Bombay High Court
New Bombay Advocates Welfare ... vs State Of Maharashtra And Ors on 7 August, 2015
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.239 OF 2009
ALONG WITH
PUBLIC INTEREST LITIGATION NO.10 OF 2008
ALONG WITH
WRIT PETITION NO.5101 OF 2012
PIL NO.239 OF 2009
New Bombay Advocates Welfare Association,
through its President and Another.
ig .. Petitioners
Vs
State of Maharashtra and Others. .. Respondents
-
PIL NO.10 OF 2008
Shri Pramod Mahadeo Thakur. .. Petitioner
Vs
The Secretary,
The Law and Judiciary Department and Others. .. Respondents
-
WP NO.5101 OF 2012
Ahmednagar City Bar Association. .. Petitioner
Vs
The Union of India and Others. .. Respondents
--
Shri A.A. Kumbhakoni, Senior Advocate, appointed as Amicus Curiae
along with Shri Amit B. Borkar for the Petitioners.
Shri Makarand Kale i/by M/s. M.P. Vashi & Associates for the Petitioner
in PIL No.239 of 2009.
Shri Rahul S. Thakur for the Petitioner in PIL No.10 of 2008.
Shri A.B. Vagyani, Government Pleader along with Mrs.M.P. Thakur,
AGP for the Respondent No.1 in the PIL No.239 of 2009 and for the
Respondent Nos.1 to 4 and 7 in PIL No.10 of 2008 and for the
Respondent No.5 in WP No.5101 of 2012.
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Shri Uday P. Warunjikar for the Petitioner in WP No.5101 of 2012.
Shri A.M. Kulkarni along with Shri Sarthak Diwan and Shri Akshay
Kulkarni for the Respondent No.2 in PIL No.239 of 2009.
Shri Sanjay Udeshi i/by M/s. Sanjay Udeshi & Co for the Respondent
No.3 in PIL No.239 of 2009.
Ms. Pinky M. Bhansali i/by M/s. G.S. Hegde & Associates for the
Respondent No.5 in PIL No.10 of 2008.
Shri M.S. Karnik for the Respondent No.8 in PIL No.10 of 2008 and for
the Respondent No.4 in WP No.5101 of 2012.
Shri Parag Vyas and Shri D.R. Shah for the Union of India.
--
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ
ig DATED : 7TH & 13TH AUGUST 2015
ORAL JUDGMENT : (PER A.S. OKA,J)
INTRODUCTION
. These three Petitions have been filed inviting the attention
of this Court to the gross delay on the part of the State Government in
commencing and completing the construction of Court buildings. The
Public Interest Litigation No.239 of 2009 concerns construction of a
Court building and Judicial Quarters at Navi Mumbai in Taluka and
District Thane. The Public Interest Litigation No.10 of 2008 concerns
the grievance about the gross delay involved in the commencement of
construction and completion of a Court building as well as judicial
quarters at Panvel in District Raigad. The Writ Petition No.1501 of
2012 contains a grievance regarding failure of the State Government to
commence and complete the construction of District Court Building at
Ahamednagar within a reasonable time. In these three Petitions, from
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time to time, various directions have been issued by this Court. It is
really unfortunate that the Members of the Bar were compelled to file
such Petitions in this Court inviting the attention of the Court to the
gross delay on part of the State Government to commence and complete
the construction of Court buildings.
THE OBLIGATION OF THE STATE TO ESTABLISH COURTS
AND PROVIDE INFRASTRUCTURE
2.
Before we deal with the factual aspects, firstly we propose
to deal with the issue of the obligation of the State Government not
only to establish the Courts, but also to provide adequate infrastructure
to the Courts which are already established. Part IV of the Constitution
of India contains the directive principles of state policy. Article 39A
forming part of Part IV reads thus:-
"39A. Equal justice and free legal aid.- The State shall
secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation
or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities."
3. In the case of Purshottam Manohar Kamone V. State of
Maharashtra1, the issue of obligation of the State Government to
establish Courts was considered. The Division Bench of this Court
reiterated the well settled principle that the speedy justice is an
1 2001(4) Mh.LJ. 320
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ingredient of Article 21 of the Constitution of India and, therefore, each
litigant has a fundamental right to speedy justice. In Paragraph 6 of
the said decision, the Division Bench has held thus:-
"6. It is no longer debatable and rather it is well
settled that the speedy justice is an ingredient of
Article 21 of the Constitution of India and,
therefore, each litigant has a fundamental right of
a speedy justice. That being so, it is the
corresponding obligation of the State to constitute
sufficient number of courts, Tribunals and forums
so that a litigant, who has knocked the door of the
Court or Tribunal, is able to get justice speedy.
Taking into consideration the huge pendency of motor
accident claim cases at Nagpur, expected future filing
and slow disposal of such cases, it is necessary for the
State Government to provide sufficient Motor Accident
Claims Tribunals at Nagpur. This is essential to ensure
the speedy disposal of cases and in consonance with
Article 39-A of the Constitution of India, which
provides that the State shall secure that the operation
of the legal system promotes justice. As observed by
the Apex Court in S.C. Advocates-on-Record v. Union
of India,: AIR 1994 SC 268, with reference to Article
216 of the Constitution of India, which deals with the
constitution of High Courts, "This is essential to ensure
speedy disposal of cases, to 'secure that the operation
of the legal system promotes justice' - a directive
principle 'fundamental in the governance of the
country' which, it is the duty of the State to observe in
all its actions; and to make meaningful the guarantee
of fundamental rights in Part III of the Constitution."
