby frustrating
citizen’s fundamental right enshrined under Article 14.
11. When, in the case of Srilekha
Vidyarthi versus State of UP reported in AIR 1991 SC 537, it was held by the
Hon’ble SC that in order to satisfy the test of Article 14, every State action
must be informed by reasons and that an act uninformed by reasons, is
arbitrary, and arbitrariness is the very negation of the Rule of Law, it is the
case of the Petitioners that non reply of any complaint received by State, is
an act of omission of the State not informed by reason and thus arbitrary, and
thus does not pass the test of Article 14.
12.
Similarly, when,
in the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836,
the Hon’ble Supreme Court said – Reasons disclose how the mind is applied to
the subject matter for a decision whether it is purely administrative or quasi
judicial; and reveal a rational nexus between the facts considered and
conclusions reached, it is the case of the Petitioner that non-reply of any
complaint received by any public /statutory authority implies that although
mind was applied to the complaint but arbitrary decision was taken by the
administrative authority that no reply should be made.
13.
The Petitioner
says that discretion in reality means a power given to a person with the
authority to choose between two or more alternatives or possibilities each of
which is lawful and permissible. 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.
14.
The Petitioner
says that our system of governance is founded on the lofty principle of rule of
law, wherein the Nation’s power is divided amongst three chief organs, each
under a duty to conduct itself in a manner that sub serves the common good of
all and achieve the objectives of a welfare State. The checks and balances were
put as inherent safeguards designed to ensure compliance with the maxim “Be you
ever so high, the law is above you”. The dicta of the Constitution is crystal
clear; namely, the goal of good governance.
15.
The Petitioner
says that even our Constitution of India give so much importance to the people
of India. In our vast, beautiful, geographical landscape of Independent INDIA,
i.e. Bhaarat, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme &
fundamental governing volume.
16.
This epic
governing volume makes a categorical announcement in the introductory passage
that people of INDIA are the architect of this volume. The announcement assumes
significance because by this announcement, the fathers of our Constitution
intend to acknowledge and give tribute to selfless sacrifice of every men &
women who devoted their only life for the independence of INDIA. This
announcement is intelligent, designed and purposeful. There are three chief
organs outlined in this Governing volume called Constitution of India – they
are Legislature, the Govt and the Judiciary, and all these three organs derive
their origin and all powers from this peoples’ governing volume.
17.Also, it is the case of Petitioner that, when the Hon’ble
Chief Justice of India Shri S H Kapadia on 15.05.2010 warned the PIL Petitioner
that they must first issue notice to the Govt / Public authority before moving
courts, and therefore, we the People expect, in principle and in equity, that
if that public authority / govt turn a blind eye to the notice and if one has
to move court for justice, then this Hon’ble court will also find the occasion
to direct that the Govt / Public authority to first effectively deal with the
issue raised in the complaint / notice.
18.
The Petitioner says
that recording of reasons will show application of mind and probably this
recording of reasons is the only remaining visible safeguard against possible
misuse of powers conferred upon administrators of a nation.
19.
The Petitioner
seeks to recall an historic incident of Indian freedom struggle, occasioned
with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year
1893, when in South Africa, while holding a First Class Compartment ticket and
travelling in, Gandhi was thrown out of the train, for in those times “Blacks”
were not allowed to travel in the First Class Compartment, notwithstanding they
hold a valid ticket. It was 9.00 in the chill night. That designated “Black”
sent a Telegram to the General Manager of the Railways and registered his
complaint. The Complaint of that designated “Black” was attended, forthwith,
the General Manager instructed the Station master to secure that complainant
reaches his destination safely. Complainant was accommodated in the very next
morning train to his destination. And here, in the era of INDEPENDENCE and 21st
Century of modern democracy, we have Citizens of Sovereign India, of whose
complaint are ordinarily, attended with great disrespect and sometimes with
hostility.
20.
It is the case of
the Petitioner that grievance of the people must be promptly and properly
attended instead of waiting and allowing it to be translated into court
litigation.
21.
It is the case of
the Petitioner that giving of satisfactory reply is a healthy discipline for
all who exercise powers over others.
22.
It is the case of
the Petitioner that a complaint to State is the most legitimate incident of a
democracy.
23.
It is finally the
case of the Petitioner that satisfactory replies to complaints are not of some
importance but of fundamental importance in State Citizen relationship. And
therefore, it is necessary to trace the evolution and development of law, the
emergence of concept of subject & the ruler, and trace the origin of
today’s concept of Citizens & the State. At the advent of Human
Civilization, ‘Men’ were Sovereign in their own, in the sense that, they were
free and were not subject. To or bound by any law.
24.
