STATE OF HIMACHAL PRADESH & ANR.versusUMED RAM SHARMA & ORS.

                                                                         251

                                                                                A
                                              v.
                                  llllll Ull SllAlllA ' CJIS.

                                    FEBRUARY 11, 1986.
                                                                                B
               [V.D, TULZAPURKAR, R.S. PATHAK & SABYASACHI MlJIQIARJI, JJ,]

                    Constitution of I\idia, 1950, Articles 19(l)(d), 21 & 38
     -·       - Right to life embraces not only ~hysical existence of life
              but the quslity of life - For residents of hilly areas -
              Access to road, access to life itself - Roads              for
              communication - Provision of - Constitutional obligation -
                                                                                c
              Court - Whether entitled to give directions in cases of
              ~xecutive inaction or slow action.


                    The petitioner, State sanctioned construction of a road
              known as Ghamia-llatti-Bhukho road in district Simla. The total
                                                                                D
              length of the road was about 5 kms. and the construction
              was started imnediately in 1977. When the construction of the
              road approached about 3/060 kms., there was obstruction and
              the construction was stopped due to one reason or the other.
              Thereafter the work had been resumed once or twice in a half
              hearted manner but it_ could not be completed, due to lack of
                                                                                E
              funds since a sum of Rs. 40,000/- allocated during the finan-
              cial year 1984-85 for the construction of this road had
              already been fully-utilised.

                    Respondents Nos. 1 to 15, residents of nearby villages,
              addressed a letter to the Chief Justice of the High Court
                                                                                F
              complaining (i) that they had been totally deprived of the
              road facility; (ii) that they had to go to the city after
              negotiating steep ascent of 4/5 miles and only after such a
              strenuous effort they were able to establish contacts with the
              city; and (iii) that democracy was meaningless to them. In
              those circumstances, they prayed for court's intervention and
                                                                                G
              action on this behalf.

                    The High Court treated the aforesaid letter as a writ
          t· petition and after receiving reply from the State Government,
:-        '   it found that the people of the ares were denied the benefit
                                                                                H
    252                  SUPREME COURT REPORTS    [l986]   1 S.C.R,

A
    ct the use of the road in a contiguous length and that B01ll!        >
    remedial action was expedient in the public interest. The High             ""
    Court also recorded the statement of the Superintending
    Engineer that there was no reason why the road could not be
    constructed gradually onwards and that during the financial
    year to make the road serviceable an expenditure of about Rs,
B   90,000/- would be necessary and ss against this requirement
    under the budget allocation, a sum of Rs. 40,000/- had been
    set apart for the purpose of widening the road. The High
    Court directed (1) that the Superintending Engineer of the PWil
    should proceed with the construction of the road and to
    complete the same during the course of the current financial
c   year; (2) that the Superintending Engineer s)lould make an
    application to the State Government demanding additional sum
    of Ra,50,000/- being sanctioned for the construction- of the
    add road; (3) that the State Government should favourably
    consider the demand of the Superintending Engineer. While
    giving the above directions, the High Court noted that the
D   construction of the road had progressed in varying degrees and
    in a somewhat haphazard IWllU!r and the road had not become
    serviceable beyond 3/060 kms.

          The petitioner, in this special leave to appeal under
    Article 136, questioned the power of the High Court to issue
E   prerogative writs under Article 226 of the Constitution to
    direct the State Government either to allot any particular sum
    for expenditure on account of particular project or to allot
    amounts in addition which have already been allotted under the
    current financial budget of the State Government and thus to
    regulate even the procedure in financial matters of the State,
F   which, according to the petitioner, were the exclusive domain        .._
    of the legislature as contained in Articles 202 to 207 of the,
    Constitution.
                                                                           •
          Disposing of the petition,

G         llBU> : 1( i) There was nothing improper or illegal in the
    order passed by the High Court directing the State Government
    to carry out the construction as quickly as possible within
    the sanctioned limits. The High Court has not transgressed its
    jurisdiction of supervising executive eetion in view of the
    time taken to construct the road. lt has not transgressed its _,,.
H   limits by substituting its priorities. There has _been '
                       STATE v, UMED RAM SHARMA                  253

    allocation. The court !las directed the executive to bring it       A
    to the notice of the legislature if some re-allocation was
+   feasible amongst the sanctioned expenditure for roads leaving
    the priorities to the discretion of the competent
    authorities. (261 A-B; 267 E; H; 268 Al

          1(ii) The court's direction · was not intended to             B
    supervise th'l action taken .and to enforce its implementation
    but only to be apprised of the action taken in order to bring
    about a certain sense of urgency so that there was no delay.
    However, there was no need for the High Court to direct that
    the matter be listed again before it. [268 B; 269 BJ

