# State Of U.P v. Khempal & Ors

- **Citation:** (2016) 8 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-09
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-khempal-ors-44279
- **Pages:** 15

## Text

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860 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 860
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

First Appeal No.- 818 Of 2004

State Of U.P. ...Appellant
Versus
Khempal & Ors. ...Respondents

Counsel for Appellant/Petitioner:
S.C. (Standing Counsel), Sri S.S. Srinet

Counsel for Respondents:
None appeared / not contested

Land Acquisition - First Appeal by State Against Marginal Enhancement of Compensation -
Smallness of Amount Involved -- Appeal filed in 1990 by the State against an order dated 31.5.1990 of
the Reference Court marginally enhancing land acquisition compensation, the total disputed amount being
merely Rs. 1,334.88 - Held: Where the amount involved in an appeal by the State is trivial and the cost of
protracted litigation (spanning over two decades) manifestly exceeds the amount in dispute, continuation of
such appeal amounts to compulsive and wasteful litigation contrary to the State's own declared litigation
policy. [Paras 2, 3, 16 and 23]

State as a Litigant - National and State Litigation Policy - Duty to Act as a Model/Responsible
Litigant -- Court noted that acquisition of agricultural land, particularly of small farmers, affects their
fundamental right to livelihood, and that filing of routine appeals over marginal enhancements imposes
disproportionate cost on the public exchequer and on poor litigants - Reliance placed on Mahanadi Coal Fields
Ltd. vs. Mathias Oram (2010) 11 SCC 269; Bhusawal Municipal Council vs. Nivrutti Ramchandra Phalak,
2014(2) AWC 1407 (SC); Dilbagh Rai Jerry vs. Union of India (1974) 3 SCC 554; Mundrika Prasad Singh vs.
State of Bihar (1979) 4 SCC 701; Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512;
Gurgaon Gramin Bank vs. Khajani (2012) 8 SCC 781; and Punjab State Power Corporation Ltd. vs. Atma Singh
Grewal (2014) 13 SCC 666 - Held: The State/its instrumentalities are obliged to function as efficient and
responsible litigants in terms of the National Litigation Policy, 2010 and the U.P. State Litigation Policy, 2011,
and ought not to pursue appeals of trivial or marginal valuation merely because a technical right of appeal
exists. [Paras 4 to 15 and 18]

Recovery of Costs from Erring Officers - Accountability -- Held: Mere imposition of costs on the State
exchequer has proved an insufficient deterrent to frivolous appeals since the officers sanctioning such appeals
are not personally affected - Following Punjab State Power Corporation Ltd. (supra), the Court reiterated that
recovery of costs from officers responsible for palpably irrational and uncalled-for decisions to file appeals may
be warranted in appropriate cases, while directing implementation of the State Litigation Policy, 2011 in letter
and spirit. [Paras 15 and 18]
8 All. State Of U.P. Vs Khempal & Ors.
861
Directions to State Government - Mandamus in Appellate Jurisdiction -- Held: Though ordinarily no
mandamus can be issued while deciding an appeal, in larger public interest and looking to the prevailing
situation, the High Court has jurisdiction to issue appropriate directions even in an appeal (relying on Smt.
Abida Begam vs. R.C. & E. Officer, AIR 1959 All 675; Dr. Ravindra Kumar Goel vs. State of U.P., 2004(5) AWC
4707; U.P. Nursing Home Association vs. Rajesh Kumar Srivastava, 2004(2) UPLBEC 1404) - State
Government directed to implement its Litigation Policy, discourage unnecessary appeals over marginal
amounts, and fix accountability of officers sanctioning frivolous litigation. [Paras 19 to 22]