Then, men were
Ruled by their own conscience and not by codified laws and were even free to
the extent of inflicting violence at their will & strength, i.e. Might is
right was the scene. Men were guided by own conscience and greed. An action not
emanating from reason and the freedom to do as one pleases. Great Philosopher
Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man
lived in chaotic conditions of constant fear. The life in the state of nature
was solitary, poor nasty, brutish and short. For getting self protection and
avoiding misery and pain, man voluntarily entered into a contract and surrendered
their part of freedom to some might authority, who could protect their lives
and property, which emerged later on as the ruler and which ultimately
culminated into the shape of the State. With the great passage of time and
centuries together, Codified laws evolved and were introduced in human life.
Men came together, they voluntarily surrendered their individual sovereignty to
State sovereignty, and opted to subject themselves to laws of the land,
however, they were promised, in return, the Rule of codified laws. The rule of
codified laws purported to promise the safety of their life & their
property and also sought to guarantee the general dignity inherent in human
person alonwith guarantee that he will not be discriminated. This is how the
ancient Social contract between Men & State came into being. Among various
definitions of State given by Scholars of law and by Philosophers, this appears
to be more satisfactory and convincing. It is by professor Goodhart. He defines
State in terms of its purpose. He states that the purpose of society which we
call a State is to maintain peace and order within a demarcated territory. THE
MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE. Hugo
Grotius (1583-1645) is regarded as the father of philosophical jurisprudence.
He said- it is the first duty of the Sovereign State to safeguard the citizen
because State was given power only for that purpose. And therefore, in the
backdrop of this ancient social contract, every Society & every Individual Citizen
has certain basic assumptions to take it for granted that complaints made to
State will be replied.
25.
It is the case of
the Petitioner that 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. In wealth of the Judgments delivered by our Courts, it
is repeatedly affirmed that public authorities must exercise their
discretionary powers in a reasoned and justified manner, failing to which leads
to inescapable violence to Article 14 of the Constitution of India.
26.
The Petitioners
submit that Citizen’s “Right of Reply” is inherent in “Duty to reasoned
exercise of discretion by Public authorities”, a duty which is consistently
cast upon public / statutory authorities by our Constitutional Courts, in their
series of judgments. The Petitioners respectfully invite the attention of this
Hon’ble Court to some Rulings.
27.
In the words of
Justice M.H.Beg, the Hon’ble Supreme Court in the case of Union of India versus
Mohanlal Capoor, reported in AIR 1974 SC 87, “administration has to work in
people’s interest, with caution and care. Its activities may prejudice interest
of a citizen, but that causing of prejudice must be reasoned. Recording of
reasons will show application of mind and probably this recording of reasons is
the only remaining visible safeguard against possible misuse of powers
conferred upon administrators of a nation.
28.
“Reasons are the
links between the materials on which certain conclusions are based. Therefore,
when they are absent, the Court would always enforce the statement of reasons
to be recorded so that it can adjudicate upon the dispute before it.
29.
In the case of M
Krishna Swamy versus UOI reported in (1992) 4 SCC 605 the Hon’ble Supreme Court
held that non-recording of reasons by Statutory / public authority /
functionary would render the decision arbitrary, unfair and unjust violating
article 14 & 21 of the COI. Any action, decision or order of any statutory
or public authority bereft of reasoning would be arbitrary, unfair and unjust
violating article 14 of the Constitution of India or would be deemed to have
been taken or arrived at by adopting unfair procedure offending article 21 of
Constitution of India.
30.
The Hon’ble
Supreme Court in the case of Travancore Rayons Ltd Vs Union of India reported
in AIR 1971 SC 862 observed that the necessity to give sufficient reasons which
disclose proper appreciation of the problem to be solved and the mental process
by which the conclusion is reached where a non judicial authority exercises a
judicial function is obvious.
31.
In the case of
Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836, the Hon’ble
Supreme Court said – Reasons disclose how the mind is applied to the subject
matter for a decision whether it is purely administrative or quasi judicial;
and reveal a rational nexus between the facts considered and conclusions
reached.
32.
In the case of
Srilekha Vidyarthi versus State of UP reported in AIR 1991 SC 537, it was held
by the Hon’ble SC that in order to satisfy the test of Article 14, every State
action must be informed by reasons and it follows that an act uninformed by
reasons, is arbitrary and arbitrariness is the very negation of the Rule of
Law.
33.
