Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14
PETITIONER:
STATE OF HIMACHAL PRADESH & ANR
Vs.
RESPONDENT:
UMED RAM SHARMA & ORS.
DATE OF JUDGMENT11/02/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION:
1986 AIR 847 1986 SCR (1) 251
1986 SCC (2) 68 1986 SCALE (1)182
CITATOR INFO :
R 1990 SC1692 (30)
RF 1991 SC1902 (24)
ACT:
constitution of India, 1950, Articles 19(1)(d), 21 & 38
- Right to life embraces not only physical existence of life
but the quality of life - For residents of hilly areas
Access to road, access to life itself - Roads for
communication - Provision of - Constitutional obligation
Court - Whether entitled to give directions in cases of
executive inaction or slow action.
HEADNOTE:
The petitioner, State sanctioned construction of a road
known as Ghanna-Hatti-Bhukho road in district Simla. The
total length of the road was about 5 kms. ant the
construction was started immediately in 1977. When the
construction of the road approached about 3/060 kms., there
was obstruction ant the construction was stopped due to one
reason or the other. Thereafter the work had been resumed
once or twice in a half hearted manner but it could not be
completed, due to lack of funds since a sum of Rs. 40,000/-
allocated during the financial year 1984-85 for the
construction of this road had already been fully utilised.
Respondents Nos. 1 to 15, residents of nearby villages,
addressed a letter to the Chief Justice of the High Court
complaining (i) that they had been totally deprived of the
road facility; (ii) that they had to go to the city after
negotiating steep ascent of 4/5 miles and only after such a
strenuous effort they were able to establish contacts with
the city; and (iii) that democracy was meaningless to them.
In those circumstances, they prayed for court’s intervention
and action on this behalf.
The High Court treated the aforesaid letter as a writ
petition and after receiving reply from the State
Government, it found that the people of the area were denied
the benefit
252
of the use of the road in a contiguous length and that some
remedial action was expedient in the public interest. me
High Court also recorded the statement of the Superintending
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14
Engineer that there was no reason why the road could not be
constricted gradually onwards and that during the financial
year to make the road serviceable an expenditure of about
Rs. 90,000/- would be necessary and as against this
requirement under the budget allocation, a sum of Rs.
40,000/- had been set apart for the purpose of widening the
road. m e High Court directed (1) that the Superintending
Engineer of the PWD should proceed with the construction of
the road and to complete the same during the course of the
current financial year; (2) that the Superintending Engineer
should make an application to the State Government demanding
additional sum of Rs.50,000/- being sanctioned for the
construction of the said road; (3) that the State Government
should favourably consider the demand of the Sperintending
Engineer. While giving the above directions, the High Court
noted that the construction of the road had progressed in
varying degrees and in a somewhat haphazard manner and the
road had not become serviceable beyond 3/060 kms.
The petitioner, in this special leave to appeal under
Article 136, questioned the power of the High Court to issue
prerogative writs under Article 226 of the Constitution to
direct the State Government either to allot any particular
sum for expenditure on account of particular project or to
allot amounts in addition which have already been allotted
under the current financial budget of the State Government
and thus to regulate even the procedure in financial matters
of the State, which, according to the petitioner, were the
exclusive domain of the legislature as contained in Articles
202 to 207 of the Constitution.
Disposing of the petition,
^
HELD : 1(i) There was nothing improper or illegal in
the order passed by the High Court directing the State
Government to carry out the construction as quickly as
possible within the sanctioned limits. me High Court has not
transgressed its Jurisdiction of supervising executive
action in view of the time taken to construct the road. It
has not transgressed its limits by substituting its
priorities. mere has been
253
allocation. me court was directed the executive to bring it
to the notice of the legislature if some re-allocation was
feasible amongst the sanctioned expenditure for roads
leaving the priorities to the discretion of the competent
authorities. [261 A-B; 267 E; H; 268 A]
1(ii) The court’s direction was not intended to
supervise the action taken and to enforce its implementation
but only to be apprised of the action taken in order to
bring about a certain sense of urgency so that there was no
delay. However, there was no need for the High Court to
direct that the matter be listed again before lt. [268 B;
269 B]
2(i) Every person is entitled to life as enjoined in
Article 21 of the Constitution. He has the right under
Article 19(l)(d) to move freely throughout the territory of
India and he has also the right under article 21 to his life
and that right under article 21 embraces not only physical
existence of life but the quality of life and for residents
of hilly areas, access to road is access to life itself.
