p18n8b9809jag6ed16911421cm04.pdf

Lt Col CPC Nath(Retd) April 25, 2014
+91 11 414 01 679
To
1. The Chairman, AWHO
2. MD, AWHO
SUBJECT: LEGAL NOTICE
Dear Mr. Chairman & MD, AWHO,
Please take this as final Notice as given below:
1. Legal notice to you before approaching the higher courts against violation
of fundamental rights of equal protection of laws, violation of constitutionally
guaranteed property rights and violation of statutes and case
laws.The complainant reallegges and incorporates herein all paragraphs
in the enclosed paper entitled “An Inquiry into violations of Rule of Law
by AWHO” and the provisions of constitution, statutes and case laws as
given in Appendices A to E attached to this.
2. Legal notice before filing of case against violation Article 21 (3) of Universal
Declaration of Human Rights.
3. Legal notice before seeking criminal procedure against crimes against the
Members/allotteess and to reverse these illegal actions.
4. Legal notice for Sanction under Chapter V of the Prevention of Corruption
Act 1988. Please forward this to your superiors in the Government for
sanction.
5. Legal notice before requesting for initiating disciplinary proceedings for
dereliction of duty constituting Misconduct
6. Legal notice under Section 80 of the Code of Civil Procedure provides that
no suit shall be instituted against the Government or a Public Officer in
respect of an official act
7. and lastly, legal notice under Section 96 of the Rules of AWHO albeit
these rules are illegal and illegitimate for reasons explained within in excruciating
detail.
Yours Sincerely,
CPC Nath,
Member AWHO Allottee Yelahanka Part A P2/78
C 679 Sarita Vihar, New Delhi 110076
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1 APPENDIX A: DETAILED LEGAL IMPLCA-
TIONS
So as to have very clear understanding of every issue involved in the case at
hand, and so that the main points emphasized in this long communication is
not lost sight of, I have drawn an Index wherein each issue is separated with
appropriate heading. Every sentence is employed with great care and caution
and the Chairman AWHO (Public Auth) is therefore requested and “strongly
advised” to read every part and every sentence of this long communication very
carefully so as to have the correct picture of the whole case and thus to adopt
the correct course of action.
1. The consequences that may follow in the event of non or evasive reply:
This is to inform you that your failure to comply to legal expectation as
stated herein before, may compel me/us to
(a) Institute Writ of Mandamus before High Court/ Supreme court, at
your personal (exemplary) cost, taking aid of law settled by Hon’ble
Supreme Court of India in Salem Advocate Bar Association, Tamilnadu
Vs. Union of India 1 and many other countless judgments given
by our Constitutional courts, for directing you to record reasoned reply
to me/ us; or/ and
(b) I/ we will seek the Writ of Quo Warranto against you. I/ we may
specifically plead before the Court of law to remove you from the
present public office because you have voluntarily abstained yourself
in performing your legal duties, the duties which you have voluntarily
undertaken & promised to perform while assuming charge of this
Public Office. The Writ of Quo-Warranto is resourceful enough to
take care of this pleading; or / and
(c) I/ we may register an FIR with Police or may file a complaint before
the competent Magistrates Court under section 166, 217, 218, 409,
as applicable, of Indian Penal Code, 1860.
(d) I/ we may pray for initiating disciplinary proceedings for dereliction
of duty constituting “Misconduct”;
(e) Whereas your inaction will result in frustration of my / our fundamental
rights, I/ we will seek damages for the same from the concerned
Public Auth, which may finally be recovered from you. You
may please kindly refer Supreme court judgments wherein the Honble
court have fastened the liability on public servants for their negligent
acts of commission and omission.
2. Your kind attention is invited to Judgment of SC in Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India, Please find APPENDIX A
in this regard.
1 http://www.indiankanoon.org/doc/342197/
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3. Your attention is further invited to fact that I have a Right of Reply.
Please refer APPENDIX C in this regard.