In the case of
Maharashtra State Board of Secondary and Higher Education versus K S Gandhi
reported in (1991) 2 SCC 716, it was held by Hon’ble Supreme Court that the
reasons are harbinger between the mind of the maker of the order to the
controversy in question and the decision or conclusion arrived at. Reasons
exclude the chances to reach arbitrary, whimsical or capricious decision or
conclusion. The reasons assure an inbuilt support to the conclusion/decision
reached. When an order affect the right of a citizen or a person irrespective
of fact whether it is quasi judicial or administrative order and unless the
rule expressly or by necessary implication excludes recording of reasons, it is
implicit that the principles of natural justice or fair play require recording
of germane and precise relevant reasons as a part of fair procedure. Recording
of reasons is also an assurance that the authority concerned has applied its
mind to the facts on record. Reasons also aids the Appellate or Revisional
Authority to see whether the maker of the order, Judgment, decree has justly
meet out justice to the aggrieved person.
34.
In the case of
Consumer Action Group versus State of tamil Nadu, reported in AIR 2000 SC 3060,
the Hon’ble Supreme Court said that Reasons must be recorded for exercising the
powers even if the statute does not expressly enjoins upon the authority to do
so.
35.
There is some
Australian authority to support the need to give reasons. In 1949, the High
Court of Australia held that if a Minister was under a duty to act in a quasi
judicial manner in revoking a license the minister would have to disclose to
the licensee his reasons for wishing to do so. Election Importing Co. Pty Ltd
versus Courtice (1949) 80 CLR 657.
36.
In the case of
Ajantha versus CBDT reported in 102 ITR 281 (SC), the Hon’ble Supreme Court
held that Recording of reasons and disclosure thereof are not a mere idle
formality.
37.
Again, in the
cases of Gautam versus reported in UOI ITR 530 (SC); Cf CIT versus Pillah
reported in 63 ITR 411, 415 (SC); TRO versus gangadhar reported in 234 (ITR)
188 (SC), the Hon’ble Supreme Court said that the Assessing, Appellate,
Revisional, and Enforcement authorities must pass speaking orders giving the
basis for their decision. Without reasons, a party may speculate why the
tribunal made an adverse decision and may have difficulty in deciding whether
to appeal or otherwise challenge the decision.
38.
Similarly the
Reviewing or Appellate Court may have difficulty in understanding rational for
a decision without reasons. Absence of reasons may create disturbing impression
of injustice.
39.
In the case of
Bharat Nidhi versus UOI reported in 92 ITR 1, it was held that the statutory
authority must apply their own mind to the case.
40.
In the case of
Rasiklal versus CWT reported in 121 ITR 219, it was held that the statutory
authority must observe this rule (of giving reasons) in its proper spirit; mere
pretence of compliance with it would not satisfy the requirement of law.
41.
The Hon’ble
Supreme Court in the case reported in AIR 1979 SC 429, quoting Lords Halsbury –
said, Discretion means when it is said that something is to be done within the
discretion of the authorities, and that something is to be done according to
the rules of reason and justice, and not according to private opinion, but
according to law and not by humour.
42.
In an English
case Associated Provincial Picture House Ltd Vs Wednesbury Corp, LORD GREENE,
MR observed that it is an established law that a Person entrusted with a
discretion must direct himself properly in law. He must call his own attention
to the matters which he is bound to consider. He must exclude from his
considerations matters which are irrelevant to the matter that he has to
consider. If he does not obey those rules, he may truly be said, and often is
said, to be acting unreasonably.
43.
An American
Supreme Court Justice B. CARDOZO in his book The Growth of the Law, opined –
Complete freedom- unfettered and undirected that never is. A thousand
limitations- the product some of statute, some of precedent, some of vague
tradition or of an immemorial technique encompass and hedge us even when we
think of ourselves as ranging freely and at large.
44.
Justice RAND in a
Canadian case observed that in Public Regulations there is no such thing as
absolute and uggestion discretion, that is that action can be taken on any
ground for any reason that can be suggested to the mind of the administrator.
45.
In the case of
Ramdas Shriniwas Nayak V Union of Union reported in AIR 1995 BOM 235, the
Hon’ble Bombay high Court, quoting the words of LORD CAIRNS, said, “Where a
power is deposited with a Public officer for the purpose of being used for the
benefit of persons who are specifically pointed out, and with regard to whom a
definition is supplied of the condition upon which they are entitled, the power
ought to be exercised, and the court will require it to be exercised.
46.
In the case of
U.P. State Road Transport Corporation V Mohd Ismail reported in (1991) 3 SCC
239, the Hon’ble Supreme Court viewed that when statute confers discretion on a
holder of public office that should be exercised reasonable and rationally.
47.
In Breen Vs
Amalgamated Engineering Union, LORD DENNING MR, observed that the giving of
reasons is one of the fundamentals of good administration.
48.