Therefore, there should be road for communication in
reasonable conditions in view of constitutional imperatives
and denial of that right would be denial of the life as
understood in its richness and fullness by the ambit of the
Constitution. [259 H; 260 A-B]
In re: Sant Ram, [1960] 3 S.C.R. 499; Kharak Singh,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14
[1964] 1 S.C.R. 332; A.V. Nachane & Anr. etc. etc. v. Union
of India & Anr. etc. etc., [1982] 1 S.C.C. 205; Olga Tellis
and Others etc. v. Bombay Municipal Corporation and Others
etc., [1985] 3 S.C.C. 545; Municipal council, Raltam v. Shri
Vardhichand and Ors., [1981] 1 S.C.R. 97 & Francis Corlie
Mullin v. Administrator, Union Territory of Delhi 7 Ors.,
[1981] 2 S.C.R. 516 relied upon.
2(ii) The Constitution envisages a broad division of
the power between the legislature, the executive and the
judiciary. Although the division is not precisely
demarcative there is general acknowledgement of its limits,
there 18 certain time overlapping. It 18 for the legislature
to legislate, the executive to implement and carry out that
legislation and the judiciary to supervise. Affirmative
actions are sometimes necessary to keep the judiciary in
tune with the legislative intention. However, the directions
of the court cannot and should not run counter to the
specific provisions of the Constitution. In other words, the
court cannot
254
arrogate to itself any function which is left to the domain
of the other two branches namely the executive and the
legislature. [267 C-D; 261 C-D]
2(iii) Read in the background of the Directive
Principles as contained in article 38(2) of the
Constitution, access to life should be for the hillman an
obligation of the State but it is primarily within the
domain of the legislature and the executive to decide the
priority as well as to determine the urgency. Judicial
review of the administrative action or inaction where there
is an obligation for action should be with caution and not
in haste. It depends upon the facts and circumstances of
each case. Its dimension is never close and must remain
flexible. [266D-E; 269 H; 270 A]
3. Affirmative action in the form of some remedial
manner, in public interest, in the background of the
constitutional aspirations as enshrined in Article 38 read
with Articles 19 and 21 of the Constitution by means of
judicial directions in cases of executive inaction or slow
action is permissible within the limits. [269 E]
In the instant case, the respondents have been affected
by the denial of the proper roads in a hilly State.
Therefore there is no dispute as to their locus. There is
also no dispute that the State Government was willing and
had indeed sanctioned money for the construction of the
road. Constitutional and legal imperative on the part of the
State to provide roads for residents of hilly state is not
in issue. The High Court has noted the statement of the
sperintending Engineer that a sum of Rs. 90,000 would be
required for the completion of the road. The High Court has
suggested that Superintending Engineer may make a proposal
to this effect to the appropriate Government. The High Court
has not directed the State Government to spend Rs. 90,000
which clearly in view of the system of budgeting and the
budget would be in excess of the annual statement of income
and expenditure sanctioned by the legislature. The court
could not direct the State Government to spend beyond the
sanctioned amount which is in the domain of the legislature
in view of the provisions of Artlcles 202 to 207 of the
Constitution so far as the State expenditures are concerned.
The sperintending Engineer as the administrative authority
has been directed to carry out the
255
directions of the court for the widening of the road subject
to funds being available during the time limit. [260 E-F;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14
263 E-H]
Commonwealth of Massachusetts v. Andrew W. Mellon, U.S.
Supreme Court Reports, 67 Lawyers’ Edn. p. 1078 at p. 1085
Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2
S.C.R. 67; Dr. P. Nalla Thamby Thera v. Union of India and
Ors., [1984] 1 S.C.R. 709; State of Himachal Pradesh v. A
Parent of a Student of Medical College, Simla and Ors.,
A.I.R. 1985 S.C. 910 & Fertilizer Corporation Kamgar Union
(Regd.), Sindri and others. v. Union of India and Ors.,
[1981] 2 S.C.R. p. 67 at p. 71 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Special Leave Petition
(Civil) No. 12621 of 1984.
From the Judgment and Order dated 20.8.84 of the
Himachal Pradesh High Court in C.W.P. No. 231 of 1984.
K. Parasaran, Attorney General and A.K. Ganguli for the
petitioners.