The Apex Court further observed that the failure to
perform this obligation, resulting in negation of the
Rule of law by the laws' delay must be justiciable, to
compel performance of that duty. Applying the same
principle, in our view, it must be held that the
constitution of Motor Accident Claims Tribunal, as
required by the State under section 165 of the
Motor Vehicles Act is justiciable issue and if it is
shown that the existing Tribunal is inadequate to
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provide speedy justice to the people, a direction
can be issued to the State Government to take
appropriate steps in discharge of their duty,
commensurate with the need to fulfill the State
obligation of providing speedy justice to the victims or
the dependent of the victims of motor accident".
(emphasis added)
4. Hence, now the law is crystalized. The law is that the State
Government is under obligation to constitute sufficient number of
Courts, Tribunals or Forums so that a litigant, who has knocked the
door of the Court or Tribunal, is able to get speedy justice. Even the
access to justice is a facet of fundamental right available under Article
21 the Constitution of India.
5. Our attention is invited to a decision of the Apex Court in
the case of Brij Mohan Lal v. Union of India and Others 1. It will be
necessary to make a reference to Paragraphs 136 and 137 of the said
decision which reads thus:-
"136. However, as far as functioning of the courts
i.e. dispensation of justice by the courts is
concerned, the Government has no control
over the courts. Further, in relation to
matters of appointments to the judicial
services of the States and even to the higher
judiciary in the country, the Government has
some say, however, the finances of the
judiciary are entirely under the control of the
State. It is obvious that these controls should
be minimised to maintain the independence
1 (2012)6 SCC 502
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of the judiciary. The courts should be able to
function free of undesirable administrative
and financial restrictions in order to achieve
the constitutional goal of providing social,
economic and political justice and equality
before law to the citizens."
"137. Article 21 of the Constitution of India takes in
its sweep the right to expeditious and fair
trial. Even Article 39-A of the Constitution
recognises the right of citizens to equal justice
and free legal aid. To put it simply, it is the
constitutional duty of the Court to provide
the citizens of the country with such
ig judicial infrastructure and means of access
to justice so that every person is able to
receive an expeditious, inexpensive and
fair trial. The plea of financial limitations
or constraints can hardly be justified as a
valid excuse to avoid performance of the
constitutional duty of the Government,
more particularly, when such rights are
accepted as basic and fundamental to the
human rights of citizens."
(emphasis added)
6. The Apex Court also relied upon its earlier decision in the
case of Hussainara Khatoon v. State of Bihar1 wherein the Apex Court
observed that it is also the constitutional obligation of the Apex Court to
enforce setting up new Court buildings and Court houses providing
more staff and equipment to the Courts and to take all measures
calculated to ensure speedy trial. The Apex Court in the said decision
observed that the Government cannot plead financial or administrative
1 (1980)1 SCC 98
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inability to avoid its constitutional obligation to provide speedy trial to
an accused.
7. The Apex Court has reiterated that it is the constitutional
duty of the Government to provide to the citizens of the country with
such judicial infrastructure and means of access to justice so that every
citizen is able to receive an expeditious, inexpensive and fair trial.
What is more important is the categorical declaration made by the Apex
Court that the plea of financial limitations or constraints cannot be a
valid excuse to avoid the performance of the constitutional duty of the
Government to provide a proper judicial infrastructure. The
fundamental right to access to justice and right to speedy justice
available to the citizens can be effectively exercised by them provided
adequate judicial infrastructure is available. The said right can be
effectively exercised provided adequate number of Courts are
established and a proper infrastructure is provided therein for the
litigants, Judges, the members of the Bar and the Court staff. The
existence of aforesaid fundamental right creates a corresponding
obligation in the State Government to ensure that adequate number of
Courts are established as may be decided by the High Court and a
proper infrastructure is provided therein for the litigants, Judges, the
members of the Bar and the Court staff. The litigants are entitled to
have basic facilities such as clean drinking water, clean toilets and
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proper sitting arrangement in every Court. While performing the
constitutional duty of ensuring that the citizens are able to exercise the
said right, the State Government cannot come out with an excuse of
financial limitations or constraints.
8. When it comes to the construction of new Courts, this
Court on the administrative side takes into consideration number of
relevant aspects, such as, population, pendency of cases, easy
accessibility to the the litigants to the place where Court is proposed to
be established. After having considered all the relevant factors that this
Court submits proposals to the State Government to establish new
Courts.
9. Only by providing lands for establishing Courts, the State
Government does not discharge its constitutional obligation. It is an
obligation of the State Government to provide all the necessary
infrastructure to the newly established as well as the existing Courts, to
the judicial officers, to the members of the staff as well as to the
members of the Bar. The infrastructure has to be provided in such a
manner that the Courts are able to function effectively. The
infrastructure to be provided has to be consistent with the concept of
dignity and decorum of the Court. The speedy disposal of cases in
consonance with Article 39A of the Constitution of India cannot be
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achieved unless adequate number of Courts are established and
adequate and proper infrastructure is provided to all Court premises.
