DEMAND OF DEMAND IN WRITS

Any student of law, if asks me where to start into reading something interesting on legal issues, my immediate response could be the almost weekly articles, appearing in MADRAS LAW JOURNAL by its Deputy Editor Mr.V.Lakshminarayanan. On receiving my copy every week, the first thing I do is to check the title of his article and try to guess the content, but they never fails to surprise me with anecdotes and quotes from all the corners of the world but relevant to contemporary subjects he chooses. I am looking forward to the day, when MLJ publishes the compilation of these articles, which in the line of the books of Lord Denning will make the life and profession of any Advocate enterprising and entertaining.

My sincere advice to the Juniors, who aspire to be noted and watched by the Judges in the podium, litigants in gallery and the Seniors with envy, to follow such articles and pepper your submissions with what one read and enjoy. After all, we do not live by legal provisions and precedents alone…

Last week, there was an interesting article ‘Demand and Denial Vs Mandamus, A Cat and the Zen Master’. It is about the history behind our Registry and of course Judges insisting for a ‘demand to the Authorities’ before entertaining a Writ of Mandamus. This article will be soothing balm to many of us, suffering at the hands of the Registry, whose demand of demand, sometime is bordering absurdity. What else word is more appropriate, when my Client, whose name was left out to be sponsored by Employment Exchange to the written exam/ personal interview slated to be held in another two days was asked by the Registry to send a representation first and then to move the Court for a writ to direct the Authorities to sponsor his name.

Well, Section 80 of Civil Procedure Code expects a Plaintiff to notice the Government before filing a suit. I hardly remember any instance, when the Government has taken pain to reply. Never there is a notice, which has propelled the Government into take action to discharge the demand. I always wonder why then this unnecessary procedure and whether there was any statistics to support the continuance of this requirement in the statute book.

The Supreme Court in Salem Advocates Bar Association Vs Union of India reported in AIR 2005 SC 3353 (02/08/05) took note of this provision and found that ‘the underlying object is to curtail the litigation’ and batted for its continuance but with a direction to the Government to nominate an Officer in all departments, responsible for sending replies to the pre-litigation statutory notices. What is important is that the further direction that ‘if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him’

Whether this direction is considered in any of the civil suits against the Government, decided in the past 10 years is not in knowledge but why the it be tested in any of the Writ Petitions in which the High Court requires a ‘pre-writ demand’ as a condition precedent to entertain the Petition...

Madurai
02/0314

ONLY TO CONSIDER THE REPRESENTATION, MY LORD…

Luden was a fisherman. The Government has enrolled Luden under a Group Insurance Scheme through National Federation of Fishermen Co-operative Limited, New Delhi. United India Insurance Co.Ltd., was the insurer.

Insurance sum?

Rs.35,000/-! Yes, thirty five thousands!!

On 29/06/00 while Luden was returning from sea, his ‘cattumaram’ caught in turbulence; Luden lost his life, leaving Anjali, his wife at the mercy of this cruel world. The so called representations were sent and there were communications between National Federation of Fishermen’s Co-op Society Ltd., New Delhi and the Special Officer of the said Society’s Tirunelveli Unit besides the Assistant Director of Fisheries, Tirunelvei and the Special Commissioner of the Department of Fisheries, Chennai. The communications did not bring any money to Anjali.

Anjali, after several reminders filed a Writ Petition and the High Court very gladly washed its hands by directing the Society in New Delhi ‘to consider Anjali’s representation and pass order’

Even thereafter the Society took its own time and Anjali had to approach the Court, this time to file a Contempt Petition. It was only thereafter in March’2013 the said Society issued proceedings to the insurer to release the insurance amount to Anjali.   The insurer coolly repudiated the claim as time barred; thirteen years had passed. The Society promptly forwarded the repudiation letter to Anjali and felt happy that it avoided the contempt proceedings. It was only then Anjali came to know that the insurance was made with M/s United India Insurance Co.Ltd., New Delhi.

Poor Anjali had to file another Writ Petition, this time impleading the United India Insurance. The Learned Judge directed the Counsel to serve the notice on me. I filed vakalat and having moved by the plight of this poor woman I submitted to the Court to pass an Order directing my client to pay the amount with a liberty to file a suit against the said Society and collect the money if the claim was made belatedly.

I willingly took a risk in making the submission since I could not get instruction from the Company in such a short time and that I was so frustrated in realising that for this princely sum of Rs.35,000/- Anjali had to approach a High Court for three occasions and the collective cost of such litigation may equal that sum.

There were six respondents in the first writ petition and eight respondents in the second writ petitions and the collective cost of all these respondents which includes the legal fees payable to yours truly will exceed Rs.35,000/- several times! 

The cost could be cut into half, had our Madurai Bench instead of being a ‘mandamus court’ in the first instance made an enquiry into the non-payment of insurance amount. Some Judges, I have heard ridiculing this Bench as attending only ‘postman’s work’ in directing the respondents to consider the representations. But they need to introspect and realise that the Bench too has to share the blame!

In matters of this nature and in many other matters, the Bench instead of disposing the writ petition at once can direct the respondent to either to take a decision or to file a counter. In case the respondent files a counter stating reasons why the request cannot be granted, the same may be treated as an order to examine correctness and the legality of such reasons.

Justice V.K.Sharma did not believe in directing the respondent to consider the representation but would treat the non-consideration within a reasonable time as rejection. He always maintained, if one is entitled to a relief he is to ask for it from the court as a positive direction.

Justice VK Sharma retired and the loss is mine recently in filing a batch of writ petitions; all concerning similar issue of getting approval for the promotions made in a private school. In few of the matters, the authorities had already rejected the proposal by citing a non-existing government order. The Judge had no difficulty in issuing notice. The rest of the matters were still with the authorities and there could not be a contrary decision. The Learned Judge refused to accept my plea seeking notice in those writ petitions too; directions were issued to the authorities ‘consider and pass order’.

My client has to now wait, issue contempt notice, file contempt petition, receive rejection orders and then to file the second batch of writ petitions to be heard along with the other writ petitions…

In the name of disposing of the writ petitions, we are creating chances for more writ petitions.

Madurai

29/04/14