T.U. Mehta and C.P. Pandey for the respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. From one angle in this case
there is much ado about nothing, from another point of view
there is a great deal than that meets the eye. It is better,
however, to proceed to deal with the matter as far as eye
can see without telescope but also without blinkers. The
facts are few - the issues in controversy are fewer still -
the directions given by the High Court in this case which
are under challenge a e brief but their consequences are of
some relevance and importance on the question of ambit of
judicial power over administrative inaction. To the facts
first, therefore, in immitation of the inimitable style of
Lord Denning This petition for special leave to appeal under
article 136 of the Constitution is directed against the
order of the Division Bench of the High Court of Himachal
Pradesh dated 20th August, 1984. Respondents 1 to 15 herein,
who claimed to be poor and mostly Harijans and are residents
of villages Bhainkhal,
256
mostly Harijans and are residents of villages Bhainkhal,
Baladi and Bhukha, Tehsil and district Simla in Himachal
Pradesh, addressed a letter on or about 4th June, 1984 to
the Hon’ble Chief Justice of the said High Court,
complaining, inter alia, that (i) in 1972, the State
Government had sanctioned the construction of Road known as
Ghanna-Hatti-Bhukho Road, (ii) by about August, 1980 half
the portion of the road i.e. about 3 Kms. had been
constructed and that when the road had reached the village
Gharog, the residents of the village obstructed further
construction, (iii) the Government initiated compulsory
acquisition proceedings in respect of the lands belonging to
the villagers of Gharog village and the same were finally
acquired in 1982. The villagers of Gharog who were
disinterested in further construction of the road in
collusion with the authorities got the construction stopped
at that stage.
It was alleged that after the construction had been
made upto the village Gharog, 200/250 metre portion of the
road had to be constructed through a privately owned piece
of barren land belonging to two families. As the road had
reached upto their village, they objected to further
construction of the road and also obtained ’stay orders’
from the Court. The compulsory acquisition proceedings had
been taken by the government in 1980 and the land was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14
acquired by it in 1982.
But the grievances of the said respondents were that,
in collusion with the authorities, the said two families of
village Gharog along with other residents of the village who
were no longer interested in the further construction of the
road, got the construction work stopped. Work had been there
after resumed, it was further alleged, once or twice in a
half-hearted manner but the residents of the aforesaid
village reached the place of work in protest and got the
work stopped again. Though the land was government land, the
construction had been, according to the said respondents,
completely abandoned.
The said respondents alleged that they had been totally
deprived of the road facility till then. They alleged that
they had to go to city after negotiating a steep ascent of
4/5 miles and by carrying load worth maunds on their
shoulders. Only after such a strenuous effort, it was their
allegation, that they were able to establish contacts with
the city. They asserted that ’democracy was meaningless to
them’. In those
257
circumstances they by the aforesaid letter prayed for
court’s intervention and action on this behalf.
After receiving the letter on 22nd June, 1984, the
letter was treated by the High Court as a Writ Petition and
the State Government filed its reply to the same stating,
inter alia, that on 29th July, 1977 the government had
sanctioned construction of the said road for a total
expenditure of Rs.4,99,000. The total length of the road was
about 5 Kms.; construction work started immediately in 1977
and most part of the road including widening at various
places had been constructed till 1984 on a total expenditure
of Rs.2,99,216; when the construction of the road approached
about 3/060 Kms. at that time there was obstruction as
mentioned hereinbefore and a civil suit was filed and
injunction was obtained. The injunction was vacated by the
civil court on the 30th April, 1982. The government stated
further that some other villagers again filed another suit
which was dismissed in June, 1983. In the meantime the
portion of the said land had been acquired and compensation
had been paid to the land owners and in the financial years
1984-85, a sum of Rs.40,000 had been allocated for the
construction of this road which amount had been fully
utilised. In those circumstances it was stated in the said
affidavit filed on behalf of the state government that due
to lack of funds, construction of the entire road could not
be completed.
When the matter came up for hearing before the High
Court on 27th June, 1984, the Court desired to know from the
learned Advocate General of the State as to the decision of
the government regarding the completion of the road to the
extent of the first three kms. The hearing was adjourned for
this purpose. The respondents 16 and 17 filed an application
on 24.7.1984 for impleading themselves as parties to the
proceedings as they claimed that they would be affected by
the decision of the High Court in the said proceedings. They
were so allowed to be impleaded by the High Court on 30th
July, 1984. Learned Advocate General informed the High Court
that the State Government had agreed to the alignment of the
road being maintained in the same position as had been
earlier decided. After affidavit, the matter came before the
High Court on 20th August, 1984.
