Bombay High Court
Vaishali vs The State Of Maharashtra on 16 December, 2009
Bench: A.M. Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7055 OF 2009
Vaishali D/o Atmaram Suryawanshi, )
Age: 30 years, Occ: Nil, )
R/o: C/o. Atmaram Mango Suryawanshi, )
Hirtma, 1-A, Auditor Colony, Pimprala, )
Jalgaon, Tq. & District Jalgaon. ).. Petitioner
Versus
1. The State of Maharashtra, )
Through its Secretary, )
Tribal Development Department, )
Mantralaya, Mumbai - 32. )
2. The Committee for Scrutiny and )
Verification of Tribe Claims, )
Nandurbar Division, Nandurbar. )
3. The President, )
Motor Accident Claim Tribunal, )
Maharashtra State, Hazarimal Somani )
Marge, Mumbai - 400 001. ).. Respondents
--
Shri R.S. Shinde, advocate holding for Shri A.G. Talhar, advocate for the
Petitioner.
Shri R.P. Phatke, AGP for Respondent No.1.
Shri M.S. Deshmukh, advocate for Respondent No.2 (absent).
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2
CORAM : SWATANTER KUMAR, C.J. &
A.M. KHANWILKAR, J
JUDGMENT RESERVED ON : 5TH DECEMBER, 2009
JUDGMENT PRONOUNCED ON : 16TH DECEMBER, 2009.
JUDGMENT ( PER SWATANTER KUMAR, C.J.)
Heard learned counsel appearing for the Parties. Rule. By
consent, Rule made returnable forthwith. Respondents waive service.
2. It is the claim of the Petitioner that she belongs to Scheduled
Tribe category i.e. Tokare Koli. The caste certificate in favour of the father
of the Petitioner was issued by the Taluka Executive Magistrate, Chopada.
However, in the year 2001, the Sub-Divisional Officer, Amalner Division
Amalner, initially refused to issue caste certificate in favour of the
Petitioner. Aggrieved by the said order, the Petitioner filed an appeal
before the Committee for Scrutiny and Verification of Tribe Claim, Nashik
Division, Nashik. The said appeal came to be rejected. Against the
rejection of the said Appeal, a Writ Petition No.5915 of 2002 was filed in
this Court, which came to be disposed of by an order dated 17th June, 2002.
In furtherance to the order of the Court, the Appeal of the Petitioner was
allowed by the Appellate Authority and it directed the Sub-Divisional
Officer to issue Caste Certificate in favour of the Petitioner and thereafter
the Sub-Divisional Officer, Amalner issued caste certificate to the
Petitioner. Thereafter, the college in which the Petitioner had taken
admission submitted the Tribe Claim of the Petitioner for validity before
Respondent No.2-Committee. Respondent No.2-Committee was requested
to issue validity certificate but the Petitioner could not get validity
certificate. However, in the meanwhile, the Petitioner completed her
graduation and was searching for the service at various places, such as
Bank examination, Educational Society's, etc. The college in which the
Petitioner had taken admission had taken an undertaking from the
Petitioner that if the Petitioner did not produce caste validity certificate
within three months, her admission would stand cancelled. In these
circumstances, the Petitioner approached this Court by filing Writ Petition
No.6476 of 2005 seeking directions to Respondent No.2-Committee to
decide her caste claim within stipulated period. Vide order dated 25th
April, 2008, this Court allowed the said Writ Petition and directed
Respondent No.2-Committee to decide the caste claim of the Petitioner
within a period of two months. The said Order reads as under:-
". Rule. Rule made returnable forthwith. With the
consent of learned Counsel for the parties, this petition is
heard finally at the stage of admission.
2. At the outset, we may record that this Court by its
order dated 14.09.2005 had directed Respondent no.1-
Scrutiny Committee to complete the process of
verification of the caste claim of the petitioners within
three months from the date of order. For the reasons
which are disclosed in the Civil Application filed on
behalf of Respondent No.1-Scrutiny Committee and
which Civil Application has been allowed by us, the
respondent no.1-scrutiny committee has explained as to
why the process of verification of the caste claim of the
petitioners could not completed within the period
stipulated by this Court. Be that as it may, this petition
under Article 226 of the Constitution of India prays for
issuance of a writ directing Respondent No.1-scrutiny
committee to adjudicate the caste claim of the petitioners
as belong to "Tokare Koli", scheduled tribe. The
petitioners have also prayed that pending the process of
adjudication of their caste claims, second respondent
should not take any adverse action against the
petitioners, including cancellation of the admission for
failure of the petitioners to tender the caste validity
certificates.
