Calcutta High Court (Appellete Side)
Sourav Dutta & Anr vs The State Of West Bengal & Ors on 10 October, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
10.10.2018.
Item no. 2.
Court No. 1
pd/ap W.P. No. 19091 (W) of 2018
Sourav Dutta & Anr.
Versus
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya, Sr. Advocate,
Ms. Nandini Mitra,
Mr. Samim Ahammed,
Mr. Utsav Dutta.
...For the Petitioners.
Mr. Kishore Dutta, Ld. Advocate General,
Mr. Saktinath Mukherjee, Sr. Advocate,
Mr. Sirsanya Bandopadhyay,
Mr. Arka Kumar Nag.
...For the State.
Mr. Alok Kumar Ghosh,
Mr. Arijit Dey.
...For the K.M.C.
This writ application is filed by two writ petitioners by way
of public interest litigation. The petitioner no.1 resides in the
State of West Bengal and the petitioner no.2 is a practising
Advocate in this Court.
According to the writ petitioners, the State Government
decided to extend grant to 28000 Puja Organiser for organizing
Durga Puja in the year 2018 apart from extending the benefit of
waiver of licence fees for fire safety certificate and other licence
fees. It is the further contentions of the petitioners that the
extension of benefit of the above grant has been announced
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without any formal Notification in the name of the Governor of
West Bengal, as appears in a news report dated September 11,
2018 published in a daily newspaper "Indian Express". According
to the above report, 3000 Durga Committees in Kolkata and
25000 Puja Committees across the State of West Bengal will get
Rs.10,000/- each.
According to the petitioners, there is no public purpose
involved in organizing Durga Pujas rather it is a religious
programme. It is the further contention of the petitioners that no
public purpose will be served by granting money and/or handing
out concession to the Durga Puja Organizers and for that reason,
the above decision of the State Government, is violative of the
provisions of the Article 282 of the Constitution of India. As a
consequence, according to the petitioners, the State funds, which
consist of payment of various taxes by the bona fide citizens are
utilized for religious purpose offending the spirit and object of
Article 27 of the Constitution of India. According to the
petitioners, granting of money and concession for Durga Pujas
amounts to patronizing and/or favouring a particular religion
and/or a religious community over all others by the State
Government thereby violating the provisions of Articles 14 and 15
of the Constitution of India.
3
A preliminary objection is raised by Mr. Kishore Dutta,
learned Advocate General, West Bengal with regard to
entertaining this writ application at this stage.
Our attention has been drawn towards an order passed by
the Finance Department, Group N - Budget Branch under File
No.FB/O/2E-28/2018 (Home and Hill Affairs Department) to
submit that the Finance Department agreed to open a new head
in the Budget, bearing No.2055-00-109-024-Grants to
Community Puja organizers-31-02 (other grants)-V pertaining to
demand no.68 in this regard to provide for Rs.28 Crores under
the aforesaid newly opened sub-head.
According to the above order, equivalent amount may be
surrendered from six Departments to provide the aforesaid
amount for the above purpose.
Our further attention has been drawn towards a
Government Order bearing No. 876(2)-Sanction/HP/BMC/14M-
301/16 dated September 24, 2018.
According to the above Government Order, the Governor
has been pleased to accord administrative approval and financial
sanction of a sum of Rs.28 crores only for payment of ad-hoc
grant at the rate of Rs.10,000/- only to each of 28,000
Clubs/Puja organizations under the jurisdiction of West Bengal
Police and Kolkata Police respectively for the community Policing
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activities like assisting the Police through Volunteers in Safe
Drive campaigns, maintaining sanitation and public safety in
managing crowd during community festivals.
Denying and disputing the allegations of the petitioners, it
is further submitted by the learned Advocate General that there is
no nexus of the aforesaid grant with organizing Durga Puja by
various organizations or clubs. According to him, it has been
decided by the Government to hand over the aforesaid fund to the
registered clubs or organizations, who prayed for permission for
organizing Durga Pujas through out all the districts including
Kolkata, in the State of West Bengal. According to him, the total
number of such registered organizations is about 20000.
