IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 184 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= GRAMIN MAJDOOR SABHA - THROUGH GENERAL SECRETARY (GUJARAT) - PETITIONER Versus STATE OF GUJARAT & 3 - RESPONDENT ========================================================= Appearance:
MR SIRAJ R GORI for PETITIONER : 1, MR PK JANI, LD.ASST.GOVERNMENT PLEADER for RESPONDENT : 1 - 3. MR HEMANG M SHAH for RESPONDENT : 4, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B. PARDIWALA)
1. By way of this writ-application under Article 226 of the Constitution of India in the nature of a Public Interest Litigation, the petitioner, an association of workers, has prayed for the following relief :
“12(A) Your Lordships may be pleased to Admit and Allow this petition;
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned Communication dated 18.4.2012 (Annexure-D) and Resolution dated 26.4.2012 (Annexure-E) in so far as it relates to use of State Transport Buses of the respondent No.4 for holding and organizing such Garib Kalyan Melas in each Taluka of the State;
(C) Your Lordships may be pleased to issue an appropriate writ, order or direction restraining the respondents from using the State Road Transport buses of the respondent No.4 for organizing such Garib Kalyan Melas in each taluka of the State and also be pleased to restrain the respondent No.4 from making allotment of buses for such programmes by disturbing the operational schedule;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to :
(i) restrain the respondents and its officers, agents and servants from utilizing the State Transport Buses of the respondent No.4 for holding Garib Kalyan Melas in 223 Talukas; and
(ii) restrain the respondent No.4 from allotting its buses for holding such Garib Kalyan Melas by disturbing its schedule;
(D) Your Lordships be pleased to pass such other and further orders as may be deemed fit, just and proper in the peculiar facts and circumstances of the present case.”
2. The case made out by the petitioner may be summed up as thus :
2.1 According to the petitioner, which is an association of workers hailing from rural area in the unorganized sector, the present petition is being filed in the interest of general public and more particularly, the poor and the downtrodden class of people who avail of the services provided by the respondent No.4- Gujarat State Road Transport Corporation (hereinafter referred to as 'the Corporation') as a mode of conveyance while travelling in rural areas.
2.2 The State of Gujarat has declared to organize festivals in the name and style of “Garib Kalyan Melas” with a laudable object of rendering assistance and financial help to the poor and the downtrodden class of people of the State of Gujarat. According to the petitioner, just before Assembly Elections of the year 2007, such programmes were organized and now once again with the forthcoming elections due any time by the end of this year, the State Government has decided to organize such programmes.
2.3 According to the petitioner, the respondent No.2 vide communication dated April 09, 2012 has directed to all Municipal Commissioners, District Collectors, District Development Officers, Prant Officers, Mamlatdars and Taluka Development Officers to host such programmes and arrange for LED Screens, Monitors and Hi-Fi sound systems, fans, lights and generators as per the requirement, to enable the Chief Minister of the State to address the beneficiaries of such programmes through Video Conferencing/telecast.
2.4 According to the petitioner, the respondent No.2 vide communication dated April 11, 2012 to all the above referred persons has informed that the Chief Minister of the State would deliver his speech at 07-30 in the evening and, therefore, the programme should be organized in such a way that it would start at around 06-15 p.m.
2.5 According to the petitioner, the most shocking communication of the respondent No.2, which is the subject matter of challenge in the present petition is dated April 18, 2012, whereby it has been directed that for each of the programmes minimum 50 buses should be arranged for each Taluka. In short, people will be provided with the service of transport so that they can reach at the place where the programme is fixed.
2.6 According to the petitioner, a resolution dated April 06, 2012 has been passed by the respondent Nos.1 and 2 sanctioning a grant of Rs.4,44,66,200/- to meet with the expenses for 223 such programmes to be conducted in each of the Talukas and 7 such programmes in each of the Municipal Corporations. The amount referred to above is to be spent from the contingency fund. In the said resolution, it has also been directed that an amount of Rs.7000/- be paid for each bus towards its rent, which would be used for carrying people on the day and date of such programme. According to the petitioner, vide communication dated April 27, 2012 issued by the respondent No.3, a sum of Rs.7000/- has been sanctioned towards rent to be paid for each bus and the requisite amount shall be paid by the Collector of the respective district. The communication dated April 27, 2012 also provides that a grant of Rs.7,80,50,000/- has been entrusted to the Development Commissioner for allocating the same to the District Collector at the rate of Rs.7000/- for each bus within the limit of 50 buses for every “Garib Kalyan Melas” for the total of 223 such Melas.