4. Discretion in reality means a power given to a person with the authority
to choose between two or more alternatives or possibilities each of which
is lawful and permissible. The concept of discretion imports a duty to be
fair, candid and unprejudiced; not arbitrary, capricious or biased; much
less, warped by resentment or personal dislike.
5. Recording of reasons will show application of mind and probably this
recording of reasons is the only remaining visible safeguard against possible
misuse of powers conferred upon administrators of a nation.
6. I seek to recall an historic incident of Indian freedom struggle, occasioned
with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In
the year 1893, when in South Africa, while holding a First Class Compartment
ticket and traveling in, Gandhi was thrown out of the train, for in
those times Blacks were not allowed to travel in the First Class Compartment,
notwithstanding they hold a valid ticket. It was 9.00 in the chill
night. That designated Black sent a Telegram to the General Manager of
the Railways and registered his complaint. The Complaint of that designated
Black was attended, forthwith, the General Manager instructed the
Station master to secure that complainant reaches his destination safely.
Complainant was accommodated in the very next morning train to his
destination.
7. It is my case that grievance of the people must be promptly and properly
attended instead of waiting and allowing for it to be translated into court
litigation. It does no credit to the State or public servant to be involved
in large number of disputes as an oppressive ruler.
8. It is my case that the giving of satisfactory reply is a healthy discipline
for all who exercise powers over others.
9. It is my case that a complaint to any public/ statutory authority is the
most legitimate incident of a democracy.
10. In the event no reply is received from you, then I/ we will request the
Hon’ble Court to take a very serious view of this aspect.
I conclude with this quote from the India’s Apex Court:
The jurisdiction and power of the courts to indemnify a citizen for
injury suffered due to abuse of power by public authorities is founded
as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome on
the principle that, an award of exemplary damages can serve a useful
purpose in vindicating the strength of law’. An ordinary citizen or
a common man is hardly equipped to match the might of the State
or its instrumentalities. That is provided by the rule of law. It acts
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as a check on arbitrary and capricious exercise of power. In Rookes
v. Barnard it was observed by Lord Devlin, ’the servants of the
government are also the servants of the people and the use of their
power must always be subordinate to their duty of service’. A public
functionary if he acts maliciously or oppressively and the exercise
of power results in harassment and agony then it is not an exercise
of power but its abuse. No law provides protection against it. He
who is responsible for it must suffer it. Compensation or damage
as explained earlier may arise even when the officer discharges his
duty honestly and bona fide. But when it arises due to arbitrary or
capricious behavior then it loses its individual character and assumes
social significance. Harassment of a common man by public authorities
is socially abhorring and legally impermissible. It may harm him
personally but the injury to society is far more grievous. Crime and
corruption thrive and prosper in the society due to lack of public resistance.
Nothing is more damaging than the feeling of helplessness.
An ordinary citizen instead of complaining and fighting succumbs to
the pressure of undesirable functioning in offices instead of standing
against it. Therefore the award of compensation for harassment by
public authorities not only compensates the individual, satisfies him
personally but helps in curing social evil. It may result in improving
the work culture and help in changing the outlook. 2
Thanking you in the anticipation of your effective action in this regard. And
if you fail to act, the heavy hand of the law will soon be coming down hard on
you. As a proud veteran I would hate to see that day!
With Regards
Chandra Nath. Complainant
2 Lucknow Development Authority vs M.K. Gupta on 5 ... 1994 AIR 787, 1994 SCC (1)
243, Sahai,R Jhttp://www.indiankanoon.org/doc/1375046/
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2 APPENDIX B: PUBLIC SERVANT & LE-
GAL COMPLIANCE
Whereas you are a Public Servant and therefore this is to inform you about
some of the offences that may be committed in the discharge of their official
duties, u/s 119, 166, 167, 213, 217, 218, 219, 409 or under any other Section
of IPC 1860 or offence under section 7, 8, 9, 10, 11, 13, 14 of Prevention of
Corruption Act, 1988;
SECTION 166 OF INDIA PENAL CODE declares that when a Public Servant,
in the discharge of his official duty, knowingly refuses to do what he is
under obligation to do under the law and knowing that thereby he will cause
injury to any person, commits the offence under this section. Section 44 of
Indian Penal Code defines the scope of Injury within the meaning of offences
defined under Indian Penal Code. Injury implies the doing of any act causing
unlawful- harm to reputation, harm to property, causing mental alarm, bodily
harm.
