TMI Blog1986 (2) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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, 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 Ghar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structed gradually onwards. In giving the direction the High Court took into consideration the statement made before it by the Superintending Engineer that the road 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., ₹ 90,000 would be required on rough estimate but only ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal 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 ₹ 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, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. m e High Court has noted that the Superintending Engineer has stated that a sum of ₹ 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 ₹ 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 year, the State Government has assured us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedial action in public interest must be with caution and within 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 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 analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the fiel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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