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2019 DIGILAW 2000 (HP)

Abhimanyu Rathore v. State Of Himachal Pradesh

2019-12-21

JYOTSNA REWAL DUA, L.NARAYANA SWAMY

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JUDGMENT Jyotsna Rewal Dua, J. - Petitioner, a practising lawyer of this Court, has filed this writ petition, in person, raising following contentions on the basis of various reports submitted by the Comptroller and Auditor General of India in different years:- Contentions:- 2. 2(i). Respondent-State has failed to execute its constitutional obligations and mandate enshrined under Article 293 of the Constitution of India. Loans have been raised by the State Government to repay its outstanding debt liability bypassing the provisions of Article 293(3) of the Constitution as well as without fixing any borrowing limit required under Article 293(1) of the Constitution. 2(ii). The State Government has failed to discharge its functions of sustainable development, good governance and principles of fiscal management, as laid down in ''The Himachal Pradesh Fiscal Responsibility and Budget Management Act, 2005'' (FRBM Act in short). The decisions of successive State Government in this regard are extraneous and based on political reasons, thereby offending the Rule of Law. 2(iii). State has failed in fiscal management and fiscal stability. Loans have been raised in excess of net borrowing limit fixed by the Government of India and under the FRBM Act, 2005. 2(iv). The borrowing is to be utilized on self sustained development activities and creation or augmentation of capital assets and is not to be applied in financing current expenditure. 2(v). As per successive reports of the Comptroller and Auditor General of India, the State Government utilized at an average 31.20% of the fresh borrowings (2010-11 to 2014-15) for making repayments of matured market loans, whereas on an average 68.80% was applied for capital expenditure in respective years. Payment of matured market loans from fresh loans was against the provisions of FRBM Act. Loans are being repeatedly raised for disbursing monthly salaries and remunerations of State employees. Such like loans will affect the fiscal health of the State. 3. On the basis of above contentions, following reliefs have been sought by the petitioner:- "i) Issue a writ of certiorari to quash and set aside Annexure P-18 with immediate effect; ii) Issue directions to Respondent to strictly implement, in present and future financial years, the recommendations made by the Comptroller and Auditor General of India, in report published for every outgoing financial year; iii) Issue restraining directions to respondent to not raise incessant loans indiscriminately thereby leading the State into debt trap; iv). Issue directions to respondent to utilize the proceeds of loans (in present and future) strictly in accordance with provisions of the Act of 2005 and object of the loan for which it was raised therefor; v). Issue directions to respondent to expeditiously initiate fiscal reforms and implement/execute the same in a time bound manner, so as to minimize/ contain the deficit of any kind, for a healthy fiscal position of the state." 4. We have heard the petitioner in person and learned Advocate General for the respondent-State and gone through the record. The respondent-State though has not filed its reply to the writ petition, however, has raised preliminary objection to the very maintainability of the writ petition. Learned Advocate General has contended that the petitioner has no locus standi to institute this writ petition; the issues raised in the writ petition are in respect of the sovereign functions of the State and do not fall within the scope of judicial review. 5. Observations:- 5(i). The reliefs prayed for by the petitioner, in person, revolve around the reports submitted by Comptroller and Auditor General of India in different years. Article 151 of Chapter-V of the Constitution of India, deals with the reports of Comptroller and Auditor General of India, which reads as follows:- "151. Audit reports. (1) The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament. (2) The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the Governor of the State, who shall cause them to be laid before the Legislature of the State." 5(ii). Article 293 of the Constitution of India deals with borrowing by the State, which reads as under:- "293. Borrowing by State. (1) Subject to the provisions of this article, the executive power of a State extends to borrowing within the territory of India upon the security of the Consolidated Fund of the State within such limits, if any, as may from time to time be fixed by the Legislature of such State by law and to the giving of guarantees within such limits, if any, as may be so fixed. (2) The Government of India may, subject to such conditions as may be laid down by or under any law made by Parliament, make loans to any State or, so long as any limits fixed under article 292 are not exceeded, give guarantees in respect of loans raised by any State, and any sums required for the purpose of making such loans shall be charged on the Consolidated Fund of India. (3) A State may not without the consent of the Government of India raise any loan if there is still outstanding any part of a loan which has been made to the State by the Government of India or by its predecessor Government, or in respect of which a guarantee has been given by the Government of India or by its predecessor Government. (4) A consent under clause (3) may be granted subject to such conditions, if any, as the Government of India may think fit to impose." 