PROCEDURAL ASPECTS:
10. There is one important issue which is common in all these
cases needs to be highlighted. This common aspect is that the
procedure for approval of building plans, approval of estimates for
construction of a Court complex prepared by Public Works Department
(PWD) and sanction of funds is very cumbersome and lengthy. The
files keep on moving from one department to another and by the time
the estimates are approved and the funds are sanctioned and released,
there is a lot of delay which results in delay in commencement of
construction and escalation in the cost of construction. The escalation,
apart from putting the burden on public exchequer, leads to submission
of revised estimates, the approval of which again takes inordinately
long time. Till the approval to revised estimates, the construction
becomes standstill due to lack of funds. In all the three cases which are
before the Court, the funds were belatedly sanctioned and there was a
gross delay in release of funds which led to delay in completion of the
project and naturally led to further cost escalation. Thus, due to such
delays at all stages, it is the State exchequer which ultimately suffers.
In these three cases, it can be safely said that enormous burden has
been put on the public exchequer due to the delay on the part of the
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State Government in sanctioning the revised estimates and in releasing
the funds. That is the reason why under the order dated 8 th May 2015,
this Court directed the State Government to constitute a Committee of
Senior Officers headed by the Chief Secretary to look into all the aspects
of construction of various Courts and accordingly, a Committee has
been constituted. There is an urgent need to streamline the procedure
which is followed for preparation and sanction of plans and estimates as
well as for the preparation and sanction of revised estimates. The
movement of files has to be curtailed which will ultimately save the
money of the State. Moreover, when there is a delay in completion of a
project, the State Government must hold an inquiry and fix the
responsibility for the delay as the delay puts burden on the State
exchequer. Unless the element of accountability is introduced, the
projects would not be completed within the outer limit fixed. It is
mandatory that the procedural delays are curtailed.
11. Apart from these three Petitions, there are 7 to 8 Writ
Petitions assigned to this Bench dealing with the issue of infrastructure
available in various Courts and Tribunals in the State. A general
observation which can be made on the basis of the pleadings and the
documents on record as well as the orders passed by this Court in all
the Petitions is that the State Government has failed to perform its
constitutional obligation of providing requisite infrastructure to the
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Courts and Tribunals. The extent of failure of the State Government to
perform its constitutional obligations can be well demonstrated by
adverting to the facts of the PIL No.239 of 2009.
PIL NO.239 OF 2009
12. PIL No.239 of 2009 concerns establishment of Civil and
Criminal Courts at Navi Mumbai. It is with the object of reducing
congestion in the City of Mumbai, in the late 1960s, the State
Government took a policy decision to form a satelite City of Navi
Mumbai. On 20th March 1971, a Notification was issued in exercise of
powers under Section 113 of the Maharashtra Regional and Town
Planning Act, 1966. By the said Notification, the site of a new town of
Navi Mumbai was specified which was to include about 96 villages
situated within the adjoining Districts of Thane and Raigad. The City
and Industrial Development Corporation of Maharashtra Limited
(CIDCO), a Government of Maharashtra Company was appointed as a
New Town Development Authority for the city of Navi Mumbai. Both
the State Government and the CIDCO advertised that the City of Navi
Mumbai will be a model City or a dream City. The area of site of Navi
Mumbai extends to 344.5 sq. Kilometers. The said area covers a large
industrial area as well as the area available for urban development. The
city of Navi Mumbai started developing and growing very fast from the
last decade of the 20th century and there was enormous residential,
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commercial and Industrial growth. In the year 1991, the Navi Mumbai
Municipal Corporation was established under the Maharashtra
Municipal Corporations Act, 1949 and started functioning with effect
from 1st January 1992. The jurisdiction of the Navi Mumbai Municipal
Corporation was confined to 44 villages. By 2001, the population of the
new city crossed 11,00,000 mark. There was overall growth in terms of
construction of residential and commercial buildings. There was also
enormous growth in terms of industrial and commercial activities in the
New City which lead to rise in the prices of lands. All this growth lead
to filing of large number of litigations. It is on this background that we
will have to appreciate the manner in which the matter of construction
of a Court building and the judicial quarters in Navi Mumbai has been
dealt with by the State Government. In this PIL No.239 of 2009, we are
dealing with the establishment of a Court complex in a model and so
called dream City of Navi Mumbai which which has become a hub of
commercial and industrial activity. If the record of the said Petition is
perused, it can be safely said that but for the intervention of this Court,
even a plot for construction of a Court building and judicial quarters
would not have been allotted.
13. It all started with the PIL No.18 of 2007 filed by the
Association known as "New Bombay Advocates' Welfare Association"
which is also the Petitioner in the present PIL. On 28th March 2007
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when the said earlier PIL came up before a Division Bench of this Court,
the CIDCO made a statement that the area of 19,000 sq. meters has
been earmarked for construction of a Court building. This Court
directed the State Government to take necessary action. In the very
order, this Court expected that the Principal Secretary of the Urban
Development Department to file an affidavit in the matter stating as to
what was the impediment in allotting the land free of cost for the
purposes of Court buildings by the CIDCO considering the financial
constraints that are faced by the State Government. This Court was
conscious of the fact that all the plots in Navi Mumbai had been
acquired by the State Government and were placed for disposal of the
CIDCO which is the Government of Maharashtra Company. Even
thereafter, no steps were taken. Therefore, by the order dated 3 rd May
2007, this Court directed the CIDCO to allot a plot having an area of
19,488.20 sq. meters within a period of four weeks from the said date.