3. We have heard learned Counsel for the parties.
Mr. Deshmukh, learned Counsel appearing on behalf of
Respondent no.1-Committee has stated before us that a
copy of the report of the Vigilance Cell has been tendered
to the petitioners. In the light of that, we direct the
petitioners to appear before Respondent No.1-Scrutiny
Committee at Nandurbar on 14th May, 2008. A further
statement is made on behalf of Respondent No.1-Scrutiny
Committee by Shri Deshmukh that the Respondent-
Scrutiny Committee would pass appropriate orders in
accordance with law in respect of adjudication of the
tribe claims of the petitioners within a period of two
months of 14th May, 2008. We accept the said statement
as an undertaking to the Court.
4. We thus allow the petition and make rule absolute
by directing the petitioners to appear before Respondent
No.1-Scrutiny Committee at Nandurbar on 14th May,
2008 and directing Respondent No.1-Scrutiny Committee
to decide the tribe claim of the petitioners within two
months of 14th May, 2008. Pending process of
adjudication of the tribe claim, we direct Respondent No.
2-College not to cancel the admission of the petitioners
on the sole ground that the petitioners have not been
able to tender Caste Validity Certificates. Rule is thus
made absolute on the terms indicate above with no order
as to costs."
3. Respondent No.2-Committee despite the orders of the Court
did not decide the caste claim of the Petitioner. The Petitioner claims that
she was selected for the post of Clerk Typist (English) in General
Administration Department, Mantralaya, Mumbai, and was even selected
for the employment in Class -III category in Co-operative Department in the
office of Divisional Deputy Registrar, Cooperative Societies (Auditor),
Aurangabad, in the Scheduled Tribe Category but she could not take any of
the employments because of non availability of the caste validity certificate
due to the inaction on the part of the Respondent No.2-Committee and,
therefore, she was compelled to file the present Petition.
4. It is in light of the above facts that we have to examine what
relief it at all can be granted to the Petitioner. Respondent No.2 is a
statutory committee constituted under the provisions of the Act. Thus, it
not only discharges the public functions which are somewhat akin to quasi
judicial functions but its statutory obligation is to deal with such matters
and to provide relief to the aggrieved person and/or persons who have
applied for validation of caste certificate/s. Certain aspects of such cases
are well known and even the Court can take a judicial notice thereof that
such certificates are required to be utilized basically for two purposes.
Firstly, for seeking admission to academic/professional courses and
secondly, for seeking employment particularly in the Government Sector.
Both these purposes would stand defeated if timely disposal of application
and time schedule expected of the Committee is not adhered to. In the
present case, the Petitioner had approached all the authorities concerned
including Respondent No.2 - Committee well within the time but was
unable to obtain caste validity certificate before the cut-off dates or
extended time granted by the authorities in the establishment where the
Petitioner was selected. The failure of the Petitioner to produce such
validity certificate was not the result of any act attributable to the Petitioner
but it was primarily for the reason that the authorities concerned including
Respondent No.2-Committee failed to act expeditiously and in any case
within a reasonable time. It is expected of the Committee to act within
time and not to make people approach the Courts again and again for such
simple relief and/or direction. In the present case, the Committee
certainly failed to act expeditiously and within a reasonable time despite
the directions of the Court.
5. Canons of Administration of Law requires such authorities to
act and is expected to have a socio-economic outlook. Public
functionaries should act in the exercise of power for the benefit of
Society and its action should be free of arbitrariness and capriciousness
which are likely to cause harm to the aggrieved person/persons.
6. The Supreme Court in the case of Lucknow Development
Authority v. M.K. Gupta, (1994)1 SCC 243, held as under: -
"10. ...........An ordinary citizen or a common man is
hardly equipped to match the might of the State or its
instrumentalities. That is provided by the rule of law. It
acts as a check on arbitrary and capricious exercise of
power. In Rookes v. Barnard, 1964 AC 1129 : (1964)1
All ER 367, 410, it was observed by Lord Devlin, 'the
servants of the government are also the servants of the
people and the use of their power must always be
subordinate to their duty of service'. A public
functionary if he acts maliciously or oppressively and the
exercise of power results in harassment and agony then
it is not an exercise of power but its abuse. No law
provides protection against it. He who is responsible for
it must suffer it. Compensation or damage as explained
earlier may arise even when the officer discharges his
duty honestly and bona fide. But when it arises due to
arbitrary or capricious behaviour then it loses its
individual character and assumes social significance.