Therefore, there is no scope of arbitrary selection of registered
organizations for extending the benefit of the aforesaid grant.
It is open for the State Government to involve the public
through various Clubs and Puja Organizers for assisting the
Police through Volunteers in Safe Drive campaigns, maintaining
sanitation and public safety in managing crowd during
community festivals.
With regard to the question of law in entertaining this writ
application, it is submitted by the learned Advocate General that
expenditure by Government will be deemed to be authorized if in
the budget and in the Appropriation Acts there is a necessary
5
provision for spending money on the particular acts. When
provisions are made in the budget under different heads, it is
impracticable to provide expenditure of money for a particular
purpose because their cases may not have arisen at all at that
time and may arise in future. According to him, the Government
has the discretion to spend money for a particular purpose as
and when occasion arises. Thereafter, once expenditure has been
incurred, in the subsequent year, it will be included in the
accounts and then it is for the legislature to decide upon the
propriety of the expenditure or otherwise. In other words,
according to him it is not open for the Court to interfere with
such decision of the Government at the first instance. Reliance is
placed by him on the decisions of Umesh Mohan Sethi - Vs. -
Union of India & Anr. reported in 2012 SCC Online Del 6186,
Common Cause - Vs. - Union of India reported in (2014) 6 SCC
552 and Common Cause - Vs. - Union of India reported in
(2015)7 SCC 1 in support of his above submissions.
It is further added by Mr. Saktinath Mukherjee, learned
Senior Advocate appearing on behalf of the State respondents
that the provisions of Article 282 of the Constitution of India confers wide discretion on a State Government. It is for the State Government to decide what is public purpose and what is not a public purpose. If the Government purports to spend money for a 6 purpose which it characterizes as a public purpose though in point of fact it is not a public purpose, the proper place to criticize the action of the Government would be the legislature or the Appropriation Committee. The Courts are not the forum in which the Government's action of such nature could be sought to be criticized or restrained.
According to him, the Constitution of India envisages that the executive is responsible to the legislature and other policy and action is subject to its scrutiny and that is in consonance with the WestMinister system of parliamentary democracy. It is made clear by Mr. Mukherjee that there is no complete embargo for the Court to interfere with such decision of the executive but the legislature is the appropriate forum to deal with the above aspect at the first instance.
Reliance is placed by Mr. Mukherjee on the decisions of Laxman Moreshwar Mahurkar - Vs. - Balkrishna Jagannath Kinikar & Ors. reported in AIR 1961 Bombay 161, Bira Kishore Mohanty - Vs. - State of Orissa reported in AIR 1975 Orissa 8, K. N. Subba Reddy - Vs. - State of Karnataka & Ors. reported in AIR 1993 Karnataka 66 and M.S.M. Sharma - Vs. - Dr. Shree Krishna Sinha & Ors. reported in AIR 1960 SC 1186 in support of his above contentions.
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Appearing on behalf of the petitioners, it is submitted by Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate that the petitioners came to know about the decision of the Government in extending the benefit of the aforesaid grants from a newspaper reporting on September 10, 2018. The order by the Finance Department of the State of West Bengal and the Government Order were passed on September 12, 2018 and September 24, 2018. Therefore, at the time of announcement there was no decision on the part of the State Government to extend the benefit of grant for the purpose of assisting the Police through Volunteers in Safe Drive campaigns, maintaining sanitation and public safety in managing crowd during community festival through Clubs and Puja Committees but the same was an afterthought on the part of the Government and such subsequent Notification supports the case of the petitioners, that is, no public purpose is involved in extending the aforesaid grant to the Clubs or Puja Organizers. According to him, the violation of the Constitutional Mandate as appears from the provisions of Article 282 of the Constitution of India is crystal clear from the aforesaid course of action. Therefore, according to him, there is no bar and/or impediment on the part of the Court to interfere with such actions for adjudication of the validity of the aforesaid action on the part of the State Government. 8
Reliance is placed by Mr. Bhattacharya on the decisions of Anindya Sundar Das -Vs. - Union of India reported in 2018 (2) CHN 164, Brajesh Jha - Vs. - Union of India & Ors. reported in 2017 SCC Online Calcutta 899 and Chaitanya Kumar & Ors. - Vs. State of Karnataka & Ors. reported in (1986) 2 SCC 594 in support of his above contentions.