First Appeal dismissed

Case Law Discussed
1. Mahanadi Coal Fields Ltd. & Anr. vs. Mathias Oram & Ors. (2010) 11 SCC 269
2. Bhusawal Municipal Council vs. Nivrutti Ramchandra Phalak and Others 2014 (2) AWC 1407 (SC)
3. Dilbagh Rai Jerry vs. Union of India and Others (1974) 3 SCC 554
4. Mundrika Prasad Singh vs. State of Bihar (1979) 4 SCC 701
5. Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512
6. Gurgaon Gramin Bank vs. Khajani (2012) 8 SCC 781
7. Punjab State Power Corporation Ltd. vs. Atma Singh Grewal (2014) 13 SCC 666
8. Smt. Abida Begam vs. R.C. & E. Officer AIR 1959 All 675
9. Dr. Ravindra Kumar Goel vs. State of U.P. 2004 (5) AWC 4707
10. U.P. Nursing Home Association and Others vs. Rajesh Kumar Srivastava and Others 2004 (2) UPLBEC 1404
11. State of U.P. through Collector vs. Fateh Singh (First Appeal Defective No. 761 of 1991, order dated
22.11.2012)

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)

1. Heard Sri S.S. Srinet, learned standing counsel for the appellant.

2. This appeal was filed on 22.10.1990 challenging the judgment dated 31.05.1990 passed
by the Court of 7th Additional District and Sessions Judge, Bulandshahr in L.A. Reference No.155
of 1987 marginally enhancing the compensation.

3. About twenty six years have passed since the date of filing this first appeal involving
valuation of merely Rs.1334.88. This court is frequently coming across several first appeals where
the disputed amount is less than Rs.1000/- or even less than Rs.500/-.

4. Acquisition of land of farmers by Government, particularly small farmers, in the process
of development not only deprives them of their fundamental right to cultivate their agricultural land
as part of their right to livelihood (which is the foundation for their sense of economic security,
peace, prosperity and social status) but also creates a difficult situation for them by dragging them
in luxury litigation without realising that poor farmers can not afford the exorbitant cost of
litigation. Such litigations are also burden on public exchequer since cost of litigation for several
years is much more than the valuation of appeal.

5. In the case of Mahanadi Coal Fields Ltd. & Anr Vs. Mathias Oram & Ors. 2010 (11)
SCC 269 (paras 10 and 11) after quoting the remarks of Dr. B.R. Ambedkar, the chief architect of
862 INDIAN LAW REPORTS ALLAHABAD SERIES

the Constitution of India, Hon'ble Supreme Court while considering a land acquisition matter,
observed that it is very often the process of development that most starkly confirms the fears
expressed by Dr. Ambedkar about our democracy. A blinkered vision of development, complete
apathy towards those who are highly adversely affected by the development process and a cynical
unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised
and guaranteed under the constitution hardly ever reach the most marginalized citizens. Even when
laws relating to land acquisition and resettlement are implemented perfectly and comprehensively
which happens rarely, uncomfortable questions remain. For people whose lives and livelihoods are
intrinsically connected to the land, the economic and cultural shift to a market economy can be
traumatic.

6. In the case of Bhusawal Municipal Council Vs Nivrutti Ramchandra Phalak and
others, 2014(2) AWC 1407 (SC) (paras 16,17,18), Hon'ble Supreme Court considered the plight of
farmers affected by land acquisition and creation of compulsive situation to indulge in luxury
litigation and held as under :

16. The judicial process of the court cannot subvert justice for the reason that the
court exercises its jurisdiction only in furtherance of justice. The State/authority often drags poor
uprooted claimants even for payment of a paltry amount upto this Court, wasting the public
money in such luxury litigation without realising that poor citizens cannot afford the exorbitant
costs of litigation and, unfortunately, no superior officer of the State is accountable for such
unreasonable conduct. It would be apt to quote the well known words of Justice Brennan:

"Nothing rankles more in the human heart than a brooding sense of injustice.
Illness we can put up with. But injustice makes us want to pull things down. When only the rich
can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because
its expense puts it beyond their reach, the threat to the continued existence of free democracy is
not imaginary but very real, because democracy's very life depends upon making the machinery
of justice so effective that every citizen shall believe in and benefit by its impartiality and
fairness."