Harassment of a common man by public authorities is
socially abhorring and legally impermissible. It may
harm him personally but the injury to society is far more
grievous. Crime and corruption thrive and prosper in
the society due to lack of public resistance. Nothing is
more damaging than the feeling of helplessness. An
ordinary citizen instead of complaining and fighting
succumbs to the pressure of undesirable functioning in
offices instead of standing against it................"
7. The Public bodies or public functionaries are expected to work
for the benefit of the general public and while discharging their statutory
and public duties, they are accountable to public as well as to the rule of law
which governs them. In the case of Shri Mahender Kumar v. Land
Acquisition Collector, 2006(5)AD 420, the Bench of Delhi High Court while
applying principle of public accountability and public good faith and actions
of the public in good faith, held as under:-
"Both these adverse consequences can easily be avoided
by the authorities concerned by timely and coordinated
action. The authorities are required to have a more
practical and pragmatic approach to provide solution to
this persisting problem. Various files of the authorities
which have been produced before us in number of cases
do not reflect any better state of affairs but mostly a
mere inaction on the part of the concerned
officers/officials in the Government hierarchy. We have
already stated that large number of writ petitions are
being filed in this Court claiming the similar reliefs. In
most of the cases, the respondents do not even dispute
the claim of the petitioner based on awarded
compensation. Let us examine the law in regard to
public accountability for default of performance of
statutory and public duties which are relatable to the
powers vested in the administrative and executive
authorities under the provisions of this Act. Reference in
this regard can be made to the judgment of this court of
the same date in the case of Sukhbir Singh Tyagi and
others v. Lieutenant Governor and others, WP(C)
22895-927/2005 where the court held as under:-
4. Various provisions of the Land Acquisition Act
impose a duty upon the authorities to act within a
specified time. Consequences of violation of such duty
normally would be spelled out in the statute itself, even
if it is no so stated. Aggrieved party cannot be said to be
without remedy. The duty imposed by the statute may
also be actionable by the express terms of the statute or
on the principle that an action lies for any indictable
wrong. There is clear distinction between the duty and
the power. However, a duty may be implied from a
power. The Courts may not look for or require a party
to establish negligence as a fact because breach of
statutory duty itself is a proof of negligence. The
authorities enjoy considerable discretion under the
provisions of the Act. Thus, it requires adherence to
higher standards of care and ensuring that the public at
large or a class of persons, subjected to their discretion
are not exposed to undue delay and financial losses as a
result of inaction of the authorities. The powers vested
in the public officers under the provisions of the Act
includes both statutory and administrative powers
taking within its ambit the corresponding duty
obligations to effectively carry out the object of the Act.
If the public officers or public bodies fail to perform any
public duty with which they have been charged, an
order of mandamus will lie to compel them to carry it
out and in some circumstances even if the time to
perform under the statute had not left. In accordance
with this principle, writ of mandamus will issue to the
Government Officials in their capacity as public officers
exercising executive duties, which affect the rights of the
private persons. Occasionally and now more often
mandamus may also be sought to enforce the non-
statutory duties. The statutory duty must be performed
without any reasonable delay. Delay in action,
particularly grant of relief to which a private person is
entitled to, would vest the affected party with further
consequences while making the officer responsible for
his latches. Action taken by persons holding public
offices is to be inconformity with the basic rule of law
and standard policies and must be free of arbitrariness.
The Supreme Court in the case of Shivsagar Tiwari Vs.
Union of India and Others (1996)6 SCC 558 even held a
minister responsible personally for illegal allotments as
exercise of power tantamount to misuse of power.
5. Breach of duty is an actionable wrong. Rights of
the authorities and their duties are co-related. Violation
of one's right is the breach of other's duty. In some
cases, the department may be called upon to examine
the conduct of its various officers as the department
would be responsible for their action/inaction. Breach
of duty may not essentially result from wrong doing,
which may arise from negligence, failing to act timely or
even by breach of duty under the statute, the duty may
be specifically envisaged in the language of the provision
or it may arise by necessary interpretation applying the
concept of reasonable conduct. The expansion of rights
would lead to expansion of bonds of liability. They are
co-related and inter-dependent. Expansion of one would
result in widening result of other. Of course, they will
have to be examined with reference to the needs and
situations, which are contemplated under the law.
