This Blog Originated in the Felt Need for a Simple Remedy That May Be Available to Citizens

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This literature originated in the felt need for a simple remedy that may be available to Citizens who are victims of unattended complaints that are made to public officials / authorities; or those citizens facing harassment at the hands of Public officials / public authorities and to those citizens who have obtained relevant information under Right to Information Act from public authorities disclosing grave illegality of public officials/ public authorities.

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. (This point may be included in your submission in the petition)

And here, in the era of INDEPENDENCE and 21st Century of modern democracy, we have Citizens of Sovereign India, of whose complaint are ordinarily, attended with great disrespect and hostility. (This point may be included in your submission in the petition)

At this juncture- It also comes to my mind that Bhagat singh, Bal gangadhar Tilak, Abdul Kalam Azad, sarojini Naidu, Mahatma Gandhi, Subhash Chandra Bose, and many countless brilliant laid down their entire life to seek freedom from British rule, not because for the sake that they were white Englishmen, but because these white Englishmen were practicing discrimination, inflicting merciless exploitation on Indian poor lot and devising suppressive penal laws towards Indians. The British govt decision making process were non transparent and Indians were not consulted. Britishers were told to go back not because merely we wanted our men at place of power but because it was seen that Britishers didn’t gave dignity of life to the Indians. (This point may be included in your submission in the petition)

Our then national leaders thought that if INDIA will be ruled by its own people, there will not be any discrimination, there will be no exploitation and no suppression that is existing in British colony. It was thought that if Indians will rule, every policy of discrimination, exploitation & suppression will be repealed at the threshold. (This point may be included in your submission in the petition)

The remedy lies in ourselves exploring the laws holding the land and asserting our rights in the Judicial forum. At this point, one may laugh at me wherein I suggest to move courts when it is admitted fact that moving court is a luxury which few can afford. And therefore, this literature is prepared to guide Citizens to file Writ in the Bombay High Court by themselves, without the help of advocate.

In exercise of Writ Jurisdiction, Writ of mandamus (Constitutional Courts gives authoritative directions to the State agencies to do something or refrain to do something) which forms 90% of Writ cases, High Courts, Ordinarily, doesn’t resolve any dispute between parties to the case, but on palpable and striking establishment of (1) violation of fundamental rights; OR(2) violation or disregard of any provision of the Constitution or of Statutory provision; OR (3) of Illegal acts and Omissions of Public Officials/Authorities, gives direction to Respondent State. Unlike Lower Courts, Constitutional Courts, at least in Writ cases, are not burdened with framing of issues OR conforming to rigid process of establishing the guilt of the accused beyond reasonable doubt. Thus writ cases ordinarily are decided quickly.

First of all, complaints made to Public authorities should be made under section 80 of Civil Procedure code (CPC) 1908. Pls find format of notice below.

The meaning of WRIT and meaning of Petition. Writ implies Power of the Constitutional Courts like the High Courts and the Supreme Court to give authoritative directions to any Public Authority, or to private persons, to do something or refrain from doing something. Petition means the making of Complaint to appropriate Court of law.

The Writ Petition is kind of a remedy given to people of India for enforcement of their fundamental & statutory rights against the Govt and its various agencies, and in exceptional circumstances, the Writ Jurisdiction may be invoked against private persons.

It is always desirable that one should not show haste in approaching Courts and sincere efforts should be made to explore alternate remedies provided under law or to get things done from public auth itself. Yet it is not permissible that one can knock the doors of Court as when he so wishes. Matter should be brought before the Court in most reasonable time.

Broadly speaking, the Jurisdiction of High court under Article 226 of Constitution of India can be invoked when it is found that Public officials / public authorities/ Govts are not doing their duties, or acting illegally in discharge of their duties.

PREPARATION OF PETITION

(1) Bombay High Court, like all other High Courts, exercise Original and Appellate Jurisdiction. If the matter relates to MumbaiCity, then it is Original Jurisdiction and if it is outside mumbai but within Maharashtra, it is Appellate Jurisdiction. If Respondents are situated both in mumbai and outside mumbai, than the Court will have Original Jurisdiction.Also, HC exercises Appellate Jurisdiction where if cause of filing Writ has arises outside Maharashtra, but affects Petitioner living in the State of Maharashtra.