          2(i) . Every person is entitled to life as enjoined in        c
    Article 21 of the Constitution. He has the right under Article
    19(l)(d) to move freely throughout the territory of India and
    he has also the right under article 21 to his life and that
    right under article 21 embraces not only physical existence of
    life but the quality of life and for residents of hilly areas,
    access to road is access to life itself. Therefore, there           D
    should be road for communication in reasonable conditions in
    view of constitutional imperatives and denial of that right
    would be denial of the life as understood in its richness and
    fullness by the ambit of the Constitution. (259 H; 260 A-Bl
          In re: Sant lllllll, (1960) 3·s.c.R. 499; Kbaralt Sf.,.ti,    E
    (19641 1 s.c.R. 332; A.V. llacbane & Anr. etc. etc. v. Union of
    India & Anr. etc. etc., (19821 1 s.c.c. 205; Olga Tellis ead
    Others etc. v. Ballbay limicipal Corporation aad Others etc. ,
    (1985J 3 S.C.C, 545; limicipal council, Ratla Vo Sbri Vardbi-
    cbead aad Ora., (1981 J 1 S.C.R, 97 & Francia Coralie lill.lin Vo
    Ma!n1strator, Union Territory of Delhi & Ora. , [1981) 2            F
    s.c.R. 516 relied upon.

          2(ii) The Constitution envisages a broad division of the
    power between the legislature, the executive and the
    judiciary. Although the division is not precisely demarcative
    there is general acknowledgement of its limits, there is            G
    certain time overlapping,· It is for the legislature to
    legislate, the executive to implement and carry out that
    legislation and the judiciary to supervise. Affirmative
    actions are some-times necessary to keep the judiciary in tune
t   with the legislative intention. However, the directions of the
    court cannot and should not run counter to the specific provi-      H
    sions of the Constitution. In other words, the court cannot
    254                  SUPREME COURT REPORTS    [1986]   1 S.C.R.

A
    arrogate to itself any function which is left to the domain of
    the other two branches namely the executive and the legis-        t
    lature. [267 C~D; 261 C-D]

          2(iii) Read in the background of the Directive
    Principles as contained in article 38(2) of the Constitution,
B   access to life should be for the hillman an obligation of the
    State but it is primarily within the domain of the legislature
    and the executive to decide the priority as well as to deter-
    mine the urgency. Judicial review of the administrative action
    or inaction where there is an obligation for action should be
    with caution apd not in haste. It depends upon the facts and
c   circumstances of each case. Its dimension is never close and
    must remain flexible. [266D-E; 269 H; 270 A]

          3. Affirmative action in the form of some remedial
    manner, in public interest, in the background of the
    constitutional aspirations as enshrined in Article 38 read
D   with Articles 19 and 21 of the Constitution by means of
    judicial directions in cases of executive inaction or slow
    action is permissible within the limits. [269 E]

          In the instant case, the respondents have been affected
    by the denial of the proper roads in a hilly State. Therefore
E   there is no dispute as to " their locus. There is also no
    dispute that the State Government was willing and had indeed
    sanctioned money for the construction of the road. Constitu-
    tional and legal imperative on the part of the State to
    provide roads for residents of hilly state is not in issue.
    The High Court has noted the statement of the Superintending
F   Engineer that a sum of Rs. 90, 000 would be required for the
    completion of the road. The High Court has suggested that          •
    Superintending Engineer may make a proposal to this effect to
    the appropriate Government. The High Court has not directed
    the State Government to spend Rs. 90,000 which clearly in view
    of the system of budgeting and the budget would be in excess
G   of the annual statement of income and expenditure sanctioned
    by the legislature. The court could not direct the State
    Government to spend beyond the sanctioned amount which is in
    the domain of the legislature in view of the provisions of


H
    Articles 202 to 207 of the Constitution so far as the State
    expenditures are concerned. The Superintending Engineer as the i,.
    administrative authority has been directed to carry out the 1"         ..
                 STATE v. UMED RAM SHARMA     [MUKHARJl, J.]         255

                                                                            A
< directions of the court for the widening of the road subject
      to funds being available during the time limit. [260 E-F;
      263 E-H]

            Comnonwealth of Massachusetts v. Andrew W. Mellon, U.S.
      Supreme Court Reports, 67 Lawyers' Edn. p. 1078 at p. 1085            B
      Baodlma "1kti Morcha v. Union of India & Ors., [1984] 2 s.c.R.
      67; Dr. P. Halla Thamby lbera v. Union of India and Ors.,
      [1984] 1 s.c.R. 709; State of Himachal Pradesh v. A Parent of
      a Student of Medical College, Simla and Ors., A,I.R. 1985 S.C.
      910 & Fertiliur Corporation Kamgar Union (Regd.), Si.udri and
      Others. v. Union of India and Ors., [1981] 2 S,C.R. P• 67 at
      p. 71 referred to.                                                    c
            CIVIL APPELLATE JURISDICTION        Special Leave Petition
      (Civil) No. 12621 of 1984.

            From the Judgment and Order dated 20.8,84 of the
y     Himachal Pradesh High Court in C.W.P. No. 231 of 1984.                D
'
            K. Parasaran, Attorney General and A.K. Ganguli for the
      petitioners.

