Andhra HC (Pre-Telangana)
Dr.J.Madhusudhan Reddy And Others vs Government Of A.P., Rep. By Its ...
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION No.7001 OF 2004
29042014
Dr.J.Madhusudhan Reddy and others....Petitioners
Government of A.P., rep. by its Principal Secretary, Municipal Administration,
Secretariat, Hyderabad and others Respondents
Counsel for the Petitioners: Sri Srinivas Polavarapu
Counsel for the Respondents: Sri R.Vijayanad Reddy
Sri Vinod Kumar
Sri M.V.S.Suresh Kumar
G.P. for Municipal Administration
Sri Harender Pershad
Sri R.Radha Krishna Reddy
<Gist :
>Head Note :
? Cases referred
1 2000 (4) ALD 206
2 (1988) 3 SCC 603
3 2004 (8) SCC 683
4 2012 (1) SCC 273
5 AIR 1961 Mad 450
6 AIR 1979 SC 1871
7 (1991) 1 SCC 212
8 (1994) 2 SCC 204
9 AIR 1958 AP 116 (V 45 C 38)
10 AIR 2004 AP 41
11 (2013) 5 SCC 202
12 (2005) 13 SCC 384
13 (2014) 1 SCC 572
14 AIR 1957 SC 425
15 AIR 1975 SC 2202
16 AIR 1976 SC 242
17 AIR 1982 SC 149
18 AIR 1983 SC 378
19 (1995) 3 SCC 619
20 AIR 1963 SC 1313
21 AIR 1999 SC 1385
22 AIR 2001 SC 457
23 AIR 2010 SC 1384
24 (2002) 4 SCC 578
HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION No.7001 of 2004
ORDER:
In a recent article in April, 2014 issue of AIR on the occasion of centenary of All India Reporter, Senior Advocate, Supreme Court of India and President Emeritus, Bar Association of India, Mr.Fali S. Nariman quoted in his article on Some aspects of Law and Justice that need mending the following words of Lord Harry Woolf (Lord Chief Justice of England from 2000 to 2005):
Like old clocks, our political and judicial Institutions need to be oiled, wound up and set to true time.
The said words came as a timely reminder when dealing with this case.
2. Jubilee Hills is a posh locality in the city of Hyderabad. Most of the plots on which buildings were constructed in that area were allotted by the Jubilee Hills Cooperative House Building Society, Hyderabad (for short, the Society) to its members. The Government issued G.O.Ms.No.423, M.A & U.D. Department, dated 31.07.1998, giving instructions for rationalisation of floor area ratio for the entire city, and made a special regulation for Banjara Hills and Jubilee Hills areas covered by Blocks I and II. The said GO specifies the maximum floor area ratio for residential buildings at 1:1 and restricting to 10 meters the maximum height of the residential buildings. The maximum permissible area coverage of structure should be 50% if the plot area is between 500 square meters and 2000 square meters and if the plot area is above 2000 square meters, the maximum permissible coverage is 1000 square meters or 40% of the plot area whichever is higher. Though the Society in the past condoned violations, later on advised its members to conform their constructions to the Rules. The petitioner specifically alleges that municipal authorities have been condoning the illegal acts, even though the realtors extended their anarchy to the Jubilee Hills area. Challenging the constructions made by the respondents 5 to 11 and the inaction of the Greater Hyderabad Municipal Corporation (GHMC), the present writ petition was filed specifically indicating the violations made by the said unofficial respondents. The affidavit also states that the Society filed appropriate complaints on 22.04.2004 and 14.05.2004 with the Assistant City Planner, Circle-V, bringing to his notice about the deviations and in spite of the same, the GHMC has not taken any action. The writ petition was dismissed against respondents 6 and 11 for default and respondent No.12 was got impleaded.
3. The eighth respondent filed a counter-affidavit stating that out of 1591 square yards of land allotted to her, she sold an extent of 643 square yards under two sale deeds to two different individuals on 08.03.2002. She states that though she obtained approval for extension of her house by permit No.4/27 of 2002, she could not extend the house due to difficulties but the purchasers continued their construction activity on the basis of approvals taken by her.
4. Respondent No.12 got impleaded and stated that he purchased an extent of 634 square yards out of 1150 square yards from the respondent No.9 under a sale deed dated 20.07.2002. The original owner obtained permission for construction of a house for the total area and after purchase of a portion of the area from the original owner, respondent No.12 proceeded with the construction and when GHMC took objection, he applied for regularisation and the same was regularised on 14.10.2009.
5. Heard the learned counsel for petitioners, the learned Standing Counsel for respondents 2 and 3, the learned counsel for fourth respondent and the learned counsel for respondents 5 to 10 and 12.
6. When the case was taken up for final hearing, it is noticed by this Court that no counter-affidavit was filed by the GHMC even after 10 years and the learned counsel for the petitioners as well as the other unofficial respondents also stated that they have not received any counter-affidavit.
7. It is curious to notice that this Court (speaking through N.V.Ramana,J as he then was), at the time of admission of the writ petition on 13.04.2004, while observing that in number of matters after grant of interim orders, the Municipal Corporation is not taking appropriate steps in the matter to vacate the interim orders before the trial Courts, directed the Assistant City Planner, the third respondent to supervise the subject constructions and take appropriate steps in the matter and see that the constructions being made by respondents 5 to 11 must be strictly in accordance with sanctioned plan, and if necessary, the respondents were directed to appoint an officer for the above task. It was also made clear that the official respondents were at liberty to take appropriate action against the deviations, if any, noticed in the said constructions and was further held that non-compliance of the order would be viewed seriously. Again, the case was posted on 01.07.2004. Thereafter it was posted only on 03.02.2014. On 03.02.2014, at the request of the learned counsel for the petitioners, it was adjourned to 05.02.2014 under the caption for orders. On 05.02.2014, as the learned counsel for petitioner was absent, it was posted to 10.02.2014 on which date, this Court passed the following order.