2.7 It is the case of the petitioner that there is a fleet of around 8000 buses with the respondent No.4-Corporation, out of which the respondent No.4 operates almost 6285 buses per day as per schedule. The petitioner has learnt from newspaper reports published on August 13, 2012 that such programmes are going to be held in different districts starting from August 17, 2012. The news reports also informed that in 10 different districts, 24 such programmes are to be organized. Therefore, according to the petitioner, at least 1200 buses will have to be arranged on the day and date when such programme is fixed. According to the petitioner, if 1200 buses are withdrawn for this special programme then the same would definitely disturb the regular schedule and the sufferers of such withdrawal of around 1200 buses would be no one but the regular commuters, who have not been put to the notice about such change of schedule of buses at various routes.
2.8 According to the petitioner, on inquiry it was learnt that in the recent past, the State Government had organized such programmes and had used the buses of the respondent No.4- Corporation in large number by cancelling the scheduled operations and thereby putting the general public at large, more particularly students of rural areas, daily commuters, patients, etc. in great difficulty. According to the petitioner, for citizens of this particular State residing in remote areas, the only mode of transport is the buses plied by the respondent No.4-Corporation.
2.9 According to the petitioner, the impugned resolutions at Annexures-D and E are ex-facie illegal, unconstitutional and violative of Articles 14 and 21 of the Constitution of India and, therefore, they deserve to be set aside.
:: LEGAL CONTENTIONS ON BEHALF OF PETITIONER ::
3. Mr.Siraj Gori, learned advocate appearing on behalf of petitioner, vehemently submitted that the action of the respondents to utilize a large number of State Transport Corporation buses for hosting such programmes without putting the local commuters to notice is ex- facie arbitrary and violative of fundamental rights of the citizens.
3.1 Mr.Gori also submitted that the respondent No.4 is an autonomous body, having its own administration and Board of Directors to manage its affairs and the State Government has arbitrarily not even thought fit to take the Board of Directors in confidence before issuing such resolutions.
3.2 Mr.Gori also submitted that the respondent No.4-Corporation is a loss making Corporation. Mr.Gori has provided few figures of the loss incurred by the respondent No.4-Corporation in the respective years. According to Mr.Gori, between the years 2005 and 2010, the respondent-Corporation has suffered a loss of Rs.244 crores, as reflected on the official website of the respondent No.4-Corporation.
3.3 Mr.Gori also submitted that the expenses incurred from the contingency fund for holding such programmes is also illegal. According to Mr.Gori, the respondents' intention to spend Rs.4.44 crores for such programmes is contrary to Finance Act, 1975 framed by the State and also contrary to the Rules of Business.
Mr.Gori, therefore, submitted that the petition deserves consideration and the relief as prayed for be granted in public interest.
4. After hearing Mr.Gori at length and as prima facie we were not convinced with the merits of the petition, we did not deem fit to issue notice to the respondents. However, on our request Mr.Gori provided a copy of the paper- book to Mr.P.K. Jani, learned Government Pleader appearing on behalf of State-respondent and one copy of the paper-book to Mr.Shalin Mehta, learned Senior Advocate appearing on behalf of respondent No.4-Corporation. We requested Mr.P.K. Jani, learned Government Pleader as well as Mr.Shalin Mehta, learned Senior Advocate appearing on behalf of respondent No.4-Corporation, to take appropriate instructions in the matter and assist the Court as to what was the actual position and whether a common man would be put to difficulty if 1200 and odd buses of the respondent-Corporation are withdrawn for a particular day for being utilized in the programme of “Garib Kalyan Melas”.
5. Mr.P.K. Jani, learned Government Pleader, after obtaining instructions in the matter, submitted that “Garib Kalyan Mela” is one of the benevolent schemes of the State Government through which the Government would directly reach to the people hailing from lower strata of the society so as to make them aware about various schemes of the State Government for their benefit and upliftment. Mr.Jani also submitted that through such schemes uptill now 69 lac people of this State have been benefited in different districts. According to Mr.Jani, for such a benevolent programme, if for one particular day few buses are utilized for carrying such people at the site of the programme, then under such circumstances, it could not be said that the normal life of the people would be paralysed and people will be put to immense hardship and difficulty.