258
The High Court directed the Superintending Engineer of
the P.W.D. to proceed with the construction of the road
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14
between 3/060 Kms. Onwards upto 3/886 Kms. and to complete
the same during the course of the current financial year. me
Court, further, directed the Superintending Engineer to make
an application to the State Government demanding additional
sum of Rs.50,000 being sanctioned for the construction of
the said road and directed further that the state government
should favourably consider the demand of the Superintending
Engineer.
The High Court further, in its order dated 20th August,
1984, noted that the work of the construction of the road
had been taken up in patches. The High Court felt that
although public money had been invested in the construction
of the road and the construction of the road had, in fact,
progressed in varying degrees ’almost to the end of the
road’, because the construction work had been taken up in a
somewhat haphazard manner, the road had not become
serviceable beyond 3/060 Kms. except in intermittent
patches. The High Court found that the people of the area
were, therefore, denied the benefit of the use of the road
in a contiguous length. The High Court was of the opinion
that some remedial action was expedient in the public
interest. The High Court, further, noted the information
supplied by the Superintending Engineer that during the
financial year to make the road serviceable from 3/060 Kms.
and 3/886 Kms. by making it 5/7 metres wide katcha
constructed road, an expenditure of about Rs.90,000 would be
necessary, as against this requirement, under the budget
allocation, a sum of Rs.40,000 has been set apart for the
purpose of widening the road. The Superintending Engineer
further stated that the two intervening patches in which no
construction work whatever has been undertaken, had been
left out because of the then pending litigation which,
however, had ended in June, 1983. In those circumstances,
the High Court noted the requirements for the completion of
the road and/or to make the same serviceable.
The High Court recorded the statement of the
Superintending Engineer that there was no reason why the
road could not be constructed gradually onwards. In giving
the direction the High Court took into consideration the
statement made before it by the Superintending Engineer that
the road
259
could be constructed gradually onwards. According to the
estimate of the Superintending Engineer for the purpose of
widening of the road between 3/060 Kms. to 3/886 Kms.,
Rs.90,000 would be required on rough estimate but only
Rs.40,000 was there. The High Court, thereafter, directed as
follows:
"The State Government 18 directed to favourably
consider the demand for additional funds which the
Superintending Engineer will make to complete the
widening of the road between 3/060 Kms. to 3/886
Kms. In the course of the current financial year.
The case to be listed again on November 20, 1984.
The Superintending Engineer will, on that day,
place on the record of this case a report with
regard to the progress made during the intervening
period in the direction of completing and widening
of the road between 3/060 Kms. and 3/886 Kms."
This petition seeks special leave to appeal to canvass
before this Court the question whether in view of the
provisions of articles 202 to 207 of the Constitution, the
High Court had power to issue prerogative writs under
article 226 of the Constitution to direct the State
Government either to allot any particular sum for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14
expenditure on account of particular project or to allot
amounts in addition which have already been allotted under
the current financial budget of the State Government and
thus to regulate even the procedure in financial matters of
State which, according to the Government, were the exclusive
domain of the legislature as contained in articles 202 to
207 of the Constitution.
It appears to us that in the facts of this case, the
controversy lies within a short compass. It is well-settled
that the persons who have applied to the High Court by the
letter are persons affected by the absence of usable road
because they are poor Harijan residents of the area, their
access by communication, indeed to life outside is
obstructed and/or prevented by the absence of road. The
entire State of Himachal Pradesh is in hills and without
workable roads, no communication is possible. Every person
is entitled to life as enjoined in article 21 of the
Constitution and in the facts of this case read in
conjunction with article 19(1)(d) of the
260
Constitution and in the background of article 38(2) of the
Constitution every person has right under Article 19(1)(d)
to move freely throughout the territory of India and he has
also the right under article 21 to his life and that right
under article 21 embraces not only physical existence of
life but the quality of life and for residents of hilly
areas, access to road is access to life itself. These
propositions are well-settled. We accept the proposition
that there should be road for communication in reasonable
conditions in view of our Constitutional imperatives and
denial of that right would be denial of the life as
understood in its richness and fullness by the ambit of the
Constitution. To the residents of the hilly areas as far as
feasible and possible society has constitutional obligation
to provide roads for communication.