This Court, by order dated 13.04.2004, noticed that respondents 5 to 11 were making constructions contrary to sanctioned plan on the basis of certain interim orders obtained from trial Court and the Municipal Corporation was not taking appropriate steps to vacate the interim orders. In those circumstances, the Assistant City Planner, the 3rd respondent was directed to supervise the subject construction and take appropriate steps in the matter in accordance with sanctioned plan. They were also directed to take appropriate action against the deviations against said constructions. In the said order, it was also stated that non-compliance of the order would be viewed seriously.
Learned counsel for the 4th respondent states that they addressed two letters to the 3rd respondent specifically stating that the construction was going on contrary to the sanctioned plans without any check. In spite of those letters, the 2nd respondent did not bother to file a counter-affidavit.
In the circumstances, the Commissioner, Municipal Corporation of Hyderabad, is directed to file a detailed counter-affidavit with regard to the constructions made by respondents 5 to 11, the implementation of the order of this Court dated 13.04.2004, the action taken pursuant to the letters of the 4th respondent dated 22.04.2004, 14.05.2004 and the action taken against the unauthorised constructions. The Commissioner shall also indicate in counter-affidavit the reasons for not filing a counter-affidavit in the present case for the last 10 years and also the status of the pending civil cases, if any. A detailed counter-affidavit may be filed covering the above aspects by the date of next hearing.
Post on 24.02.2014.
8. When the matter was posted on 24.02.2014, after noticing the absence of counter-affidavit and disobedience of the orders of this Court in this case along with other cases, a common order was passed, after extracting the earlier orders in the respective cases including the present case, while directing the cases to be posted on 10.03.2014 as follows:
I have been dealing with the cases of the year 2010 and before relating to the Municipal Administration and Urban Development including the cases of Greater Hyderabad Municipal Corporation (GHMC) for the last four (4) months. In many cases, I noticed no counter-affidavits were filed and appearances were not filed by the concerned counsel. But wherever possible the cases were disposed of in the absence of counter-affidavits as in those cases the relief sought for by the petitioners was consideration of their representations. In the important cases where counter-affidavits are necessary, sufficient time was given to the Corporation to file counter-affidavit and the above orders were passed in those cases in view of the importance in the matters. During the last four (4) months, one Deputy Commissioner and Commissioner of GHMC were called to the court to explain to them of urgency and importance in the respective matter and it did not have desired effect. The non-implementation of the above orders clearly showed that GHMC did not care for the orders as in the first case an order was passed on 13-4-2004 and for the last ten (10) years no counter-
affidavit was filed. In the second case, the matter relates to the alleged construction made in FTL area. In the third case, a complaint was made by the neighbour with regard to the unauthorised constructions made by the Respondent in the case. These orders were not passed in the routine manner nor meant for disobedience. The aggrieved parties approached this court for redressal of their grievance and in order to render justice, the assistance of the GHMC is absolutely necessary in the some case. This Court, being a Constitutional Court is not court of adjournments. The Commissioner is vested with the powers under Section 674 of the Greater Hyderabad Municipal Corporations Act, 1955 with regard to the legal matters and he is solely responsible for the legal matters. This court cannot be made dysfunctional by abdicating such powers nor by non cooperation. The necessary cooperation should be extended wherever it was sought and directed. This court is exercising its Constitutional power in discharge of its duty towards public to render justice. Three (3) years and more is a sufficient time for the Corporation to file its response in the pending cases and assist the court in disposal of case. Since this Court felt that the Commissioner does not serve any useful purpose except disturbing his work, keeping in view the disobedience of the orders of this court in the above cases, it is felt necessary to given an opportunity to the Commissioner before taking further action for disobedience of the order of this Court. The Commissioner shall file an affidavit by 10-03-2014 indicating the following:
(i) The number of cases pending in the High Court of the year 2010 and before and in how many cases counter-affidavits are not filed and reasons for not filing the same.
(ii) The specific reason for non-implementing the orders dated 10-02-2014 in W.P.No.7001/2004; dated 21-01-2004 in W.P.No.5219 of 2006 & batch, and dated 10-02-2014 in W.P.No.19897 of 2010.
(iii) The explanation of the Commissioner why this Court should not take further serious action and pass necessary orders for disobeying the above orders.
Post all the cases on 10-3-2014.
9. After receipt of the said order, the Commissioner filed an affidavit on 10.03.2014 requesting this Court to grant eight (8) weeks time for submitting a detailed status report with regard to item No.1, and with regard to item No.2, he did not state anything for non-filing of the counter in this case and with regard to other cases, he filed an affidavit stating that GHMC had neither served with any notice nor had any plan for dismantling or any further action against the properties of the petitioners in W.P.Nos.5219, 5216, 5217, 5218 of 2006. He further stated that the records relating to L.B.Nagar Municipality which was later on merged with GHMC are not available and there was no response for its publication inviting expression of interest from the eligible persons under Single Window for monitoring the entire court process and also preparing counters and other related job.
10. In his affidavit, he did not indicate the reason for not filing a counter for the last 10 years in this case. He sought 8 weeks time for giving the required information under Point No.1 when the Right to Information Act provides for 30 days time for furnishing information. It is clear that he wanted to avoid scrutiny by this Court as 8 weeks time would fall in Summer vacation. He made incorrect statements in relation to W.P.No.5219 of 2006 and batch stating that they did not issue any notice for dismantling when the Petitioners approached this court challenging the action of the GHMC. He also stated that there was no response for creation of single window for monitoring the cases and could further state that records of merged L.B.Nagar Municipality are not available. Thus he left the matter to this Court. This is not expected from a responsible Commissioner, who is vested with the powers under Section 674 of the Greater Hyderabad Municipality Act, 1955 (for short, the Act). When this Court was not happy with this attitude, this Court passed the following order on 10-3-2014:
This court has been noticing defiance by the authorities with respect to the orders passed from time to time and it is not in the interest of administration to call the officers time and again seeking their explanations.
Recently, this Court noticed that the Commissioner, GHMC, has not filed affidavit in spite of directions to file an affidavit by 10-3-2014 indicating specific points. In such cases, there is one case i.e., W.P.No.7001 of 2004 where no counter affidavit was filed and in spite of a direction and a further orders, there is no explanation from the Commissioner even today also, though he dealt with other points.