             T.U. Mehta and C.P. Pandey for the respondents.
                                                                            E
             The Judgment of the Court was delivered by

            SABYASACHI MUKHAR.JI, J. From one angle in this case
      there is ·much ado about nothing, from another point of view
      there is a great deal than that meets the eye. It is better,
      however, to proceed to deRl with the matter as far as eye can         F
        see without telescope but also without blinkers. 1'1'.e facts are
        few - the issues in controversy are fewer still - the
        directions given by the High Court in this case which are
        under challenge a e brief but their consequences are of some
        relevance and importance on the question of ambit of judicial
        power over administrative inaction. To the facts first, there-      G
        fore, in immitation of the inimitable style of Lord Denning -
        This petition for special leave to appeal under article 136 of
        the Constitution is directed against the order of the Division
        Bench of the High Court of Himachal Pradesh dated 20th August,
     t· 1984. Respondents 1 to 15 herein, who claimed to be poor and
    .. mostly Ha~ijans and are residents of villages Bhainkhal,             H
    256                  SUPREMF, COURT REPORTS    [1986] i s:c.R.

A
    mostly Harijans and are residents of villages Bhainkhal,         +
    Baladi and Bhukha, Tehsil and district. Simla in Himachal
    Pradesh, addressed a letter on or about 4th June, 1984 to the
    Hon'ble Chief Justice of the said High Gou.rt, complaining,
    inter alia, that (i) in 1972, the State Government had
    sanctioned the construction of Road knmln as Ghanna-Hatti-
B   Bhukho Road, (ii) by about August, 1980 half the portion of
    the road i.e. about 3 Kms. had been constructed and that when
    the road had reached the viHage Gharog, the residents of the
    village obstructed further construction, (iii) the Government     >
    initiated compulsory acquisition proceedings in respect of the
    lands belonging to the villagers of Gharog village and the
C   same were finally acquired in 1982. The villagers of Gharog
    who were disinterested in further construction of the road in
    collusion with the authorities got the construction stopped at
    that stage.

          It was alleged that after the construction had been made
o   upto the village Gharog, 200/250 metre portion of the road had   ~
    to be constructed through a privately owned piece of barren
    land belonging to two families. As the road had reached upto
    their village, they objected to further construction of the
    road and also obtained 'stay orders' from the Court. The
    compulsory acquisition proceedings. had been taken by the
E   government in 1980 and the land was acquired by it in 1982.

          But the grievances of the said respondents were that, in
    collusion with the authorities, the said two families of
    village Gharog along with other residents of the village who
    were no longer interested,in the further construction of the
F   road, got the construction work stopped. Work had been there-    >-
    after reswned, it was further alleged, once or twice in a         ...
    half-hearted manner but the residents of the aforesaid village
    reached the place of work in protest and got the work stopped
    again. Though the land was government land, the construction
    had been, according to the said respondents, completely
G   abandoned.

          The said respondents alleged that they had been totally
    deprived of the road facility till then. They alleged that
    they had to go to city after negotiating a steep ascent of 4/5
    miles and by carrying load worth maunds on their shoulders. ~.
H   Only after such a strenuous effort, it was their allegation,   \ ·t
    that they were able to establish contacts with the city. They   "'-
    asserted that 'democr<:Jcy was meaningless to them' . In those
                  STATE v. UMED RAM SHARMA [MUKHAR.JI, J.]        257


                                                                         A
      circuiastances they by the aforesaid letter prayed for court'~
      intervention and action on this behalf.

              After receiving the letter on 22nd· June, 1984, the
       letter was treated by the High Court as a Writ Petition and
       the State Government filed its reply to the same stating,
                                                                      B
       inter alia., that on 29th July, 1977 the government had
       sanctioned construction of the said road for a total
       expenditure of Rs.4,99,000. The total length of the road was
       about 5 Kms.; construction work started illDllediately in 1977
       and most part of the road including widening at various places
       had been constructed till 1984 on a total expenditure of
       Rs.2,99,216; when the construction of the road approached
       about 3/060 Kms. at that time there was obstruction as men-    c
       tioned hereinbefore and a civil suit was filed and injunction
      .was obtained. The injunction was vacated by the civil court on
>
       the 30th April, 1982. The government stated further that some
       other villagers again filed another suit which was dismissed •
    y in June, 1983. In the meantime the portion of the said land
                                                                      D
I      had been acquired and compensation had been paid to the land
       owners and in the financial years 1984-85, a sum of Rs.40,000
       had been allocated for the construction of this road which
       amount had been fullf utilised. In those circumstances it was
        stated in the said affidavit· filed on behalf of the state
        government that due to lack of funds, construction of the
                                                                      E
        entire road could not be completed.


              When the matter came up for hearing before the High
        Court on 27th June, 1984, the Court desired to know from the
   _.. learned Advocate General of the State as to the decision of
                                                                         F
 ,,     the government regarding the completion of the road to the
        extent of the first three kms. The hearing was adjourned for
        this purpose. The respondents 16 and 17 filed an application
        on 24. 7 .1984 for lmpleading themselves· as parties to the
        proceedings as they claimed that they would ~e affected by the
        decision of the High Court in the said proceedings. They were
        so allowed to be impleaded by the High Court on 30th July,       G
        1984. Learned Advocate General informed the High Court that
      . the State Government had agreed to the alignment of the road
        being maintained in the same position as had been earlier
        decided. After affidavit, the matter came before the High
~) Court on 20th August, 1984.
                                                                         H
    258                   SUPREME COURT REPORTS     (1986] 1 S.C.R.

