SYNOPSIS
The workers in the unorganized sector constitute
93% of the total workforce in the Country. The said workers suffer with the
frequent incidents of accidents/illness. Despite the expansion in the health
facilities, accident/illness remains one of the most prevalent cause of human
deprivation in India
The workers in the unorganized sector include building
& other construction workers as well. To regulate the employment and
condition of service of these Workers and to provide for their safety, health
and welfare measures a Central Act i.e. the Building and Other Construction
Workers (Regulation of Employment and Conditions of Service) Act, 1996 was
enacted. The said Act provides for registration of the workers as beneficiaries
under section 12 and Constitution of State welfare Boards u/s 18. The Welfare
Board’s main functions are to provide assistance to the beneficiary in case of
accident and also to make provision and improvement of such other welfare
measures and facilities as may be prescribed and the welfare board for the
state of Punjab has been implementing various welfare schemes for the welfare
of the construction workers and the schemes rolled by the Welfare Boards
include RSBY means thereby the premium of RSBY is to be contributed by the
Welfare Board which is having enough money with it and has been deposited with
the Nationalized Banks. Here we submit the relevant details of another Act i.e.
the Building and other construction workers Welfare Cess Act, 1996 which provides
for the collection of cess on the cost of construction incurred by employers
not less than 1% of the construction cost (Section-3) and to deposit the same
with the Welfare Board. In the case of welfare board Punjab as on 31.07.2013
there are 139009 workers registered under the Act and as on 29.07.2013 the cess
collected is Rs. 418.15 crore and the workers registered for the benefit of
RSBY are only 1659(P-5).
In the said background only the State needs a will
to implement the scheme qua Building & Other Construction Workers since the
scheme and the funds both are there. Further the categories which have been
included vide annexure P-2 are also most vulnerable groups of the society and
it is the duty of the welfare state to take care their health needs. There are
categories like rag pickers whose health needs are much greater in comparison
to the other citizens and also the domestic
workers since the domestic work form one of the largest sectors of female
employment in urban areas and these workers are unorganized and the sector
remains unregulated and unprotected by labour laws. These workers comes from
vulnerable communities and backward areas and most of them are illiterate and
unskilled and do not understand the urban labour market.
That the
National Legal Service Authority while discussing the problems being faced by
the workers of the unorganized sector comes out with a scheme i.e. Scheme 2010,
adopted in the meeting of Central Authority held on 08.12.10 and according to
this scheme the respondent no. 3 can come to the help of the workers in the
unorganized sector by identifying the workers, conducting legal awareness
program for the identified groups, persuading and assisting the workers to
avail the benefits under the different social welfare legislations and reaching
out to the unorganized labors and facilitating their bargaining capacity with
the employer(P-9)
The petitioner
organization had already moved a representation (P-7) to the respondent no. 2
but there is no response and therefore, prays for kind intervention of this Hon’ble Court
IN THE HIGH COURT PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition (PIL) No………. Of 2014
MEMO OF PARTIES
Center
for Social Change and Equity, Vijay
Lodge Rajbaha Road Patiala
Petitioner
Vs.
1.
Union
of India, Ministry of Labour and Employment Shram Shakti Bhavan, Rafi Marg, New Delhi through its
Secretary.
2.
State
of Punjab through it’s Chief Secretary, Main
Secretariat Punjab, Chandigarh
3.
Punjab State
4.
Punjab
Health Systems Corporation, State Institute of Health and Family Welfare
Complex Mohali, through its Managing Director.
5.
Punjab Building and Other
Constructions Workers Welfare Board, 17 bays building, Sector-17 D, Chandigarh
..…Respondents
Place:-
Dated:-
Through counsel
(Veena kumari) & (Jatinder Kumar
Kamboj)
P-343/96
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF
MANDAMUS DIRECTING THE RESPONDENTS TO IMPLEMENT THE RASHTRIYA SWASTHYA
BIMA YOJNA (RSBY) SCHEME (ANNEXURE P-1) IN
ITS TRUE SPIRIT FOR ALL THE WORKERS IN THE UNORGANIZED SECTOR.