In the circumstances, in the interest of justice and in the public interest, the assistance of the learned Advocate General is required apart from the assistance of the Assistant Solicitor General of India on the following points:
(i) Whether the Government/Statutory Authorities/Corporate Bodies can remain ex parte like private persons in matters coming up for consideration before courts?
(ii) Whether Court can conclude in the absence of a counter-
affidavit and in what manner the public duty has to be discharged in disposing of the matters in the absence of counter-affidavit?
(iii) When public interest is involved by the very presence of the Government/Statutory Authorities/Corporate Bodies in the pending litigations, in the absence of their co-operation what orders have to be passed against them?
Issue notice to the learned Advocate General and the Assistant Solicitor General of India and the Secretary to the Government, Law Department, the Government of Andhra Pradesh may also file an affidavit expressing views on this subject.
Enclose copy of the order dated 24-2-2014 and affidavit of Commissioner, GHMC dated 10-3-2014.
Post on 24-3-2014.
11. In spite of the said order, no affidavit was filed by the Secretary to Government, Law Department of Andhra Pradesh and Assistant Solicitor General of India did not come forward to assist in this case. After 4 adjournments, the learned Advocate General appeared and submitted on 16-4-2014 that Order XXVII of the Code of Civil Procedure (Code) deals with the matters relating to Government and the Government has been filing counter-affidavits in many cases and sought time till 22.04.2014 to frame guidelines for smooth conduct of matters where the Government and Public Sector Undertakings are made as a party before the Courts, keeping in view the past experience of non-representation or improper representation in the matters. On the above representation of the learned Advocate General, the matter was posted to 22.04.2014 on which date, a representation was made on his behalf seeking adjournment after summer vacation, 2014. In view of the importance of the matter, the request for adjournment was refused and the matter was reserved for orders.
12. In the meanwhile, the respondents 2 and 3 filed an additional counter-affidavit on 20-3-2014 and its extract would be useful in understanding the attitude and attention of the respondents:
2 to 4. I submit that the then Asst.City Planner, already filed the remarks in the counter affidavit.
5. It is submitted that as per the present situation of the following constructions as follows:
1. The Owner of Plot No.23, Road No.8, has filed application under BPS as per the Government of Andhra Pradesh, has issued G.O.Ms.No.901 M.A. dated 31-12-2007, to regulate the unauthorized construction and deviations to the sanctioned plan, which are constructed on or before 31-12-2007.
Accordingly the owner got regularized, vide BPS.No.8682/CX/CZ/2008 dated 26-08-2011.
2. The owner of Plot No.468-II, Road No.87, had obtained building permission for construction of Ground + Upper two floors, vide permit No.39/57 of 2003 dated 20-3-2003 in File No.293/82/J-III/468/2/8/2002, but he has constructed basement floor for parking Ground + Upper three floors.
3. The owner of Plot No.37-III road No.71, has filed application under BPS vide No.13174/CX/CZ/2008 dated 24-01-2010, in terms of G.O.Ms.No.901 MA dated 31-12-2007.
4. The Owner of Plot No.1299-D has filed application under BPS, vide Nos. But this office has not regularised because the usage of the building is converted into commercial and kept pending.
5. The Owner of Plot No.545-A-II, on Road No.86, has filed application under BPS vide No.3340/CX/CZ/2008 dated 21- 07-2009 and got regularised in terms of G.O.Ms.No.901 MA dated 31-12-2007.
6. The Owner of Plot No.300-III, on Road No.78, has filed application under BPS vide No.2044/CX/CZ/2008 dated 16- 09-2009 and got regularized in terms of G.O.Ms.No.901 MA dated 31-12-2007.
7. The Owner of Plot NO.481-A-III, on Road No.87, has filed application under BPS vide No.801, 800. 1943, 8433 dated 1- 2-2010, 25-09-2010 & 30-10-2009 and got regularized in terms of G.O.Ms.No.901 MA dated 31-12-2007.
Hence it is prayed that this Honble Court may be pleaded to dismiss the Writ Petition on the above merits.
13. This Court is not having the advantage of looking into the alleged remarks in the counter affidavit filed by the then Assistant City Planner as the same is not filed in Court. The additional affidavit is silent with regard to the action on the complaints made by the fourth respondent on 22.04.2004 and 14.05.2004. A perusal of the above remarks do not indicate the action taken in respect of constructions at serial Nos.2, 3 and 4. At Serial No.4, the application numbers were kept blank. Such casual approach is adopted by an Assistant City Planner while filing the affidavit in this Court. It is clear from the above remarks that all the constructions were regularised subsequent to 2006 and had respondents 2 and 3 took timely action, the situation would have been otherwise. Thus, the effort of the petitioners was frustrated by the inaction of the respondents 2 and 3 and this Court is put in a fait accompli situation.
14. In the recent past, this Court has been noticing the casual attitude adopted by the bureaucrats and Law Officers (Government Pleaders and other counsel appearing for Public Sector Undertakings) in dealing with legal matters that are coming up for consideration before this Court. Counter-affidavits are not being filed by the authorities and whenever cases are listed for final hearing, a request is being made seeking time as if this is a court of adjournments. Most of the Law Officers are not even filing memos of appearance. Even in cases where the authorities issued instructions, the Law Officers are not filing counters and keeping them in their files and some of them are representing the matters even without bringing the relevant case files to Court and casually asking for adjournments. The adjournments are invariably sought whenever the assembly is in session and elections are held. During the last two months, there was total non-cooperation on the ground of elections and State bifurcation. This Court noticed the alarming situation of this type of representation on behalf of the Government and its institutions. This Court, being a Constitutional Court, cannot remain a mute spectator and allow things to go on like this.