A
          The High Court directed the Superintending Engineer of
    the P.W.D. to proceed with the construction of the road           +
    between 3/060 Kms. onwards upto 3/886 Kms. and to complete the
    same during the course of the current financial year. The
    Court, further, directed the Superintending Engineer to make
    an application to the State Government demanding additional
    sum of Rs.50,000 being sanctioned for the construction of the
B
    said road and directed further that the state goverrurent
    should favourably consider the demand of the Superintending
    Engineer.

            The High Court further, in its order dated 20th August,
     1984, noted that the work· of the construction of the road had
c    been taken up in patches. The High Court felt that although
     public money had been invested in the construction of the road
     and the construction of the road had, in fact, progressed in
     varying degrees 'alioost to the end of the road', because the
     construction work had been taken up in a somewhat haphazard
D
     manner, the road had not become serviceable beyond 3/060 Kms.
     except in intermittent patches. The High Court found that the        T.-
     people of the area were, therefore, denied the benefit of the
     use of the road in a contiguous length. The High Court was of
     the opinion that some remedial action was expedient in the
     public interest. The High Court, further, noted the informa-
     tion supplied by the Superintending Engineer that during the
E
     financial year to make the road serviceable from 3/060 Kms.
     and 3/886 Kms. by making it 5/7 metres wide katcha constructed
     road, an expenditure of about Rs.90,000 would be necessary, as
     against this requirement, under the budget allocation, a sum
     of. Rs.40,000 has been set apart for the purpose of widening
     the road. The Superintending Engineer further stated that the >...
F
     two intervening patches in which no construction work whatever
     has been undertaken, had been left out because of the then
    'pending litigation which, however, had ended in June, 1983. In
     those circumstances, the High Court noted the requirements for
     the completion of the road and/or to make the same service-
     able.
G
          The High Court recorded the statement of the
    Superintending Engineer that ti.ere was no reason why the road
    could not be constructed gradually onwards. In giving the

H
    direction the High Court took into consideration the statement\
    made before it by the Superintending Engineer that the road       .J
                     STATE v, UMED RAM SHARMA [MUKllAR.II, J, ]        259

                                                                              A
  ·~    could be constructed gradually onwards. According to the esti-
        mate of the Superintending Engineer for the purpose of wlden-
        ing of the road between 3/060 Kms. to 3/886 Kms;, Rs.90,000
        would be required on rough estimate but only Rs.40,000 was
        there. The High Court, thereafter, directed as follows:
                                                                              B
                    "The State Government .is directed to favourably
                    consider the demand for additional funds which the
                    Superintending Engineer will make to complete the
                    widening of the road between 3/060 Kms. to 3/886
                    Kms. in the course of the current financial year.

                    The case to be listed again on November 20, 1984,         ·C
                    The Superintending Engineer will, on that day,
                    place on the record of this case a rerort with
                    regard to the progress made during the intervening
                    period in the direction of completing and widening
                    of the road between 3/060 Kms, and 3/886 Kms."
                                                                              D
. "1'        This petition seeks special leave to appeal to canvass
        before this Court the question whether in view of the
        provisions of articles 202 to 207 of the. Constitution, the
        High Court had power to issue prerogative writs under article
        226 of the Constitution to direct the State Government either
        to allot any particular sum for expenditure on account of             E
        particular project or to allot amounts in addition which have
        already been allotted under the current financial budget of
        the State Government and thus to regulate even the procedure
        in financial matters of State which, according to the Govern-
        ment, were the exclusive domain of the legislature as contain-
   --\ ed in articles 202 to 207 of the Constitution.                         F

                It appears to us that in the facts of this case, · the
         controversy lies within a short compass. It is well-settled
         that the persons who have applied to the High Court )J¥ the
         letter are persons affected by the absence of usable road
         because they are poor Harijan residents of the area, their            G
         access by communication, indeed to life outside is obstructed
         and/or prevented by the absence of road. The entire State of
         Himachal Pradesh is in hills and without workable roads, no
         communication is possible. Every person is entitled to life as
        +ei;ijoined in article 21 of ,the Constit·1tion and in the facts of
        ·this case rea<j in conjunction with article 19(l)(d) of the           H
    260                  SUPREME COURT REPORTS     [1986] l S.C.R.

A
    Constitution and in the background of article 38(2) of the
    Constitution every person has right under Article 19(l)(d) to t
    move freely throughout the territory of India and he has also
    the right under article 21 to his life and that right under
    article 21 embraces not enly physical existence of life but
    the quality of life and for residents of hilly areas, access
B   to road is access to life itself. These propositions are
    well-settled. We accept the proposition that there should be
    road for communication in reasonable conditions in view of our
    Constitutional imperatives and denial of that right would be
    denial of the life as understood in its richness and fullness
    by the ambit of the Constitution. To the residents of the
c   hilly areas as far as feasible and possible society has
    constitutional obligation to provide roads for communication.