We have heard the learned Advocates appearing for the respective parties at length and we have given our anxious considerations to the facts and circumstances of this case for arriving at a conclusion with regard to entertainability of this writ application at this stage.
It is the age old settled principles of law that expenditure by the Government is deemed to be authorized if in the budget and in the Appropriation Acts there is a necessary provision for spending money on the particular acts. Once there is a prima facie case that there is no provision in the Budget as also in the Appropriation Account, the Court can interfere at the first instance with regard to such action of the executive. In other words, if the action on the part of the State Government is unreasonable or arbitrary in spending money for private purpose under the garb of public purpose, the Court can interfere. Once it is shown to the Court that there is a provision in the Budget and in the Appropriation Account, it is the settled principle of law that 9 it is permissible for the Government to spend such money, which had not been specifically provided at the time of allotment in the Budget. After the expenditure is incurred, in the subsequent year, it will be included in the account and then it is for the legislature to decide upon the propriety of the expenditure or otherwise. The Comptroller and Auditor General has a major role to play in auditing the Government account in this regard. According to the aforesaid settled principles of law, it is not permissible for the Court to interfere in that event at the first instance.
Reference may be made to the decision of Umesh Mohan Sethi (supra) and the report portion of the above decision is quoted below:
"7.......................................... Now, these observations make it clear that an expenditure by Government will be deemed to be authorised if in the budget and in the Appropriation Acts there is a necessary provision for spending money on the particular acts. It is not suggested that no allotment has been made in the budget for expending money for the defence of Government Servants. When provision is made in the budget under different heads, it is impracticable to provide for expenditure of money for the defence of particular individuals because their cases may not have arisen at all at that time and may arise in future. The Government has thus the discretion to spend money on individual cases as and when occasion arises. After the expenditure has been incurred, in the subsequent, year it will be included in the accounts and then it is for the legislature to decide upon the propriety of the expenditure or otherwise. The Appropriation Act which would be passed in the subsequent year would cover the expenditure actually incurred by the Government. It is therefore not correct to say that such expenditure is unauthorised." 10
The above decision was taken into consideration by the Hon'ble Supreme Court in the matter of Common Cause (supra) reported in (2015) 7 SCC 1 and the relevant portions of the above decision is set out below:
"8. Part IV of the Constitution is as much a guiding light for the Judicial organ of the State as the Executive and the Legislative arms, all three being integral parts of the "State" within the meaning of Article 12 of the Constitution. A policy certainly cannot be axed for its alleged failure to comply with any of the provisions of Part IV. Neither can the courts charter a course, merely on the strength of the provisions of the said Part of the Constitution, if the effect thereof would be to lay down a policy. However, in a situation where the field is open and uncovered by any government policy to guide and control everyday governmental action, surely, in the exercise of jurisdiction under Article 142 of the Constitution, parameters can be laid down by this Court consistent with the objects enumerated by the any of the provisions of Part IV. Such an exercise would be naturally time‐bound i.e. till the legislature or the executive, as the case may be, steps in to fulfil its constitutional role and authority by framing an appropriate policy.
9. Articles 38 and 39 of the Constitution enjoin upon the State a duty to consistently endeavour to achieve social and economic justice to the teeming millions of the country who even today live behind an artificially drawn poverty line. What can be the surer way in the march forward than by ensuring avoidance of unproductive expenditure of public funds. This is how we view the present matter and feel the necessity of exercise of our jurisdiction under Article 142 of the Constitution to proceed further.