Negligence or inaction have larger consequences and
implies an obligation on the authorities vested with the
powers to act with greater and higher standards of care.
If there is a right under the law, there must be a remedy
for its violation as law commands nothing vainly - Lex
nil frustra jubet.
6. Another facet of statutory duty is to impose
negative obligations on the State not to encroach upon
the rights of the individual or to frustrate what is
granted under law to the citizen. Declaration of rights
would be meaningless unless there is effective machinery
for enforcement of the rights. Remedy is the essence of
a right. A right really become effective and meaningful
when its enforceability is accepted by the procedure of
law. The legality or illegality of a State action,
particularly when they are acting in furtherance to the
statutory powers vested in them, would be subject to
judicial review, not in its narrowest sense. Wherever a
cause is relatable to breach of statutory or implied duty
of a public officer, the rule of law would essentially
provide for a remedy even if it is not so specifically
spelled out in the provisions of the Act. Arbitrariness
and unreasonableness being facets of Article 14 are
available as grounds not only for questioning an
administrative action but in certain cases may even
invalidate subordinate legislation. Timely action is the
essence of government functioning and unreasonable
delay questions the very correctness of such orders.
Wherever the records offer no explanation for prolonged
unreasonable delay, the equity will tilt more in favour of
the petitioners than uphold the action of the authorities
to be correct, being done in the normal course of its
business.
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Books 2002(3) Supreme Court
Cases 7
Referred to : 2005(2) Supreme Court
Cases 317
1996(VI) Supreme Court
Cases 1390
"The Law of Torts" - 9th
Edition
by Ramaswamy Iyer.
`Law of Torts' - 12th
Edition
By Salmond & Heuston
Halsbury's Laws of
England - 4th Edition By Lord
Hailsham of St. Marylebone.
7. Concept of public accountability has been applied to
the decision making process in the government by the courts
for a considerable time. This concept takes in its ambit
imposition of costs and its recovery from the officer
concerned for their negligence or acts of prolonged,
unexplained delays running into years. In the case of State
of Andhra Pradesh vs. Food Corporation of India 2004 (13)
Supreme Court Cases 53, the Court directed as under:-
"We are shocked as to the manner in which the State
Government is filing petitions in this Court resulting not
only in wasting the time of this
Court and all others concerned but in total waste of public
money. The impugned orders have been challenged after
more than eight years with almost no explanation, as is
evident from the paragraph reproduced above.
In this view,l while dismissing the applications seeking
condonation of delay, we direct that enquiry be made
forthwith by the State Government as to the person
responsible for this state of affairs, recover from such person
the costs involved in filing these petitions and submit the
report to this Court within a period of four weeks."
8. Administrative or executive actions are subject matter
of judicial review. Noticing the significance of scope of
judicial review in this regard and bureaucracy accountability,
the Supreme Court in the case of State of Bihar vs. Subhash
Singh AIR 1997 Supreme Court 1390 held as under-
"In our democracy governed by the rule of law, the judiciary
has expressly been entrusted with the power of judicial
review as sentinal in qui vive. Basically judicial review of
administrative actions as also of legislation is exercised
against the actions of the State. Since the State or public
authorities act in exercise of their executive or legislative
power, they are amenable to the judicial review.....
...The normal principle that the permanent bureaucracy is
accountable to the political executive is subject to judicial
review. The doctrine of "full faith and credit" applied to the
acts done by the officers and presumptive evidence of
regularity of official acts done or performed, is apposite in
faithful discharge of duties to elongate public purpose and to
be in accordance with the procedure prescribed. It is now
settled legal position that the bureaucracy is also
accountable for the acts done in accordance with the rules
when judicial review is called to be exercised by the Courts.
The hierarchical responsibility for the decision is their in-
built discipline. But the Head of the Department/designated
officer is ultimately responsible and accountable to the Court
for the result of the action done or decision taken. Despite
this, if there is any special circumstance absolving him of the
accountability or if someone else is responsible for the
action, he needs to bring them to the notice of the Court so
that appropriate procedure is adopted and action taken. The
controlling officer holds each of them responsible at the pain
of disciplinary action. The object thereby is to ensure
compliance of the rule of law........