We need not in this connection refer in detail to the
numerous decisions. Reference may, however, be made to in
re: Sant Ram. [1960] 3 S.C.R. 499, Kharak Singh, [1964] 1
S.C.R. 332, A.V. Nachane & Anr. etc. etc. v. Union of India
& another etc. etc., [1982] 1 S.C.C. 205, Olga Tellis and
Ors. etc. v. Bombay Municipal Corporation and Ors. etc.,
[1985] 3 S.C.C. 545, Municipal Council, Ratlam v. Shri
Vardhichand and Ors., [1981] 1 S.C.R. 97, Francis Coralie
Mullin v. The Administrators, Union Territory of Delhi &
Ors., [1981] 2 S.C.R. 516.
The persons who have complained about the non-
availability of road are the persons who have been affected
by the denial of proper roads in a hilly state. Therefore,
there is no dispute as to their locus. There is also no
dispute that the state Government was willing and has indeed
sanctioned money for the construction of the road.
Constitutional and legal imperative on the part of the State
to provide roads for residents of hilly state is not in
issue. So in this petition we need not examine how for is
the obligation to provide roads.
The citizen has come to the court complaining only that
the construction of the road has not been completed with
sufficient energy and zeal and there should be more funds
available. The budget allocation has been placed before us.
We are satisfied that Rs. 40,000 had been sanctioned for the
year and whatever sum is available during this year, the
State Government is willing to spend for the construction of
the road during the year as per allocation already made. So,
261
therefore, there was nothing improper or illegal in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14
order passed by the High Court directing the State
Government to carry out the construction as quickly as
possible within the sanctioned limits. It is clear that
communication in the hills is difficult and to a hillman,
road is life line. About spending money for a particular
socially needed and community wise desirable expenditure it
is necessary to bear in mind the Constitutional provisions
in this regard.
The expression ’budget’ does not appear as such in the
Constitution. It is one of the terms sanctified by usage. So
far as the provision for public expenditure is concerned,
this must be in consonance with the requirements of the
Constitution. The directions of the Court cannot and should
not run counter to the specific provisions of the
Constitution. In other words, the court cannot arrogate to
itself any function which is left to the domain of the other
two branches namely, the executive and the legislature.
The provisions regarding the central allocation of
funds are contained in articles 112 to 117 of the
Constitution with which we are, in the facts of this case,
not concerned. We are concerned here with the procedural and
financial matters in the State which are dealt with in
articles 202 to 207 of the Constitution. It is not necessary
to refer in detail to the said articles. It suffices to say
that certain expenses are charged on the consolidated fund
of the State. Discussions regarding these though take place
in the assembly, these are not subject to alterations by the
assemblies. It is necessary in this connection to bear in
mind the item contained in article 202(3)(e) namely, ’any
sums required to satisfy any judgment, decree or award of
any court or arbitral tribunal’. Such an expenditure is a
charge on the consolidated fund. Therefore, it would have
required elaborate consideration, which fortunately in view
of the nature of the directions of the court in this case
these cannot be termed as decree or judgment of the court
for any specific amount. Had it been otherwise it would have
required delicate handling, because how far and to what
extent the court can be permitted, if at all, to have its
order sanctified by making it a charge on the consolidated
fund is a matter of some importance and requires serious
consideration.
262
The recommendations apart from those under article 203
(2) shall be submitted in the form of demands for grants to
the Legislative Assembly, and the Legislative Assembly shall
have power to assent, or to refuse to assent, to any demand,
or the assent to any demand subject to any reduction of the
amount specified therein. Sub-article (3) of article 203
atipulates that no demand for a grant shall be made except
on the recommendation of the Governor.
Under our constitutional set up, the said demand by the
Governor in terms of sub-article (3) of Article 203 must be
on the recommendation of Council of Ministers. Article 204
deals with the Appropriation Bills. After the passing of the
Appropriation Bill, making provision for grants for money
which are charged on the consolidated funds should be
sanctioned by the Legislature. In case of supplementary,
additional or excess grants, these must be in compliance
with article 205 of the Constitution which in a sence
provides that if any fund is found insufficient for a
particular purpose of the year or need has arisen then the
Governor i.e. the Government must get sanction to another
statement showing the estimated amount of the additional
expenditure and such would be the demand for excess grant
and would be passed in accordance with the provisions
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14
contained in the other articles of the Constitution.