10. It is neither possible nor feasible or even necessary to try and encompass the myriad situations where government advertisements are issued. Indeed, the situations and circumstances; events and occasions on which government advertisements are issued are infinite. Nevertheless, an attempt can be made to arrive at a broad categorization for the purpose of an illustrative understanding." 11
Coming back to the facts and circumstances of the instant case, we find that the Finance Department, Group N - Budget Branch under File No.FB/O/2E-28/2018 (Home and Hill Affairs Department) agreed to open a new head bearing No.2055-00-109- 024-Grants to Community Puja organizers-31-02 (other grants)-V pertaining to demand no.68 in the Budget providing Rs.28 crores under the aforesaid newly opened head. Equivalent amount has been decided to be surrendered from six Departments to mobilize the aforesaid amount. The above Government Order is quoted below:
"Finance Department Group N - Budget Branch File No.FB/O/2E‐28/2018 [Home and Hill Affairs Department] Sl Head of Earmark Budget Re-App Augment Surrender Current Accounts Amount Amount Amount Amount Ceiling 1 Hill-68-
2055-00- --
109-024-
28,00,00,000 28,00,00,000
31-02-V 0 0 0
We may agree to open a new H/a 2055‐00‐109‐024‐Grants to Community Puja organizers‐31‐02(other grants)‐V pertaining to demand no.68. After opening of new scheme H/a in this regard, we may agree to provide Rs.28 Crore under newly opened H/A 2055‐00‐109‐024‐Grants to Community Puja organizers‐31‐ 02(other grants)‐V pertaining to demand no.68 by way of re‐appropriation or otherwise during the e.f.y 2018‐19 to provide (sic.) Puja organizers. To provide Rs.28 Crore for the above‐said purpose, equivalent amount may be surrendered from 6 Departments.
Sd/‐ Debasish Bhattacharyya (JS) 12.09.18 Sd/‐ P.A. Siddiqui (Secretary) 12.09.18 Sd/‐ H.K. Dwivedi (Addl. Chief Secretary) 12.09,18 12 U.O. No. : 1245 U.O. Date : 12/09/2018 Sd/‐ Shri Amit Mitra (Minister‐in‐Charge)"
It is also not in dispute that by the Government Order dated September 24, 2018, the Governor has been pleased to accord administrative approval and financial sanction of a sum of Rs.28 crores only for payment of ad-hoc grant at the rate of Rs.10,000/- only to each of 28,000 Clubs/Puja organizations under the jurisdiction of West Bengal Police and Kolkata Police respectively for the community Policing activities like assisting the Police through Volunteers in Safe Drive campaigns, maintaining sanitation and public safety in managing crowd during community festivals.
The above Government Order is quoted below:
"Government of West Bengal Home & Hill Affairs Department Nabanna, 325, Sarat Chatterjee Road, Howrah - 711102 No.876(2) - Sanction/HP/BMC/14M‐301/16 Dated, Howrah, the 24th September, 2018 From : Shri Goutam Ray, Deputy Secretary to Govt. of West Bengal.
To: (I) Director General & Inspector General of Police, West Bengal.
(ii) Commissioner of Police, Kolkata.
Whereas community Policing is an important part of Police activity of strengthening the bond between the Police Authorities and citizens, the West 13 Bengal Police and the Kolkata Police involve local Clubs and Organizations in the districts as well as in Kolkata, for various activities round the year, like assisting the Police through Volunteers in Safe Drive campaigns, maintaining sanitation and public safety in managing crowd during community festivals. As it is most convenient to do the above mentioned community development work through local institutions like Clubs and Puja Committees, the following grant is to be distributed through the West Bengal Police and the Kolkata Police.
2. The undersigned is accordingly directed to state that the Governor has been pleased to accord administrative approval and financial sanction of a sum of Rs.28,00,00,000/‐ (Rupees twenty eight crore) only, for payment of ad‐hoc grant @ Rs.10,000/‐ only to each of 28,000 Clubs/Puja organizations under the jurisdiction of West Bengal Police and Kolkata Police for the community Policing activities mentioned in Para‐1 above.