...A member of the permanent executive, is enjoined to
comply with the orders of the Court passed in exercise of the
judicial review. When a Court issues certain directions to
the executive authorities it is expected that the authorities
would discharge their duties expeditiously as enjoined under
the rules and as per the directions. If they do not discharge
the duty, necessarily, they are required to give explanation
to the Court as to the circumstances in which they could not
comply with the direction issued by the Court or if there was
any unavoidable delay, they should seek further time for
compliance. When, neither of the steps have been taken by
the officer in that regard the Court can impose the costs
personally against him for non-compliance of the order.......
....It is known fact that in transaction of the Government
business, none would own personal responsibility and
decisions are leisurely taken at various levels. It is not
uncommon that delay would be deliberately caused in filing
appeal or revision by Government to confer advantage to the
opposite litigant; more so when stakes involved are high or
persons are well connected/influential or due to obvious
considerations. The Courts, therefore, do not adopt strict
standard of proof of every day's delay. The imposition of
costs on officers for filing appeals causes public injustice and
gives the manipulators an opportunity to compound the
camouflage. Secondly, the imposition of costs personally
against the officers would desist to pursue genuine cases of
public benefit or importance or of far-reaching effect on
public administration or exchequer deflecting course of
justice."
9. The principle of care, maintenance of higher caution,
expeditious decision-making process in exercise of statutory
powers, public accountability and transparency are also
applicable to the various proceedings under the law of
acquisition. Various provisions of the Act could be referred
to demonstrate that the exercise of powers emanating from
statutory provisions is coupled with public obligation, to
protect the rights of the land owners.
10. The Land Acquisition Collector is expected to conduct
a survey prior to the issuance of notification under Section 4
of the Act for acquisition of the land. Sub-section (2) of
Section 4 empowers the Officer to enter upon any property
for the purposes of survey and other acts stated in that
provision. The Legislature has even taken precautions to
make a statutory provision for payment of compensation for
any damage which may be done during completion of such
duty imposed upon the Officer, under the provisions of
Section 4 of the Act. In regard to deficiency of the amount
so offered or tendered, the dispute could be referred to the
Collector or the Chief Revenue Officer. After having issued
declaration under Section 6 of the Act, the next effective step
to be taken by the authorities is to issue notices to the
interested persons under Section 9 of the Act. It is intended
to convey to the public, the intention of the Government to
take possession and calling upon them to make claims in
regard to the lands acquired. The Collector would make an
enquiry and then pronounce his award as contemplated
under Section 11 of the Act. The Collector is to take
approval of the government before the award could be made
enforceable. Section 11(a) was introduced by the Amending
Act 68 of 1984 to require the authorities to make an award
within 2 years from the date of publication of declaration.
The consequences of non-compliance were to the extent that
entire acquisition proceedings shall lapse. The only
explanation in providing the period of 2 years was the
exclusion of the period during which orders of stay passed
by the court were in operation. After pronouncing of the
award under Section 11 of the Act, unless the case was
covered under the provisions of Section 17 of the Act, the
Collector was to take possession of the lands under Section
16, and such lands would vest in the government, free from
all encumbrances. After the award is made the Collector is
required to give immediate notice of his award to the
persons interested who were not personally present before
him so that the compensation could be awarded to the
rightful claimants. Then the award of the Collector in regard
to apportionment, area value of the land and the interested
persons attains finality in that field. The claimants have a
right to claim compensation without prejudice to their rights
and contentions by making reference petitions under Section
18 of the Act. From the stage of making of a reference, the
matters are transferred from the administrative and
executive authorities functioning under the provisions of the
Act, for adjudication process to the courts.
11. The Land Acquisition Collector is expected to caution
the authorities (beneficiaries for whose benefit the lands are
acquired) that they should make the funds available for their
disbursement to the rightful claimants. This now is the clear
directive stated in Section 50 of the Act.
12. Under the provisions of the Act, a duty is cast upon the
authorities to make payment of compensation determined to
the rightful claimants expeditiously. The provisions of
Section 9 indicate a preparatory step by the State authorities
invoking the plea that the Government intends to acquire
the lands as well as calling upon the claimants to claim
compensation. The Collector would determine the fair
market value of the acquired land and direct its
payment/apportionment amongst the rightful claimants i.e.