SECTION 217 OF INDIAN PENAL CODE declares that when a Public
Servant, in the discharge of his official duty, acting contrary to law, knowingly
conduct himself in such a manner, thereby knowing that his act will– (a) save a
person from any legal punishment or to secure lesser punishment for that person
to which he is liable for; (b) save a property from forfeiture or charge to which
that property is liable to, commits offence under this section.
SECTION 218 OF INDIAN PENAL CODE declares that when a Public
Servant, in the discharge of his official duty, who has been charged with the duty
of preparation of any Record or any Writing, knowingly prepares incorrectly such
record or writing, with the knowledge that by preparing such incorrect Record
or Writing he will cause (a) loss or injury to Public or to any person (b) save a
person from any legal punishment or to secure lesser punishment for that person
to which he is liable for; (c) save a property from forfeiture or charge to which
that property is liable to, commits offence under this section.
SECTION 409 OF INDIAN PENAL CODE declares that any public servant
who is in any manner entrusted with any property, or with any dominion
over property in his capacity of a public servant, if “commits breach of trust”
in respect of that property, commits the offence under this section and shall
be punished with 1[imprisonment for life], or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to
fine.
What is Criminal breach of trust is defined under Section 405 of Indian
Penal Code. The section says that any person (including a public servant)
who is in any manner entrusted with any property, or with any dominion over
property, dishonestly misappropriates or converts to his own use that property,
or dishonestly uses or disposes of that property in violation of any direction of
law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such
trust, or willfully suffers any other person so to do, commits “criminal breach
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of trust”.
Public servants are under the same liability as that of the private citizens for
all their unjustified acts and omissions. Cases decided by Apex Court locating
the personal accountability of Public Officer:
1. For abusing the process of court the public officer was held responsible and
was liable to pay costs from his own pocket; Where the public servant has
caused a loss to the public exchequer, the court has allowed the government
to recover such loss personally from the erring officer. State of Kerala V
Thressia 1995 Supp (2) SCC 449. 3
2. For adopting casual approach by which land could not be purchased by the
authority and instead purchased by private builder, held officer personally
liable. State of Maharashtra v. P.K. Pangare, 1995 Supp (2) SCC 119. 4
3. For irregularities committed in auction of land resulting in loss to public
held official held responsible for the loss. DDA v Skipper construction co.
(1996) 1 SCC 272. 5
4. “We are of the view that the legal position that exemplary damages can
be awarded in a case where the action of a public servant is oppressive,
arbitrary or unconstitutional is unexceptionable. The question for consideration,
however, is whether the action of Capt. Satish Sharma makes
him liable to pay exemplary damages. In view of the findings of this Court
in Common Cause Case - quoted above - the answer has to be in the affirmative.
Satish Sharma’s actions were wholly arbitrary, mala fide and
unconstitutional. This Court has given clear findings to this effect in the
Common Cause case. We, therefore, hold that Capt. Satish Sharma is
liable to pay exemplary damages.” Common Cause (Petrol pump matter)
v UOI. (1996) 6 SCC 593. 6
5. For abuse of power while exercising discretionary power in granting State
largess in an arbitrary, unjust, unfair and malafide manner, public servant
can be held personally liable. Shivsagar Tiwary v UOI (1996) 6 SCC 558.