15. A private client has a choice to choose his counsel and if not satisfied can change his counsel. Such an option is not easily available in case of Government and its institutions. The Government and its institutions represent public interest and any laxity on the part of either its officers or their counsel would affect such public interest. In a case between two individuals, an individual can be set ex parte in the absence of one of the parties, but that cannot be a situation where one of the parties is Government or its institution. If any Court of justice is allowing the claim of other party due to laxity of Government or its Law Officer, it would be doing injustice to public at large and such situation should not prevail. Calling the officers for their lapse is not the remedy for the above situation, except dislocating their work. Whenever a head of institution is called to the Court for disobedience, a retinue of subordinates would invariably accompany him without attending to their respective duties. In the justice delivery system, not only the Judge, but also the counsel who is appearing in the Court have equal role to play in rendering justice. When this process is subverted either by omission or commission, there should be a remedy somewhere.
16. When this Court in Bantharam Bichappa and others V. District Collector, R.R.District in 2000, directed to send a copy of the order to the Chief Secretary to Government of Andhra Pradesh in order to enable him to issue a circular to all the government officials directing them not to enter into private properties, except through due process of law, it took more than 10 years for the Government to issue G.O.Ms.No.24, MA and UD (J1) Department, dated 28.06.2011.
17. No doubt, as rightly submitted by the learned Advocate General, the Code provides for conduct of cases by or on behalf of the Government. Section 2 (7) of the Code defines a Government Pleader as including any officer appointed by the State Government to perform all or any of the functions expressly imposed by the Code on the Government Pleader acting under the directions of the Government Pleader. Order XXVII of the Code provides for authorising Officers to act for the Government in respect of any judicial proceeding and the Government Pleader is designated as an agent for Government to receive process. It fixes a maximum time of two months for filing response on behalf of the Government. But the rules framed by the High Court of Andhra Pradesh regulating the proceedings under Article 226 of the Constitution of India gives a maximum period of six months from the date of service of notice for filing counter-affidavit. The Code is silent with regard to the treatment of parties when one of them is Government and decided cases indicate that no special treatment should be given to Government. But the negligence of officers or the counsel and the consequential affect on public interest was not discussed anywhere.
18. So far as the appointment of Government Pleaders is concerned, the instructions called A.P.Law Officers (Appointment and Conditions of Service) Instructions, 2000 govern the situation. It defines the Law Officer as a Government Pleader or an Assistant Government Pleader or a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor or a Special Counsel. Standing Counsel is defined as a Counsel appointed for a State Public Undertaking or a local authority or a University or a Charitable and Hindu Religious Institution and Endowment or any other instrumentality of the Government. In the definition of State Public Undertaking, any Corporation established by or under a State Act and owned or controlled by the Government, any Government Company as defined under the Companies Act, 1956 and any Society registered under the relevant law for the time being in force, which is funded by the Government in this behalf and including apex cooperative bodies were included. The instructions deal with appointment of Law Officers in the High Court and District Courts and City Courts subordinate to the High Court. Para 10 (2) ordains that the Government Pleaders should prepare the requisite counter affidavit in Writ Petitions expeditiously and comprehensively. Para 10 (8) state that all Law Officers should furnish a report to the Advocate General every month of the cases disposed of, counter filed or yet to be filed, new cases filed and necessary ancillary information. Para 16 speaks of submission of a Self appraisal Report by every law officer quarterly indicating the particulars of cases. Para 17 says that their performance has to be reviewed at the State level by a committee headed by the Advocate General with the Law Secretary (Legal Affairs), Secretary of the Administrative Department and concerned Head of the Department as members once in every three months. Para 22 states that each Secretariat Department and each Head of Department shall designate a Senior Officer not below the rank of a Joint Secretary/Deputy Secretary or Joint Director respectively to act as a liaison officer with the Advocate General, Additional Advocates- General, Government Pleaders and other Law Officers. These salutary instructions in paras 10, 16, 17 and 22 are being followed in breach. If these are followed in practice, the information relating to pending cases would be at the disposal of the officers for immediate attention. The entire responsibility to implement these instructions rests on the learned Advocate General, the post of which unfortunately is exclusively left to the choice of the political executive without consultation with the Honble Chief Justice of the High Court.
19. This Court is not concerned with the appointment of the Law Officers but their performance before the Courts and the assistance of the bureaucrats. Both have accountability before this court. None can blame the other.
20. In Bigyan Kumar V. Union of India , the Apex Court held as follows:
6. There is some material which, if probed into further, might have established that respondent No. 6 had the notice of the order of this Court before physical dispossession of Dubey was effected.
As already noticed, there is allegation of adoption of an attitude of resentment by respondent No. 6 or for the matter of that the local officers, when the writ petition was filed in this Court. That backdrop, as contended by counsel for the petitioners, perhaps could be taken to supply the motive for the delay in complying with the directions of this Court. We have not considered it expedient to probe into the matter further on account of the fact that there has been compliance and each of the respondents has tendered unqualified apology.
7. We would part with the matter by recording our serious concern and disapproval of the growing conduct of parties and public officers in particular of ignoring the directions of the Courts and the multiplying instances of confrontation. The Court, including the apex one, is a part of the State and is a built-in mechanism of the Constitution to administer justice in accordance with law. For discharging that duty, the Court has got to adopt an attitude of critical assessment of situations connected with litigation brought before it for adjudication. The manner of functioning of the Court in accord with the Rule of Law has to be dispassionate, objective and analytical. The Judges who preside over these courts do not act with a sense of superiority; nor do they look down upon others in the community. In order that the system may efficiently work and the purpose for which the courts are established is duly served, it is necessary that everyone within the framework of the Rule of Law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. We hope and trust that everyone within the system realises this situation and does not unnecessarily get into a confrontation.
21. In E.T.SUNUP Vs. C.A.N.S.S. Employees Association and Another , the Apex Court considered the issue of contempt of High Court by government officers and held as follows:
16. It has become a tendency with the government officers to somehow or other circumvents the orders of court and try to take recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the courts order cannot be countenanced. This Court time and again has emphasised that in a democracy the role of the court cannot be subservient to administrative fiat. The executive and legislature have to work within the constitutional framework and the judiciary has been given the role of watchdog to keep the legislature and executive within check........
22. Citing the above case with approval, in Maninderjit Singh Bitta Vs. Union of India , the Apex Court deprecated the practice of delay in compliance with the orders of the court and observed as follows:
26. It is also of some relevance to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result.
Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N.Godavarman Thirumalpad case, SCC p.6 para 5). The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases, which come up for hearing before the court on a grievance raised by the public at large or public-spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority.