          We need not in this connection refer in detail to the
    numerous decisions. Reference may, however, be made to in re:
    Sant Rall, (1960] 3 s.c.R. 499, Kbaralt Singh, [1964] lS.C.R.
D   332, A.V. Nachane & Anr. etc. etc. v. Union of India & another -.,
    etc. etc., [1982] 1 s.c.c. 205, Olga Tellis and Ors. etc. v.
    Bombay Municipal Coq>>ration and Ors. etc., [1985] 3 s.c.c.
    545, IUlicipal Council, Ratlam v. Shri Vanlhichand and Ors.,
    [ 1981] 1 S.C.R. 97, Francis Coralie Mullin v. The Administra-
    tors, Union Territory of Delhi & Ors., [1981] 2 S.C.R. 516.
E
         The persons who have complained about the non-avail-
    ability of road ate the persons who have been affected by the
    denial of proper roads in a hilly state. Therefore, there is
    no dispute as to thel.r locus. There is also no dispute that
    the state Government was willing and has indeed sanctioned
F   money for the construction of the road. Constitutional and )...
    legal imperative on the part of the State to provide roads for
    residents of hilly state is not in issue. So in this petition
    we need not examine how for is the obligation to provide
    roads.

G        The citizen has ,come to the court complaining only that
    the construction of the road has not been completed with
    sufficient energy and zeal and there should be more funds
    available. The budget allocation has been placed before us. We
    are satisfied that Rs.40,000 had been sactioned for the year
    and whatever sum is available during this year, the State+
H   Government is willing to spend for the construction of the c
    road during the year as per allocation already made. So,
                        STA.TE v. UMED RAM SHARMA. [MUKHARJI, J,]    261

                                                                           A
       _. therefore, there was nothing improper or illegal in the order
/         passed by the High Court directing the State Government to
          carry out the construction as quickly as possible within the
          sanctioned limits. It is clear that collD!llnication in the hills
          is difficult and to a hillman, road is life line. About spend-
          ing money for a particular socially needed and collDlllnity wise B
          desirable expenditure it is necessary to bear in mind the
          Constitutional provisions in this regard.

                  The expression 'budget' does not appear as such in the
       1
             Constitution. It is one of the terms sanctified by usage. So
             far as the provision for public expenditure is concerned, this
             must be in consonance with the requirements of the Consti- C
             tution. The directions of the Court cannot and should not run
             counter to the specific provisions of the Constitution. In
             other words, the court cannot arrogate to itself any function
             which is left to the domain of the other two branches namely,
             the executive and the legislature.
                                                                           D
    . . 'f       The provisions regarding the central· allocation of funds
           are contained in articles 112 to 117 of the Constitution with
           which we are, in the facts of this case, not concerned. We are
           concerned here with the procedural and financial matters .in
           the State which are dealt with in articles 202 to 207 of the
           Constitution. It is not necessary to refer in detail to the E
           said articles. It suffices to say that certain expenses are
           charged on the consolidated fund of the State. Discussions
           regarding these though take place in the assembly, these are
           not subject t.o alterations by the assemblies. It is necessary
           in this connection to bear in mind the item contained in
        -'\article 202(3)(e) namely, 'any sums required to satisfy any F
      ;. judgment, decree or award of any court or arbitral tribunal'.
           Such an expenditure is a charge on the consolidated fund.
           Therefore, it would have required elaborate consideration,
           which fortunately in view of the nature of the directions of
           the court in this case these cannot be termed as decree or
           judgment of the court    for any specific amount. Had it been G
           otherwise it would have required delicate handling, because
           how far and to what extent the court can be permitted, if at
           all, to have its order sanctified by making it a charge on the
           consolidated fund is a matter of some importance and requires
          ./serious consideration.
                                                                           H
    262                  SUPRF.ME COURT REPORTS     [1986] 1 S.C.R.

A
          The recomnendations apart from those under article 203 1-
    ( 2) shall be submitted in the form of demands for grants to
    the Legislative Assembly, and the. Legislative Assembly shall
    have power to assent, ,or to refuse to assent, to any demand,
    or the assent to any clemand subject to any reduction of the
    amount specified therein. Sub-article (3) of article 203
B   stipulates that no demand for a grant shall be made except on
    the recomnendation of the Governor.

          Under our constitutional set ·up, the said demand by the
    Governor in terms of sub-article (3) of Article 203 nust be
    on the recommendations of Council of Ministers. Article 204
c   deals with the Appropriation Bills. After the passing of the
    Appropriation Bill, making provision for grants for money
    which are charged on the consolidated funds should be
    sanctioned by the Legislature. In case of supplementary,
    additional or excess grants, these nust be in compliance with
    article 205 of the Constitution which in a sense provides that
    if any fund is found insufficient for a particular purpose of
    the year or need has arisen then the Governor i.e. the Y.
D