7
6. For granting illegal promotion with retrospective effect resulting in frittering
in huge public funds, held that erring officers shall be personally
liable. H R Ramachandriah v State of Karnataka (1997) 3 SCC 63. 8
7. For abuse of power for extraneous reason in acceptance of tender, held all
public officers concerned including Minister shall be liable to punishment.
Dutta Associates v Indo Mercantiles (1997) 1 SCC 53.
3 http://www.indiankanoon.org/doc/417950/
4 http://www.indiankanoon.org/doc/772100/
5 http://www.indiankanoon.org/doc/1964027/
6 http://www.indiankanoon.org/doc/1964027/
7 http://indiankanoon.org/doc/166611/
8 http://www.indiankanoon.org/doc/1886570/
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8. Departmental Head is vicariously responsible for the actions of his subordinates.
State of Punjab v G S Gill (1997) 6 SCC 129. 9
9. Liability of State Executives when they infringe fundamental rights. The
Jurisdiction of SC and HC. Kharak Singh versus State of U P AIR 1963
SC 1295. 10
3 APPENDIX C: OBLIGATION OF A PUB-
LIC AUTHORITY
AWHO, an instrumentality of the State, had failed to respond to nearly 30
communications from one member, mostly dealing with infringements of rights
of the Member Allottees of the Society. 11 . This is gross violation of National
Litigation Policy. 12
Your kind attention is invited to Judgment of SC in Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India, wherein the Court, inter alia,
observed as
Whereas it is a common experience and in fact judicially recognized
by Hon’ble SC in one service matter before it that once a decision
is taken, there is a tendency to uphold it, and a representation may
not yield a fruitful purpose. Thus, attempts by aggrieved to show
any logical base for his grievance or to highlight the lack of reason
in the administrative decision, to an unwilling authority, results in
rejection of the representation with perverse or no reason. It is also
a common experience that once a grievance is ventilated by an employee,
he is subject to more neglect and hostile attitude....that they
are treated in a manner contrary to reason and conscience and that
decision of administrative authority smack of caprice and whims.
The callous attitude of the authority often breeds a sense of perpetual
injustice. AIR 1986 SC 686.
I/ we wish to inform you that in Salem Advocate Bar Association, Tamil
Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon’ble Supreme Court,
among other things, has observed and directed –
The Governments, government departments or statutory authorities
are defendants in a large number of Cases pending in various courts
in the country. Judicial notice can be taken of the fact that in a large
number of cases either the notice is not replied to or in the few cases
where a reply is sent, it is generally vague and evasive. It not only
9 http://indiankanoon.org/doc/1840537/
10 http://indiankanoon.org/doc/619152/
11 Copy of all communications available here: http://works.bepress.com/chandra_nath/3/
12 http://www.irtsa.net/pdfdocs/National_Litigation_Policy_of_GOI.pdf
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gives rise to avoidable litigation but also results in heavy expenses
and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State
and the citizens. In case a proper reply is sent, either the claim in
the notice may be admitted or the area of controversy curtailed, or
the citizen may be satisfied on knowing the stand of the State.
Having regard to the existing state of affairs, we direct all Governments,
Central or State or other authorities concerned, whenever
any statute requires service of notice as a condition precedent for
filing of suit or other proceedings against it, to nominate, within a
period of three months, an officer who shall be made responsible to
ensure that replies to notices under Section 80 or similar provisions
are sent within the period stipulated in a particular legislation.
The replies shall be sent after due application of mind. Despite, if
the court finds that either the notice has not been replied to or the
reply is evasive and vague and has been sent without proper application
of mind, the court shall ordinarily award heavy costs against
the Government and direct it to take appropriate action against the
officer concerned including recovery of costs from him.
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4 APPENDIX D: National Litigation Policy
AWHO, an instrumentality of the State, had failed to respond to nearly 30
communications from one member, mostly dealing with infringements of rights
of the Member Allottees of the Society thus leavng nooptions but going to court
for justice and equity.