interested persons. The right of the persons to claim money
is, thus, instantly available to them upon making of the
award except in cases where the compensation of the lands
of the owners is taken under Section 17 (3) of the Act
wherein they become entitled to 80% of the estimated
compensation before taking possession of the land. The
provisions of the Act even provide a safeguard to the citizen
and obligation to the State that where estimated
compensation cannot be paid because of contingencies stated
in Section 31(2), they are required to deposit the same in
terms of the Section 31. Under Section 19 while the
Collector is making the reference he is required to provide
information to the Court in writing, including the amounts
which have been paid or deposited and all other amount for
damages or compensation, which were tendered in
accordance with the provisions of the Act. Section 23(1-A)
requires authorities to pay, in addition to the market value as
called in terms of Section 23, an amount @12% per annum
on the market value for the period commencing from the
date of notification issued under Section 4 (1) of the Act to
the date of the award of the Collector or the date of taking
possession of the land. In addition to this, 30% of the
market value of the land is payable on account of
compulsory nature of acquisition. Section 34 further
postulates that the amount of compensation so determined
and if not paid or deposited on or before taking possession of
the land, the Collector shall pay the amount awarded with
interest thereupon @9% per annum from the date of taking
of possession until it shall have been so paid or deposited.
Further, for the period in excess of one year from the date of
taking over possession, interest is payable @15% per annum
for the compensation amount determined or part thereof
which has not been paid or deposited before the date of such
expiry.
13. The scheme of the Land Acquisition Act has an inbuilt
check and balances and the legislative intent of providing
just and fair market value to the owners of the lands and
expeditiously is more than evident under various provisions
of the Act. A dual purpose is sought to be achieved by
providing even the periods within which the authorities are
expected to discharge their duties and ensure disbursement
of compensation to the claimants. In default thereof, certain
further liabilities accrue against the department. Surely, the
Act does not contemplate and rightly so that a claimant
entitled to receive compensation is expected or it is even
desirable for him to run in various departments of the Govt.
or the authorities to receive his compensation, which may
not be paid to him for years together. Certain benefits are
available to the claimants for delay in acquisition
proceedings commencing with under Section 4 and making
of the award under Section 11, as the authorities are
required to pay interest @12% per annum to the claimants
for this period. The claimants are also protected to some
extent against compulsive acquisition as well as from the
date the possession is taken till entire payment of the
awarded compensation is made to the claimants. But the
Statute has a lacunae inasmuch as it gives no benefit much
less an additional benefit to the claimants, whose lands are
required for the entire period commencing from the date of
making of the award till taking over of possession by the
Department. No liability of any kind comes on the
department despite any length of this period i.e. where the
judicial pronouncements would abridge the gap and require
the authorities to ponder over this aspect of the matter and
not leave the claimants unbenefited or remedy less for this
period. There are number of cases before the Court where
the awards are made and for years compensation is not
paid. In some of them, may be the department has some
reasonable excuses but in most of them at least the records
produced before the Court in those cases do not reflect so.
Still in another set of cases, the land is acquired, award is
made and possession thereof is not taken for years together
and the period varies from 7 years to 30 years. Still in
another set of cases the possession is taken and for years
compensation is not paid and if it is paid, it is not paid in its
entirety. There are large number of writs, which are coming
up before the Court every day falling in either of these
categories. This aspect has been discussed by the Court in
some detail in another case being WP (C) No.
13308-12/2005, which is being disposed of by the judgment
of the same date.
14. Inaction and action taken after inordinate delay by
various functionaries working under the scheme of the Act
results in seriously jeopardizing interest of claimants as well
as the public money. In some cases, the claimants are not
paid their dues entitling them for higher rate of interest and
interest for unnecessarily prolonged period. This may be
their gain but it certainly is to the disadvantage of the public
exchequer and an avoidable financial loss. On the other
hand, the claimants would suffer accrual of any benefits, if
their properties are acquired, award is made and the
possession is not taken for years together. This further leads
to dual disfunctional results. The very purpose for which the
land is acquired may stand frustrated because of long
intervening period as a result of unauthorised construction
or colonies coming up on the acquired land, and secondly it
occasions in generating litigation which again is avoidable.
Thus, timely action for completing acquisition proceedings
and expeditious determination and disbursement of
compensation to the claimants should be the Hallmark of all
the functionaries doing public duties under the provision of
the Land Acquisition Act.
15. In the case of ABL International Ltd. and another Vs.
Export Credit Guarantee Corporation of India Ltd. and
Others (2004) 3 SCC 553, the Supreme Court held as under:-
"It is clear that when an instrumentality of the
State acts contrary to public good and public
interest, unfairly, unjustly and unreasonably,
in its contractual, constitutional or statutory
obligations, it really acts contrary to the
constitutional guarantee found in Article 14 of
the Constitution. Therefore, once the State or
an instrumentality of the State is a party, it has
an obligation in law to act fairly, justly and
reasonably to a contract which is the
requirement of Article 14 of the
Constitution."?