27. It is where the State and its instrumentalities have failed to discharge its statutory functions or have acted adversely to the larger public interest that the courts are called upon to interfere in exercise of their extraordinary jurisdiction to ensure maintenance of the rule of law. These are the cases which impact in rem or on larger section of the society and not in personam simpliciter. Courts are called upon to exercise jurisdiction with twin objects in mind. Firstly, to punish the persons who have disobeyed or not carried out orders of the court i.e. for their past conduct. Secondly, to pass such orders, including imprisonment and use the contempt jurisdiction as a tool for compliance with its orders in future. This principle has been applied in the United States and Australia as well.
28. For execution of the orders of the court even committal for an indefinite term has been accepted under Australian law (Australasian Meat Industry Employees Union Vs. Mudginberri Station (Pty) Ltd. 1986 (161) CLR 98 (Aust)) and American law, though this is no longer permissible under English law. While referring to det6ention of a person for a long period to ensure execution of the orders in Nevitt, In re F at p.461, Sanborn, J. observed that the person subjected to such a term carries the keys of his prison in his own pocket
29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. It is inappropriate for the parties concerned to keep the execution of the courts orders in abeyance for an inordinate period. Inaction or even dormant behaviour by the officers in the highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. Inordinate delay of years in complying with the orders of the court or in complying with the directed stipulations within the prescribed time, has been viewed by this Court seriously and held to be the contempt of court, as it undermines the dignity of the court. Reference in this regard can be made to Maniyeri Madhavan Vs. Inspector of Police 1993 Supp (2) SCC 501 and Anil Ratan Sarkar Vs. Hirak Ghosh 2002 (4) SCC 21. Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance with the orders of the court at the earliest and within stipulated period.
23. In Ramachandran V. Alagiriswami , the High Court of Madras held as follows:
16. In the Queen v. Guardians of St. Martin's in the Fields (1851) 117 E. R. 1238 it was decided, "Quo warranty lies for an office, though not immediately derived from the Crown, if it he so mediately (as where commissioners are empowered by Act of Parliament to direct that such office be created.)"
17. On the second proposition of Mr. Vasantha Pai a large number of authorities were read before us by both sides; but if any one thing emerges from a study of the books and decisions, it is this. While it is possible to say in a particular case whether an office is a public office or not, it is not practicable to formulate a definition that will comprehend all cases partly because no particular feature is absolutely decisive. We have to take into account all the features that appertain to the office and thereafter proceed to a conclusion.
18. Certain features of the post we are now concerned with are unmistakably plain.
1. The appointment to the post of Government Pleader is made by the State Government.
2. He is paid a salary which is voted by the Legislature (vide page 872 of the Demand for Grants, 1960-81) and it comes out of public funds.
3. The fees he receives in addition to his salary also come out of the public exchequer.
4. He is the head of an office staffed by persons who are indubitably government servants. He points even the Manager of that office and he has a large measure of disciplinary authority over them. (See pages 373 and 405 of Volume III of Madras Services Manual). It is very unusual for powers of this kind to be conferred on persons who are not holders of public office.
5. Though in the counter filed on behalf of the Government it is stated that the appointment of a Government Pleader amounts only to the "appointment of an advocate to conduct cases on behalf of the Government generally instead of specifically in each case" and "with regard to each case he is regarded as the recognised agent of the Government for conducting it" thereby suggesting that the Government Pleader is only a deputy or mouth piece of the Government, his duties are actually very much larger. The G. O. concerned enumerates his duties under twenty-four sub-paragraphs. These duties are certainly not those of a mere deputy or a messenger or a courier of the Government.
6. The public are in a very large measure interested in the manner in which he discharged his duties, and, he may be properly said to be a person employed in connection with the affairs of the State. Though no individual member of the public may be directly affected by or interested in the manner in which the Government Pleader performs his duties, the public as a whole are, because if he mishandles his briefs there would be loss of money to the public exchequer which in the last resort has to be made good by the tax payer.
7. In the Rules framed under the earlier Government of India Acts the Government Pleader is classified as the holder of a "special post". In spite of the repeal of the Government of India Acts of 1919 and 1935 the character of the post has not altered in any material way during these years.
8. It is a post the existence of which is taken cognizance by the Civil Procedure Code which proceeds to confer on him certain duties.
9. The Bar Councils Act, 1926 places certain duties on the Advocate-General. Section 2(1)(b) of the Act defines "Advocate- General" as including a Government Advocate "where there is no Advocate-General". Prima facie, therefore, one would be justified in saying that the existence of the office of Government Advocate which is the same as Government Pleader, is taken notice of by the Bar Councils Act.
The learned Advocate-General explained here that formerly there were Advocate-Generals only in the provinces of Madras, Bombay and Calcutta: and, that the definition in Section 2(1)(b) of the Act is phrased in the manner in which it appears in order to take in the other provinces also. That may be so. None-the-less, as the words of the statute stand, they are capable of a much wider application and the Government Pleader would be entitled to act in the place of the Advocate- General, when for any reason that post happens to be vacant, as for example, when an Advocate-General has resigned and there has been delay in filling up the vacancy.
10. It is a post which has been excluded from the purview of the Public Services Commission. On page 13 of Volume 1, Madras Service Manual, Law Officers in the City and Mufassal ate shown in the annexure which enumerates "posts In respect of which it shall not be necessary for the Commission to be consulted in the matter of recruitment, appointment, promotion and transfer.'' If the Government Pleader were not the holder of a public post, a provision of this kind would be unintelligible.
24. When a Government Pleader for the Patna District, who was authorised to represent Government in all the civil cases, approached the Apex Court challenging the appointment of 9 Assistant Government Pleaders and one of them was put in-charge of a bunch of land acquisition cases affecting his income, the Apex Court considered the case in Mundrika Prasad V. State of Bihar and observed that a Government Pleader is more than an advocate for a litigant. He holds a public office. The Apex Court recalled with approval the observations of a Division Bench of the Madras High Court made in Ramachandrans case (4 supra) which are as follows:
.. the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case docs not take into account all the aspects of the matter.