I/ we invite your attention to the National Litigation Policy [For short
NLP].I/ we am /are of view that Wednesday the June 23, 2010, 14:14 Indian
Standard Time is one of a historic moment for India when Dr.M.Veerappa Moily,
Minister of Law and Justice released a Document called National Litigation Policy.
13
The principal aim of this Policy is to transform Government into an Efficient
and Responsible litigant. EFFICIENT LITIGANT under the Policy is desired
as focusing on the core issues involved in the litigation and addressing them
squarely; and Managing and conducting litigation in a cohesive, coordinated
and time-bound manner.
RESPONSIBLE LITIGANT under the Policy is desired as, which in my
view is more important, that litigation will not be resorted to for the sake of
litigating. This Policy, in point no. 2. of Chapter II of Vision/ Mission exhorts
that Government must cease to be a compulsive litigant. The easy approach,
Let the court decide, must be eschewed and condemned.
It is equally remarkable to note that when this policy, in the very first point
of Vision/ Mission reaffirms that it is the responsibility of the Government to
protect the rights of citizens and those in charge should never forget this basic
principle.
This Policy, in point no. 4(A) of Chapter II of Vision/ Mission delves the
responsibility on Heads of various Departments, Law Officers and Government
Counsel, and individual officers to secure the strict implementation of this Policy.
In the light of this National Litigation Policy, the (Public authority) is empowered
to take appropriate legal opinion about the merit of the submissions
made by us in the background of facts of the case, so as to avoid unwarranted
litigation in the court of law against the Government functionaries.
13 http://pib.nic.in/newsite/erelease.aspx?relid=62745
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5 APPENDIX E: I HAVE A RIGHT OF RE-
PLY
AWHO had failed to respond to nearly 30 communications from one member,
mostly dealing with infringements of rights of the Member Allottees of the
Society.
(i) A note was struck by Apex Court in Superintending Engineer, Public
health, U.T. Chandigarh V Kuldeep Singh, 1997(9)SCC 199, when it observed:
Every Public servant is a trustee of the society; and in all facets of public
administration every public servant has to exhibit honesty, integrity, sincerity
and faithfulness in the implementation of the political, social, economic and
constitutional policies to integrate the nation, to achieve excellence & efficiency
in public administration. ...
(ii) The right to reply can be traced in the Constitution of India, and, particularly
in equality Article 14 14 of it. In vast, beautiful, geographical landscape
of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA came into existence
on 26th January 1950, is the supreme & fundamental Governing Volume.
This epic Governing Volume makes a categorical announcement in its introductory
passage that We, THE PEOPLE OF INDIA are the architect of this
Volume. This announcement is intelligent, designed and purposeful. The announcement
assumes significance because by this announcement, the framers of
our Constitution intended to acknowledge and give tribute to selfless sacrifice
of every man woman who devoted his/her life for the independence of INDIA.
There are three chief organs outlined in this Governing Volume – they are
Legislature, the Govt and the Judiciary; and all these three organs derive their
origin and all their powers from this peoples’ Governing Volume. The dicta of
the Constitution is crystal clear; namely, the goal of good governance.
Equality is a dynamic concept with many aspects and dimensions. In respect
of content and reach of the great equalizing principle enunciated in Article 14,
there can be no doubt that it is a founding faith of the Constitution. It is a
pillar on which, the foundation of our Democratic Republic rests. Hence the
Courts in our country do not subject this Article to a narrow approach.
A very fascinating aspect of Article 14 which the courts in India have developed
over the time is that Art.14 embodies “a guarantee against arbitrariness”.
A man “acting without reason” is acting arbitrarily. Any action that is arbitrary
must necessarily involve the negation of equality. Abuse of power is hit
by Art.14. AIR 1974 SC 555; AIR 2005 SC 2021.