    Government must get sa11ction to another statement showing the
    esti118.ted amount of the additional expenditure and such would
    be the demand for excess grant and. would be passed in
    accordance with the provisions contained in the other articles
    of the Constitution.
E
         In this case as appears from the Financial Hand-Book of
    the Himachal Pradesh Budget Manual which provides by paragraph
    2.12 the 'Detailed Estimates', in paragraph 2.13 'Demand for
    Grant', in par,!'Sraph 2.15 'Detailed Head' is a division of
F
    minor head which provides .that provision should not ordinarily ;...
    be made under a new detailed head without the prior approval ~
    of the Accountant General. Then 'Major Head' and 'Minor Head'
    are defined. Paragraph 2.38 stipulates for 'Supplementary
    appropriation' which means an addition to the amount included
    in the schedule of authorised expenditure.
G
         The Budget is presented under Chapter 7 of the said
    Hand-Book, paragraph 7.4 to the Legislature and as soon as the
    budget is presented, it is either passed or not in accordance
    with the detailed requirements contained and stipulated. The
    power of appropriation out of the allotments is contained in\-
    paragraph 10.2. Chapter 12 deals with the expenditure not'
H
                  STATE v. UMED RAM SHARMA [MUKllARJI, J.]           263

                                                                            A
      provided for in budget esti11111tes - Reappropriations - Supple-
      mentary estimates and excess grants. Paragraph 12.1 of Chapter
      12 provides that no expenditure shall be incurred which may
      have the effect of exceeding the total grant of 11Ppropriation
      authorised bY the Appropriation Act. In case of additional
      expenditure, a supplementary Appropriation Bill have to be            B
      presented to the Legislature.

           There are detailed instructions regarding the prepara-
  4   tion, submission etc. of applications, for re-appropriation.
      The sum and substance of the said requirements are that total
      sanction of bill for a project is.within the domain of the
      legislature and the executive has no power to exceed the total · C
      sanction without the consent of.the legislature and the court
      cannot impinge upon the field of legislature. The executive,
      however, on the appreciation of the priorities determine the
      manner of priorities to be presented to the legislature. The
      court cannot also, in our opinion, impinge upon the judgmertt
      of the executives as to the priorities.                          D
- 1
                We were taken· to the budget allocation 'in the instant
           case in the further affidavit filed which provides for ins-
           tructions for the preparation of re-appropriation as well as
           appropriation of grants and the High Court was quite conscious
           of the same. The High Court has noted that the Superintending    E
           Engineer has stated that a sum of Rs. 90,000 would be required
           for the completion of the widening of the road between 3/060
           Kms. and 3/886 Kms •.The High Court has suggested that the
           Superintending Engineer may make a proposal to this effect to
           the appropriate Government. The High Court has not directed
     _... the State Government, as we read the order, to spend Rs.90,000    F
    " ' which clearly in ·view of the system of budgeting and the.
           budget in this case would be in excess of the annual statement
           of income and expenditure sanctioned by the legislature. The
           court could not direct the State Government to spend beyond
           the sanctioned amount which is in. the domain of the legis-
           lature 1n view of the provisions of articles 202 to 207 of the   G
           Constitut·ion so far as the State expenditures are concerned.
           As we read the order, the Superintending Engineer as the ad-
           ministrative authority has been directed to carry out the
           directions of the court for the widening of the road subject
         .fto funds being available during the time limit. The financial
-...      'period has expired. Whatever sum remaining for this financial    H
     264                  SUPREME COURT REPORTS      [19861 1 s.c.R.

A
     year, the State Government has assured us that they will carry    +
     out such direction. So far as the additional grant of the sum
     was required, it is entirely in the domain of the legislilture
     to sanction it or not. The members of the legislature know
     the needs of the people. Ul\der the Constitution, they are
     authorised and entitled to fix the priorities for the expel\di-
B    ture to satisfy the basic needs of the people, upon the
     judgment and recomnel\dation of the Executive.

          Three questions, however, remain to be considered, ._
     namely, how far the court could give directions which are
     administrative in nature and secondly whether any direction
C    could be given to build roads where there are no roads for the
     enrichment of the quality of life or access to life, and
     thirdly whether the court could direct that the administration
     should report from time to time so that action taken can be
     supervised by the court.

D          In order to decide .the propriety and the legality of the 'f ~
     direction given by the High Court of Himachal Pradesh we have
     to· bear in mind that there are three .distinct functions in a
     government and these should be kept separate though in consti-
     tutional set up, they very often at places over-lap. In
     C,   4  aalth of lfaasacbusetts V• Andrew Jl, llellon, u,s,
.£   Supreme Court Reports, 67 Lawyers' Edn. p. 1078 at .p.1085, it
     was observed about the American constitution thus:- "The
     functions of government under our system are apportioned. The
     legislative department has been committed the duty of making
     laws; ·to the executhre the duty of executing them: and to the
     judiciary, the duty of interpreting and applying them in cases
.p   properly brought before the courts. The general rule is that '--
     neither department may invade the province of the other, and ~
     neither may control, direct, or restrain the action of the
     others." It is also well to remember that freedom depends upon
     the separation of three organs of the State. Each 1111st
     function within its own domain and remain distinct.
G
          On this asoect, it is appropriate to recall what
     MOntesquten in 'The Spirit of the Law' (1949 Reprint 1962)
     observed at pages 150-152:

                "Democratic and aristocratic states are not    tit
H               their own nature free. Political liberty is to be
          STATE v. UMED RAM SHARMA [MUKHARJI, J.]        265

         found only in moderate governments; and even in        A
         these it is not always found, lt is there only when
    +    there is no abuse of power. But constant experience
         shows us that every man invested with power is apt
         to abuse it, and to carry his authority as far a8
         it will go. Is it not strange, though true, to say
         that virtue itself has need of limits?                 B


         ......................
         In every government there are three sorts of
         powers: the legislative the executive in respect of
         things dependent on the law of nations and the         c
         executive in regard to matters that depend on the
         civil law.