17. The fundamental right of a farmer to cultivate his land is a part of right to
livelihood "Agricultural land is the foundation for a sense of security and freedom from fear.
Assured possession is a lasting source for peace and prosperity." India being predominantly an
agricultural society, there is a "strong linkage between the land and the person's status in the social
system." "A blinkered vision of development, complete apathy towards those who are highly
adversely affected by the development process and a cynical unconcern for the enforcement or the
laws lead to a situation where the rights and benefits promised and guaranteed under the
Constitution hardly ever reach the most marginalised citizens. For people whose lives and
livelihoods are intrinsically connected to the land. the economic and cultural shift to a market
economy can be traumatic." (Vide: Mahanadi Coal Fields Ltd. & Anr. v. Mathias Oram & Ors.,
(2010) 11 SCC 269; and Narmada Bachao Andolan v. State of Madhya Pradesh & Anr., AIR 2011
SC 1989)
8 All. State Of U.P. Vs Khempal & Ors.
863
18. A farmer's life is a tale of continuous experimentation and struggle for
existence. Mere words or a visual can never convey what it means to live a life as an Indian
farmer. Unless one experiences their struggle, that headache he will never know how it feels. The
risks faced by the farming community are many; they relate to natural calamities such as drought
and floods; high fluctuation in the prices of input as well as output, over which he has no control
whatsoever; a credit system which never extends a helping hand to the neediest; domination by
middlemen who enjoy the fruits of a farmer's hard work; spurious inputs, and the recent
phenomenon of labour shortages, which can be conveniently added to his tale of woes. Of late,
there have been many cases of desperate farmers ending their lives in different parts of the country.
The Principles of Economics provides for the producer of a commodity to determine his prices
but an Indian farmer perhaps is the only exception to this principle of economics, for even
getting a decent price for their produce is difficult for them. Economic growth through the 1990's
had made India a more market- oriented economy, but had failed to benefit all Indians equally. The
problems that plagued the farmers several decades ago are still glaringly present today; there is
little credit available. What is available is very expensive. There is no advice on best practice in
conducting agriculture operations. Income through farming is not enough to meet even the
minimum needs of a farming family. Support systems like free health facilities from the government
are virtually non-existent. The drama of millions leaving their homes in search of jobs, which are
non existent of villages swiftly losing able-bodies of adults, leaving behind the old, hungry and
vulnerable. Families break up as their members head in diverse directions.

(Emphasis supplied by me)

7. Keeping in mind the afore-quoted observations of Hon'ble Supreme Court and the fact of
routine filing of First Appeals by the State Government and its instrumentalities to challenge the
judgment and decree passed by Reference Court, I proceed to discuss the facts and prevailing
situation as well as the question "whether the State Government being an efficient and responsible
litigant should file appeal against the judgment of Reference Court where the enhancement of
compensation is marginal or valuation of the appeal is small?"

8. On marginal enhancement of compensation by Reference Court by few hundred or few
thousand rupees, the State Government or its instrumentalities, in a routine manner; used to file first
appeals before the High Court, compelling poor farmers/claimants to indulge in litigation for
several decades. It appears that in doing so the State Government feels it wise enough to spend an
amount much more than the valuation of the appeal, as cost of litigation which includes cost of
huge time of officers and employee in obtaining permission to file appeal, travelling allowance and
daily allowance of gazetted officer in contacting Government counsel for preparation of appeal,
typing expenses, court fees, process fee, expenses in preparation of paper book, affidavits and
applications and cost of time spent by Government Officers, employees and counsels in doing
'PAIRVI' of such appeals for fifteen, twenty or thirty years. Such an approach of the State
Government in our sovereign Socialist Secular Democratic Republic, cannot be appreciated
particularly in view of the National Litigation Policy, 2009 and the U.P. State Litigation Policy,
2011 whereby the State Government claims itself to be an efficient and responsible litigant with the
declaration not to pursue cases like an ordinary litigant and not to resort to litigation for the sake of
864 INDIAN LAW REPORTS ALLAHABAD SERIES

litigation. Objectives as mentioned in the policy includes expeditious disposal of cases, efforts to
overcome the huge pendency of cases and mission to reduce average period of pendency of cases
from 15 years to 3 years.