In wealth of the Judgments delivered by our Courts, it is repeatedly affirmed
that public authorities must exercise their discretionary powers in a reasoned
and justified manner, failing which inescapable violence to Article 14 is imminent.
It is my case that individuals Right of Reply is inherent in Duty to reasoned
exercise of discretion by Public authorities, a duty which is consistently cast
14 http://www.indiankanoon.org/doc/367586/
10

upon public/ statutory authorities by our Constitutional Courts, in their series
of judgments.
It is my case that when the Courts, in their wealth of judgments, lay so
much emphasize on recording of reasons by public authorities, in the discharge
of their duties even when administrative in nature, the recording of reason in
their decision itself presupposes the obligation of giving reply, and not only a
mere reply but a reasoned reply. It cannot be said that whereas authorities are
under obligation to make reasoned reply but they are at liberty to not to make
any reply.
It is my case that in wealth of judgments, the Courts have insisted upon
recording of reasons by administrative authorities on the premise that such a
decision may be subject to judicial scrutiny / review and the courts cannot
exercise their duty of review unless courts are duly informed of the consideration
of the public / statutory authorities underlying the action under review.
A statement of reasons serves purposes other than judicial scrutiny / review,
inasmuch as the reasons promote thought by the public / statutory authority
and compel it to cover the relevant points and eschew irrelevancies and assures
careful administrative consideration.
When, in the case of M Krishna Swamy versus UOI reported in (1992) 4 SCC
605, the Honble Supreme Court held that any action, decision or order of any
statutory or public authority bereft of reasoning would be arbitrary, unfair and
unjust violating article 14 of the Constitution of India, then, then, it is my case
that non-reply of any complaint received by any public /statutory authority, is
a positive act of omission, an arbitrary, unfair and unjustified decision of that
public / statutory authority to not to make a reply, thereby frustrating citizens
fundamental right enshrined under Article 14.
When, in the case of Srilekha Vidyarthi versus State of UP reported in AIR
1991 SC 537, it was held by the Hon’ble SC that in order to satisfy the test
of Article 14, every State action must be informed by reasons and that an act
uninformed by reasons, is arbitrary, and arbitrariness is the very negation of
the Rule of Law, then, it is my case that non-reply of any complaint received
by State, is an act of omission of the State not informed by reason and thus
arbitrary, and thus does not pass the test of Article 14.
When in the case of Dwarkadas Marfatia versus Port Trust Bombay, reported
in AIR 1989 SC 1642, it was held by the Honble SC that every action of public
authorities must be subject to rule of law and must be informed by reason and
when there is arbitrariness in their acts and omissions, Article 14 springs in and
judicial review strikes it down and thus whatever be the activity of the public
authority, it should meet the test of Article 14, then, it is my case that when
a public authority does not reply to my complaint, I can safely allege that the
said public authority is acting arbitrarily, and Article 14 springs in and gives
me the locus of being aggrieved and jurisdiction to the High court under Article
226 to strike down that alleged act of arbitrariness, i.e. the act of un-replied
compliant.
Similarly, when, in the case of Union of India Vs Mohan Lal Capoor reported
in (1973) 2 SCC 836, the Honble Supreme Court said Reasons disclose how
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the mind is applied to the subject matter for a decision whether it is purely
administrative or quasi judicial; and reveal a rational nexus between the facts
considered and conclusions reached, then, it is my case that non-reply of any
complaint received by any public /statutory authority implies that although
mind was applied to the complaint and arbitrary decision was taken by the
administrative authority that no reply should be made.
Inaction by itself is an independent cause of action and the High Courts can
effectively deal with the same. It cannot be said that a person is left without
a remedy to challenge any omission or inaction on the part of the authority.
It may be informed that in a case, reported in AIR 2003 SC 1115, relating to
grievance of the Public servant, the Honble SC held that the inaction on the
part of the authority can be challenged in the High Court by filing a WP under
Article 226 of the Constitution of India.
Chandra Nath
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