The order dated 3rd May 2007 records that under no circumstances, the
project of raising a judicial complex on the plot in question shall be
delayed. On 21st August 2008, a statement of the learned Assistant
Government Pleader was recorded that the possession of the land has
been already given to the concerned Department in the Government for
construction of a judicial complex and the Chief Architect has already
prepared the drawings which has been approved by this Court. By
accepting the said statement that the said PIL was disposed of.
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Notwithstanding the said orders, as no further steps were taken by the
State Government, the present PIL was required to be filed in which
more than a dozen orders were required to be passed from time to time.
The present PIL has been filed by the same Association of the Advocates
seeking a writ of mandamus directing the Government to undertake
construction of a Court complex and to sanction adequate funds for the
project. Right from 4th October 2010, several directions were issued
by this Court from time to time. One of the material directions is in the
order dated 4th April 2014. The order dated 1st September 2014 records
a very crucial aspect. As the CIDCO did not transfer the land to the
State Government, the Navi Mumbai Municipal Corporation did not
grant regular water supply for construction of the Court building. As a
result, the water was required to be procured by tankers. By consuming
the contaminated water procured by the tankers, the construction
workers staying at the site fell ill. Therefore, this Court directed the
Navi Mumbai Municipal Corporation to release the water supply both
for the purpose of construction and for the purpose of consumption by
the workers at site. This order which was passed more than 15 months
back records that a lease has not been executed by the CIDCO in favour
of the State Government. Only after this order was passed that the Navi
Mumbai Municipal Corporation provided the water supply. The order
dated 3rd November 2014 records that there was a gross delay on the
part of the State Government in completing the construction of the
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Court building and judicial quarters. The order dated 24 th November
2014 also deals with the aspect of gross delay in completion of the
Court complex at Navi Mumbai. The requirement of the funds for
completing the construction was noted and the State Government was
directed to file an affidavit setting out the manner in which the funds
will be made available. Thereafter, again a detailed order was passed
on 13th January 2015 dealing with various aspects. Further order dated
8th May 2015 again notes the delay involved in completion of the
project. Even as of today, the CIDCO has not executed a lease deed in
respect of the said plot in favour of the State Government. The first
reason for the delay is that till this Court passed the order in the present
PIL, no steps were taken to execute a lease. The second reason is that a
huge amount by way of a lease premium was demanded by the CIDCO
and ultimately, this Court has passed the order in the present PIL
directing the State Government to consider of reducing the amount of
lease premium payable to the CIDCO and accordingly, the said amount
was brought down to Rs.9.75 Crores. This amount will be payable by
the State Government to the CIDCO by way of lease premium. As
pointed out earlier, in the earlier PIL being PIL No.18 of 2007, as back
as on 3rd May 2007, this Court expressed a view that the State
Government should file an affidavit stating as to why the CIDCO cannot
hand over the plot for Court complex free of cost. After several orders
were passed by this Court, now there is an affidavit filed on 30 th July
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2015 by Shri Mansing Namdeo Pawar, Deputy Secretary of the Law and
Judiciary Department in which it is stated that the demand of Rs.9.75
Crores was sanctioned by the Legislative Assembly and the said amount
will be released to the CIDCO very soon. We propose to issue directions
to the CIDCO to execute the lease on receiving payment from the State
Government. The State Government on acquiring the lands at its own
cost has placed the CIDCO in possession thereof for establishment of the
City. Therefore, even today, the State Government should consider the
option of taking over the plot of land free of any premium.
14. Before we deal with the issue of the outer limit within
which the construction of Court complex /judicial quarters will have to
be completed, we must record here with some emphasis that even the
present stage of construction could not have been reached if there were
no PILs filed by the Petitioners. From the stage of allotment of plot for
the project of construction of a Court complex in Navi Mumbai, more
than two dozen orders were required to be passed by this Court right
from the year 2007 till 2015. Therefore, this is a classic illustration of
a case where the State Government has failed to perform its obligation
of establishing a proper Court complex and of providing infrastructures
to the said Court. For all these years, the Courts are functioning in
premises taken on rent which are very inconvenient for litigants,
lawyers and Judges.
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15. As far as Navi Mumbai Court Complex is concerned, there
are certain assurances incorporated in the affidavit dated 30 th July, 2015
of Shri Mansing Namdeo Pawar, Deputy Secretary, Law and Judiciary
Department. From the said affidavit, it appears that still the amount of
Rs.13.75 Crores is required to be budgeted which can be done only in
the winter session of Legislature in December 2015. The other issue as
far as the Court Complex and judicial quarters in Navi Mumbai are
concerned, there is already an assurance recorded that both the
buildings will be completed by the end of June 2016. The said
assurance can be found in the affidavit of Shri Salim Gulab Shaikh,
Executive Engineer of the Public Works Department, which is dated 30 th
July 2015. Thus, the construction of the Court building as well as the
judicial quarters in Navi Mumbai will be completed by the end of June
2016. Considering the fact that the construction of the Court complex is
inordinately delayed, the Public Works Department will have to prepare
plans and/or estimates of the internal work such as plumbing,
sanitation, electrification as well as the plan of internal roads, gardens,
drainage system etc. on or before 30 th November 2015 to enable all the
Departments including the administrative side of the High Court to
approve the same. When we say that the buildings will be completed
by the end of June 2016, we clearly mean that the buildings shall be
completed in such a manner that the user of the buildings can be
commenced effectively from 1st July 2016.