English Judge
LORD HUDSON in the landmark Padfield’s Case was of the view that although it is
true that the Minister is not bound to give his reasons for refusing to
exercise his discretion, yet when the circumstances indicates a genuine
complaint for which the appropriate remedy is provided, the Minister would not
escape from the possibility of control by Mandamus (a Writ) for adopting a
negative attitude without explanation. Padfield Vs Minister of Agriculture,
Fisheries and Food [1968] AC 997; [1968] 1 ALL ER 694.
49.
In the case of
The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of
India reported in AIR 1976 SC 1785, the Hon’ble Supreme Court held and said
that due to proliferation of administrative law, administrative authorities are
in some kind of cases replacing courts of law and that has made all the more
necessary that such authorities should accord fair and proper hearing to the
persons sought to be affected by their orders and give sufficiently clear and explicit reasons in
support of the orders made by them.
50.
In the case of
Maneka Gandhi Vs Union of India reported in AIR 1978 SC 597 at page 613, the
Hon’ble Supreme Court held that the reasons if disclosed would be open to
judicial scrutiny for ascertaining their nexus with the order, the refusal to
disclose the reasons would equally be open to the scrutiny of the Court.
51.
In the case of
Madhya Pradesh Industries Ltd Vs Union of India reported in AIR 1966 SC 671,
the Hon’ble Supreme Court, Justice SUBBA RAO in a dissenting judgment once
observed that if tribunals can make orders without giving reasons, the said
powers in the hands of unscrupulous or dishonest officers may turn out to be a
potent weapon for abuse of power.
52.
But if reasons
for an order are given it will be an effective restraint on such abuse.
53.
In the case of
Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala reported in AIR 1961 SC
1669, the Hon’ble Supreme Court held that the quasi judicial authorities are
enjoined with the duty and responsibility to see to it that in adjudicating
upon proceedings which come up before them they pass properly reasoned orders
so that those who are affected by such orders are assured that their case have
received proper consideration at the hands of the said authorities and that
such decisions have been reached according to law and have not been the result
of caprice, whim or fancy and have been reached on ground of policy or
expediency.
54.
In the case of
Govt of India Vs Maxim A Lobo reported in (1991) 190 ITR 101, it was held that
an order of Quasi Judicial nature without reasons is a wholly defective order
in the eyes of law.
55.
In the case
reported in AIR 1983 P & H 87., the Punjab High Court observed that abuse
has an element of lack of bonafides so as to cause harm to one or undeservedly
benefiting another.
56.
In the case of
Balraj Taneja V Sunil Madan, it was observed that a Judgment/ Order must be a
self contained document from which it should appear as to what were the facts
of the case and what was the controversy which was tried to be settled by the
Court. The process of reasoning by which Court came to a particular conclusion
and decreed or dismissed the suit should clearly be reflected in the
Judgment/Order.
57.
In the case of
Schedule Caste and Weaker Sections Welfare Association (Regd) versus State of Karnataka
reported in AIR 1991 SC 1117, it was observed by the Hon’ble Supreme Court that
it is one of the fundamental rules of our constitutional set up that every
citizen is protected against exercise of arbitrary authority by the State or
its officers. An order becomes arbitrary when there is absence of adequate
reasons for such decision.
58.
The Supreme Court
in the case of State of Orissa V Dr(miss) Binapani Dei reported in AIR 1967 SC
1269, observed that if “there is power to decide and determine to the prejudice
of a person, duty to act judicially is implicit in the exercise of such power.
If the essentials of Justice be ignored and an order to the prejudice of a
person is made, the order is a nullity.
59.
The Petitioner
says that Public authorities, in their assumed unfettered discretion, may
decide – right or wrong, but I think, even in their assumed unfettered
discretion, they have no discretion to say – I will not even reply to your
notice / complaint. And when their replies are devoid of reasoning, it is as
good as no reply.
60.
It is the case of
the Petitioners that when the Courts, in their wealth of judgments, lay so much
emphasize on recording of reasons by public authorities, in the discharge of
their duties even when administrative in nature, the recording of reason in
their decision itself presupposes the obligation of giving reply, and not only
a mere reply but a reasoned reply. It cannot be said that – whereas authorities
are under obligation to make reasoned reply but they are at liberty to not to
make any reply.
61.
It is the case of
the Petitioners that in wealth of judgments, the Courts have insisted upon
recording reasons by administrative authorities on the premise that such a
decision is subject to judicial review and the courts cannot exercise their
duty of review unless courts are duly informed of the consideration underlying
the action under review. A statement of reasons serves purposes other than
judicial review inasmuch as the reasons promote “thought” by the authority and
compel it to cover the relevant points and eschew irrelevancies and assures
careful administrative consideration.