9. This Court takes judicial notice of a Government Order No.1647/11-2-13-9(208)/2013
dated 02.01.2014 issued by the State Government under Section 58A of the U.P. VAT Act (inserted
by U.P. Act No.18 of 2013) taking decision not to file revision before the High Court where
disputed tax or penalty is Rs.1,00,000/- or below. But in the matter of small farmers who have been
deprived of their source of livelihood by way of compulsory acquisition of their small holdings, the
State Government finds it appropriate to compel them to indulge in long litigation for twenty years
or thirty years or more and to spend as cost of litigation an amount much more than the amount
received by them as compensation. This prevailing situation becomes more alarming when the State
Government has framed its 'State Litigation Policy -2011" but is acting in disregard of that policy.

10. Perusal of the aforesaid "State Litigation Policy" shows that it has been formulated with
the purpose that the State Government should not involve in frivolous litigation, especially
where the stakes are not high. The policy aimed to transform the government into an efficient
and responsible litigant. The underlying purpose of the policy is to reduce the government
litigation in Courts so that valuable court time is spent in resolving other pending issues to enable
the average pendency of a case in a court reduced from 15 years to 3 years. The policy, therefore,
provided that the government would identify bottlenecks and that appeals would not be filed where
stakes are not high. The policy also formulated that all pending cases involving the government
would be reviewed to filter frivolous and vexatious matters from the meritorious one. Cases so
identified would be withdrawn, which would also include cases covered by previous decisions of
Courts. Such withdrawal of the cases would be done in a time bound fashion. However, it appears
that the State Government is not adhering to its own Policy.

11. In the case of Dilbagh Rai Jerry Vs. Union of India and others, (1974) 3 SCC 554,
Hon'ble Krishna Iyer J. (concurring) considered that what should be the approach of Government in
litigation and observed as under:

"The judgment just delivered has my full concurrence but I feel impelled to make a
few observations not on the merits but on governmental disposition to litigation, the present case
being symptomatic of a serious deficiency. In this country the State is the largest litigant to-day
and the huge expenditure involved makes a big draft on the public exchequer. In the context of
expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and
sensibility in its litigation policy, the absence of which, in the present case, has led the Railway
callously and cantankerously to resist an action by its own employee, a small man, by urging a
mere technical plea which has been pursued right up to the summit court here and has been
negatived in the judgment just pronounced. Instances of this type are legion as is evidenced by the
fact that the Law Commission of India in a recent report on amendments to the Civil Procedure
Code has suggested the deletion of Section 80, finding that wholesome provision hardly ever
utilised by Government, and has gone further to provide a special procedure for government
8 All. State Of U.P. Vs Khempal & Ors.
865
litigation to highlight the need for an activist policy of just settlement of claims where the State is a
party. It is not right for a welfare' State like ours to be Janus-faced, and while formulating the
humanist project of legal aid to the poor, contest the claims of poor employees under it pleading
limitation and the like. That the tendency is chronic flows from certain observations I had made in
a Kerala High Court decision which I may usefully excerpt here "The State, under our Constitution,
undertakes economic activities in a vast and widening public sector and inevitably gets involved in
disputes with private individuals. But it must be remembered that the State is no ordinary party
trying to win a case against one of its own citizens by hook or by crook; for the State's interest is
to meet honest claims, vindicate a substantial defence and never to score a technical point or
overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because
legal devices provide such an opportunity. The State is a virtuous litigant and looks with
unconcern on immoral forensic successes so that if on the merits the case is weak, government
shows a willingness to settle the dispute regardless of prestige and other lesser motivations which
move, private parties to fight in court. The lay-out on litigation costs and executive time by the
State and its agencies is so staggering these days because of the large amount of litigation in
which it is involved that a positive and wholesome policy of cutting back on the volume of law
suits by the twin methods of not being tempted into forensic show-downs where a reasonable
adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving
the legal mentors of government some initiative and authority in this behalf. I am not indulging
in any judicial homily but only echoing the dynamic national policy on State litigation evolved at
a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an
instance of disregard of that policy."