FURTHER FOR DIRECTIONS TO THE RESPONDENTS TO IDENTIFY
THE WORKERS FROM VARIOUS CATEGORIES AS EXTENDED VIDE P-2 AND TO PROVIDE BENEFIT
OF THE SCHEME TO THE WORKERS of THE SAID
CATEGORIES.
TO DIRECT THE
RESPONDENTS TO MAKE ALL NECESSARY EFFORTS TO MAKE AWARE ALL THE STAKE HOLDERS REGARDING THE
ABOVE SAID SCHEME.
PASS SUCH OTHER
OR DIRECTION WHICH THIS HON’BLE
COURT
MOST
RESPECTFULLY SHOWETH:
1. That the present Writ Petition is
being filed in public interest under Article
226 of the Constitution of India seeking the implementation of Rashtriya
Swasthya Bima Yojna
scheme(herein after referred to as the Scheme) pertaining to health
insurance available to the workers in the unorganized sector in
the State of Punjab.
2. That the Petitioner i.e. the Centre
for Social Change & Equity is a registered Society under the Society
registration Act, 1860 with its head office at
3.
That the workers in the unorganized sector constitute about 93%
of the total workforce in the country. The Central Government i.e. the
respondent no.1 has had framed various schemes from time to time to improve
the situation of the workers of the unorganized sector. But despite of those
schemes the majority of the workers are still without any social security
coverage.
4.
That the workers in the unorganized sector suffer with the
frequent incidences of accidents/illness. Despite the expansion in the health
facilities, accidents/illness remains one of the most prevalent causes of
human deprivation in
5.
That the respondent no. 1 formulated a
health insurance scheme i.e. RSBY on 01.10.2007 providing for smart card
based cashless health insurance cover of Rs. 30,000/- per family (unit of
five) per annum on a family floater basis to BPL families in the unorganized
sector. Under this Scheme a biometric smart card is provided to each
beneficiary family enabling them to get cashless health insurance benefits
across the country in empanelled hospitals. A true copy of the scheme
downloaded from the official website (labour.nic.in) of the respondent no. 1
accessed on 24.02.2014 is attached herewith as ANNEXURE P-1.
6.
That initially RSBY, a centrally
sponsored scheme was only for the BPL
population of
7. That the respondent no. 1 while
considering the vulnerable status of various groups in the unorganized
sectors, subsequently extended the benefit of the scheme to few other
categories i.e. street vendors, beedi workers, domestic workers, building and
other construction workers and MGNREGA workers vide guidelines dated
04.03.2013 and in the second phase the said benefit was extended to rickshaw
pullers, rag pickers, mine workers, sanitation workers, auto rickshaw drivers
and taxi drivers. The said extension to another five categories was
communicated by the respondent no. 1
to the Chief Secretaries of all States which includes the respondent no. 2
alongwith the guidelines vide its communication dated 12.7.2013. The copies
of the guidelines for extension of to Building and Construction Workers, to
MGNREGA workers and to street vendors is annexed herewith as annexure P-2 colly (Downloaded from
the official site of RSBY i.e. www.rsby.gov.in
accessed on 28.02.2014) and a copy of the letter 12.7.2013 alongwith the
guidelines for extension of RSBY to other 5 categories is attached herewith
as ANNEXURE P-3. It is pertinent
to mention here that the guidelines alongwith annexure P-3 contain the number
of workers in each category according to the census 2001 and other details as
well.
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8. That though there are more than 20 Lac workers in the
unorganized sector in the state of
9. That section 12 of the BOCW Act provides registration of
building workers as beneficiaries. The provisions of section 12 are reproduced
as below:
"12. Registration of
building workers as beneficiaries:- (1) Every building worker who has completed eighteen years of age, but
has not completed sixty years of age, and who has been engaged in any
building or other construction work for not less than ninety days during the
preceding twelve months shall be eligible for registration as a beneficiary
under this Act.
(2) An application for registration shall be made in such
form, as may be prescribed, to the officer authorized by the Board in this
behalf.
(3) Every application under
sub-section (2) shall be accompanied by such documents together With such fee
not exceeding fifty rupees as may be prescribed.
(4) If the officer
authorised by the Board under sub-section (2) is satisfied that the applicant
has complied with the provisions of this Act and the rules made there under,
he shall register the name of the building worker as a beneficiary under this
Act:
Provided that an application for registration shall not be rejected without
giving the applicant an opportunity of being heard.