62.
The Petitioners
now takes this Hon’ble Court to the case of Salem Advocates Bar Association,
Tamilnadu Vs. Union of India (UOI), (2005) 6 SCC 344, wherein the Hon’ble
Supreme Court, among other things, said – Judicial notice can be taken of the
fact that in a large number of cases either the notice is not replied to or in
the few cases where a reply is sent, it is generally vague and evasive. It not
only gives rise to avoidable litigation but also results in heavy expenses and
costs to the exchequer as well.
63.
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.
64.
In the above case
strict duty is cast upon the Public authorities to make proper replies if they
happen to receive any statutory notice, either under section 80 of CPC 1908, or
under any other statute. The Petitioners, thus say that when a law recognizes a
duty, correspondingly, law also recognizes a right.
65.
When, in the case
of M Krishna Swamy versus UOI reported in (1992) 4 SCC 605, the Hon’ble Supreme
Court held that any action, decision or order of any statutory or public
authority bereft of reasoning would be arbitrary, unfair and unjust violating
article 14 of the Constitution of India, then, it is the case of the
Petitioners that non-reply of any complaint received by any public /statutory
authority, is a positive act of omission, an arbitrary, unfair and unjustified
decision of that public / statutory authority to not to make a reply, thereby
frustrating citizen’s fundamental right enshrined under Article 14.
66.
When, in the case
of Srilekha Vidyarthi versus State of UP reported in AIR 1991 SC 537, it was
held by the Hon’ble SC that in order to satisfy the test of Article 14, every
State action must be informed by reasons and that an act uninformed by reasons,
is arbitrary, and arbitrariness is the very negation of the Rule of Law, it is
the case of the Petitioner that non reply of any complaint received by State,
is an act of omission of the State not informed by reason and thus arbitrary,
and thus does not pass the test of Article 14.
67.
Similarly, when,
in the case of Union of India Vs Mohan Lal Capoor reported in (1973) 2 SCC 836,
the Hon’ble Supreme Court said –
68.
Reasons disclose
how the mind is applied to the subject matter for a decision whether it is
purely administrative or quasi judicial; and reveal a rational nexus between
the facts considered and conclusions reached, it is the case of the Petitioners
that non-reply of any complaint received by any public /statutory authority
implies that although mind was applied to the complaint but arbitrary decision
was taken by the administrative authority that no reply should be made.
69.
The Petitioner
says that even our Constitution of India give so much importance to the people
of India. In our vast, beautiful, geographical landscape of Independent INDIA,
i.e. Bhaarat, the Constitution of INDIA, which came into existence on 26th
January 1950, is the supreme & fundamental governing volume. This epic
governing volume makes a categorical announcement in the introductory passage
that people of INDIA are the architect of this volume.
70.
The announcement
assumes significance because by this announcement, the fathers of our
Constitution intend to acknowledge and give tribute to selfless sacrifice of
every men & women who devoted their only life for the independence of
INDIA. This announcement is intelligent, designed and purposeful.
71.There are three chief organs outlined in this Governing
volume called Constitution of India – they are Legislature, the Govt and the
Judiciary, and all these three organs derive their origin and all powers from
this peoples’ governing volume.
72.
The Petitioners
say that recording of reasons will show application of mind and probably this
recording of reasons is the only remaining visible safeguard against possible
misuse of powers conferred upon administrators of a nation.
73.
Also, it is the
case of Petitioners that, when the Hon’ble Chief Justice of India Shri S H
Kapadia on 15.05.2010 warned the PIL Petitioners that they must first issue
notice to the Govt / Public authority before moving courts, and therefore, we
the People expect, in principle and in equity, that if that public authority /
govt turn a blind eye to the notice and if one has to move court for justice,
then this Hon’ble court will also find the occasion to direct that the Govt /
Public authority to first effectively deal with the issue raised in the
complaint / notice.
74.
The Petitioners
further say that satisfactory replies to complaints is not of some importance
but of fundamental importance in State Citizen relationship.
75.
And therefore, it
is necessary to trace the evolution and development of law, the emergence of
concept of subject & the ruler, and trace the origin of today’s concept of
Citizens & the State.
76.
At the advent of
Human Civilization, ‘Men’ were Sovereign in their own, in the sense that, they
were free and were not subject to or bound by any law.
77.
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.
78.
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.
79.
Great Philosopher
Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man
lived in chaotic conditions of constant fear. The life in the state of nature
was solitary, poor nasty, brutish and short. For getting self protection and
avoiding misery and pain, man voluntarily entered into a contract and
surrendered their part of freedom to some might authority, who could protect
their lives and property, which emerged later on as the ruler and which
ultimately culminated into the shape of the State.
