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2007 DIGILAW 1482 (PAT)

Brahmdeo Thakur v. State Of Bihar

2007-09-10

S.K.KATRIAR

body2007
Judgment 1. Heard in part. 2. Mr. S.S.P. Yadav for the petitioner, and Mr. Sunil Kumar Karn, learned junior counsel to Additional Advocate General No. VI, for the respondents are present. 3. The petitioner claims salary as a Dresser from the date of his joining at Biraul in March/April 1992 till 11.6.1996. He joined at Singhwara on 12.6.1996, and is being paid salary. After elaborate submissions advanced on behalf of the petitioner consuming a lot of time, the learned Government counsel commenced his submissions in opposition to the writ petition. He placed reliance on the supplementary counter affidavit filed by respondent nos. 6 and 7 which has been sworn by Anil Kumar Thakur, Incharge Medical Officer, Primary Health Centre, Singhwara, on 31.8.2007. The respondent authorities have already placed on record two counter affidavits earlier. The supplementary counter affidavit does not place on record the documents in support of the statements made therein, and the deponent tends to confront this Court with his conclusions. It also does not deal with the documents relied on by the petitioner marked Annexures 1, 4, 6, 9 and 11 etc. In case of a dispute, the concerned authority is duty bound to make relevant averments in the counter affidavit, and place on record copies of all the documents in support of the averments, as well as copies of the relevant documents necessary for the disposal of the lis, to enable the Court to come to its own conclusions. In most of the counter affidavits of the State Government, the respondents do not place on record copies of the documents in support of the averments in the counter affidavit, let alone copies of other relevant documents. If this were permitted, the power of judicial review conferred by the constitution on this Court shall be rendered nugatory, and the respondents will claim dismissal of the writ petition on the basis of their conclusions stated in the counter affidavit. The same law is applicable to the petitioners also. If this were permitted, the power of judicial review conferred by the constitution on this Court shall be rendered nugatory, and the respondents will claim dismissal of the writ petition on the basis of their conclusions stated in the counter affidavit. The same law is applicable to the petitioners also. Reference may be made to the judgment of the Supreme Court in the case of Bharat Singh and others vs. State of Haryana and others, reported in A.I.R. 1988 S.C. 2181, the relevant portion of which is reproduced hereinbelow: ".......In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit." (Emphasis added) 4 The said Anil Kumar Thakur is responsible for wasting so much of Courts time, and delaying disposal of the proceedings. As prayed for on his behalf, eight weeks time is granted to place on record copies of the relevant documents in support of the statements made in the counter affidavit by way of supplementary counter affidavit, apart from other documents relevant for the purpose of disposal of the writ petition. In case any document is found to be bulky, the learned Government Counsel shall be in possession of the same in original to be produced at the time of arguments. Anil Kumar Thakur, the said deponent, shall deposit cost of Rs. 5,000/- (rupees five thousand) in the High Court Legal Services Committee, Patna, from his personal pocket within the same time, by way of costs of adjournment. 5. Such inadequate counter affidavit on behalf of the State of Bihar and its functionaries has become the order of the day. A lenient approach has not worked. 5,000/- (rupees five thousand) in the High Court Legal Services Committee, Patna, from his personal pocket within the same time, by way of costs of adjournment. 5. Such inadequate counter affidavit on behalf of the State of Bihar and its functionaries has become the order of the day. A lenient approach has not worked. Let the Chief Secretary issue proper instructions to all the functionaries of the State Government to ensure that the counter affidavits on behalf of the State of Bihar and its functionaries incorporate copies of all the documents in support of the statements made in the counter affidavit(s)/supplementary counter affidavit, and also place on record copies of other relevant documents necessary for the disposal of the lis, failing which adverse inference shall be drawn against the respondents, and the averments in the counter affidavit may be taken to be unsubstantiated. 6. The Court is already over burdened on account of the negligent approach of the Bihar Government burdening it with most unwanted matters. The attitude of the respondents in the present case is not a stray case and abounds with such cases. For example, following is the chart showing pendency of writ petitions relating to post-retirement benefits of its employees, universities, Khadi Gramodyog Board, etc.: Upto Year Total Pendency (Aprox) As on 31.1.2002 2694 As on 29.1.2003 3274 As on 19.4.2004 2767 As on 4.9.2004 2644 As on 1.11.2006 6441 As on 8.5.2007 7305 As on 30.7.2007 7033 Most of the dates are those when the Chief Secretaries filed affidavits giving undertakings to this Court that such cases shall reduce. By an approximate estimate, the respondents in 95% of such writ petitions admit the dues and only want time to make payment. Such routine matters of governance are being perennially passed on to Courts which do not involve any adjudication. The duty conferred on this Court by the Constitution of India is to adjudicate dispute between man and man, and man and the State. No dispute at all is involved in such cases. 7 Orders on writ petitions are not adequate for the Government of Bihar and have in a large number of cases to be chased by contempt applications. The duty conferred on this Court by the Constitution of India is to adjudicate dispute between man and man, and man and the State. No dispute at all is involved in such cases. 