(Emphasis supplied by me)

12. In the case of Mundrika Prasad Singh Vs. State of Bihar, (1979) 4 SCC 701 (para5, 6, 7), Hon'ble Supreme Court held as under:

"5. The State of Bihar, like many other States in the country, has an enormous
volume of litigation. Government litigation policy is vital for any State if resources are to be
husbanded to reduce rather than increase its involvement in court proceedings. It is lamentable
that despite a national litigation policy for the States having been evolved at an all-India Law
Ministers' Conference way back in 1957 and despite the recommendations of the Central Law
Commission to promote settlement of disputes where Government is a party what we find in
actual practice is a proliferation of government cases in courts uninformed by any such policy.
Indeed, in this country where government litigation constitutes a sizeable bulk of the total
volume, it is important that the State should be a model litigant with accent on settlement. The
Central Law Commission, recalling a Kerala decision, emphasised this aspect in 1973 and went
to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission
observed:

27.9. We are of the view that there should be some provision emphasising the need
for positive efforts at settlement, in suits to which the Government is a party.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

27.10. With the above end in view, we recommend the insertion of the following
rule :-

5-B(1) In every suit or proceeding to which the Government is a party or a public
officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance,
in every case where it is possible to do so consistently with the nature of the circumstances of the
case, to make every endeavour to assist the parties in arriving at a settlement in respect of the
subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the court that
there is a reasonable possibility of a settlement between the parties, the court may adjourn the
proceeding for such period as it thinks fit, to enable attempts to be made to effect such a
settlement.

(3) The power conferred by Sub-rule (2) is in addition to any other power of the
court to adjourn the proceedings.

6. The relevance of these wider observations is that avoidable litigation holds out
money by way of fees and more fees if they are contested cases and this lures a lawyer, like any
other homo economicus, to calculate income on a speculative basis, as this Government Pleader
has done in hoping for a lakh of rupees.

7. We have been taken through the Bihar Government's rubs for fees of
Government Pleaders in subordinate courts. Rule 115 appetises and is unrelated to the quantum or
quality of work involved nor the time spent. Ad valorem calculation in fixing fees for land
acquisition cases has a tendency to promote unearned income for lawyers. The petitioner here has
presumably fallen victim to this proclivity. The time has come for State Governments to have a
second economic look not only at litigation policy but lawyer's fees rules (like Rule 115 in the Bihar
instance) especially in mass litigation involving ad valorem enormity and mechanical
professionalism. Even a ceiling on income from public sector sources may be a healthy
contribution to toning up the moral level of the professional system. After all, the cost of justice is
the ultimate measure of the rule of law for a groaning people. Government and other public
sector undertakings should not pamper and thereby inflate the system of costs. May be, this petition
would not have been filed had the prospect of income without effort not been offered by
Government Rules."

(Emphasis supplied by me)

13. In the case of Urban Improvement Trust, Bikaner Vs. Mohan Lal, (2010) 1 SCC
512 (paras-10,11, 12), Hon'ble Supreme Court took notice of unwarranted litigation by
Governments and State authorities and held as under:
8 All. State Of U.P. Vs Khempal & Ors.
867
"10. Unwarranted litigation by governments and statutory authorities basically
stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as
illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to
decide the issue and let the aggrieved party approach the Court and secures a decision.

The reluctance to take decisions, or tendency to challenge all orders against
them, is not the policy of the governments or statutory authorities, but is attributable to some
officers who are responsible for taking decisions and/or officers in charge of litigation. Their
reluctance arises from an instinctive tendency to protect themselves against any future accusations
of wrong decision making, or worse, of improper motives for any decision making. Unless their
insecurity and fear is addressed, officers will continue to pass on the responsibility of decisionmaking to courts and Tribunals.