5.1 Mr.Jani also submitted that the programmes are scheduled to be held on August 25, 2012, September 01, 2012, September 08, 2012 and September 15, 2012. According to Mr.Jani, all the aforesaid dates are non-working Saturdays. Mr.Jani also submitted on being instructed by Mr.S.B. Chaudhari, Deputy Secretary, Rural Housing and Rural Development Department of the Government of Gujarat, that the programme of “Garib Kalyan Mela” will be only for one particular day and on the date of the programmes at different places, the scheduled operations of the buses would not be affected in any manner. Mr.Jani also submitted that assuming for a moment that 1200 buses would be utilized on a given day, it will constitute just 20% of the total number of buses which the respondent No.4-Corporation is plying everyday. Mr.Jani also submitted that the State Government has got powers to hire buses run and managed by the respondent No.4-Corporation. Mr.Jani, therefore, submitted that as such there is no public interest involved in the present petition and only with a view to creating hurdles in the smooth execution of such benevolent programmes, that the present petition has been preferred. According to Mr.Jani there being no merit in this petition, the same deserves to be dismissed.
6. Mr.Shalin Mehta, learned Senior Advocate appearing on behalf of respondent No.4- Corporation took us through various legal provisions of the Road Transport Corporations Act, 1950 (hereinafter referred to as 'the Act'). Mr.Mehta invited our attention to Section 3 of the Act. The provisions of the said Section 3 of the Act reads thus :
“Section 3 : Establishment of Road Transport Corporation in the States :
The State Government, having regard to-
(a) the advantages offered to the public, trade and industry by the development of road transport;
(b) the desirability of co-ordinating any form of road transport with any other form of transport;
(c) the desirability of extending and improving the facilities for road transport in any area and of providing an efficient and economical system of road transport service therein. May, by notification in the Official Gazette, establish a Road Transport Corporation for the whole or any part of the State under such name as may be specified in the Notification.”
7. Mr.Mehta also invited our attention to the provisions of Sections 19(1)(b), 19(2)(f), 19(3)(iv) and 19(4) of the Act, which read thus :
“Section 19 : Powers of Corporation :
(1) Subject to the provisions of the Act, a Corporation shall have power -
(a) xxx xxx xxx
(b) : to provide for any ancillary service; xxx xxx xxx Section 19(2) : Subject to the provisions of this Act, the powers conferred by sub- section (1) shall include power-
performance of its duties and the exercise of its powers under the Act.
xxx xxx xxx Section 19(3): Nothing in this section shall be construed as authorising a Corporation, except with the previous approval of the State Government.
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(iv) : to let vehicles on hire for the carriage of passengers or goods except as expressly provided by or under this Act.
xxx xxx xxx Section 19(4) : Except as otherwise provided by this Act nothing in the foregoing provisions shall be construed as authorising the Corporation to disregard any law for the time being in force.”
8. Mr.Mehta also invited our attention to Section 34 of the Act, which reads as under :
“Section 34 : Directions by the State Government :
(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub- section (1) except with the previous permission of the State Government.”
9. Relying on the aforesaid provisions of the Road Transport Corporations Act, 1950, Mr.Mehta, learned Senior Advocate appearing on behalf of respondent No.4-Corporation, has submitted that no doubt the respondent No.4-Corporation is an autonomous body, but fully controlled and managed by the State Government and, therefore, it could not be said that the State Government has no powers to avail of services of the buses of the respondent-Corporation.
10. Ordinarily, court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal rights and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
11. After hearing the learned counsel for the respective parties and having gone through the materials on record, we are of the view that the following three questions fall for our determination in this petition :
(i) Whether any public interest is involved insofar as the decision of the State Government to avail of services of around 1200 buses on a particular day and date of the programme “Garib Kalyan Mela” is concerned. In short, whether the decision of the State Government is such which would have a lasting effect and would paralyse the normal life of the general public at large, more particularly residing in rural areas.
(ii) Whether the State Government has got powers to pass a resolution of the nature which is impugned in the present petition directing respondent No.4 -Corporation to provide the service of buses on a particular day and date of the programme on payment of rent of Rs.7000/- per bus.
(iii) Whether this Court in exercise of powers under Article 226 of the Constitution of India can go into the question of wastage of public money by the State Government in the name of programmes like “Garib Kalyan Mela”, which according to the State Government are the programmes for benefit and upliftment of the poor and the downtrodden class of the society and according to the petitioner, is nothing but a political gimmick.
11. So far as the first question is concerned, we are of the view that for one particular day and for a particular period if few buses of the respondent No.4-Corporation are put to exclusive use for the purpose of the programme, then under such circumstances it could not be said that a common man will be put to immense hardship or difficulty. We have been assured by Mr.S.B. Chaudhari, Deputy Secretary, Rural Housing and Rural Development Department, who was present in the Court during the course of hearing of the matter, that the scheduled operations of the buses would not be affected in any manner and the programme will be only for a day. Even if few buses are withdrawn it would still constitute just 20% of the total buses plying everyday all over the State. Thus, we find no reason to hold that this action or decision on the part of the State Government is unreasonable or arbitrary warranting any interference in a writ-petition under Article 226 of the Constitution of India.