80.
With the great
passage of time and centuries together, Codified laws evolved and were
introduced in human life. Men came together, they voluntarily surrendered their
individual sovereignty to State sovereignty, and opted to subject themselves to
laws of the land, however, they were promised, in return, the Rule of codified
laws. The rule of codified laws purported to promise the safety of their life
& their property and also sought to guarantee the general dignity inherent
in human person alonwith guarantee that he will not be discriminated. This is
how the ancient Social contract between Men & State came into being.
Sovereignty is one of the chief attributes of Statehood. A Sovereign State is
one which is subordinate to no one and is supreme over the territory under its
control. The word State connotes three organs, namely- The Legislature, The
Executive Government and The Judiciary. The ‘State’ is defined under Article 12
of constitution of India which includes every public authority established
under law or under Constitution of India.
81.
Jeremy Bentham
(1748-1832) of England, John Austin (1790-1859) again of England, Savigny of
Germany, Puchta (1798-1856), Hugo Grotius (1583-1645) Immanuel Kant (1724-
1804), Scabelling (1775-1854), Kohler (1849-1919), Roscoe Pound (1870-1964),
Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399
B.C.), Arsitotle (384-322 B.C.), Thomas Acqinas ( 1225- 1274), Duguit
(1859-1928), Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond
Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste
Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering
(1818-1892) significantly contributed to today’s modern concept of codification
of laws and emergence of State Citizenship relationship.
82.
Main thrust of
the legal brains emphasizing on codification of laws, has been firstly, as a
means of attainment of human perfection and secondly to secure liberty to
individuals in the society. They all considered liberty as the first
pre-requisite for the development of human personality. In their view, a State
is like a family to which the interests of its members are always dear at
heart, like a family which would not be happy if its members are in difficulty,
want or trouble, like a family which would not interfere unnecessarily with the
free choice of its members.
83.
Among various
definitions of State given by Scholars of law and by Philosophers, this appears
to be more satisfactory and convincing. It is by professor Goodhart. He defines
State in terms of its purpose. He states that the purpose of society which we
call a State is to maintain peace and order within a demarcated territory. THE
MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE
84.
Hugo Grotius
(1583-1645) is regarded as the father of philosophical jurisprudence. He said-
it is the first duty of the Sovereign State to safeguard the citizen because
State was given power only for that purpose.
85.
And therefore, in
the backdrop of this ancient social contract, every Society & every
Individual Citizen has certain basic assumptions to take it for granted that
complaints made to State will be replied.
86.
It is the case of
the Petitioners that grievance of the people must be promptly and properly
attended instead of waiting and allowing it to be translated into court
litigation.
87.
It is the case of
the Petitioners that giving of satisfactory reply is a healthy discipline for
all who exercise powers over others.
88.
It is the case of
the Petitioners that a complaint to State is the most legitimate incident of a
democracy.
89.
The Petitioner
says that good governance is not a mirage or a utopian concept. It only
signifies the way an administration ameliorates the standard of living of the
members of its society by creating, and making available, the basic amenities
of life; providing its people security and the opportunity to better their lot;
uggesti hope in their hearts for a promising future; providing, on an equal
& equitable basis, access to opportunities for personal growth; affording
participation and capacity to influence, in the decision-making in public
affairs; sustaining a responsive judicial system which dispenses justice on
merits in a fair, unbiased and meaningful manner; and maintaining
accountability and honesty in each wing or functionary of the Government.
90.
In modern
democracies, wide powers vest with Legislators, Judges, with Govt, and with
Bureaucrats. Each group, if it so wishes, may act quite fancy, in any of the
ways it deem necessary.
91.
The Petitioner
invites attention of this Hon’ble Court to 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. ...”
92.
The Petitioner
says that the experience is that the holders of public offices treat the
authority in their hands, as one bestowing upon them, the status of a ruler
rather than one in public service. The Public officials are often heard saying,
in the words of very learned Professor Upendra Baxi –
(i)
As an Authority,
I have this and that power. I exercise it in this or that manner because I so
wish. The only good reason which I exercise my power this or that manner is
that I wish to exercise it in this or that manner;
(ii)
As an Authority-
I may so act as to favour some and uggesti others;
(iii)
As an Authority-
I may so act as to give an impression that I am acting within my powers but in
reality I may be acting outside it;
(iv)
As an Authority-
I may decide by myself what your rights and liabilities are without giving you
any chance to be heard, Or I may make your opportunity to be heard a
meaningless ritual;
(v)
As an Authority-
I may decide but declines to let you know the reasons or grounds of my
decisions or provide reasons without being reasonable;
(vi)
As an Authority-
I may use my power to help you only if I am gratified in cash or in kind;
(vii)
As an Authority-
I may choose to use my power only after a good deal of delay and inconvenience
to people;
(viii)
As an Authority-
I may just refuse to exercise the powers I have regardless of my legal
obligation to act and regardless of social impact of my inaction.