11. The Central Government is now attempting to deal with this issue by
formulating realistic and practical norms for defending cases filed against the government and for
filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation.
But, it is not sufficient if the Central Government alone undertakes such an exercise. The State
Governments and the statutory authorities, who have more litigations than the Central
Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious
and unnecessary litigations have been clogging the wheels of justice, for too long making it
difficult for courts and Tribunals to provide easy and speedy access to justice to bona fide and
needy litigants.

12. In this case, what is granted by the State Commission is the minimum relief in
the facts and circumstances, that is to direct allotment of an alternative plot with a nominal
compensation of Rs. 5000/- But instead of remedying the wrong, by complying with the decision of
the Consumer fora, the Improvement Trust is trying to brazen out its illegal act by contending that
the allottee should have been protested when it illegally laid the road in his plot. It has persisted
with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the
National Commission and then this Court. The Trust should sensitise its officers to serve the public
rather than justify their dictatorial acts. It should avoid such an unnecessary litigation."

14. In the case of Gurgaon Gramin Bank Vs. Khajani, (2012) 8 SCC 781 (para-2),
Hon'ble Supreme Court considered the approach of Government to litigate in small and trivial
matters and held as under:

"2. Number of litigations in our country is on the rise, for small and trivial matters,
people and sometimes Central and State Governments and their instrumentalities Banks,
nationalized or private, come to courts may be due to ego clash or to save the Officers' skin.
868 INDIAN LAW REPORTS ALLAHABAD SERIES

Judicial system is over-burdened, naturally causes delay in adjudication of disputes. Mediation
centers opened in various parts of our country have, to some extent, eased the burden of the courts
but we are still in the tunnel and the light is far away. On more than one occasion, this Court has
reminded the Central Government, State Governments and other instrumentalities as well as to the
various banking institutions to take earnest efforts to resolve the disputes at their end. At times,
some give and take attitude should be adopted or both will sink. Unless, serious questions of law
of general importance arise for consideration or a question which affects a large number of
persons or the stakes are very high, courts' jurisdiction cannot be invoked for resolution of small
and trivial matters. We are really disturbed by the manner in which those types of matters are
being brought to courts even at the level of Supreme Court of India and this case falls in that
category."

(Emphasis supplied by me)

15. In the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal, (2014)
13 SCC 666 (paras 8 to 14), Hon'ble Supreme Court noted the fact that courts are burdened with
unnecessary litigation primarily for the reason that the Government or P.S.Us., etc. decide to file
appeals even when there is absolutely no merit therein. Hon'ble Supreme Court further observed as
under:

"8. It is not the first time that the Court had to express its anguish. We would like
to observe that the mind set of the Government agencies/undertakings in filing unnecessarily
appeals was taken note of by the Law Commission of India way back in 1973, in its 54th report.
Taking cognizance of the aforesaid report of the Law Commission as well as National Litigation
Policy for the States which was evolved at an All India Law Ministers Conference in the year
1972, this Court had to emphasize that there should not be unnecessary litigation or appeals. It
was so done in the case of Mundrika Prasad Singh v. State of Bihar, 1979 (4) SCC 701. We
would also like to reproduce the following words of wisdom expressed by Justice V.R. Krishna Iyer,
who spoke for the Bench, in Dilbagh Rai Jarry v. Union of India and Ors. 1974 (3) SCC 554.:(SCC
p.562, para 25).

But it must be remembered that the State is no ordinary party trying to win a case
against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims,
vindicate a substantial defence and never to score a technical point or overreach a weaker party to
avoid a just liability or secure an unfair advantage, simply because legal devices provide such an
opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic
successes so that if on the merits the case is weak, government shows a willingness to settle the
dispute regardless of prestige and other lesser motivations which move private parties to fight in
court. The lay out on litigation costs and executive time by the State and its agencies is so
staggering these days because of the large amount of litigation in which it is involved that a
positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not
being tempted into forensic show downs where a reasonable adjustment is feasible and ever
8 All. State Of U.P. Vs Khempal & Ors.
869
offering to extinguish a pending proceeding on just terms, giving the legal mentors of government
some initiative and authority in this behalf.

