901-pil IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.

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1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.07 OF 2011 The High Court of Bombay in its own motion vs. The Chief Secretary Government of Maharashtra and Others WITH...Petitioner...Respondents PUBLIC INTEREST LITIGATION NO.14 OF 2012 Litigants Association, Maharashtra (Pakshakar Sangh) Through Secretary, Bhalchandra Vinayak Joshi...Petitioner vs. Law and Judiciary Department and Others...Respondents WITH PUBLIC INTEREST LITIGATION NO.81 OF 2012 The High Court of Bombay in its own motion vs. The Chief Secretary Government of Maharashtra and Others...Petitioner...Respondents 1/17

2 Mr. A.A. Kumbhakoni, Senior Counsel a/w. Mr. Amit Borkar, Advocate Amicus Curiae. Mr. S.R. Nargolkar for the Petitioner in PIL No. 07/2011 and for Respondent No. 5 in PIL No. 14/2011. Mr. A.B. Vagyani, GP Respondent Nos. 1 to 9 in PIL No. 07/2011 and for Respondent Nos. 1 to 3 in PIL Nos. 14/2012 and 81/2012. Mr. Parag Vyas a/w. Mr. Dhanesh Shah for UOI. Mr. Vijay Patil for Respondent SRA. Ms. Niraja Patani i/b. Ms. Kiran Bagalia for MMRDA in PIL No. 07/2011. Mr. Vinod Mahadik for BMC. Mr. Sanjay Udeshi i/b. M/s. Sanjay Udeshi & Co. for Respondent No.6. P.C.: CORAM : A.S. OKA & A.P.BHANGALE, JJ DATE : 24TH MARCH, It will be necessary to make reference to the order dated 7 th March, By the said order, this Court directed the State Government to come up with a comprehensive scheme for making available the adequate number of clean toilets and sitting arrangements for the litigants in all the Courts in the State. The said order also notes 2/17

3 that there are large number of women Judges in the State, but unfortunately all the chambers of the judges do not have separate washroom facility. Under the said order, the State Government was directed to make an endeavor to provide separate washroom facilities in every chamber of the judicial officers in the State. 2] The order dated 7 th March, 2014 passed in the same Public Interest Litigation records that the concerned Courts will have to submit appropriate proposals to the appropriate authorities where the facilities are lacking. The order dated 17 th June, 2014 in the same Public Interest Litigation records that a chart was tendered across the bar by the learned counsel representing the High Court administration which incorporated the places where the facilities are lacking. This order records the submission of the learned counsel representing the High Court administration 3/17

4 that the proposals submitted by the Courts for sanction have been already been forwarded to the State Government. By the said order, the learned AGP was directed to take instructions as regard the time span within which the proposals will be considered and sanctioned. 3] It will be necessary to make a reference to the order dated 17 th July, 2014 passed by this Court. In paragraph 1 of the said order, the statement of the learned Advocate General is recorded which reads thus: He further states that for all the proposals which are referred to in clause 4 of the order dated 17 th June, 2017, adequate funds are available with the Law and Judiciary Department and, therefore, all the proposals will be sanctioned. We accept the said statements 4] Notwithstanding the said statement made across the bar, still the funds could not be made available for providing the washrooms and sitting arrangements for the litigants in all 4/17

5 the Courts in the State. The reasons as to why the funds could not be made available are recorded in detail in the order dated 28 th August, 2014 passed by this Court. The said order notes the stand taken by the State. The stand of the State as reflected from the said order is that the High Court should utilize the funds which are already available for the minor works. Therefore, this Court for the reasons recorded in the said order noted that the funds which are already alloted for the minor works will not be sufficient. In paragraph 10 of the said order, there was a specific direction issued by this Court to the State Government not to divert the funds which are already alloted for carrying out minor works for this essential work of providing clean toilets, washrooms as well as sitting spaces in the Courts in the State. 5] Clauses 1 to 3 of paragraph 12 of the said 5/17

6 order reads thus: (i) We direct the High Court Administration to issue instructions to all the learned Principal District Judge of each District to submit a report about the existing facilities of toilets and washrooms in every Station available for the benefit of litigants and the witnesses. If the facilities are not available or inadequate, necessary proposals shall be submitted by the Principal District Judges. If any upgradation is required of existing facilities, the learned Principal District Judges shall submit a proposal in that behalf in accordance with the usual procedure to the Registry of this Court; (ii) We direct the State Government to take appropriate decision on the demand submitted by the High Court Administration for allocation of a sum of Rs.3,15,37,486/ for providing facilities of toilets and washrooms, sitting arrangement, etc. We make it clear that the State Government shall provide separate funds for this work without touching the amount already allocated for carrying out the minor works. The reason being that the demands which are already pending with the State Government for utilization of the amount allocated for minor works exceed the sum of Rs lacs; 6/17

7 (iii) The State Government shall take appropriate decision on this aspect in the light of the observations made by this Court as expeditiously as possible and in any event on or before 30 th September ] Further paragraph of the said order records that the estimates were forwarded to the State Government and the State Government was directed to sanction the same within a period of three months. 7] Now it will be necessary to make reference to the Government Resolution dated 3 rd March, It appears that a supplementary demand of Rs lacs for the work of providing toilets for the litigants and for providing sitting arrangement was placed before the winter session of Vidhan Sabha. The Government Resolution records that supplementary proposal for the amount of Rs lacs was approved in the winter session. The entire amount was 7/17

8 sanctioned. There is a chart annexed to the said Government Resolution. The said chart shows that the State Government followed very peculiar method. Instead of leaving the matter of priority to the High Court administration or respective Principal District Judges, the State Government permitted spending of 75% of the allotted funds for the Courts in each Districts of Maharashtra. It is provided that the amount released will have to be utilized for carrying out 75% of the work of each Court complex. The 75% of the funds were made available on 26 th February, The said work will have to be carried out through Public Works Department. The Public Works Department is required to follow e tender procedure for appointing the contractors. As a result, till today, contractors have not been appointed by the Public Works Department. 8] The net result is that, if the amount 8/17

9 sanctioned is not spent till 31 st March, 2015, there is every possibility that amount will lapse at the end of this financial year. If that happens, a fresh proposal will have to be moved before the Legislature in the monsoon session. 9] If all the orders passed by this Court are perused, it appears that there is a gross delay in releasing the amount for carrying out a very essential and basic work of providing toilets and for providing sitting arrangements for the litigants in all the Courts in the State. Initially State made an attempt to avoid release of additional funds, by directing the High Court to spend the amount already sanctioned for the minor works, for this work. After the said stand was disapproved by this Court that belatedly the aforesaid steps have been taken. 9/17

10 10] The learned Senior Counsel Mr. Kumbhakoni appointed as Amicus Curiae, Mr. Vagyani, the Government Pleader and Mr. Nargolkar representing the High Court administration had discussions with the Officers of Public Works Department. The suggestion given from the Public Works Department is that, if the entire 75% amount released is transferred by the High Court administration to the Public Works Department before 31 st March, 2015, the Public Works Department will treat the said amount as deposit, which will be utilized for carrying out the sanctioned work after getting the contractors appointed. The stand of the Public Works Department appears to be that if the said amount is retained by the said Department as a deposit, the funds will not lapse at the end of this financial year. 11] We must record here that the learned Government Pleader stated that to this 10/17

11 arrangement, there may be objections raised by the various departments of the State including the office of Accountant General. 12] The funds have been sanctioned by the State Government after several orders were passed by this Court right from 7 th March, The directions issued by this Court are not for providing any luxurious facilities in the Courts of the State. The directions have been issued to ensure that elementary facilities of clean washrooms/toilets and sitting space is made available to the litigants in all the Courts of the State. 13] As per the suggestion of the Public Works Department, we propose to direct the High Court administration to transfer the 75% sanctioned amount to the Public Works Department. However, it is the duty of the State to ensure that the sanctioned amount 11/17

12 does not lapse. Even if for any technical reasons, the amount is treated as lapsed, it will be the obligation of the State Government to make available the lapsed amount immediately at the commencement of the new financial year. 14] On last two dates, the matter was adjourned to enable the State Government to find out a concrete solution to ensure that the sanctioned amount does not lapse. Unfortunately, there is no concrete solution presented by the State Government. We are passing this order on the basis of the discussion which the learned Senior Counsel Mr. Kumbhakoni, Amicus Curiae and Mr. Nargolkar appearing for the High Court administration had with the officers of the Public Works Department. 15] The whole object of passing this order is 12/17

13 to ensure that the basic facilities are made available to the litigants without any further delay. As stated earlier, if the amount lapses, the said amount may became available only after monsoon session of Vidhan Sabha is over. 16] There is another aspect which is required to be dealt with by the State Government. The State Government has not disputed and in fact the State Government cannot dispute the fact that the elementary facility of toilets for the litigants in all the Courts in the State deserves to be made available. If on account of lapse of funds, if the work is delayed, it will escalate the cost factor. If the funds are again required to be sanctioned in the monsoon session, the funds may not be released before August, 2015 and therefore, there will be escalation of the cost of work. 13/17

14 17] We must note hear that under the same orders of this Court, a direction was issued to ensure that one water cooler and water purifier is made available in each Court premises in the State for the benefit of litigants. In most of the Courts, water coolers and water purifiers have been supplied. However, as funds are not available for the installation work, the same have not been installed. The assurance recorded in one of the earlier orders is that the proposal of the sanction of funds for installation work will be moved in the monsoon session of Vidhan Sabha. 18] We fail to understand the reluctance of the State in the matter of providing elementary facilities to the litigants. 19] It must be clarified that the work of providing toilets to the litigants and 14/17

15 providing sitting arrangements to the litigants which is required to be carried out cannot be treated as a minor work and therefore, it will be open for the High Court administration to transfer the 75% of the amount to Public Works Department. 20] We make it clear that the learned Government Pleader has not made any concrete statement on account of want of instructions. We have passed this order with the assistance of the learned Amicus Curiae and the learned counsel representing the High Court administration. We have repeatedly observed in the orders passed in these Petitions that State Government cannot treat this litigation as an adversarial litigation. 21] We pass the following order: [1] We direct the High Court administration to transfer 75% of the amount 15/17

16 of RS lacs or the amount released so far, to the Public Works Department of the State. The Public Works Department of the State shall hold the said amount as a deposit; [2] The State Government shall ensure that the funds which are transferred to the Public Works Department shall not lapse on the ground that the same are not actually utilized; [3] Even if the funds lapse due to some technical reasons, the State shall be under obligation to release the same amount immediately on the commencement of new financial year; [4] We direct the State Government to consider the request of the High Court administration for modification of the schedule to Government Resolution dated Appropriate decision shall be taken by 16/17

17 the State Government within a period of three weeks from today; [5] For considering all other aspects, the petition shall be listed on under the caption high on board ; [6] All concerned to act upon an authenticated copy of the operative part of this order. (A.P. BHANGALE, J.) (A. S. OKA, J.) 17/17