(2) Petition has to be made on ledger paper (green colored A3 sized). Margin of 1.5 inches on either side of page must be provided. Lettering should be double spaced. Indenting should also be double spaced. Both front and back page can be used while making print out. Font size should be preferably 14 of Times New Roman, or may be of alike font with alike visibility. Petition is to be paged as shown in the draft format.

(3) Relevant documents, news clippings, and evidences to be annexed with Petition. If they are not annexed, state in the petition, it will be produced before the Court while hearing of the case.

While you are attaching documents state- Hereto marked and annexed EXHIBIT ‘A’ as copy of. Where documents or reports are referred but because it would be very bulky to attach the same to the Petition, then state- The Petitioners crave leave to refer and rely upon when produced. Thus while during hearing, keep those documents / reports for court’s reference. All Exhibits are to be put stamp of “True copy” and to be signed by one of the Petitioner.

(4) In every Writ Petition, if it involves any agency of the State Govt, than the Chief Secretary of respective State Govt must be made as one of the Respondents. If the matter involve any Central Govt public Authority than Union of India (Govt of India) must be made as one of the Respondents.

(5) Judicial Stamp fee is to be affixed for Rs.250/-. The same can be obtained from vendors at High Court premises and some also sit outside HC premises.Judicial Stamp fee of Rs.5/- to be affixed on Affidavit.

(6) A presentation form is to be attached to the Petition. (Available with WRIT CELL)

(7) After preparing petition in one copy, and affixing Stamps, it need to be stitched. The same can be done on 3rd floor of main building of high Court, at Writ Cell (Appellate). The Petition is also to be binded with light blue colored card board paper. Purchase the one from any stationary shop, cut the same in A3 size paper and place the same ob both side of the Petition like any book is protected with hard paper on end of both side. Also take print out of Docket (pls see last page of petition) on white paper and stick the same above that blue card board.

(8) There may be more than one Petitioners in a Writ Petition and all of them are not required to go for filing. Any one can go. However, all the Petitioner has to sign on three documents- (1) Before Verification; (2) In Memo of Appearance; (3) In Memo of registered address. This will entitle all the petitioner to argue before Judge. However, during hearing, only one will be allowed to argue.

(9) The Petitioner who is going for filing must carry with him Pan card or driving license or Voters card or any other approved photo and address proof. Preferably, the one who is going for filing must state as Petitioner No.1 in Person as stated in the Petition.

PROCEDURE for filing Petition in Bombay High Court

(1) The filing begins with Affirmation by Petitioner before designated officer. Affirmation of Petitioner is to be done at ground floor of AnnexBuilding (exactly opposite to main bldg of HC, in the same premises). There is a separate room for this. Keep Passport/Driving license/PAN card for verification at Affirmation Counter.

(2) After Affirmation, the Petition (Original case) should be submitted to WRIT CELL (Original) at first floor of AnnexBuilding; The Petition (Appellate case) should be submitted to WRIT CELL (Appellate) on 3rd floor of main building of high Court.

In Original Jurisdiction, Petition is to be flagged and the Officers at Writ cell will guide. No such flagging is required in Appellate Cases. The presentation form as stated hereinbefore should be filled up with the help of officers at Writ cell.

(3) There are Objections/corrections if any in the Petition are to be removed/ made. In Appellate cases Objections/ corrections are removed at the time of submitting only. In Original cases, the man at Writ cell will guide.After removing objections/making corrections, the man at Writ cell will give Writ number.

(4) After getting Writ no. xerox copies of petition is to be served to all the Respondents named in the Petition. Three copies are to be given to State Govt or any of its agencies like the Municipal corp. These three copies can be served at respective Original or Appellate offices of Govt pleaders, situated at ground floor of High Court PWD building, same premises. All other Respondents are to be served one copy only. Proper acknowledgements of serving must be kept in record.

(5) Depending upon the urgency of cases, a formal request, (it is called mentioning) can be made before Chief Justice for urgent hearing of the case. Mentioning is made when the Court proceedings began at 11.00 AM and also at 3.00 PM after Lunch hours and at 5.00 when the court concludes for the day. The Judges hear these formal requests for first five minutes and give date for the hearing, depending upon the merit of the case. The request letter is called Preceipe.

However it is important that prior to this mentioning, the copy of preceipe must also be served upon Respondents and if Respondents remain absent, the Court must be brought to the notice of the same.

(6) It is very important to keep track as when the case will come for the hearing. The Officer before whom objections in theWrit are removed must be requested to inform him as when the case will come for hearing.