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WRIT PETITION NO.5101 OF 2012
16. Now it will be necessary to consider the stand taken as
regards the Court Building at Ahmednagar. There is an affidavit filed by
Shri Dayanand Bhimrao Vibhute, the Executive Engineer, Public Works
Department, Ahmednagar. In the said affidavit, he has stated that the
outer limit for construction of the Court has been extended till the end
of September 2016. He has annexed at Exhibit-1 to the said affidavit,
the tentative schedule of work which ends with the site cleaning on 30 th
September 2016. Therefore, the construction of Court building at
Ahmednagar will have to be completed by 30 th September 2016. The
construction will have to be completed in such a manner that with
effect from 1st October 2015, the entire building can be used for
functioning of the Court in effective manner. In this case, the additional
estimates and/or plans for carrying out internal work of plumbing,
sanitation etc as well as external work such as internal roads, drainage,
gardens etc shall be submitted latest by 30 th November 2015 by the
Public Works Department so that after completing the process,
necessary funds can be released. We make it clear that considering the
fact that the work of construction has been already delayed, no
extension shall be ordinarily granted.
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17. As far as the issue of the Court building at Ahmednagar is
concerned, the learned counsel appearing for the Petitioner has raised
two additional issues. His contention is that the Bar room of adequate
size will have to be provided in the said building both for male and
female Advocates. His submission is that while finalizing the size of
the Bar room, even the possibility of future increase in the number of
members of the Bar will have to be taken into consideration. The High
Court Administration will have to take a policy decision on this aspect.
We accept the contention that the Bar rooms of adequate size will have
to be provided. However, as far as the area to be provided is concerned,
it is a matter of policy decision to be taken by the High Court
Administration.
ISSUE OF ACCOMMODATING NOTARIES IN THE COURT
BUILDING/COMPLEX:
18. Another issue raised by the learned counsel appearing for
the Petitioner in the Writ Petition No.5101 of 2012 in case of the
Ahmednagar Court is regarding accommodating the Notaries appointed
under the Notaries Act, 1952 ( for short "the said Act of 1952") in the
Court premises. It is contended that the notaries who are members of
the Bar sit in the Advocates' Bar rooms and carry on their occupation
which obstructs the use of Bar rooms by other members of the Bar.
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Once the Bar rooms are allotted to the Bar Associations, it is the
responsibility of the Bar Associations and its members to ensure that the
Bar rooms are used strictly for the purpose for which the same are
allotted. If any member of the Bar is using a Bar room for the purposes
which are not contemplated, it is for the concerned Bar Association to
take action against its own erring member in accordance with law.
There is a submission made that a separate premises be allotted in each
Court complex to the Notaries. Therefore, it will be necessary to
consider the provisions of the said Act of 1952. Under Sub-section (1)
of Section 8 of the said Act of 1952, the functions of the Notaries are set
out. Apart from the attestation of instruments and administering the
oath for the purposes of affidavits, the Notaries perform several other
functions. Most of the functions are under the provisions of the
Negotiable Instruments Act, 1881. Attestation of the documents and
administering oath for the purposes of affidavits are only few functions
of the Notaries. Our attention is invited to the provisions of the Notaries
Rules 1956 ( for short "the said Rules"). The Rule 8 of the said Rules
provides that appointment of a Notary can be made in respect of a
specific area. The Rule 15 provides that each Notary shall have an
office within the area mentioned in the certificate issued to him/her
under Rule 8 of the said Rules. Thus, the said Rules contemplate that
each notary should have an office within the area of his jurisdiction.
Considering the requirement of the said Rules of each Notary of having
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an office within the area of his jurisdiction, it will not be appropriate to
provide separate premises to the notaries in the Court buildings.
Moreover, the role of a Notary is not confined to administering oath for
affidavits. It is only a small part of his functions. Therefore, the said
submission made by the learned counsel for the Petitioners cannot be
accepted.
PIL NO.10 OF 2008
19. As far as the Court building and judicial quarters at Panvel
is concerned, Shri Vilas Laxmanrao Kamble, the Executive Engineer of
the Public Works Department, Alibag, has filed an affidavit dated 30 th
July 2015. In Paragraph 7 of the affidavit, he has stated that the Court
building can be completed by the end of March 2016 provided that the
balance amount of Rs.214.36 lakhs will be made available as per the
demand made by the Public Works Department. The said amount shall
be made available by the State as per the demand of the PWD. Even as
regards the judicial quarters, he has stated that the construction thereof
can be completed by the end of March 2016. In fact, he has given an
assurance that an endeavour will be made to complete the same by the
end of January 2016. We propose to grant time up to the end of March
2016 to complete both the judicial quarters and the Court building. As
in case of other buildings, the additional estimates and/or plans for
carrying out internal work such as plumbing, electrification, etc and the
ash 22 pil-239,10n-wp-5101.12-
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work such as the internal roads, drainage system, gardens, etc. shall be
submitted by 30th September 2015 which will have to be approved by
the concerned department including the High Court Administration so
that in the winter session of Vidhan Sabha in December 2015, the
approval can be granted to the additional estimates.