(5) Any person aggrieved by the decision under sub-section (4) may, within
thirty days from the date of such decision, prefer an appeal to the Secretary
of the Board or any other officer specified by the Board in this behalf and
the decision of the Secretary or such
other officer on such appeal shall be final:
Provided that the Secretary or
any other officer specified by the Board in this behalf may entertain the
appeal after the expiry of the said period of thirty days if he is satisfied
that the building worker was prevented by sufficient cause from filing the
appeal in time.
(6) The Secretary of the Board shall
cause to maintain such registers as may be prescribed.”
10.
That sub section (1) of section 18 of the BOCW Act provides a Welfare
Board. and section 22 provides function of the Board which are for the
welfare of the construction workers. Section 22 of the BOCW Act is reproduced
as below:
22.
Functions of the Boards.- (1) The Board may-
(a) provide immediate assistance to a
beneficiary in case of accident;
(b)
make payment of pension to the
beneficiaries who have completed the age of sixty years;
(c) sanction loans and advances to a
beneficiary for construction of a house not exceeding such amount and on such
terms and conditions as may be prescribed;
(d) pay such amount in connection with
premia for Group Insurance Scheme of the beneficiaries as it may deem
fit;
(e) give such financial assistance for
the education of children of the beneficiaries as may be prescribed;
(f) meet such medical expenses for
treatment of major ailments of a beneficiary or, such dependant, as may be
prescribed;
(g) make payment of maternity benefit to
the female beneficiaries; and
(h) make provision and improvement of
such other welfare measures and facilities as may be prescribed.
(2) The Board may grant loan or subsidy to a local authority or an employer
in aid of any scheme approved by the State Government for the purpose
connected with the welfare of building workers in any establishment
(3) The Board may pay
annually grants-in-aid to a local authority or to an employer who provides to
the satisfaction of the Board welfare measures and facilities of the standard
specified by the Board for the benefit of the building workers and the
members of' their family, so, however, that the amount payable as
grants-in-aid to any local authority or employer shall not exceed-
(a) the amount spent in providing welfare
measures and facilities as determined by the State Government or any person
specified by it in this behalf, or
(b) such amount as may be prescribed,
whichever is less:
Provided that no grant-in-aid shall be payable
in respect of any such welfare measures and facilities where the amount spent
thereon determined as aforesaid is less than the amount prescribed in this
behalf.”
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11.
That there is another
Act for the welfare of the Construction workers i.e. the Building and Other
Construction Workers Welfare Cess Act, 1996. Section 3 of this Act provides
collection of cess from every employer which is to be paid to the welfare
board and which is to be used for the welfare of the construction workers
only.
12.
That the
13.
That the cess collected
under section 3 of the Building and Other Construction Workers Welfare Cess
Act, 1996 as submitted in the preceding stanza is to be used only for the
purpose of the welfare of the construction labour and not for any other
purpose. Further as per the direction by the Hon’ble Apex Court in the civil
writ petition no. 318 of 2006 vide order dated 7.2.2012 it was held that “the
funds available with the welfare boards which have not been disbursed or are
not likely to be disbursed within the short period should be properly
invested with the nationalized banks only. Funds available with the welfare
boards shall not be utilized by the State for any other head of expenditure
of the State Government.”
14.
That the petitioner has
moved an application to the Welfare Board to get information about the cess
collected and his application has been replied by the Board vide memo dated
04.09.2013 which mentions that the amount of cess Rs. 418.15 crores has been
invested in the Banks till 29.07.2013 and there are 1,39,009 workers
registered as beneficiaries of the board in the State of Punjab as on
31.07.2013. A true translated copy of the memo dated 04.09.2013 is annexed
herewith as annexure P-5/T.
15.
That the scheme P-1
provides that the State Govt. while formulating the pilot project will
determine the implementing agency on behalf of the State Govt. In the case of
16.