"Unless the action challenged in the writ
petition pertains to the discharge of a public
function or public duty by an authority, the
courts will not entertain a writ petition which
does not involve the performance of the said
public function or public duty."?
16. State actions causing loss are actionable under public
law and this is as a result of innovation to a new tool with
the court, which are the protectors of civil liberty of the
citizens and would ensure protection against devastating
results of State Action. The principles of public
accountability and transparency in State action even in the
cases of appointment, which essentially must not lack
bonafide was enforced by the Supreme Court in the case of
Centre for public interest litigation and another Vs. Union of
India and another (2005) 8 SCC 202.
17. Adverting to the facts of the present case in the back
drop of principle of public or statutory duty and
accountability of public officers, we are constrained to say
that authorities have not been able to place any justification
on record for non payment of the awarded compensation to
the petitioners. Non-disclosure of any sufficient reason
obviously would hold them responsible for the consequences
flowing from the default in discharge of their public and
statutory obligations. The Notification under Section4 was
issued on 27th January, 2003 while declaration under
Section 6 was issued on 23rd January, 2004 i.e. after a lapse
of nearly one year. The award was made by the Collector on
22nd August, 2005 being Award No.15/2005-06/DC(N-W)
after a lapse of nearly 1 year and 8 months. The possession
of the land was taken on or before 14th September, 2005 but
the compensation of the petitioners have not been paid even
till filing of the present writ petition. The petitioners had
filed their objections under Section 18 of the Land
Acquisition Act on 14th September, 2005 itself. In other
words, the petitioners had filed application for payment of
their compensation and their application for further
enhancement in accordance with Section 18 of the Act but
despite filing of such applications, copies of which have been
filed on record, they have not been paid compensation till
date. The respondents have not even deposited the said
compensation before the Reference Court. There is no
justification whatsoever on record as to why the
compensation has not been paid for the last more than 8
months. Two important aspects of the matter, which create
avoidable liabilities on the public exchequer are, who would
be responsible for not acting within a reasonable time and
furthermore, who would pay the interest in terms of Section
34 and even under Section 23 (1-A). Should this liability be
fastened upon the common income-tax payer, who
contributes towards the public exchequer or should it be the
liability of the officers/officials, who are incharge of the
acquisition proceedings and do not deal with the files for
months together. Timely disbursement of compensation is
the obligation of the authorities and no reason whatsoever
either by filing a counter affidavit or by production of record
has been shown as to why even after taking possession in
September, 2005, the compensation has not been disbursed
for 8 months. It is a matter, which should invite attention of
all concerned.
The disputes mainly are interdependent or are
resulting from inaction of the authorities. Reference in this
regard can be made to Civil Writ Petition Nos. 933/88,
1161/88, 6372/06, 4739-43/06, 22895/05, 5663/05,
11206/05, 6609-48/06, 4070-73/06 and 22881/05. The
petitioners had submitted the applications complete in all
respects with affidavits etc. on 14.6.05 itself but no records
have been produced before us to show that the petitioners
were called upon to make up in deficiency if at all noticed by
the respondents in fact that is not even so stated in the
affidavits filed in this Court by the respondents. Once the
petitioners had furnished the requisite documents and had
submitted their applications there can be no justification
whatsoever for delay in disbursement of the awarded
compensation to them. Persistent and chronic nature of these
problems is amply demonstrated by the fact that in Civil Writ
No 1161/88 vide its order dated 5.5.05 the Court had passed
directions requiring the respondents to look into various
problems relating to acquisition proceedings before the
authorities and to prepare guidelines. In Civil Writ No.
5463/99 Deep Jot Singh & Anr. vs. Union of India the Court
in similar circumstances as of the present case had allowed
the writ petition of the petitioners and imposed cost of Rs.
10,000/- to be recovered from the erring officers. Despite
specific directions of the Court that the amount of cost which
was to be paid at the first instance by the respondents was to
be recovered from the salary of the erring officials in
accordance with law. Despite a specific direction that the
report should be submitted within three months, the
respondents have filed no report and it had been left to the
imagination whether the direction and orders of the Court
have been implemented by the respondents in its true spirit
and substance or not."
8. From the above enunciated principles, it is clear that the public
functionaries and public bodies must act within the specified time provided
in the provisions of law and in absence thereof within a reasonable time.