20. As noted earlier, but for the intervention of the judicial side
at every stage, commencement of construction of the Court complex at
Navi Mumbai would not have commenced. Even in case of Courts at
Ahmednagar and Panvel, but for the judicial intervention, no progress
would have been made in the work of construction.
NEED TO STREAMLINE PROCEDURE AND TO GIVE
PRIMACY TO THE VIEWS OF THE HIGH COURT
ADMINISTRATION
21. In some detail, we have already discussed constitutional
obligation of the State Government of establishing the Courts in the City
and of providing all the infrastructures to the Courts. As far as the
decision of establishing the Courts is concerned or as far as the
requirement of constructing new Court buildings or new judicial
quarters is concerned, the same will have to be taken by the High Court
Administration after considering all the relevant factors. The
views/opinion of High Court Administration on the aspect of
ash 23 pil-239,10n-wp-5101.12-
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establishing new Courts must get primacy. However, as laid down by
the Apex Court in the case of Brij Mohan Lal, once the High Court
Administration decides to set up a new Court or to construct a new
building for housing the Courts or new building for the judicial
quarters, the plea of financial constraints or financial limitations is not
available to the State. The Courts should be free of undesirable
administrative and financial restrictions. The State cannot refuse to
perform its constitutional obligation of providing adequate judicial
infrastructure and means of access to justice to citizens. As pointed out
by Shri Kumbhakoni, the learned senior counsel appointed as Amicus
Curiae, there are delays involved at every stages right from the sanction
of the initial proposal for construction of Court building. At every stage,
the State Government comes out with an excuse of financial constraints.
In view of the law laid down by the Apex Court in the decision in the
case of Brij Mohan Lal, the said excuse is no longer available to the
State Government. As held therein, the Courts should be free of
undesirable financial restrictions.
22. We have pointed out in the earlier order passed in these
three Petitions that there is invariably a gross delay in processing the
proposals/estimates for construction of new Court buildings. Normally,
there are various objections raised by the Finance Ministry. The High
Court administration is told to justify the necessity of construction of
ash 24 pil-239,10n-wp-5101.12-
courtinfrastructure
new buildings. By way of illustration, we may state that in some cases,
when construction of a judicial quarter is already approved, justification
is demanded as to why a compound wall is necessary. Even after the
funds are budgeted, invariably here is a delay in release of the funds. If
proposals are not approved within the reasonable time from the date on
which estimates are prepared, by the time the approvals are granted by
the State and tender is floated, there is always an escalation in the cost
of construction. There is further delay involved as the sanctioned
amount is normally not released in the required time frame. Therefore,
supplementary proposals/estimates are required to be submitted. At
that stage also the Finance Ministry invariably raises all sorts of
objections and demands justification which again causes the delay. That
is how, apart from defeating constitutional obligation of the State
Government, the delays put enormous burden on the State exchequer.
Therefore, as rightly submitted by Shri Kumbhakoni, the procedure for
grant of approval will have to be streamlined and the procedure should
be such that within a time bound schedule, the decisions are taken and
implemented.
23. The delays start from the stage of acquisition of the land.
There are several instances where from the date on which the High
Court Administration moves the Government for initiating the
acquisition proceedings for taking over the land for the Court complex,
ash 25 pil-239,10n-wp-5101.12-
courtinfrastructure
the acquisition takes a decade or more. The provisions of the
Maharashtra Regional and Town Planning Act, 1966 are applicable to
the entire State. In those municipal areas where the Court
premises/residential quarters may be required to be constructed in
future or where the existing Courts/quarters are in rental premises or
where the premises available to the existing Courts are insufficient, it is
advisable that the State Government provides for reservations on
suitable lands in the sanctioned development plans for the Court
complexes including the judicial quarters. If such reservations are
provided, it will facilitate early acquisition of the lands needed for the
Court buildings or judicial quarters. By way of illustration, we may state
that in the City of Mumbai, in the existing sanctioned Development
Plan, there are more than 10 sites earmarked for the Court complexes.
We are informed across the Bar that the Revised Development Plan has
been published. It is the duty of the Law and Judiciary Department to
ensure that if the revised development plan proposes deletion of some
of the said reservations, the appropriate objections are raised. This will
apply to Development Plan of all the Municipal Authorities. Before
finalizing Development Plans, it is necessary for the State to consider
the requirements of Judicial department.
24. After a suitable land is placed in possession of the Law and
Judiciary Department for construction of a Court building and judicial
ash 26 pil-239,10n-wp-5101.12-
courtinfrastructure
quarters, the first step which is to be undertaken by the local public
works department is of preparation of drawings of the proposed
building as per the requirement of the judiciary. After the drawings are
approved, the estimates are prepared by the Public Works Department.
