M J Antony: Fratricidal lawsuits

OUT OF COURT

Litigation between various arms of the government is not only wastage of public money but also a sign of indiscipline in the ranks.

It is well-known that the government is involved in more than half the litigation in the country. A lesser recognised fact is that a substantial number of cases are fought between various departments of the central and state governments, quasi-governmental organisations, public sector units and different statutory authorities. The current legal battle fought among petroleum undertakings in the Supreme Court and the Gujarat and Delhi high courts is just one instance.

When the government had greater role in commerce and contractual matters in the socialistic era, this problem peaked, leading to the Supreme Court asking the government to set up a committee at the highest level to filter such disputes before they landed in the courts. This appeal of the court, made in Oil and Natural Gas Commission vs Collector of Central Excise (1992), tended to be ignored by the governmental authorities. Therefore, the call was renewed in several latter judgements. However, the situation has shown little improvement.

In a judgement delivered the other day, the Supreme Court dealt with such an appeal by ONGC against the ruling of the Bombay high court. The opposite party was another public body of Maharashtra, the City & Industrial Development Corporation (CIDCO). The parties had signed an agreement under which the corporation had agreed to hand over 24 hectares of land in Navi Mumbai to ONGC. Though the letter of allotment was issued in March 1984, the parties had been litigating since 1990. When ONGC moved the high court seeking the enforcement of the lease agreement, its writ petition was dismissed. The high court stated that one public entity could not file a writ petition against another. Normally a writ petition is moved by a person or citizen against the government. So the court maintained that it would not enter into disputes of a contractual nature between two public bodies. Therefore, ONGC moved the Supreme Court.

Without deciding the complicated issues before it, the Supreme Court asked the central and state governments to set up a high power committee to sort out such differences. The composition of the committee was also decided by the Supreme Court: the Union Cabinet Secretary, state chief secretary, secretaries of the concerned departments of the Union and the state, and the chief executive officers of the concerned undertakings.

The court followed the reasoning given in earlier judgements, which apparently had fallen on deaf ears. Three decisions of recent times were extensively quoted. In Chief Conservator of Forests vs Collector (2003), the court emphasised that the states and the centre must evolve a mechanism to set at rest all inter-departmental controversies at the level of the government and such matters should not be carried to a court of law. A committee set up for this purpose must ensure that no litigation reached the court or a tribunal without the matter having been first examined by it and given clearance for litigation.

"It is neither appropriate nor permissible for two departments of state or the Union to fight litigation in a court of law. Such a course cannot but be detrimental to public interest as it also entails avoidable wastage of public money and time," the Supreme Court pointed out. "Various departments of the government are its limbs and therefore they must act in co-ordination and not in confrontation." It added that such litigation smacked of indiscipline. These statements were reiterated in last year's judgement in Punjab & Sind Bank vs Allahabad Bank.

In the judgement, Mahanagar Telephone Nigam vs Chairman, CBDT (2004), the Supreme Court noted that the courts are overburdened with a large number of cases, the majority of which pertained to government departments and/or public sector undertakings. Some of them were frivolous. If the committee refuses permission to take an issue to the court, its decision should be followed. It is expected that a committee consisting of highly placed officers who do not have any axe to grind will take a fair and honest decision. It is normal for one party to be dissatisfied with the decision of the committee. However, discipline requires that all concerned parties abide by the decision of the committee, the Supreme Court said.

These sentiments have been restated in some other recent judgements also, as in the case of UPSEB vs Sant Kabir Sahakari Mills (2005). The founding fathers of the Constitution or the framers of the procedural laws did not expect different arms of the government fighting lawsuits between them. Therefore, the only sensible method to solve such disputes now is to set up committees suggested by the court at various levels and make them functional. It would lighten the burden not only of the court but also of the tax payers.