In this case as appears from the Financial Hand-Book of
the Himachal Pradesh Budget Manual which provides by
paragraph 2.12 the ’Detailed Estimates’, in paragraph 2.13
’Demand for Grant’, in paragraph 2.15 ’Detailed Head’ is a
division of p minor head which provides that provision
should not ordinarily be made under a new detailed head
without the prior approval of the Accountant General. men
’Major Head’ and ’Minor Head’ are defined. Paragraph 2.38
stipulates for ’Supplementary appropriation’ which means an
addition to the amount included in the schedule of
authorised expenditure.
The Budget is presented under Chapter 7 of the said
Hand-Book, paragraph 7.4 to the Legislature and as soon as
the budget is presented, it is either passed or not in
accordance with the detailed requirements contained and
stipulated. The power of appropriation out of the allotments
is contained in paragraph 10.2.. Chapter 12 deals with the
expenditure not
263
provided for in budget estimates - Reappropriations -
Supplementary estimates and excess grants. Paragraph 12.1 of
Chapter 12 provides that no expenditure shall be incurred
which may have the effect of exceeding the total grant of
appropriation authorised by the Appropriation Act. In case
of additional expenditure, a supplementary Appropriation
Bill have to be presented to the Legislature.
There are detailed instructions regarding the
preparation, submission etc. Of applications, for re-
appropriation. The sum and substance of the said
requirements are that total sanction of bill for a project
is within the domain of the legislature and the executive
has no power to exceed the total sanction without the
consent of the legislature and the court cannot impinge upon
the field of legislature. me executive, however, on the
appreciation of the priorities determine the manner of
priorities to be presented to the legislature. The court
cannot also, in our opinion, impinge upon the judgment of
the executives as to the priorities.
We were taken to the budget allocation in the instant
case in the further affidavit filed which provides for
instructions for the preparation of re-appropriation as well
as appropriation of grants and the High Court was quite
conscious of the same. m e High Court has noted that the
Superintending Engineer has stated that a sum of Rs. 90,000
would be required for the completion of the widening of the
road between 3/060 Kms. and 3/886 Kms. The High Court has
suggested that the Superintending Engineer may make a
proposal to this effect to the appropriate Government. me
High Court has not directed the State Government, as we read
the order, to spend Rs.90,000 which clearly in view of the
system of budgeting and the budget in this case would be in
excess of the annual statement of income and expenditure
sanctioned by the legislature. The court could not direct
the State Government to spend beyond the sanctioned amount
which is in the domain of the legislature in view of the
provisions of articles 202 to 207 of the Constitution so far
as the State expenditures are concerned. As we read the
order, the superintending Engineer as the administrative
authority has been directed to carry out the directions of
the court for the widening of the road subject to funds
being available during the time limit. The financial period
has expired. Whatever sum remaining for this financial
264
year, the State Government has assured us that they will
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14
carry out such direction. So far as the additional grant of
the sum was required, it is entirely in the domain of the
legislature to sanction it or not. The members of the
legislature know the needs of the people. Under the
Constitution, they are authorised and entitled to fix the
priorities for the expenditure to satisfy the basic needs of
the people, upon the judgment and recommendation of the
Executive.
Three questions, however remain to be considered,
namely, how far the court could give directions which are
administrative in nature and secondly whether any direction
could be given to build roads where there are no roads for
the enrichment of the quality of life or access to life, and
thirdly whether the court could direct that the
administration should report from time to time so that
action taken can be supervised by the court.
In order to decide the propriety and the legality of
the direction given by the High Court of Himachal Pradesh we
have to bear in mind that there are three distinct functions
in a government and these should be kept separate though in
constitutional set up, they very often at places over-lap.
In Commonwealth of Massachusetts v. Andrew W. Mellon, U.S.
Supreme Court Reports, 67 Lawyers’ Edn. p. 1078 at p.1085,
it was observed about the American constitution thus:- "The
functions of government under our system are apportioned. me
legislative department has been committed the duty of making
laws; to the executive the duty of executing them: and to
the judiciary, the duty of interpreting and applying them in
cases properly brought before the courts. The general rule
is that neither department may invade the province of the
other, and neither q control, direct, or restrain the action
of the others." It is also well to remember that freedom
depends upon the separation of three organs of the State.