From the various orders already passed and the affidavits on record, we
find that there is an inordinate delay in grant of administrative approval
to the said proposals. After the hurdle of the administration approval is
cleared, then the proposals are sent to the Finance Department for
approval. From the record, it appears to us that various queries are
raised by the Finance Department including seeking justification for the
construction of the Court buildings and judicial quarters. As stated
earlier, the opinion of the High Court Administration has primacy in all
these matters. Hence, when the proposal is approved by the High Court,
normally, there is no reason to doubt the necessity of constructing a
new Court building or new judicial quarters. Once a conscious decision
is taken by the High Court Administration, in view of the law laid down
by the Apex Court in the case of Brij Mohan Lal, the financial
constraints cannot be an excuse to defeat the requirement of
construction of a Court building and judicial quarters as well as
provision for necessary infrastructure therein. Therefore, norms will
have to be laid down as regards the category of the objections which
can be raised by the Finance Ministry. The Ministry cannot impose
undesirable financial and administrative restrictions on Courts. A time
ash 27 pil-239,10n-wp-5101.12-
courtinfrastructure
bound schedule is required to be laid down for administrative approvals
to the project of construction and for financial approval. Unless all this
is done in a time bound manner the delays will result in further
escalation of cost. After all approvals are granted, even tender process is
required to be completed in a time bound manner.
25. Then comes an issue of submitting supplementary
estimates. The occasion for submitting supplementary estimates arises
when there is a delay in granting financial approval and there is a delay
in releasing the amount to the Contractors which results into delay in
completion of construction. In such cases, the approvals have to be
granted in much lesser time than the time which is required for the
grant of approval to the original proposals. Then comes the practice
which is followed consistently as regards the proposals for the internal
work such as plumbing, electrification etc as well as the external work
such as work of gardening, drainage system, compound wall etc. There
may be some valid reasons for not getting the estimates of the said
work approved at the outset. The logic may be that only when the
building is on the verge of completion that the appropriate decision can
be taken as regards the said requirements and by that time, invariably
there is an escalation of cost. A procedure will have to be laid down that
such estimates and proposals shall be submitted at least six months
prior to the proposed date of the completion of the construction of the
ash 28 pil-239,10n-wp-5101.12-
courtinfrastructure
buildings. As regards the furniture to be provided in the Court complex
as well as judicial quarters, it will be appropriate if the State
Government permits the High Court Administration/concerned
Principal District Judges to procure furniture by following e-tender
process.
NEED TO PREPARE A SCHEME CONSIDERING THE
CONSTITUTIONAL OBLIGATIONS
26.
Considering all the aforesaid aspects, the State Government
will have to take appropriate policy decision laying down a standard
procedure to be adopted for sanctioning proposals for construction of
the Court buildings/ judicial quarters as well as the financial approval
to the estimates. A procedure is also required to be laid down for the
grant of approvals to the work of repairs or additions and alterations to
the existing buildings. The State Government will have to lay down the
procedure with a view to ensure that all the approvals are granted
within a time bound limit considering the Constitutional obligation of
the State to provide infrastructure to the Judiciary. The procedure
which may be designed by the State Government must ensure that
unnecessary correspondence and unnecessary movement of the files
from one department to another is avoided. A single window system is
required to be adopted when it comes to grant of approvals as it is
found that the High Court Administration is required to run from pillar
ash 29 pil-239,10n-wp-5101.12-
courtinfrastructure
to post for getting the proposals approved. The State Government will
have to consider one more aspect. In several cases which have come
before this Court, it is noticed that the sanctioned funds are released at
the fag end of the financial year and, therefore, it becomes impossible
for the judicial department or the Court to use the said funds before the
end of the financial year and invariably the funds lapse and that is how
the requirement arises of again obtaining fresh financial approvals.
Such practice of releasing the funds at the fag end of the financial year
must be forthwith discontinued. We propose to direct the State
Government to take appropriate policy decision laying down a
comprehensive scheme dealing with the preparation of plans and
estimates, sanction thereof, release of funds as well as completion of
projects of the judiciary within a time bound schedule. We propose to
grant reasonable time to the State Government to come out with a
concrete scheme and policy decision on this aspect. Our suggestion to
the State Government is that before a policy decision is taken, the State
Government should involve a Registrar nominated by the High Court
Administration as well as Shri Kumbhakoni, the learned senior counsel
appointed as Amicus Curiae as well as the learned Government Pleader
in the process of consultation. The policy decision to be taken must also
provide a mechanism for fixing responsibility on the concerned officials
in the event of delays in completion of projects of the Court buildings
and judicial quarters.
ash 30 pil-239,10n-wp-5101.12-
courtinfrastructure
27. We must record our appreciation of the assistance rendered
by the learned counsel appearing for the Petitioners, the learned
counsel representing the High Court Administration, the learned
Government Pleader as well as the learned Senior Counsel Shri
Kumbhakoni who has been appointed as the Amicus Curiae. We must
note that the learned Government Pleader has assisted the Court as an
Officer of the Court and therefore, no Officer of the State shall treat it
as an objectionable conduct.
28. Considering the aforesaid discussion, we dispose of these
three Petitions by passing the following order:
ORDER :
(a) We hold that it is the duty of the State Government
to ensure that the Court complex and judicial
quarters are constructed and all necessary
infrastructure is provided as per the decisions taken
by the High Court Administration on the
administrative side. It is the obligation of the State
Government to maintain the existing buildings in
proper condition. It is the duty of the State to
ensure that all the necessary infrastructure is
ash 31 pil-239,10n-wp-5101.12-
courtinfrastructure
provided in all Courts for the Litigants, Advocates,
Judges and members of the staff. The obligation will
include the work of carrying out repairs to the
existing buildings. We make it clear that in the
matter of providing infrastructure to the Courts
including, the requirement of construction of new
buildings, the decisions of the High Court
ig administration shall have primacy ;
(b) We hold that it is the constitutional duty of the State
Government to ensure that such judicial
infrastructure is provided which ensures that every
citizen has the benefit of an expeditious, inexpensive
and speedy trial. The State is under an obligation to
provide easy access to Justice to the Citizens. This
obligation includes making available basic facilities
to the Litigants in each Court Complex such as clean
and modern facility of toilets and washrooms, clean
drinking water and a proper sitting arrangement.
