Can Public authorities / officials be compelled to make reasoned reply to the complaints / representations made to it..Posted: September 28, 2013
Pl take note of the attachments. They may be useful.
Sridharan, (Sridharan Pillai Pakkam Nattu <email@example.com>)
1) In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344] the SC has ruled that all public authorities / public officials must make a reasoned reply to the notices received by it. The Apex Court, among other things, have observed and directed –
“…The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.
Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.
The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.
2) In the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court have held that the Public authorities / persons may be held guilty of contempt of the Court, if, in the regular discharge of their duties, they knowingly disregard the law laid down by the said Court. By virtue of this judgment, a private individual / private entity may also be compelled to adhere to the law laid down by the High courts / Apex court.
It is a case where, despite being specifically brought to the knowledge of the law being laid down by the Bombay High Court, the Public officer acted in breach of the law laid down; and the High Court, in the Writ jurisdiction, initiated Contempt proceedings against the said officer. The Court held that –
(a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;
(b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;
(c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971.
3) Therefore, whenever there is any grievance against any Public authority / official, a Notice u/s 80 of CPC, 1908, may be recorded to the concerned Public authority / official. The draft of said Notice is annexed herewith. (Section 80 of Civil Procedure Code, 1908, contemplates a Notice, which is required to be given to any public authority / officer, before any Civil Suit can be filed against them).
4) Further, where the nature of the Notice / complaint is based on a prima facie breach of any provision of the law, and if there is any Apex Court or High court ruling on the said provision of law, and where the said ruling is unambiguous and categorical, the contempt proceeding may also be initiated against the concerned authority / official, for acting in the willful disregard / breach of the order of the Apex court / High court, as the case may be. Every High Court too has Su Moto contempt powers, as Apex court has.
5) And where public authority / official don’t reply or reply in interplay of words, than, a simple letter may be made to the concerned High Court / Apex court, requesting it to take Su Moto cognizance (action on its own) of the contempt of the order of the court, being committed by the concerned authority / official; and the copy of said letter may also be sent to the concerned authority / official; and thereafter, after sometime, say about, expiry of about 30 days, an RTI may be filed with the concerned High court / Apex court, requesting it to furnish the details of action taken by it, on your said letter. The draft of said letter to the High court / Apex court and draft of RTI Application is annexed herewith. The Apex court and every High court have prescribed the form in which RTI Application can be made to it.
6) Further, the complainant may also file a Writ Petition before concerned High court under Article 226 of the Constitution of India, against the concerned public authority / official, and praying the court to direct the concerned public authority / official to make a “Reasoned reply” to the Petitioner’s complaint / Notice; and the reply shall be made in accordance with the law laid down by the Apex court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344]; with a further prayer that reasonable and deterrent cost must also be imposed on the concerned authority / official, for his / its willful failure in making a due reply;
7) It may further be prayed that reply of public authority / official to deal with the substantial points which has been raised therein in the said complaint / Notice and cover other relevant points; and eschew irrelevancies and reply shall demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public authority / official on the issue raised in the said complaint / Notice have been reached according to law.
8) And where the Complaint / Notice to the Public authority / official is based on settled position of law declared by Apex court / High court, and yet Public authority / officials, despite being brought to their knowledge of the said ruling, acting contrary to the law so settled, then, in the said Writ Petition, the court may be prayed to initiate contempt proceedings against the concerned Public official, as laid down in Bombay High Court ruling stated hereinabove.
9) If Writ is filed for this limited purpose, than it may be disposed of in two to three hearings; and, if any such order is passed, than that public authority / official is bound to make a reasoned and proper reply, in a time bound manner.
10) However, all persons, aggrieved by the acts and omissions of public authorities / officials, may not have easy access to the High Court. Therefore, a Civil Suit for mandatory Injunction u/s 39 of Specific Relief Act, 1963, may be filed before the District Court / City Civil Court, seeking necessary reliefs.
11) The law declared by Apex court, by virtue of Article 141 and 144 of the Constitution of India, is binding on all public authorities / judicial authorities, and directions so given by Apex court becomes the law of the land. And therefore, the City Civil courts, District courts, shall also have the jurisdiction to direct the public authority / official to give proper and reasoned reply to the Notice issued to it; with a further relief praying that “A Reference shall be made to the High Court concerned to initiate contempt proceedings against the concerned Public authority / official”. However, while filing this Suit, the mandatory Notice provided u/s 80 may not be given, for, the relief in the Suit is claimed on the premise that concerned public authority / official is not making a reply to the Notice, sent to it u/s 80.
12) Complaints to public authorities / officials is the most legitimate incident of a democracy, and giving of satisfactory reply, is a healthy discipline for all who exercise powers over others.
Pls find files attached –
1. Draft of section 80 Notice – 1 NOTICE TO PUBLIC AUTH
2. & 3. Draft of Letter to Apex court / High Court, requesting it to take Su Moto cognizance of contempt committed by the concerned public official of the concerned public authority – 2 Letter to Apex court 3 Letter to HC Chief Justice
4. Draft of RTI Application – 4 RTI to Apex court High Court
5. Draft of Writ to enforce reply – 5 Writ – for Enforcing Right of Reply
6. Draft of Suit to enforce reply – 6 SUIT FOR INJUNCTION