Each must function within its own domain and remain
distinct.
On this aspect, it is appropriate to recall what
Montesquien in ’The Spirit of the Law’ (1949 Reprint 1962)
observed at pages 150-152:
"Democratic and aristocratic states are not in
their own nature free. Political liberty is to be
265
found only in moderate governments; and even in
these it is not always found. It is there only
when there is no abuse of power. But constant
experience shows us that every man invested with
power is apt to abuse it, and to carry his
authority as far as it will go. Is it not strange,
though true, to say that virtue itself has need of
limits?
.....................
.....................
In every government there are three sorts of
powers: the legislative the executive in respect
of things dependent on the law of nations and the
executive in regard to matters that depend on the
civil law.
By virtue of the first, the prince or magistrate
enacts temporary or perpetual laws, and amends or
abrogates those that have been already enacted. By
the second, he makes peace or war, sends or
receives embassies, establishes the public
security, and provides against invasions. By the
third, he punishes criminals, or determines the
disputes that arise between individuals. The
latter we shall call the judiciary power, and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14
other simply the executive power of the state.
The political liberty of the subject is a
tranquility of mind arising from the opinion each
person has of his safety. In order to have this
liberty, it is requisite the government be so
constituted as one man need not be afraid of
another.
When the legislative and executive powers are
united in the same person, or in the same body of
magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch of
senate should enact tyrannical laws, to execute
them in a tyrannical manner.
Again, there is no liberty, if the judiciary power
be not separated from the legislative and
executive. Were it joined with the legislative,
the
266
lire and liberty of the subject would be exposed
to arbitrary control; for the judge would be then
the legislator. Were lt Joined to the executive
power, the Judge might behave with violence and
oppression.
There would be an end of everything, were the same
man or the same body, whether of the nobles or of
the people, to exercise those three powers, that
of enacting laws, that of executing the public
resolutions, and of trying the causes of
individuals."
It is well, however, to remember that Alexander
Hamilton, John Ray and James Madison - in Federalist by
means of as many as eighty five essays had to support the
founding fathers of the American Constitution by trying to
prove that in essence there is separation of powers in
American Constitution as practiced in reality in England.
In the instant case, administrative action or
administrative inaction is being sought to be reviewed. Read
in the background of the directive principles as contained
in article 38(2) of the Constitution access to life should
be for the hillman an obligation of the State but it 18
primarily within the domain of the legislature and the
executive to decide the priority as well as to determine the
urgency. Judicial review of the administrative action or
inaction where there is an obligation for action should be
with caution and not in haste.
In this case, as mentioned before, the executive is not
R oblivious as is evident from the facts stated herein of
its obligation. Its sense of priority it has determined,
there may have been certain lethargy and inaction. It has
been said by Adam Smith in his ’Wealth of Nation’ that
whenever you see poverty widespread rest assured that either
of the two causes must have operated, either energy has not
been applied or energy has been misapplied.
In the instant case there has been at the highest a
slow application of energy in the action by the executive.
By the process of judicial review, if the High Court
activises or energizes executive action, lt should do so
cautiously. Remedial action in public interest must be with
caution and within
267
limits. Reading down the order in the manner we have
indicated, in our opinion, the High Court has not
transgressed the limits of its power.
So far as the first and second question are concerned,
in Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14
S.C.R. 67, this Court has given guidance. One of us (Pathak,
J.) speaking about the nature and extent of relief which has
to be given in litigation where public interest was
concerned, observed at page 161 of the report that there
were certain fundamental constitutional concepts which need
to be recalled, namely, the Constitution envisaged a broad
division of the power of the State between the legislature,
the executive and the judiciary. Although the division is
not precisely demarcated, there is general acknowledgement
of its limits, there is certain time over-lapping. It is for
the legislature to legislate, the executive to implement and
carry out that legislation and the judiciary to supervise.
Affirmative actions are sometimes necessary to keep the j
judiciary in tune with the legislative intention. Having
regard to the observations made in this case at pages 161 to
163 of the report in the light we read the present order, we
do not think that the learned judges of the Himachal Pradesh
High Court have transgressed this jurisdiction of
supervising executive action in view of the time taken to
construct this road.
In Dr. P. Nalla Thamby Thera v. Union of India and Ors.