3. The amount sanctioned herein above will be met from the fund allotted to them under the head "2055‐00‐109‐024‐Grants to Community Policing Puja organizers‐V‐31‐02‐Other grants" under Demand No.68 in the current year's Budget Provision.
4. The Governor has further been pleased to authorize the Superintendents of Police/Deputy Commissioners of Police (HQ) to draw the amount Rs.25,00,00,000/‐ [@ Rs.10,000/‐ X 25,000 Clubs/Puja Organizations] in case of West Bengal Police and Administrative Officer, Kolkata Police to draw the amount Rs.3,00,00,000/‐ [@ Rs.10,000/‐ X 3,000 clubs/Puja Organizations] in case of Kolkata Police, from different Treasuries/Kolkata Pay & Accounts Office‐II respectively to disburse the same through Account Payee Cheques in favour of the Clubs/Puja Organizations for the purpose mentioned at para‐1 above. Submission of Utilisation Certificates is a must.
5. This order is issued with the concurrence of Finance Department vide their U.O. No. Group T/2018‐2019/0723 dated 17.09.2018 read with Gr. N.U.O. No.1245 dated 12.09.2018.
6. All concerned are being informed.
Sd/‐ Deputy Secretary to the Government of West Bengal "
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Now, in order to find out the provisions in the Budget, we find that Demand No.68 relates to Home and Hill Affairs Department, A - General Services - (d) Administrative Services under the major head of account: 2055 - Police. Under the said Major Head the detailed account No.2055-00-109 relates to District Police. Under the aforesaid Major Head and Sub-Head the money is distributed under different detailed heads in the Budget upto No.2055-00-109-022.
From the aforesaid order of the Finance Department, Group-N, Budget Branch dated September 12, 2018, it is not in dispute that a new detailed head, i.e. No. 024-Grants to Community Puja organizers-31-02 (other grants)-V has been incorporated under the aforesaid Major Head and Sub-head.
It further appears from the Government Order dated September 24, 2018 that while the Governor has been pleased to accord administrative approval and financial sanction of a sum of Rs.28 crores only for payment of ad-hoc grant at the rate of Rs.10,000/- only to each of 28,000 Clubs/Puja organizations for the purposes indicated therein, it has been mentioned therein that the disbursement could be made through Account Payee Cheques in favour of Clubs/Puja Organizers for the aforesaid purposes and submission of utilization certificate is a must. 15
Therefore, from the materials-on-record it appears that the aforesaid decision of the Government is a part of community Policing activity having provisions in the Budget under Demand No.68 as has been provided with a Major Head, Sub-head and Detailed Head bearing No. 2055-00-109-024-Grants to Community Puja organizers-31-02 (other grants)-V. The new Detailed Head being incorporated bearing No. 024-Grants to Community Puja organizers-31-02 (other grants)-V under the aforesaid Major Head and Sub-head.
In the aforesaid facts and circumstances of this case, the settled principles of law does not permit us to interfere with the aforesaid action at this stage and after the expenditure has been incurred in the subsequent year, it is for the legislature to decide upon the propriety of the expenditure or otherwise. The Appropriation Account which would be placed in the subsequent year would cover the expenditure actually incurred by the Government at the first instance.
In arriving at a conclusion, we cannot ignore that a substantial quantum of money has already been released in favour of the various Clubs and Puja organizers.
However, we make it clear that while we arrive at a considered view that the legislature is the appropriate forum to decide upon the propriety of the aforesaid nature of expenditure 16 at the first instance, it is open for the Court to interfere with the propriety of the action on the part of the Government at a later/appropriate stage, if the occasion so arises.
With the discussions and observations made hereinabove, we are not inclined to entertain this writ application at this stage and the same stands disposed of accordingly.
There will be, however, no order as to costs.
Let a photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the parties upon complying with all necessary formalities.
(Debasish Kar Gupta, A.C.J.) (Shampa Sarkar, J.)