2016(7) ALL MR 375
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. OKA AND REVATI MOHITE DERE, JJ.
New Bombay Advocates Welfare Association & Anr. Vs. State of Maharashtra & Ors.
Public Interest Litigation No.239 of 2009,Public Interest Litigation No.10 of 2008,Writ Petition No.5101 of 2012
13th August, 2015.
Petitioner Counsel: Shri A.A. KUMBHAKONI, Shri AMIT B. BORKAR, Shri MAKARAND KALE, M.P. VASHI & ASSOCIATES, Shri RAHUL S. THAKUR, Shri UDAY P. WARUNJIKAR
Respondent Counsel: Shri A.B. VAGYANI, G.P. with Mrs. M.P. THAKUR, Shri A.M. KULKARNI with Shri SARTHAK DIWAN and Shri AKSHAY KULKARNI, Shri SANJAY UDESHI i/by M/s. SANJAY UDESHI, Ms. PINKY M. BHANSALI i/by M/s. G.S. HEGDE & ASSOCIATES, Shri M.S. KARNIK, Shri PARAG VYAS and Shri D.R. SHAH
Constitution of India, Arts.226, 39A, 21 - Public Interest Litigation - Inviting attention to gross delay on part of State Govt. in commencing and completing construction of court buildings - State Govt. is under constitutional obligation to constitute sufficient number of courts, Tribunals or forums so that litigant, who knocked door of court or Tribunal, is able to get speedy justice - State Government has failed to perform its constitutional obligation of providing requisite infrastructure to courts and Tribunals - State Govt. directed to take appropriate policy decision laying down comprehensive scheme dealing with preparation of plans and estimates, sanction thereof, release of funds as well as completion of projects of judiciary within time bound schedule. (Paras 24, 25, 26, 28)
Purshottam Manohar Kamone Vs. State of Maharashtra, 2001(4) ALL MR 786=2001 (4) Mh.LJ. 320 [Para 3]
Brij Mohan Lal Vs. Union of India and Ors., 2012 ALL SCR 2241=(2012) 6 SCC 502 [Para 5]
Hussainara Khatoon Vs. State of Bihar, (1980) 1 SCC 98 [Para 6]
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 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 Maharashtra, 2001(4) Mh.LJ. 320 : [2001(4) ALL MR 786], 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 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 39A 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. AdvocatesonRecord 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 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, (2012) 6 SCC 502 : [2012 ALL SCR 2241]. 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 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 39A 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 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 Bihar, (1980)1 SCC 98 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 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 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 achieved unless adequate number of Courts are established and adequate and proper infrastructure is provided to all Court premises.
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 State Government in sanctioning the revised estimates and in releasing the funds. That is the reason why under the order dated 8th 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 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, 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 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 3rd 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. 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 Court building and judicial quarters. The order dated 24th 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 30th July 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.
15. As far as Navi Mumbai Court Complex is concerned, there are certain assurances incorporated in the affidavit dated 30th 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 30th 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 30th 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.
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 Exhibit1 to the said affidavit, the tentative schedule of work which ends with the site cleaning on 30th September 2016. Therefore, the construction of Court building at Ahmednagar will have to be completed by 30th 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 30th 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.
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. 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 Subsection (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 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 30th 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 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 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 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, 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 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 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 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 etender 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 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.
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.
(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 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 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 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 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 and the judicial quarters directly be adopting etender 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 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 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 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 providedthe 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 30th September 2016 and the building becomes fully functional for functioning of the Court with effect from 1st October 2016.
(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 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 30th 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;
(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 event on or before 30th November 2015. The State Government shall also explore the possibility of getting the plot retransferred 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 Subsection (3) of Section 3 of the Maharashtra Stamp 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;
(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) 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.