12. So far as the second question is concerned, we have noticed after going through various provisions of Road Transport Corporations Act, 1950 that the respondent-Corporation itself has got powers to provide for any ancillary services. Utilization of buses for the programmes like “Garib Kalyan Mela” could be termed as an ancillary service. This is evident from the above referred provision of Section 19(1)(b) of the Act. Section 19(2)(f) also empowers the respondent-Corporation to enter into and perform all such contracts as may be necessary for the purpose of its duties and exercise of its powers under the Act. Most importantly, Section 19(3)(iv) of the Act provides that nothing in Section 19 shall be considered as authorizing the Corporation, except with a previous approval of the State Government to let vehicles on hire for the carriage of passengers or goods, except expressly provided by or under this Act. This is suggestive of full control and powers of the State Government over the respondent- Corporation. Section 34 of the Act also empowers the State Government, after consultation with the Corporation, to give the Corporation general instructions to be followed and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to its employees, reserves to be maintained by it and disposal of its profits or stocks. Section 34(2) of the Act also provides that while exercising powers and performing duty under the Act, the respondent-Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government.
13. From the aforesaid, it could easily be said that though the respondent-Corporation is an autonomous body, it is fully controlled and managed by the State Government. Therefore, it could not be said that the State Government has no powers to request the respondent-Corporation to provide with buses for the purpose of transporting people at the site of the programme.
14. So far as the third question is concerned, i.e. with regard to wastage of public money by the State Government in promoting such programmes is concerned, we may in this connection rely upon the observations made by this very Bench in a recent case of Rajesh Laxmikant Mota v. The Chief Secretary and others being Writ Petition (PIL) No.21 of 2012 disposed of on February 21, 2012 while deciding the question of extent of jurisdiction of a writ-Court in a Public Interest Litigation to question the expenditure made by the State for any cause.
“We may only say that if any citizen of this State feels that a particular Government has not been able to fulfill its promises as made at the time of election through its political manifesto or has not been able to meet with the expectations of the people, then in that case, as held by the Supreme Court in the case of Common Cause (supra), it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations or by other lawful means like 'Satyagraha' in a peaceful manner to arouse the conscience of the Government, but the remedy is surely not by approaching the judiciary and asking it to scrutinize the functions of the other organs. If this Court would take upon itself the task of issuing directions as to how the State Government should administer the State, then such an approach, as held by the Supreme Court, would not only disturb the delicate balance of powers between the three wings of the State but, would also strike at the very basis of our democratic polity which postulates that the governance of the State should be carried on by the Executive enjoying the confidence of the Legislature which is answerable and accountable to the people at the time of elections.
xxx xxx xxx In the background of this analysis of the constitutional scheme on financial power of the State, we do not think this Court is competent to go into the question as to whether the expenditure incurred by the Government is for a public purpose or not, or whether it is wise or not. Our Constitution envisages that the executive is responsible to the legislature and every policy and action is subject to its scrutiny and that is in consonance with Westminister system of Parliamentary democracy. Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for good of the State. All such questions must be thrashed out in the legislature and not in Courts. The complaint of the petitioner is in the nature of criticism of the Governmental expenditure and the wisdom thereof.
But, we are of the view that such an exercise can be done only in other forums and in the manner and method as suggested by the Supreme Court in Common Cause (supra) and not before this Court. If such questions are allowed to be raised before court, every expenditure of the State can be called in question, both as to the nature and extent thereof, in which event the functioning of the Government itself will be hampered.”
15. We, therefore, find no substance in the aforesaid contention of Mr.Ghori regarding expenditure incurred by the State Government for promoting programmes like “Garib Kalyan Mela”.
16. It is now a settled law that in order to successfully maintain a writ-application, the petitioner must establish beyond reasonable doubt that by the action or inaction on the part of the State within the meaning of Article 12 of the Constitution of India any of his legal or fundamental rights has been infringed. Reference may be made to the observations passed by the Supreme Court in Asif Hameed and others v. State of Jammu and Kashmir and others, reported in AIR 1989 SC 1899, wherein Supreme Court held that when the State motion is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a co-ordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
17. On consideration of the entire materials on record, we, therefore, dismiss this writ- application being devoid of any merits. No costs.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar