Equality- Dynamic Concept

 

 

 

 

 

By Adv. R. S. Agrawal 

 

 

THE subsequent Government Resolutions referred to in the public Interest Litigation (PIL) between the Maharashtra MLA, Ravindra Hemraj Dhangekar and District Collector, Pune and 4 others, decided by the Bombay High Court Chief Justice, Devendra Kumar Upadhyaya and Justice Arif S Doctor, on March 22, 2024, have been held to have manifestly resulted in withdrawal of certain works, that too relating to providing civic amenities, though no reason comes forth from the respondents- authorities justifying issuance of the subsequent Government Resolutions. In view of this the HC has no hesitation in holding that issuance of the subsequent Government Resolutions is manifestly arbitrary, violative of Article 14 of the Constitution of India and does not subserve any public interest and hence illegal. As far back as in 1974, in the case of E P Royappa v. State of Tamil Nadu- (1974) 4 SCC 3, the Supreme Court found that in our Constitutional scheme, “equality is antithetic to arbitrariness and equality and arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other to the whim and caprice to an absolute monarch.”

 

This legal principle, which, in our opinion, should govern all State actions. This PIL petition invokes the HC’s jurisdiction under Article 226 of the Constitution of India impeaching two Government Resolutions of July 27, 2023 and August 22, 2023, issued by the State Urban Development Department in the form of corrigendum, whereby the earlier GRs of December 20, 2022 and October 4, 2022 have been amended. Through the GR of October 4, 2022, the State Government had sanctioned funds of Rs five crores for execution of 24 works with 100 per cent funds to be provided by the State Government. All these 24 works were to be executed in Kasba Legislative Assembly Constituency, Pune. By another GR of October 20, 2022, a corrigendum to the GR of October 4, 2022 has been issued, whereby the executing agency for the work sanctioned under the GR of October 4, 2022 was substituted by the Public Works Department in place of the Municipal Corporation, Pune. The impugned Government Resolution (GR) of July 27, 2023 provides that if work orders in respect of the works sanctioned under the GR of December 20, 2022 have not been issued, the sanction accorded to such works shall stand cancelled and instead of these works, which are 50 in number mentioned in the list attached to the GR of August 22, 2023 shall be executed.

 

As already noticed, under the GR of October 4, 2022, the number of works sanctioned to be executed in the said constituency was 24, however, by the impugned GR of August 22, 2023, all 24 works in the Constituency have been substituted by 50 works in Shivajinagar Assembly Constituency. From the averments made in the affidavit in reply filed by the State-respondents, the only viable reason for cancellation of earlier works by issuing the impugned GRs is non-commencement of the works sanctioned under the earlier GRs. If a work is duly and appropriately sanctioned and on account of any slackness or indifferent approach of the executing agency, the work could not be started or commenced, cancellation of such work leads to depriving the residents of a particular municipality of the public amenities. For such a lackadaisical approach in commencement of the work by the executing agency, the residents of the municipalities cannot be penalised. Thus, in the HC’s considered opinion, the reasons indicated by the State authorities for cancelling the earlier works by issuing the two impugned Government.

 

Resolutions of July 27, 2023 and August 22, 2023 are not tenable on any Count. It has also to be noticed that even the Corporation cannot be saddled with the responsibility of not starting the execution of the works sanctioned under the earlier GRs for the reason that the executing agency was altered from the Corporation to the Public Works Department (PWD)/PWD (South). The Scheme, as noticed has been chalked out by the State Government, as reflected from a perusal of the State GR of December 12, 2017, for strengthening the municipalities and making them more robust in discharge of their duties, specially relating to its duties towards providing basic civic amenities to the population within the municipal limits. In this case, one finds that the earlier GRs of October 4, 2022 and December 20, 2022 were issued sanctioning certain works to be executed for providing public amenities to the residents of Kasba Assembly Constituency falling within the municipal area with the NOC issued by the Corporation of the City Pune, however, while issuing the impugned GRs, the Corporation was rather asked by the State Government to give NOC to the works which are included in the impugned GRs, as a result of which, the residents of a particular area falling within the same Corporation will be deprived of basic amenities without rhyme or reason.

 

The submission made on behalf of the State Government that the impugned GRs are policy decisions, hence, no interference will be permissible by this Court in this matter, is absolutely misconceived for the reason that the policy decision is embodied in the GR of December 12, 2017, which is not under challenge herein; rather, what is challenged in this PIL is the simple executive decision taken by the State Government, whereby the earlier works sanctioned under the GRs have been cancelled without any reasonable cause for the same. The HC has pointed out that it needs no reiteration that all State actions are subject to well settled principle of non-arbitrariness in State actions as under the Article 14 of the Constitution, in as much as that all Government decisions will necessarily have to conform to the legal principle of State action being non-arbitrary. On concluding that the subsequent Government Resolutions were not in consonance with the principle of non-arbitrariness in the State action, the Bombay High Court has quashed and set aside the two corrigenda of July 27, 2023 and August 22, 2023 respectively, to the limited extent of those works in respect of which no work order has been issued till March 22, 2024. The HC has clarified that in respect of those works regarding which work orders have already been issued in terms of those two corrigenda, the said works shall remain unaffected by this order and shall be completed as contemplated in terms of the respective work orders already issued. In so far as the GRs of October 4, 2022 and December 20, 2022 are concerned, the said works as sanctioned therein shall be executed in the coming financial year for which purpose the State shall allocate the requisite funds in terms of the said Government Resolution of October 4, 2024.