5(iii)(a). In case titled Arun Kumar Agrawal versus Union of India and others, (2013) 7 SCC 1 , Hon''ble Apex Court held that Court cannot sit in judgment over commercial or business decision taken by the State or its instrumentalities after evaluating and assessing the monetary and financial implications, unless the decision is in clear violation of statutory provisions or is perverse or is taken for extraneous considerations or improper motives. In respect of CAG''s report, it was observed as under:- "67. The question that is germane for consideration in this case is whether this Court can grant reliefs merely placing reliance on the CAG''s report. The CAG''s report is always subject to parliamentary debates and it is possible that PAC can accept the ministry''s objection to the CAG report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for the Parliament to decide whether after receiving the report i.e. PAC to make its comments on the CAG''s report. 68. We may, however, point out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective ministries have to offer on the CAG''s report. The ministry can always point out, if there is any mistake in the CAG''s report or the CAG has inappropriately appreciated the various issues. The ministry can always point out, if there is any mistake in the CAG''s report or the CAG has inappropriately appreciated the various issues. For instance, we cannot as such accept the CAG report in the instance case. 69........ 70. In such circumstances, we find no merits in the writ petition which was filed without appreciating or understanding the scope of the decision or the decision making process concerning economic and commercial matters which gives liberty to States and its instrumentalities to take appropriate decision after weighing advantages and disadvantages of the same and this Court sitting in this jurisdiction, as already indicated, is not justified in interfering with those decisions, especially when there is nothing to show that those decisions are contrary to law or actuated to mala fide or irrelevant considerations. The writ petition, therefore, lacks merits. Hence, the same is dismissed." 5(iii)(b). In case titled Pathan Mohammed Suleman Rehmatkhan versus State of Gujarat and others, (2014) 4 SCC 156 , Hon''ble Apex Court upheld the decision of Gujarat High Court in dismissing the public interest litigation based on report of CAG and held that though CAG is a key figure in the system of Parliamentary control of finance, but, its reports are subject to scrutiny of Public Accounts Committee and the Joint Parliamentary Committee and it would not be proper to refer to the findings and conclusion contained therein. 5(iii)(c). In case titled Arvind Gupta versus Union of India and others, (2013) 1 SCC 393 , it was observed by Hon''ble Apex Court that the reports submitted by CAG are subject to scrutiny by the Parliament or the Legislature of the State, as the case may be. 5(iii)(d). Hon''ble the Apex Court in Pandit M.S.M Sharma versus Dr. Shreekrishna Sinha, (1960) AIR SC 1186 , held:- "10....... No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Art. 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Art. 32 of the Constitution." 5(iii)(e). What emerges from the ratio laid down by Hon''ble the Apex Court, is that the matters falling within the domain of legislature are not amenable to judicial review. This is for the reason that the constitutional scheme has itself envisaged for the parliamentary control over fiscal executive actions as it is the constitutional mandate which requires that report of CAG has to be placed before the legislature. By no stretch of imagination, the Courts while exercising the powers of judicial review, can take cognizance of the anomalies, if any, revealed by the CAG in its reports otherwise it would amount to usurption of legislature power. In titled Balco Employees Union (Regd.) versus Union of India and other, (2002) 2 SCC 333 Hon''ble the Apex Court held as follows: "97. Judicial interference by way of PIL is available if there is injury to public because of dereliction of Constitutional or statutory obligations on the part of the government. Here it is not so and in the sphere of economic policy or reform the Court is not the appropriate forum. Every matter of public interest or curiosity cannot be the subject matter of PIL. Courts are not intended to and nor should they conduct the administration of the country. Here it is not so and in the sphere of economic policy or reform the Court is not the appropriate forum. Every matter of public interest or curiosity cannot be the subject matter of PIL. Courts are not intended to and nor should they conduct the administration of the country. Courts will interfere only if there is a clear violation of Constitutional or statutory provisions or non-compliance by the State with it''s Constitutional or statutory duties. None of these contingencies arise in this present case." In view of the above discussion and law laid down by Hon''ble Apex Court, the instant petition, being misconceived and devoid of any merit, is dismissed. Pending miscellaneous application(s), if any, shall also stand dismissed.