36. The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principals and that he owes no duty to the public at all and that for that reason be would not be the holder of a Public Office.
37. It is difficult to accept this view. The contention of fee learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges his duties.
.
90. I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.
I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible.
The Apex Court dismissed the Special Leave Petition, but with the following observations:
.. We dismiss the special leave petition but with a sad tag, which is the message of this martyrdom. Professions shall not be concealed conspiracies with 'effete, aristocratic, protective coloration', which at the same time enables one to make a considerable sum of money without sullying his hands with a "job" or "trade". The remarks of Tabachnik, in 'Professions for the People', about English professions of the eighteenth century smell fresh:
"One could carry on commerce by sleight of hand while donning, the vestments of professional altruism. To boot, one could also work without appearing to derive in come directly from it. As Reader explains:
The whole subject of payment...... seems to have caused professional men acute embarrassment, marking them take refuge in elaborate concealment, fiction, and artifice. The root of the matter appears to lie in the feeling that it was not fitting for one gentleman to pay another for services rendered, particularly if the money passed directly. Hence, the device of paying barrister's fee to the attorney, not to the barrister himself. Hence, also the convention that in many professional dealings the matter of the fee was never openly talked about, which could be very convenient, since it precluded the client or patient from arguing about whatever sum his advisor might eventually indicate as a fitting honorarium (1966 p 37). The established professions - the law, medicine, and the clergy - held (or continued to hold) estate - like positions:-
The three 'liberal professions' of the eighteenth century were the nucleus about which the professional class of the nineteenth century was to form. We have seen that they were united by the bond of classical education: that their broad and ill-defined functions covered much that later would crystallize out into new, specialised, occupations: that each, ultimately, derived much of its standing with the established order in the State. (1966, p. 23)."
25. In the oft quoted, Shrilekha Vidyarthi V. State of U.P. , the Apex Court rejected the arguments of the State that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the government excluding judicial review.
26. In a similar situation, the Apex Court in State of U.P. V. U.P. State Law Officers Assn. , held as follows:
15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions.
Once acquainted with the facts of the case, it is the lawyer's discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.
16.
17. The Government or the public body represents public interests, and whoever is in charge of running their affairs, is no more than a trustee or a custodian of the public interests. The protection of the public interests to the maximum extent and in the best possible manner is his primary duty. The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interests. This obligation imposes on them the duty to engage the most competent servants, agents., advisers, spokesmen and representatives for conducting their affairs. Hence, in the selection of their lawyers, they are duty-bound to make earnest efforts to find the best from among those available at the particular time. This is more so because the claims of and against the public bodies are generally monetarily substantial and socially crucial with far-reaching consequences.
18. The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration.
27. A Full Bench of this Court in In Re: Mahbub Ali Khan Vs. Unknown , considered the case of an advocate who absented himself in a murder case before the trial Court. On reference from the District and Sessions Judge, this Court issued a notice to the advocate calling for the explanation and he stated that there was another principal lawyer on behalf of the accused and that he was engaged by him to plead in the case on daily fee basis and that he could not attend the Court on the dates of hearing as he was not paid his travelling and boarding expenses. The Full Bench referred the matter to the erstwhile Hyderabad Bar Council under Section 10(2) of the Indian Bar Council Act for enquiry and report. The Tribunal of the Bar Council held that the charge that the advocate was guilty of professional misconduct had not been proved. The matter came up before the Court under Section 12(3) of the Bar Council Act. The Full Bench considered the question whether the advocate was guilty of misconduct and it observed as follows:
2. We may at the outset point out that an advocate engaged- in a case owes duty not only to his client but also to the Court The practice, extent and measure of such duty and the circumstances in which the breach would constitute misconduct are different questions. No hard and fast rule can be laid down and it depends on the circumstances of each case. As is stated above the duties of the advocate are two fold. The advocate by his obligation is bound to discharge his duties to his client with the strictest fidelity and is answer able to the disciplinary jurisdiction of the Court for dereliction of duty. The relation involves' the highest personal trust and confidence so much so that it cannot be delegated without' consent. A pleader is more than a mere agent or servant of his client. He is also an officer] of the Court and as such he owes the duty of good faith and honourable dealing with the Court before which he practices his profession. 1 Three fundamental questions emerge for consideration, viz. firstly when a pleader has accepted a Vakalatnama is he bound to appear to conduct the case in its various stages, secondly if he is so bound does the liability continue till he has discharged himself by recourse to the appropriate procedure, and thirdly does the failure to appear to conduct the case before he has so discharged himself render the pleader liable to the disciplinary action by the Court. So far as civil cases are concerned there is a special provision in the Civil Procedure Code for appearance through a pleader or a recognised agent and for appointment of a pleader. Usually the appointment of a pleader is through a Vakalatnama. The form of Vakalatnama in civil and criminal cases is the same. Order 3, R, 1, C. P. C, refers to appearances in person by recognised agent or by pleader and O. 3, Rule 4, deals with the appointment of a pleader. There is no such specific provision in the Criminal Procedure Code excepting Section 340 Cr.P.C.
The Full Bench further held that both in law and in ordinary speech, the term 'misconduct' usually implies an act done wilfully with a wrong intention and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. It means also a dereliction of or deviation from duty. Even assuming that it is negligence and not misconduct such a negligence which amounts to dereliction of or deviation from duty cannot be excused. Ultimately, it held that the absence of the advocate on both occasions does not amount to negligence alone, but amount to dereliction of or deviation from duty. But having regard to the fact that the advocate had appeared in later hearings and the accused have no complaint and the lawyer absented himself not because of his engagements anywhere else or on his personal grounds but relying on the statement of the Pairavikar that his appearance was unnecessary, the action against him was dropped and the case was closed with the observation that the advocate would know that he owes a duty not only to his client but also to the Court and that he should discharge his duties and obligations befitting his profession to the satisfaction of his client and the Court.