The Litigants have a right to have a clean and well
maintained Court Building ;
(c) We hold that the plea of financial limitations or
constraints cannot be normally an excuse to avoid
ash 32 pil-239,10n-wp-5101.12-
courtinfrastructure
performance of the aforesaid constitutional duties of
the Government;
(d) As observed in the earlier part of the judgment and
order, we direct the State Government to take a
policy decision and to formulate a scheme for
effectively dealing with the proposals for
ig construction of Court complex and judicial quarters,
work of expansion or extension of existing buildings
and the work of carrying out the repairs to it;
(e) The scheme shall be framed in such a manner that
all the unnecessary delays are curtailed and the
administrative as well as financial sanctions are
granted within a time bound schedule in case of
each proposal. The Scheme should provide for a
standardized procedure. The endeavour shall be to
provide a single window system. The Scheme shall
be formulated after taking into consideration the
law laid down by this Judgment and the
observations made herein. A policy decision shall be
taken on the aspect of permitting the Courts to
acquire furniture required for the Court buildings
ash 33 pil-239,10n-wp-5101.12-
courtinfrastructure
and the judicial quarters directly be adopting e-
tender process without the intervention of the PWD;
(f) Before taking a policy decision, the State
Government shall consult the Registrar/s nominated
by the High Court Administration as well as the
learned senior counsel Shri Kumbhakoni appointed
ig as an Amicus Curiae The learned Government
Pleader who has appeared in all the three cases shall
be a part of the process of consultation ;
(g) Appropriate decision shall be taken by the State
Government and the scheme shall be formulated by
the State Government as expeditiously as possible
and in any event on or before 31st October 2015;
(h) We direct the State Government to ensure that the
construction of the Court as well as judicial quarters
at Panvel in the District Raigad, is completed on or
before 31st March 2016;
(i) We make it clear that the construction shall be
completed in such a manner that the Court
ash 34 pil-239,10n-wp-5101.12-
courtinfrastructure
complexes as well as judicial officers' quarters at
Panvel become fully functional with effect from 1st
April 2016;
(j) Considering the grievance made that there is no
appropriate access road to the new Court complex at
Panvel and considering the grievance that there is
ig no adequate parking facility proposed, the State
Government shall take all possible steps to ensure
that appropriate access road having adequate width
is provided to the Court complex and adequate
parking facilities are provided-the State Government
shall also take into consideration the fact that during
the last few years, there is enormous rise in the
filing of Civil and Criminal cases in the Court at
Panvel ;
(k) We direct the State Government to ensure that the
construction of Court building at Ahmednagar is
completed in all respects on or before 30 th
September 2016 and the building becomes fully
functional for functioning of the Court with effect
from 1st October 2016.
ash 35 pil-239,10n-wp-5101.12-
courtinfrastructure
(l) A policy decision shall be taken by the High Court
Administration as regards the standard size of the
Bar rooms;
(m) We direct the State Government to complete the
construction of the Court building as well as the
judicial officers' quarters at Navi Mumbai as
ig expeditiously as possible and in any event on or
before 30th June 2016;
(n) As in case of other Courts, the State Government
shall ensure that the construction is completed in all
respects on or before 30 th June 2016 so that actual
user thereof can start on or before 1st July 2015;
(o) In case of all the three projects, the estimates for
internal and external works shall be submitted as
indicated in this Judgment at least six months before
the scheduled outer date for completion. We Make it
clear that the time to complete the process of
construction of the buildings fixed under this
Judgment will not be normally extended;
ash 36 pil-239,10n-wp-5101.12-
courtinfrastructure
(p) We direct the State Government to ensure that a
lease is executed by the City and Industrial
Development Corporation of Maharashtra Limited in
respect of the plot below the Court building and
judicial officers' quarters in New Bombay in favour
of the State Government in the Law and Judiciary
Department as expeditiously as possible and in any
ig event on or before 30th November 2015. The State
Government shall also explore the possibility of
getting the plot re-transferred to it without payment
of premium;
(q) As far as the payment of stamp duty on lease is
concerned, it will be open for the State Government
to avail of exemption under Sub-section (3) of
Section 3 of the Maharashtra Court Fees Act, 1958;
(r) A far as compliance with the directions to frame the
scheme and to take a policy decision as well as
compliance with the direction of execution of the
lease is concerned, the appropriate officer of the
State Government shall file compliance affidavit on
or before 20th November 2015;
ash 37 pil-239,10n-wp-5101.12-
courtinfrastructure
(s) A separate compliance affidavit shall be filed stating
the arrangement which the State Government
proposes to make as regards the access to the Court
building at Panvel and for providing adequate space
for parking at the Court premises at Panvel;
(t) ig For consideration of the aforesaid compliance, place
these three Petitions under the caption of
"Directions" on 30th November 2015;
(u) The Rule issued in the aforesaid three Petitions is
disposed of on above terms.
(REVATI MOHITE DERE, J) ( A.S. OKA, J )