93.
The Petitioner
says that discretion in reality means a power given to a person with the
authority to choose between two or more alternatives or possibilities each of
which is lawful and permissible. 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.
94.
Discretion is a
Science or understanding to discern (to distinguish) between falsity and truth;
between right and wrong, between shadow and substance, between equity and
pretence and not to do according to wills and private affections.
95.
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.
96.
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
97.
has been granted.
Discretionary powers are always coupled with duties.
98.
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.
99.
Fair play
requires recording of germane and relevant precise reasons when an order
affects the right of a citizen or a person irrespective of the fact whether it
is judicial, quasi judicial or administrative act. Recording of reasons is also
an assurance that the authority concerned has applied its mind to the facts on
record.
100.
The reasons
employed not only are intelligible but which will also deal with the
substantial points which have been raised. What is of utmost importance is that
the reasons are clear and explicit so as to indicate that the authority has
given due consideration to the points in controversy.
101.
The very
requirement of reasons will put the authority on alert and minimize the chances
of unconscious infiltration of personal bias or unfairness in the conclusion.
102.
Reasoned decision
may bring in little inconvenience to the authorities concerned for it is little
more time consuming, one may argue. But I feel that there is no other way to
exercise discretion and discharge duties entrusted upon the authorities.
103.
The Petitioner
finally seeks to recall an historic incident of Indian freedom struggle,
occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In
the year 1893, when in South Africa, while holding a First Class Compartment
ticket and travelling in, Gandhi was thrown out of the train, for in those
times “Blacks” were not allowed to travel in the First Class Compartment,
notwithstanding they hold a valid ticket. It was 9.00 in the chill night. That
designated “Black” sent a Telegram to the General Manager of the Railways and
registered his complaint. The Complaint of that designated “Black” was
attended, forthwith, the General Manager instructed the Station master to
secure that complainant reaches his destination safely. Complainant was
accommodated in the very next morning train to his destination. And here, in
the era of INDEPENDENCE and 21st Century of modern democracy, we
have Citizens of Sovereign India, of whose complaint are ordinarily, attended
with great disrespect and sometimes with hostility.
104.
The Petitioner
says that, considering the nature of relief prayed, no prejudice of any nature
would cause to the Respondents, if the Court passes orders even without hearing
the Respondents herein. The Petitioner says that it is the concern of the
courts that public authorities are compelled to perform their duties if they
are shown making default.
7. Relief Prayed for :
(a)
That the Hon’ble High court shall be
pleased to call for the entire original record of lis for its kind perusal.
(b)
That the Hon’ble High Court shall be pleased
to issue suitable writ or direction to the respondent authority to decide the
representation dated 15.11.2017 Annexure P-4 in accordance with Law.
(c)
That the Hon’ble High Court shall be
pleased to issue suitable writ or direction to the respondent authority to look
into the grievances of the petitioner in accordance with Law in respect of the
commission of the offences, in case the same is made out.
(d)
Cost of this petition be also awarded
in favour of the petitioner.
Any other relief deemed fit and proper looking to the facts
and circumstances of the case may also be granted.
8.
Interim Order / Writ, if prayed for :
In view
of the facts and circumstance of the case during pendency of instant writ
petition petitioner is not seeking any interim relief but reserves his right to
raise the same in case the occasion arise, in the larger interest of justice.
9. Documents relied on
but not in possession of the petitioner :
All the relevant material and original
records in relation to subject matter in dispute is lying with respondent
authorities which my kindly be requisitioned by the Hon’ble High Court for its
kind perusal.
10.
Caveat :
That, no
notice of lodging a caveat by the opposite party is received.
PLACE : JABALPUR
DATED: ADVOCATE FOR PETITIONER
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENTS :Lokayukt
Organization Madhya Pradesh
AFFIDAVIT
I, SURESH CHANDRA JAIN, aged about 54 Years, S/o Mr.
SWARROP CHANDRA JAIN, Occupation : Government Servant, R/o GF -1, Datt Complex,
Gorakhpur, Jabalpur (Madhya Pradesh). Airtel : 8349034434, do hereby state on
oath as under :
1. That I am the Petitioner in the above mentioned writ
petition and am fully conversant with the facts deposed to in the Writ
Petition.
2.
That the contents of paragraphs 1 to 10 of the accompanying writ petition
are true to my personal knowledge and the contents of paragraphs are based on
legal advice, which I believe to be true. No material has been concealed and no
part is false.