28. This Court considered the nature of instructions contained in A.P. Law Officers (Appointment and Conditions of Service) Instructions, 2000 in Government of Andhra Pradesh V. Pushpendar Kaur and held as follows:
20. Concededly the executive instructions regulating the appointment and conditions of service of the Law Officers of the Government of Andhra Pradesh are not statutory in their nature. The executive instructions were obviously issued by the Government to structure the discretion of those who are involved in the process of making appointments of the Law Officers to represent the State and its instrumentalities and other authorities in various Courts including the High Court of Andhra Pradesh and the Andhra Pradesh Administrative Tribunal. The executive instructions clearly provide that the Law Officers, i.e., Government Pleader or Assistant Government Pleader and Public Prosecutor or Additional Public Prosecutor or Special Counsel, are required to be appointed by the Government in consultation with the Advocate-General. The Law Officers shall ordinarily be appointed for a term of three years and that engagement may be terminated with one month's notice or by paying one month's honorarium in lieu of one month's notice. The Law Officers so appointed in the High Court, other Courts and Tribunals at the State level shall function under the general superintendence and control of the Advocate-General and they shall be wholly responsible for ensuring all cases entrusted to them are properly prepared and represented in the Courts.
21. That a cumulative reading of the Instructions and the order of appointment in unmistakable terms reveal that the Law Officers are engaged to represent the State and its instrumentalities and other authorities in the cases entrusted to them for and on behalf of the Government and other authorities. They are not recruited and appointed into any service as such. The services of the Advocates are engaged and hired by the Government for a specified period and some cases are entrusted to them to represent the State and its agencies in the Courts. They are not paid any salary. The Government Pleaders appointed in the High Court of Andhra Pradesh and the Andhra Pradesh Administrative Tribunal or in any State level Court or Tribunal are paid a consolidated honorarium of Rs.20,000/-per month.
29. In Noor Mohammed V. Jethanad , the Apex Court examined the issue of procrastination of cases due to repeated adjournments on non-appearance of counsel and its consequential adverse affect in delineation of lis on judicial systems and the collective responsibility and concerted effort of Bar, Bench, Registry, Law Officers of State, Judicial Officers working in courts and litigants to render dedicated diligence and timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law. In the said case when a civil suit for injunction instituted in 1990 was dismissed and the counter-claim of the defendant was decreed (by the learned Civil Judge in 1997), a First Appeal was preferred in 1997 in the District Court and the District Court dismissed the appeal in 2001. A Second Appeal was preferred before the High Court of Rajasthan at Jodhpur. Due to non-appearance of counsel for appellant, several adjournments were granted till 2003 and then the Court directed issuance of the notice to the appellant for making appropriate arrangements for his representation. After service of notice, when none appeared for the appellant, the appeal was dismissed for non-prosecution on 10.11.2003. Thereafter, an application was filed for restoration in 2004 and the same was allowed in 2006. The order of restoration was recorded by the Registry in 2010 and the appeal was listed before the Court. Again after adjournments, ultimately the appeal was admitted on 09.05.2011. Against the admission of the appeal, after so much delay, the matter was taken to the Apex Court. The Apex Court while declining to interfere with the order, after calling report from the Registrar General of the Rajasthan High Court, commented on the manner in which the proceedings in the second appeal continued. The judgment of the court started with these words:
In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsules and sings in glory of the values of liberty, equality and justice In accordance with law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that the collective collegiality can never be regarded as an alien concept to speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
The Apex Court went on saying like this.
12. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomizes the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore the total push and pressure of the cosmos. It is devastating to expect infinite patience.
Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said:
It is true, I think, today in every department of law that the social value of a rule has become a test of growing power and importance.
13. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, Awake, Arise, O Partha.
In conclusion, the Apex Court held as follows:
33. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a non-chalant manner and the same were granted in a routine fashion. that it is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments.
Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice- dispensation system, which includes the Judges, the lawyers, the Judicial Officers who work in courts, the Law Officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. Sagacious acceptance of the deviation and necessitous steps taken for the Redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality. Long back, Francis Bacon, in his aphoristic style, had said, Hope is good breakfast, but it is bad supper.
The Apex Court ultimately requested not only the Chief Justice of the High Court of Rajasthan, but all the learned Chief Justices to conceive and adopt a mechanism to avoid such inordinate delays.
30. The Supreme Court was also faced with the situation of non representation of law officers and the Apex Court in Ravinder Singh V. Union of India directed the Attorney General to take remedial steps so that in future unnecessary adjournments are not occasioned.
31. In Rameshwar Prasad Goyal., In Re. while examining the case of an advocate on record, who filed extremely large number of cases, but never appeared in the Court, the Apex Court prima facie opined that his conduct would tantamount to interfering with administration justice. While considering the said issue, the Court observed as follows:
10. Lawyers play an important part in the administration of justice. The profession itself requires the safeguarding of high moral standards. As an officer of the court the overriding duty of a lawyer is to the court, the standards of his profession and to the public.
Since the main job of a lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave with doubtful scruples or strive to thrive on litigation. Lawyers must remember that they are equal partners with judges in the administration of justice. If lawyers do not perform their function properly, it would be destructive of democracy and the rule of law. (Vide: Manak Lal v. Dr. Prem Chand Singhvi & Ors. ; Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand & Ors. ; The Bar Council of Maharashtra v. M.V. Dabholkar ; S. P. Gupta & Ors. v. President of India & Ors. ; and Sheela Barse v. State of Maharashtra ).
11. Ministry of Information & Broadcasting, In re , this Court while dealing with the issue held:
19. . Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings - many times even illegible and without personal check and verification, the non- payment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the court but do positive disservice to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
20. . The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. The casualness and indifference with which some members practice the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving.
12. Law is no trade, briefs no merchandise. An advocate being an officer of the court has a duty to ensure smooth functioning of the Court. He has to revive the person in distress and cannot exploit the helplessness of innocent litigants. A wilful and callous disregard for the interests to the client may in a proper case be characterised as conduct unbefitting an advocate. (See P, an Advocate, In re , T.C. T.C. Mathai & Anr. v. District & Sessions Judge, Thiruvananthapuram ,D.P. Chadha v. Triyugi Narain Mishra & Ors. and Smt. Poonam v. Sumit Tanwar ) .