          By virtue of the first, the prince or magistrate
          enacts temporary or· perpetual laws, and amends or
          abrogates those that have been already enacted. By    D
·.•. y
          the second, he makes peace or war, sends or
          receives embassies, establishes the public secur-
          ity, and provides against invasions. By the third,
         ·he punishes criminals, or determines the disputes
          that arise between individuals. The latter we shall
          call the judiciary power, and the other simply the    E
          executive power of the state.

         The political liberty of the subject is a
         tranquility of mind arising from the opinion each
         person has of his safety. In order to have this
         liberty, it is requisite the government be so cons-    F
         tituted as one man need not be afraid of another.

         When the legislative and executive powers are
         united in the same person, or in the same body of
         magistrates, there can be no liberty; because
         apprehensions may arise, lest the same monarch of      G
         senate should enact tyrannical laws, to execute
         them in a tyrannical manner.

         Again, there is no liberty, if the judiciary power
     +   be not separated from the legislative and
         executive. Were it joined with the legislative, the    H
    266                  SUPREME COURT REPORTS     [19861 1 s.c.R.

A
               life and liberty of the subject would be exposed to    -~
               arbitrary control; for the judge would be then the
               legislator. Were it joined to the executive power,
               the judge might behave with violence and oppres-
               sion.

B              Ihere would be an end of everything, were the same
               man or the same body, whecher of the nobles or of
               the people, to exercise those three powers, that of
               enacting laws, that of executing the public resolu-
               tions, and of trying the causes of individuals."

C        lt is well, however, to remember that Alexander Hamilton,
    John Ray and Ja..,s Madison - in Federalist by means of as many
    as eighty five essays had to support thP. founding fathers of
    the ADl!rican Constitution by trying to prove that in essence
    there is separation of powers in ADl!rican Constitution as
    practised in reality in England.
D
         ln the instant case, administrative action or administra-     r
    tive inaction is being sought to be reviewed. Read in the
    background of the directive principles as contained in article
    38(2) of the Constitution access to life should be for the
    hillman an obligation of the State but it is primarily within
E   the domain of the legislature arid the executive to decide the
    priority as well as to deterinine the urgency. Judicial review
    of the administrative .action or inaction where there is an
    obligation for action should be with caution and not in haste.

         ln this case, as Dl!ntioned before, the executive is not
F   oblivious as is evident from the facts stated herei~ of its ;.__
    obligation. Its sense of priority it has deterinined, there may        .
    have been certain lethargy and inaction. lt has been said by
    Adam Smith in his 'Wealth of llatfon' that whenever you see
    poverty widespread rest assured that either of the two causes
    must have operated, either energy has not been applied or
G   energy has been misapplied.

         In the instant case there has been at the highest a slow
    application of energy l.n the action by the executive. By the
    process of judicial review, if the High Court activises or
    energises executive action, it should do so cautiously.   Reme-1
H   dial action in public interest IDJSt be with caution and within ·
                        STATE v. UMED RAM SHABMA [MUKHARJI, J.]            267

                                                                                  A
           limits. Reading down the order in the manner we have indicat-
           ed, in our opinion, the High Court hes not transgressed the
           limits of its power.

                So far as the first and second question are concerned, in
           Bandhua lilkti llorcha v •. 'Union of India lo Ors., [1984) 2 S.C.R.   B
           67, this Court hes given guidance. One of us (Pathak, J.)
           speaking about the nature and extent of relief which hes to be
           given in litigation where public interest was concerned,
           observed at page 161 of the report that there were certain
           fundamental constitutional concepts which need to be recalled,
           namely, the Constitution envisaged a broad division of the
           power of the State between the legislature, the executive and C
           the judiciary. Although the division is not precisely demar- ·
           cated, there ~s general acknowledgement of its limits, there
           is certain time over-lapping. It is for the legislature to
           legislate, the executive to implement and carry out that
           legislation and the judiciary to supervise. Affirmative
           actions are sometimes necessary to keep the judiciary in tune D
           with the legislative intention. Having regard to the obser-
           vations made in this case at pages 161 to' 163 of the report in
           the light we read the present order, we do not think that the
           learned judges of the Himachel Pradesh High Court have
           transg~essed this jurisdiction of supervising executive action
           in view' of the time taken to construct this road.              E

                In Dr. P. Nalls Dumby lbera v. Union of India and Ors.
           [1984] 1 S.C.R. 709, a writ petition was dismissed under
           article 32 of the constitution for implementing the report of
           the Kunzru, Wanchoo and Sikri Comnittees, and for app~inting a
           fact finding Commission to inquire and report about the train          F
•
    --<,   accidents by a certain commuter. The Court held that giving
           directions in a matter like one which was before the court
           where availability of resources had a material bearing, policy
           regarding ·priorities was involved, expertise was very ruch. in
           issue was not prudent to issue any directions. The court felt
           that whether a committee should be appointed or not was pri-           G
           marily a matter in the domain of the executive.