(7) For the first time the case come for preliminary hearing / admission of case. The Petitioner is then given opportunity to explain before the Judges as why he has come to the Court and what is his grievance against the Respondents. The Petitioner thus, without getting nervous, should slowly and I repeat, slowly and clearly, spell out briefly the issue. If Judges are convinced, it is the Respondent now who has to answer. Also, the presiding Judge may be requested to (pls refer point (13) of the petition. Point nos 2 & 3 of the Writ Petition may be read out in the court.

OTHER IMPORTANT POINTS

(1) The petition should not be stretched with too many issues and reliefs for it lose focus. The petition should be very brief and to the Point. Only important points should be incorporated. As far as practicable raise one issue at a time and seek one relief.

(2)Harsh language and general allegations against Respondent govt should be avoided unless you have conclusive proofs to them.

(3)Respondent govt Counsels ordinarily give lot of opportunity to engage in useless arguments. One must take care not to deviate from core issue. Stress on only one/two strongest point which is very difficult for the authorities to answer.

(4Begin with – My Lordship- I am XYZ, the Petitioner. Whenever you want to say anything, say- May I Invite the attention of this Hon'ble court / May I Invite the attention of My Lordship.

(5) Petition has to be prepared English. If any exhibits are in language other than English, than English translated copy must also be submitted. Also, all Exhibits attached must be clearly readable.

(6) Arguments before the Court are ordinarily in English. For arguing in Hindi or Regional language, permission before sitting judge may be obtained.

(7) If you are not satisfied with order of the Court or you are not given the reliefs sought, than either Review Petition may be filed with the same High Court or Appeal may be made before the Supreme Court. Always insist the Court to make reasoned order. If order is ambiguous or if is not self explanatory as to why the Reliefs were not given by this Hon Court, make “Speaking to the minutes Petition” to seek clarity Order from the Court may be made.

(8) All likely objections that Respondent may raise should be anticipated and tactfully acknowledged in the petition and if possible answer them.

(9) It may happen that your case may not come for the hearing for some time. In that situation an formal request, by way of Precipie (format is attached below) should be made before the Court of Chief Justice requesting him to give urgent hearing of the case and the reasons for the urgent hearing must clearly be made out.

(10) It may happen that while the matter is pending before the Court and the Respondent are acting in such manner as to defeat the purpose of seeking relief from the Court. In that situation, Notice of Motion in Original Cases & Civil Application in Appellate Cases should be filed for immediate hearing of the case. Also, the issue can be formally mentioned before the Court(Judge) seeking urgent hearing. Also, if the Petitioner seeks to amend the Petition or if he want to add something more to the Petition, the same can be done by filing Chamber Summons. Notice of motion, Civil Application and Chamber Summons as stated hereinbefore are prepared in the same format as writ petition is prepared. In the heading part- add title as NOTICE OF MOTION / CIVIL APPLICATION / CHAMBER SUMMONS, as the case may be.

PLEASE FIND FORMAT of NOTICE u/s 80.

LETTER 1

From,

Mr. ABC

To,

Name of Public Official/ Name of the Public Authority

Address.

Sub: Notice u/s 80 of CPC 1908 in the light of Judgment of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39.

Dear Sirs,

(Very briefly, state facts of the case and other relevant detail, which palpably suggest conscious neglect of duties / willful disregard of letter of the Law so established. The Public authority may also be told to refer your earlier communications in this regard.)

Moreover, at this point, we wish to place on record a Supreme Court Judgment given in respect of notices to be given to public authorities under section 80 of Civil Procedure Code 1908, before moving courts against them.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI) the Hon’ble Supreme Court took Judicial notice of the fact that the government and its agencies are the biggest litigants in the courts and are known to be a huge contributor to delays.

The Court thus directed- “Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned that whenever any notice is received by them, they have to ensure that replies to notices are sent within the period stipulated time. The replies shall be sent after due application of mind. Despite this, 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”.

And therefore, we request you to reply while properly dealing with all material points and issues raised in the notice.

OUR QUERY FOR WHICH YOUR EXPLANATION IS SOUGHT:

(1) Specify the issues very briefly to which you are seeking explanation or answer from the public officials / Public authority.

Thank you.

Sincerely,

Encl.1) Copy of letter recorded to Hon'ble Bombay HC in this regard.

LETTER 2

To,

The Hon.Chief Justice & the Companion Justices of Hon’ble BombayHigh Court.