9. In its 126th Report (1988), the Law Commission of India adversely commented
upon the reckless manner in which appeals are filed routinely. We quote hereunder the relevant
passage therefrom:

"2.5. The litigation is thus sometimes engendered by failing to perform duty as if
discharging a trust. Power inheres a kind of trust. The State enjoys the power to deal with public
property. That power has to be discharged like a trust keeping in view the interests of the cesti
que trust. Failure on this front has been more often commented upon by the court which, if it
was taken in the spirit in which it was made, would have long back energised the Government
and the public sector to draw up its litigation policy. When entirely frivolous litigation reaches
the doorsteps of the Supreme Court, one feels exasperated by the inaction and the policy of do
nothingness evidenced by blindly following litigation from court to court. Dismissing a Special
Leave Petition by the State of Punjab, the Court observed that the deserved defeat of the State in
the courts below demonstrates the gross indifference of the administration towards litigative
diligence. The court then suggested effective remedial measures. It may be extracted: (SCC p.69,
para 4)

'4. We [would] like to emphasize that Government must be made accountable by
parliamentary Social audit for wasteful litigative expenditure inflicted on the community by
inaction. A statutory notice of the proposed action under Section 80 CPC is intended to alert the
state to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the
claim is being resisted. Now Section 80 has become a ritual because the administration is often
unresponsive and hardly lives up to parliament's expectation in continuing Section 80 in the Code
despite the Central Law Commission's recommendations for its deletion. An opportunity for setting
the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State
involves settlement of governmental disputes with citizens in a sense of conciliation rather than
in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law
officer to take steps to compose disputes rather than continue them in court. We are constrained
to make these observations because much of the litigation in which governments are involved
adds to the case load accumulation in courts for which there is public criticism. We hope that a
more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste
of public money and promote expeditious work in courts of cases which deserve to be attended to.

Nearly a decade has passed since the observations but not a leaf has turned, not
a step has been taken, and the Law Commission is asked to deal with the problem!

2.6. A little care, a touch of humanism, a dossier of constitutional philosophy
and awareness of futility of public litigation would considerably improve the situation which
today is distressing. More often it is found that utterly unsustainable contentions are taken on
behalf of Government and public sector undertakings.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Even when Courts have, time and again, lamented about the frivolous
appeals filed by the Government authorities, it has no effect on the bureaucratic psyche. It is not
that there is no realisation at the level of policy makers to curtail unwanted Government
litigation and there are deliberations in this behalf from time to time. Few years ago only, the
Central Government formulated National Litigation Policy, 2010 with the "vision/mission" to
transform the Government into an efficient and responsible litigant. This policy formulated by
the Central Government is based on the recognition that it was its primary responsibility to
protect the rights of citizens, and to respect their fundamental rights and in the process it should
become "responsible litigant". The policy even defines the expression 'responsible litigant' as
under:

"Responsible litigant" means-

(i) That litigation will not be resorted to for the sake of litigating.

(ii) That false pleas and technical points will not be taken and shall be
discouraged.

(iii) Ensuring that the correct facts and all relevant documents will be placed
before the Court.

(iv)That nothing will be suppressed from the Court and there will not attempt to
mislead any court or tribunal.

2. That Government must cease to be a compulsive litigant. The philosophy that
matters should be left to the courts for ultimate decision has to be discarded. The easy approach,
"Let the Court decide", must be eschewed and condemned.

3. The purpose underlying this policy is also to reduce government litigation in
courts so that valuable court time would be spent in resolving other pending cases so as to achieve
the goal in the national legal mission to reduce average pendency time from 15 years to 3 years.
Litigators on behalf of the Government have to keep in mind the principles incorporated in the
national mission for judicial reforms which includes identifying bottlenecks which the Government
and its agencies may be concerned with and also removing unnecessary government cases.