                In the, instant case before us, the court has not trans-
           gressed its limits by substituting its priorities. There has
       +   been allocation. The court hes directed the executive to bring
           it to the notice of the legislature if some re-allocation was          H
    268                  SUPREME COURT REPORTS     [1986] 1 s.c.R.

A
    feasible amongst the sanctioned expenditure for roads leaving
    the priorities to the discretion of the competent authorities.

         The only other aspect, which is the third aspect, is the
    direction of the court to report to the court what progress
    had been done. In our opinion, if we read the order properly,
    the court's direc~ion was not intended to supervise the action
B
    taken and to enforce its implementation but only to be
    apprised of the action taken in order to bring about a certain
    sense of urgency so that there was no delay.                 •

         In this connection reliance may be placed on the obser-
    vations of this Court in State of Hfvchal Pradesh v. A Parent
c   of a Student of Medical College, Simla and Ors., A.I.R. 1985
    S.C. 910, where the High Court reco111Dended introduction of a
    bill to prevent ragging. It was held that this was an indirect
    attempt to direct the executive to initiate legislation.with a
    view to curbing the evil of ragging. There periodic directions
    were given by the High Court. This Court reiterated that it
D
    was entirely a matter for the Government to decide whether or    i
    not to introduce any particular legislation. Any member of the
    legislature could also introduce legislation but the Court
    could not mandate the executive or any member of the legis-
    lature to initiate any legislation and supervise the action of
    initiation.
E

         The Co~rt in this case has directed 'to favourably
    consider the demsnd for additional funds'. This was enough.

         The State Government has assured this court that they
    would carry out this direction. The court must know its
F
    limitations in these fields. The court should bring about an         •
    urgency in executive lethargy if any, in any particular case
    but it must remember the warning of Benjamin N. Cardozo in
    'The nature of· judicial process' at page 141 of the book:-

               "The judge, even when he is free, is still not
G
               wholly free. He is not to innovate at pleasure. He
               is not a knight-errant roaming at will in pursuit
               of his own ideal of beauty or of goodness. He is to
               draw his inspiration from consecrated principles•
               He is not to yield to spasmodic sentiment, to vague   +
               and unregulated benevolence. He is to exercise a
H
               discretion informed by tradition, methodized by
              STATE v, UMED RAM SHARMA [MUKHAR.ll, J. ]      269


             analogy, disciplined by system, and subordinated to   A
             "the primordial necessity of otd~r in the social
             life." Wide enough in all conscience is the field
             of discretion that remains."

Therefore, there was no need for the High Court to direct that
the matter be listed again before the Court on 20th November,      B
1984.

       Out of deference, however, to the High Court, we do not
delete this part of the order of the High Court but direct
that this be placed before the High Court only to inform it as
to what steps had been taken and thereafter the High Court msy
not . take any further action and leave it to the judgment of      c
the priorities and initiative both of the executive and the
legislature to pursue this matter. The High Court has served
its high purpose of ·drawing attention to a public need and
indicated a feasible course of action. No further need be done
by the High Court in this matter.
                                                                   D
     So much has been done. So little remains to be done. We
trust that this would be done by the State Government in
proper spirit.

        Affirmative action in the form of some remedial measure,
in public interest, in the background of the constitutional        E
aspirations as enshrined in article 38 read with articles 19
and 21 of the Constitution by means of judicial directions in
cases of executive inaction or slow action is permissible
within the.limits. The way we read the High Court's order with
the clarification indicated does not transgress that limit.
                                                                   F
     It is necessary to bear in mind that interference with
the administration cannot be meticulous in our Constitutional
system of separation of power. It is not necessary to express
our opinion in this case whether our Constitution is truly
based on Montesquien system of separation of power. We accept
the position that court cannot usurp or abdicate, and the          G
parameters of judicial review lllLISt be clearly defined and
never exceeded. See the observations of Krishna Iyer J. in
Fertilizer Corporation Kamgar Union (Regd.), Sindri and
Ors. v. Union of India and Others [1981] 2 s.c.R. p.67 at
p.71. It is, however, neither possible nor desirable to define
for all purposes that parameter, Judicial review of adminis-       II
    270                 SUPRl!ME COURT REPORTS       (1986 J 1 s.c.R.

A
    trative action depends upon che facts and circumstances of
    each case'. Its dimension is never closed and 1111St remain
    flexible. But in this case the order of the High Court in the
    light we have read it, dloes not exceed that parameter.

         The petition for special leave is disposed of in the
B   aforesaid manner without: grant of any leave to appeal. Except
    the directions indicated above, there will be no further order
    on this application. In the facts and circumstances as the
    State Government has not shown any lack of initiative, thi.
    parties will pay and bear their own costs.

c
    M.L.A.                                       Petition dismissed.




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