[1984] 1 S.C.R. 709, a writ petition was dismissed under
article 32 of the constitution for implementing the report
of the Kunzru, Wanchoo and Sikri Committees, and for
appointing a fact finding Commission to inquire and report
about the train accidents by a certain commuter. The Court
held that giving directions in a matter like one which was
before the court where availability of resources had a
material bearing, policy regarding priorities was involved,
expertise was very much in issue was not prudent to issue
any directions. me court felt that whether a committee
should be appointed or not was primarily a matter in the
domain of the executive.
In the instant case before us, the court has not
transgressed its limits by substituting its priorities. mere
has been allocation. The court has directed the executive to
bring it to the notice of the legislature if some re-
allocation was
268
feasible amongst the sanctioned expenditure for roads
leaving the priorities to the discretion of the competent
authorities.
The only other aspect, which is the third aspect, is
the direction of the court to report to the court what
progress had been done. In our opinion, if we read the order
properly, the court’s direction was not intended to
supervise the action taken and to enforce its implementation
but only to be apprised of the action taken in order to
bring about a certain sense of urgency so that there was no
delay.
In this connection reliance may be placed on the
observations of this Court in State of Himachal Pradesh v. A
Parent of a Student of Medical College, Simla and Ors.,
A.I.R. 1985 S.C. 910, where the High Court recommended
introduction of a bill to prevent ragging. It was held that
this was an indirect attempt to direct the executive to
initiate legislation with a view to curbing the evil of
ragging. m ere periodic directions were given by the High
Court. This Court reiterated that it was entirely a matter
for the Government to decide whether or not to introduce any
particular legislation. Any member of the legislature could
also introduce legislation but the Court could not mandate
the executive or any member of the legislature to initiate
any legislation and supervise the action of initiation.
The Court in this case has directed ’to favourably
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14
consider the demand for additional funds’. This was enough.
The State Government has assured this court that they
would carry out this direction. The court must know its
limitations in these fields. The court should bring about an
urgency in executive lethargy if any, in any particular case
but it must remember the warning of Benjamin N. Cardozo in
’The nature of judicial process’ at page 141 of the book:-
"The judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure. He
is not a knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is
to draw his inspiration from consecrated
principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by
tradition, methodized by
269
analogy, disciplined by system, and subordinated
to "the primordial necessity of order in the
social life." Wide enough in all conscience is the
field of discretion that remains."
Therefore, there was no need for the High Court to direct
that the matter be listed again before the Court on 20th
November, 1984.
Out of deference, however, to the High Court, we do not
delete this part of the order of the High Court but direct
that this be placed before the High Court only to inform it
as to what steps had been taken and thereafter the High
Court may not take any further action and leave it to the
judgment of the priorities and initiative both of the
executive and the legislature to pursue this matter. The
High Court has served its high purpose of drawing attention
to a public need and indicated a feasible course of action.
No further need be done by the High Court in this matter.
So much has been done. So little remains to be done. We
trust that this would be done by the State Government in
proper spirit.
Affirmative action in the form of some remedial
measure, in public interest, in the background of the
constitutional aspirations as enshrined in article 38 read
with articles 19 and 21 of the Constitution by means of
judicial directions in cases of executive inaction or slow
action is permissible within the limits. me way we read the
High Court’s order with the clarification indicated does not
transgress that limit.
It is necessary to bear in mind that interference with
the administration cannot be meticulous in our
Constitutional system of separation of power. It is not
necessary to express our opinion in this case whether our
Constitution is truly based on Montesquien system of
separation of power. We accept the position that court
cannot usurp or abdicate, and the parameters of judicial
review must be clearly defined and never exceeded. See the
observations of Krishna Iyer J. in Fertilizer Corporation
Kumgar Union (Regd.), Sindri and Ors. v. Union of India and
others [1981] 2 S.C.R. p.67 at p.71. It is, however, neither
possible nor desirable to define for all purposes that
parameter. Judicial review of adminis-
270
trative action depends upon the facts and circumstances of
each case. Its dimension 18 never closed and must remain
flexible. But in this case the order of the High Court in
the light we have read it, does not exceed that parameter.
The petition for special leave is disposed of in the
aforesaid manner without grant of any leave to appeal.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14
Except the directions indicated above, there will be no
further order on this application. In the facts and
circumstances as the State Government has not shown any lack
of imitative, the parties will pay and bear their own costs.
M.L.A. Petition dismissed.
271