The court cannot arrogate to itself any function which is left to the domain of the executive and the legislature. [State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors]

State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors, 1986 AIR 847

Before Supreme Court of India

Bench: Mukharji, Sabyasachi (J)

Author of the Judgement: S Mukharji

Delivered on: 11 February 1986

Advocate for petitioner: Parasaran, Attorney General and A.K. Ganguli.

Advocate for respondent: T.U. Mehta and C.P. Pandey.

Brief Facts:

A 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 1984.

Respondents 1 to 15 herein, who claimed to be poor and mostly Harijans and are residents of villages Bhainkhal, Baladi and Bhukha, Tehsil districts of Shimla in Himachal Pradesh. They addressed a letter on or about 4th June, 1984 to the Hon’ble Chief Justice of the said High Court, complaining, inter alia, that

(i) in 1972, the State Government had sanctioned the construction of Road known as Ghanna-Hatti-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 village 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 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 up to 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 up to 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 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 road, got the construction work stopped. Work had been thereafter resumed, 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, completely abandoned.

The said respondents alleged that they had been totally deprived of the road facility till then. They asserted that ‘democracy was meaningless to them’. In those circumstances, they by the aforesaid letter prayed for court’s 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, inter alia, that due to lack of funds, construction of the entire road could not be completed.

The High Court directed the state government in the following manner-

“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 Km. to 3/886 Km. in the course of the current financial year.”


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 allow any particular sum for expenditure on account of particular project or to allow 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 Government, were the exclusive domain of the legislature as contained in articles 202 to 207 of the Constitution.


Every person is entitled to life as enjoined in article 21 of the Constitution and in the facts of this case read in conjunction with article 19(1)(d) of the Constitution and in the background of article 38(2) of the Constitution every person has right under Article 19(1)(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 live itself.

The expression ‘budget’ does not appear as such in the 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 Constitution. 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.

The High Court has noted that the Superintending 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 Km. and 3/886 Km. 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.90000 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 legislature in view of the provisions of articles 202 to 207 of the Constitution so far as the State expenditures are concerned.

According to the order, the superintending Engineer as the administrative authority has been directed to carry out the directions of the court for the widening of the road subject to funds being available during the time limit. The financial period has expired. Whatever sum remaining for this financial 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 legislature to sanction it or not. The members of the legislature know the needs of the people. Under the Constitution, they are authorised and entitled to fix the priorities for the expenditure to satisfy the basic needs of the people, upon the judgment and recommendation of the Executive.

In the instant case, administrative action or administrative 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 the domain of the legislature and the executive to decide the priority as well as to determine 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. Remedial action in public interest must be with caution and within limits.

According to the Supreme Court, the court’s direction was not intended to supervise the 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.

Held: In this case, the order of the High Court in the light interpreted by the supreme court, it does not exceed the parameter prescribed in the Constitution of India and thus the special leave petition is disposed off.

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