That the respondent no. 2 in the
contempt petition (Civil) no. 52 of 2013 in writ petition (Civil) 318 of 2006
which pertains to interalia registration of the construction workers under
the BOCW Act and the implementation of the Act pending before the Hon’ble
Apex Court in its affidavit dated 27.4.2013 has mentioned that the
Board has been abled to get as many as 1,07,786 workers registered as
beneficiaries till 31.3.2013. In the annexure R-2 submitted before the Hon’ble
Apex Court alongwith the affidavit dated 27.04.2013 in the above said
contempt petition, it has been mentioned that the benefits under the RSBY during
the year 2012-2013 has been given to only 1659 beneficiaries. A true copy of
the annexure R-2 attached with the affidavit dated 27.04.2013 is attached
herewith as ANNEXURE P-7.
17.
That the petitioner had moved a
representation dated 11.11.2013 to the respondent no 2 praying for granting
the benefits of RSBY to all the categories of unorganized sector but till date
there is no response. A true copy of the representation dated 11.11.2013 is
attached herewith as ANNEXURE P-8.
18.
That the guideline issued by the
respondent no. 1 alongwith annexure P-2 while mentioning the number of the
persons in all the categories according to the census 2001 assigns the
responsibility to the State Govt. to identify the number of the persons of
such categories in their respective States on the basis of laid down criteria
and according to the definition. However, the govt.
neither has identified these workers nor registered them for RSBY so these
workers and their family members are not getting any benefit under the
scheme.
19.
That the National Legal Service
Authority while discussing the problems being faced by the workers of the
unorganized sector comes out with a scheme i.e. scheme 2010, adopted in the
meeting of Central Authority held on 8.12.10 and according to this scheme the
respondent no. 3 can come to the help
of the workers in the unorganized sector by identifying the workers, conducting
legal awareness program for the identified groups, persuading and assisting
the workers to avail the benefits under the different social welfare
legislations and reaching out to the unorganized labors and facilitating
their bargaining capacity with the employer. A copy of the scheme 2010
assessed on 25.2.2014 on the official website of NALSA i.e. nalsa.gov.in is
annexed with the petition as Annexure
P-9.
i.
Because according to P-5
there are 139009 workers registered as beneficiaries of the Board as on
31.07.2013, the amount of cess collected and invested in the banks and is Rs.
418.15 Crore and the premium to the construction workers is to be given out
of the cess collected and all the workers who have already been registered under
the BOCW Act are entitled to be provided with the benefit under RSBY.
ii.
Because the benefits
given under RSBY and the categories of the Beneficiaries entitled under RSBY
have been extended time to time and various workers work in the various unorganized
sectors have been included in the RSBY but these workers are still deprived
from taking the benefits under the scheme.
iii.
Because the major part
of the premium i.e. 75% is to be contributed by the Central Govt. and only
25% is to be contributed by the State Govt.
iv.
Because the categories which
have been included by the respondent no. 1 for benefit under RSBY belong to
the most vulnerable section of the society.
v.
Because the extended
categories include domestic workers also and the domestic work form one of
the largest sectors of female employment in urban areas and these workers are
unorganized and the sector remains unregulated and unprotected by labour
laws. These workers come from vulnerable communities and backward areas and
most of them are illiterate and unskilled and do not understand the urban
labour market.
vi.
Because the extended
category includes rag pickers, sanitation workers and their health needs are
much more in comparison to the other citizens.
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That
the following law points are involved for the kind consideration of this
Hon’ble High Court.
1.
Whether not to
provide benefit of RSBY to all the workers registered in the BOCW Act is not in
violation to the Article 21 and 14 of Constitution of India?
2.
Whether not to
provide benefit of RSBY to the workers registered in the BOCW Act is not in
violation to the scheme formulated by the welfare Board?
3.
Whether not to
provide benefit of RSBY to the extended categories is not violation to Article
21 and 14 of the Constitution of India?
20.
That there is no
alternative remedy available with the petitioner except to approach this
Hon’ble High Court by way filing the present writ petition.
21.
That the
petitioner has not filed any such or similar writ petition in the Hon’ble High
Court or Supreme Court of India.
22.
That the
petitioner has no direct or indirect interest in the petition under
consideration and it is solely concerned with the public cause.