18. The availability of justice to all which is a social goal, must be made a reality. However, it cannot be done unless there is an easy access to the Bench and the Bar both. If the Court is not working properly or if the Bar is not rendering proper assistance, it would lead to a travesty of justice and destroy the basic democracy, which would tantamount to failure of administration of justice. The people and particularly, the common man would cease to be beneficiaries of democracy. Justice is based on law and law in modern democracy is too complicated, therefore, it is not possible for an ordinary litigant to raise his voice without engaging a lawyer. In case the lawyer is negligent or not willing to assist the court, or fails to perform his duty towards the court, loss to the poor litigant is beyond imagination.
The Apex Court ultimately held that the conduct of advocate on record has been reprehensible and not worth pardoning but warned him not to behave in future in such manner and to appear in court in all the cases wherever he has entered appearance. The Apex Court further held that it shall examine his conduct for one year and if no improvement is found, it may initiate the proceedings against him and accordingly closed the case.
33. A seven Judges Bench of the Apex Court in P.Ramchandra Rao V. State of Karnataka while dealing with the issue of right to speedy trial in respect of criminal cases, while formulating its conclusions, it held as follows:
29.
(1) ..
(2) ..
(3) ..
(4) ..
(5) ..
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Government shall act.
33. The survey of above case law would clearly indicate that the bureaucrats and the Law officers should extend necessary cooperation to the courts in discharge of its constitutional duty and failure to do so would undoubtedly attract proceedings for interfering with judicial process. As held in Bigyan Kumars case (2 supra), this Court is not exhibiting an attitude of superiority but discharging its constitutional duty. The Law Officer, who is undoubtedly holding a public office, cannot evade his responsibility in this task. Though, several comments were made in past in various decisions, the posts are not free from political nepotism and favouritism. In public interest, they have to be insulated from such unhealthy trend and it should not be left to the political executive to appoint party workers, favour seekers and their kith and kin to such posts of importance. This State is entering a new phase of life with new governments and it is the right time to rethink.
34. Reverting to the case on hand, the GHMC was negligent in discharging its duty in respect of the order dated 13.04.2004 of this Court. Even after alerting to the order, the Commissioner, who is responsible for the affairs of the GHMC, did not respond and in fact he tried to avoid the scrutiny by this Court by seeking eight weeks time for the information sought by this Court. He went to the extent of stating that the record of L.B.Nagar Municipality which was merged with the GHMC is not available. The learned Standing Counsel for GHMC who are appearing in the cases are frank enough to admit that the same position exists in respect of the records of other municipalities like Malkajgiri and Alwal which were merged with GHMC. In an important heritage matter where the responsibility was cast on the GHMC to regulate the constructions in the precincts, an affidavit was filed by the GHMC stating that it does not have maps of precincts Nos.13 to 15 and it was having maps only in respect of precincts Nos.10 to 12. Though nearly 15 counsel are dealing with the GHMC matters both in the High Court and City Civil Courts, it was stated that it has no liaison officer. The administration of GHMC is in a sorry state of affairs so far as the legal matters are concerned. This Court cannot administer, but while reviewing the orders passed by GHMC judicially, can point out the lapses. In this case, the Commissioner exhibited lack of diligence in respect of orders of this Court. He did not conduct in the manner befitting his position. It is for the Chief Secretary to Government to take stock of the situation.
35. The Government of India formulated a Nation Litigation Policy to reduce the cases pending in various Courts in India under the National Legal Mission. The Union Minister for Law and Justice presented resolutions for the National Level Committee held on 24th and 25th of October, 2009 and they were adopted unanimously. Though the policy was evolved by the Central Government, the Conference urged the State Governments to evolve similar policies. The National Litigation Policy deals with Government representation, adjournments, pleadings/counters, review of the pending Cases, etc. Though the policy was formulated in the year 2009, it does not appear that our State Government evolved any such policy which would have reduced the pending litigation of the Government and maintained effective representation before the Courts.
36. Chanakya said long ago weak, corrupt, unacceptable leadership, irresponsible governing mechanism, powerless judiciary and outdated policing of national governance, are in themselves a threat to national and human security. (From Foreword of Prof.I.V.Chalapati Raos book, Culture Capsules FLYING SPARKS, December, 2013 Edn.)
37. In view of the above, this Writ Petition is disposed of with the following directions:
(i) The Commissioner, Greater Hyderabad Municipal Corporation shall order a departmental enquiry for finding out the officers responsible for disobeying the order dated 13-4-2004 and consequential inaction and take necessary action against them for their lapses and also consider the representations of the fourth respondent dated 22.04.2004 and 14.05.2004 and take necessary action in accordance with law within a period of three months from today;
(ii) The Commissioner, Greater Hyderabad Municipal Corporation, Hyderabad shall hereafter review the cases of the Municipal Corporation pending in various courts at least once in three months and see that necessary action is taken for properly representing those cases.
(iii) The Chief Secretary to Government shall request the learned Advocate General to convene a meeting with him and Law Secretary to Government once in a year at least and review the cases of the Government and their progress in various courts in the State and specifically concentrate on the cases where the State and its institutions are set ex parte and take necessary remedial measures.
(iv) The Chief Secretary to Government shall prepare a scheme for computerisation of the cases of the Government and its institutions in various courts in the State and their monitoring.
(v) The Chief Secretary to Government shall issue an order to all the departmental heads and State Public Undertakings as defined in Instructions of 2000 to designate a Senior officer in their organisation as a liaison officers on the lines indicated in Para 22 thereof to deal with the cases against the respective departments/organisations with a provision to make them responsible in case of their mishandling.
(vi) The State Government is directed to evolve a State Litigation Policy on the lines of National Litigation Policy announced by the Central Government on 24 and 25-10-2009 within a period of six months from the date of receipt of a copy of this order.
38. Subject to the above observations, the writ petition is disposed of. No costs. Miscellaneous Petitions pending, if any in this writ petition, shall stand closed.
______________________________ A.RAMALINGESWARA RAO, J Date:29.04.2014