Prioritisation in litigation has to be achieved with particular emphasis on welfare
legislation, social reform, weaker sections and senior citizens and other categories requiring
assistance must be given utmost priority."

11. This policy recognises the fact that its success will depend upon its strict
implementation. Pertinently there is even a provision of accountability on the part of the officers
who have to take requisite steps in this behalf. The policy also contains the provision for filing of
appeals indicating as to under what circumstances appeal should be filed. In so far as service
8 All. State Of U.P. Vs Khempal & Ors.
871
matters are concerned, this provision lays down that further proceedings will not be filed in service
matters merely because the order of the Administrative Tribunal affects a number of employees.
Also, appeals will not be filed to espouse the cause of one section of employees against another.

12. The aforesaid litigation policy was seen as a silver living to club unnecessary
and uncalled for litigation by this Court in the matter of Urban Improvement Trust, Bikaner v.
Mohan Lal 2010 (1) SCC 512 in the following manner:(SCC p. 516, para 11)

"11. The Central Government is now attempting to deal with this issue by
formulating realistic and practical norms for defending cases filed against the Government and
for filing appeals and revisions against adverse decisions, thereby eliminating unnecessary
litigation. But it is not sufficient if the Central Government alone undertakes such an exercise.
The State Governments and the statutory authorities, who have more litigations than the Central
Government, should also make genuine efforts to eliminate unnecessary litigations. Vexatious
and unnecessary litigations have been clogging the wheels of justice for too long, making it
difficult for courts and tribunals to provide easy and speedy access to justice to bona fide and
needy litigants."

13. Alas, inspite of the Government's own policy and reprimand from this Court, on
numerous occasions, there is no significant positive effect on various Government officials who
continue to take decision to file frivolous and vexatious appeals. It imposes unnecessary burden on
the Courts. The opposite party which has succeeded in the Court below is also made to incur
avoidable expenditure. Further, it causes delay in allowing the successful litigant to reap the fruits
of the judgment rendered by the Court below.

14. No doubt, when a case is decided in favour of a party, the Court can award
cost as well in his favour. It is stressed by this Court that such cost should be in real and
compensatory terms and not merely symbolic. There can be exemplary costs as well when the
appeal is completely devoid of any merit. [See Rameshwari Devi v. Nirmala Devi (2011) 8 SCC
249]. However, the moot question is as to whether imposition of costs alone will prove deterrent?
We do not think so. We are of the firm opinion that imposition of cost on the State/PSU's alone is
not going to make much difference as the officers taking such irresponsible decisions to file
appeals are not personally affected because of the reason that cost, if imposed, comes from the
government's coffers. Time has, therefore, come to take next step viz. recovery of cost from such
officers who take such frivolous decisions of filing appeals, even after knowing well that these
are totally vexatious and uncalled for appeals. We clarify that such an order of recovery of cost
from the officer concerned be passed only in those cases where appeal is found to be ex-facie
frivolous and the decision to file the appeal is also found to be palpably irrational and uncalled
for."

(Emphasis supplied by me)
872 INDIAN LAW REPORTS ALLAHABAD SERIES

16. It is relevant to mention that earlier also this Court considered the issue of dismissal of
appeal on the ground of smallness of the amount involved in the appeal and dismissed the appeal by
order dated 22.11.2012 passed in First Appeal Defective No.761 of 1991 (State of U.P. through
Collector Vs. Fateh Singh) observing as under:

"No useful purpose is going to be served by again directing the appellant to take
steps to serve the respondents in view of the fact that only a small amount of Rs.9,288/- is involved
in the appeal. Looking to the smallness of the amount involved in the appeal and the time already
spent it would be travesty of justice by calling the respondents to come and contest the appeal
itself on merits. The learned standing counsel could not state as to what happened in other similar
matters."