7 Orders on writ petitions are not adequate for the Government of Bihar and have in a large number of cases to be chased by contempt applications. Following is the chart showing pendency of such applications which relate to orders other than post-retirement benefits also: Upto Year Total Pendency (Aprox) As on 31.1.2002 5315 As on 29.1.2003 5803 As on 19.4.2004 4192 As on 4.9.2004 3598 As on 1.11.2006 3082 As on 8.5.2007 3049 As on 30.7.2007 2914 8 The two-fold conclusions of a research work in law is that Government, Governmental agencies, and instrumenta- lities of Government are parties to more than seventy per cent of the litigations in this country and, secondly, on account of corruption, inefficiency, inaction and the like, all of which can compenditiously be covered by one expression Mala fides, they are passing on their own decision- making to Courts. Another research work in law estimates that the pending litigations in this country, without any addition thereto, shall take clearly more than a century to be adjudicated. Another estimate puts it at 250 years. 9. To give another example, the Bihar Government has been preferring appeals in this Court arising out of land acquisition proceedings of the valuation of Rs. 500/- to a few thousands, little realising that the poorest of the poor land-owner has been deprived of his source of livelihood, and burdening this Court with most unwanted matters. The State Government had issued a notification in 1996 that it shall withdraw all such appeals preferred by it upto the valuation of Rs. 25,000/-, which has recently been enhanced to Rs. 50,000/-. It is, therefore, inherent in the notifications that the State Government shall not file appeals upto such valuation, notwithstanding which it continued to be filed, let alone the question of taking steps to withdraw the same. Such reckless and irresponsible litigation attributable to the State Government and its functionaries is because they do not have to incur the litigation expenses from their own pockets. Has anybody realised that the filing cost of such appeals on the first date is more than valuation of same. Such reckless and irresponsible litigation attributable to the State Government and its functionaries is because they do not have to incur the litigation expenses from their own pockets. Has anybody realised that the filing cost of such appeals on the first date is more than valuation of same. Equally, after all why did the Civil Court enhance the compensation amount, possibly because of the niggardly approach of the Land Acquisition Officer. The poorest of the poor is driven to the High Court, and in many cases upto the Supreme Court. 10. Of all the matters before the quasi-judicial authorities, the largest number relate to land laws administered by the Department of Revenue and Land Reforms. The quasi-judicial authorities have largely become non-functional generating such absurd writ pettitions in this Court for direction to issue certified copies. One writ petition came up before me where the main matter was pending before the Collector, who had repeatedly passed orders directing the Circle Officer to submit his report, and the writ petition was filed for a direction to the Circle Officer to submit his report to the Collector. The State Government should, therefore, consider the desirability of revising the entire structure of quasi-judicial authorities, to be crowned by a Land Reforms Tribunal, which shall be the last forum of facts, keeping in view the established principle by law that numerous forums of appeals, revisions, and reviews is not conducive to the administration of justice. I may, for example, point out that the functioning of the forum created by Sec. 45B of the Bihar Land Ceiling Act, 1961, leaves much to be desired, and the same may be transferred to the Tribunal. 11. This takes me on to another important aspect of the matter. In a system governed by the rule of laws such as ours, the Government should have a well toned-up body like the Law Commission to provide it with well-considered reports to discard the old laws, up-date the laws, and suggest new laws to be abreast with the fast-changing times. The State Government did create the Law Commission but has not allowed it to function from the very inception. Has the State Government to be told that the Law Commission should be allowed to function effectively by providing the requisite infrastructure and making appropriate references to it eliciting thoughtful reports. The State Government did create the Law Commission but has not allowed it to function from the very inception. Has the State Government to be told that the Law Commission should be allowed to function effectively by providing the requisite infrastructure and making appropriate references to it eliciting thoughtful reports. The Government of India has indeed allowed its Law Commission to function effectively and fruitfully which has produced innumerable reports and the Central Government has derived immense benefit from the same. 12. The State Government should consider the desirability of constituting an Administrative Tribunal and a Land Reforms Tribunal. Let it be brought to the notice of the Chief Minister, followed by an exhaustive counter affidavit sworn by the Chief Secretary covering all the issues raised in this order within a period of three months. 13. The State Government should remind itself that it did constitute Land Reforms Tribunal and Administrative Tribunal in mid eighties but did not allow it to continue. In all democratic set-up governed by the rule of laws, Tribunals with specialised jurisdiction as the last forum of facts, is the accepted norm. The superior forums of justice under the Constitution, such as High Courts and the Supreme Court under the Constitution of India, is for exercise of the powers of judicial review, and correction of errors of law. 14. Put up on 9.1.2008 in Chambers, if not sitting singly. The time in the mean while may be utilised by the parties for completion of pleadings. 15. Let a copy of this order be handed over to Mr. Deo Narain Yadav, learned Additional Advocate General No. VI, to be passed on to the learned Advocate General and the Chief Secretary for the needful, forthwith.