The concept of reasonable time is applicable to administrative action
particularly when the determination in exercise of such power is likely to
have effect on the rights and obligations of individuals. The citizens have
a right to claim performance of public duties by the public functionaries
within a reasonable time so as to achieve the object for which such
statutory or public functionaries are required to act. In the present case,
Respondent No.2-Committee has been constituted only with an object of
dealing with and deciding the matters in relation to validity/verification of
the caste certificates. Once such a function is assigned to the Committee, it
is expected to keep the object and such function in its mind. Therefore, it
is expected of Respondent No.2-Committee to work for the welfare of the
Applicants while ensuring that the delay in performance and discharge of
their duties does not result in frustration or taking away the rights which
would be available to the applicants. Undue delay in the normal
circumstances has the effect of divesting an applicant's right of being
considered for employment and admission to academic/professional
courses. That certainly is not the intent of the law under which the
Committee has been constituted.
9. We are concerned with the case where Respondent No.2-
Committee has not only failed to act once, but has repeatedly failed to
act within a reasonable time, much less expeditiously. Vide order dated
25th April, 2008, the Court had directed the Respondent No.2-
Committee to decide tribal claim of the Petitioner within two months
from 14th May, 2008. Interim protection granted to the Petitioner was
that the Petitioner's admission should not be cancelled on the sole
ground that the Petitioner had not been able to tender caste validity
certificates. Despite this specific direction where the Court had fixed the
time, the Respondent No.2 - Committee had not only failed to decide
caste validity claim of the Petitioner within the specified time but it even
failed to seek extension from the Court in this regard. Not only this but
it also failed to seek appropriate directions from the Court in this behalf.
Even after the expiry of time specified by the Court and reminders of
the Petitioner it still failed to act and decide the question of caste
claim/validity certificate of the Petitioner. According to the Petitioner,
she has lost two jobs as she could not furnish caste validity certificate
either to Co-operative Department ( in Class-III category ) in the office of
Divisional Deputy Registrar, Co-operative Societies (Auditor),
Aurangabad, Division Aurangabad in the Scheduled Tribe Category as
well as for the post of Clerk-Typist (English) in the General
Administration Department, Mantralaya, Mumbai. The Petitioner claims
to have also got employment in Respondent No.3 but again was unable
to join the same for want of caste validity certificate.
10. Great disadvantage and harm has been caused to the
Petitioner as a result of untimely action on the part of the Respondent-
Committee and its office. Whatever be the reasons for delay, the
Petitioner certainly cannot be blamed for the same. She has doubly
suffered at the hands of the Respondent Committee, firstly, the
Respondents did not act timely causing disadvantage to the Petitioner
for losing her job and secondly she has been compelled to approach the
Court again and again which could have been avoided, obviously,
putting her to unnecessary expenses. The Committee must realise
that it is expected to act timely and that it is answerable and
accountable to the public as well as to the law under which it is
constituted. The Respondent No.2-Committee has not even denied
before us that the application of the Petitioner is still not pending and/or
has been decided by the competent authority. All the averments made
in the Petition are primarily supported by the Court orders and inaction
on the part of the Respondents which is obviously the result of
irresponsible attitude by the Committee and its office cannot be ignored
by the Court.
11. We are compelled to pass an order imposing cost on the
members of the Committee who are responsible for the delay because it
is a glaring case of breach of public accountability. In our opinion, sense
of public accountability, which applies to the facts of the present case,
clearly is lacking in the members of the Committee and its officers who
failed to discharge their duties within time. Whatever be the reasons for
non-performance of the public duty timely by them, the same has
caused serious prejudice to the Petitioner. Breach of duty is actionable
wrong in law and some benefit thus must accrue to the Petitioner.
12 Thus, we dispose of this Writ Petition with a direction to
Respondent No.2-Committee and all its members to ensure that the
application of the Petitioner be decided within a period of four weeks
from today without fail. This, however, would not preclude the Petitioner
from pursuing such other remedy as may be advised. The Petitioner is
entitled to costs of Rs.25,000/- from the Respondents and particularly
from Respondent No.2-Committee. We further direct the State to fix
responsibility of the erring committee members/officers/officials who are
responsible for not complying with the order dated 25th April, 2008 of
this Court and recover costs to be paid by the State exchequer from
each one of them in accordance with law.
13. In view of the above, rule is made absolute as aforestated.
CHIEF JUSTICE
A.M. KHANWILKAR, J