3.
That the Annexure No(s). P-1 to P-4 to the accompanying writ petition are
true copies of the originals and I have compared the said Annexures with their
respective originals and certify them to be true copies thereof.
PLACE : JABALPUR
DATED : DEPONENT
VERIFICATION
I, SURESH CHANDRA
JAIN, the above named deponent do hereby verify on oath that the contents of
the affidavit above are true to my personal knowledge and nothing material has
been concealed or falsely stated. Verified at ______this______day of _______
DEPONENT
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENT :Lokayukt
Organization Madhya Pradesh
LIST OF DOCUMENTS
|
S.No
|
Description
of document
|
Date
of document
|
Original
copy
|
Number
of page
|
|
1.
|
Reply received
under the provisions of section 6 (1) of the Right to Information Act, 2005 from
Madhya Pradesh East Zone Electricity Distribution Company Limited
|
11.09.2017
|
Xerox
|
38
(Thirty Eight)
|
|
2.
|
Reply received under the provisions of section 6 (1) of
the Right to Information Act, 2005
|
25.09.2017
|
Xerox
|
80
(Eighty)
|
|
3.
|
Reply received under the provisions of section 6 (1) of
the Right to Information Act, 2005 from Madhya Pradesh East Zone Electricity
Distribution Company Limited
|
02.11.2017
|
Xerox
|
08
(Eight)
|
|
4.
|
Representation
submitted by the petitioner
|
22.11.2017
|
Xerox
|
03
(Three)
|
PLACE : JABALPUR
DATED :
ADVOCATE FOR PETITIONER
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules 4 (1) of the Rules framed under the Advocates Act,
1961]
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2018 (O)
PETITIONER : SURESH CHANDRA JAIN
VERSUS
RESPONDENTS : UNION
OF INDIA & Ors.
I, the petitioner named below do hereby appoint, engage and
authorize advocate (s) named below to
appear, act and plead in aforesaid case / proceeding, which shall include
applications for restoration, setting aside for ex - parte orders, corrections,
modifications, review and recall of orders assed in these proceedings, in this
Court or in any other Court in which the same may be tried / heard / proceeded with
and also in the appellate, revisional or executing Court in respect of the
proceedings arising from this case / proceedings as per agreed terms and
conditions and authorize them to sign and file
pleadings , appeals, cross objections, petitions, applications,
affidavits, or the other documents as may be deemed necessary and proper for
the prosecution / defence of the said
case in all its stages and also agrees to ratify and confirm acts done by them
as if done by me.
In witness whereof I do hereby set my hands to these
presents, the contents of which have been duly understood by me, this – day of
----------------- 2018 at Jabalpur.
Particulars (in block letters) of each Party Executing
Vakalatnama
|
Name and father s / Husband s Name
|
Registered Address
|
E-Mail Address (if any)
|
Telephone Number (if any)
|
Status in the case
|
Full Signature/
**Thumb Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
SURESH CHANDRA JAIN, aged
about 53 Years, S/o Mr. SWARROP
CHANDRA JAIN, Occupation : Government Servant,
|
R/o GF -1, Datt Complex,
Gorakhpur, Jabalpur (Madhya Pradesh).
|
|
Airtel
: 8349034434
|
PETITIONER
|
|
Accepted
Particulars (in block letters) of each Advocate Accepting
Vakalatnama
|
|
Full
Name & Enrollment No. in State Bar Council
|
Address
for Service
|
E-mail
Address (if any)
|
Telephone
Number (if any)
|
Full
Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY
RAGHAV SINGH
EN.
No. M. P. / ADV / 1554 / 2003
|
SEAT
NO. 93, GOLDEN JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT
PREMISES, JABALPUR 482 001
|
IDEA 98261-43925
|
|
|
|
2.
|
MRS.
POONAM SINGH
EN.
No. M. P. / ADV / 3159 / 2004
|
-DO-
|
|
||
|
3.
|
AMIT
KUMAR KHARE,
EN.
No. M. P. / ADV / 1291/ 2006
|
HOUSE
NO. 1483 / 17, SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR
482 001
|
NIL
|
BSNL 94258 66726
LAND LINE
0761 - 2345 005
|
|
|
4.
|
VIJAY
KUMAR SHRIVASTAVA, EN. No. M. P. / ADV
/ 949/ 2006
|
SEAT
NO. 81, HALL NO. 1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR
482 001
|
NIL
|
IDEA : 97539 13103
AIRTEL 97554 82448
|
|
*Score out which is not applicable
** The thumb impression shall be attested by a literate
person giving above particulars.