PRAYER
In view of the facts
and circumstances referred above it is respectfully prayed that this Hon’ble Court
a) To issue a writ in the nature of mandamus
directing the respondents to implement the Rashtriya Swasthya Bima Yojna (RSBY)
Scheme in its true spirit and to provide the benefit to all the workers
registered under the BOCW Act.
b) To direct the respondents to
identify the workers from various categories as extended vide P-2 and P-3 and
to provide benefit of the scheme to the workers from the said categories.
c) To direct the
respondents to publish the scheme in regional and local language and to make
all necessary efforts to aware all the stake holders/eligible beneficiaries so
that they can benefit out of the said scheme.
d) Directions to the respondent no. 3
to organize camps and to take other appropriate measures to make aware the
workers about the scheme as per annexure P-9.
e) Advance notice of the writ petition
to the respondents may kindly be dispensed with.
f)
Filing
of certified/typed copies of the documents attached with the petition may
kindly be dispensed with.
g) Any other relief, order or direction which
this Hon’ble Court
Place:-
Dated:- Petitioner
Through counsel
(Veena
kumari) & (Jatinder Kumar Kamboj)
P-343/96 P- 1366/2003
VERIFICATION
Verified that contents of the Para No. 1 to and
are true and correct to the best of my knowledge and para No. and
are correct as per the advise of my counsel. And nothing in the writ
petition is false and no material has been concealed there in.
Place:-
Dated:- Petitioner
LIST OF DATE OF EVENTS
LIST OF DATE OF EVENTS
01.10. 2007 Rasthriya
Swasthya Bima Yojna (RSBY) rolled out by the respondent no. 1 for providing
health insurance cover of Rs.30,000/- per annum to the unorganized workers
belonging to BPL strata, providing a safety net against the financial hardship
caused by sickness and accident. The beneficiary family pays Rs.30/- at the
time of enrolment while entire insurance premium is paid by the respondent no.
1 & 2 which is to be paid in the ratio of 75:25 respectively. The
beneficiaries covered under RSBY can avail of treatment at any empanelled
hospital across India
8.12.2010 The
National Legal Service Authority while discussing the problems being faced by
the workers of the unorganized sector comes out with a scheme i.e. scheme 2010,
adopted in the meeting of Central Authority held on 8.12.10. and according to this scheme the respondent
no. 3 can come to the help of the
workers in the unorganized sector by identifying the workers, conducting legal
awareness program for the identified groups , persuading and assisting the
workers to avail the benefits under the different social welfare legislations
and reaching out to the unorganized labors and facilitating their bargaining
capacity with the employer.(P-9)
14.3.2012 The respondent no. 4 while discussing
with one of the Insurance company i.e. New India
Assurance Company Ltd. Ludhiana
27.4.2013 The respondent no. 2 in its
affidavit before the apex court in the contempt petition in COCP-52-2013 in
CWP-318-2006 states that there are 1,07,786 workers registered as beneficiaries
and the benefits under the RSBY during the year 2012-2013 has been given to
only 1659 beneficiaries.(P-7)
12.7.2013 The respondent no. 1 communicates to
the respondent no. 2 that the scheme providing health insurance to the BPL
families of the unorganized sector has been extended to other categories(P-3).
4.9.2013 the petitioner moved an application to the respondent no.
5 to get information about the cess collected and his application replied by
the respondent no. 5 that the amount of cess collected is Rs. 418.15 crores and
has been invested in the Banks till 29.07.2013 and there are 1390009 workers
registered as beneficiaries of the board in the State of Punjab as on
31.07.2013(P-5).
11.11.2013 The representation
moved by the petitioner with the prayer to provide the benefits of RSBY to the
construction workers and also to other categories as communicated by the
respondent no. 1 vide annexure P-2 but till date no reply.(P-8)
Hence this petition.
Place:-
Dated:-
Through counsel
(Veena kumari) & (Jatinder Kumar
Kamboj)
P-343/96
IN THE HIGH
COURT PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition (PIL) No………. Of 2014
Center for Social Change and Equity
Petitioner
Vs.
Respondents
I
N D E X
Sr.
No
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Particulars
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Date
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Page
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Court
Fee
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Synopsis
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Dates and
events
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Memo of
Parties
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Civil Writ Petition
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Affidavit
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Resolution
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7.
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Annexure P-1 (Scheme)
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01.10.2007
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8.
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Annexure P-2 ( Guidelines)
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04.03.2013
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9.
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Annexure P-3 (Guidelines)
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12.07.2013
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10.
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Annexure P-4 (letter)
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27.11.2013
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11.
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Annexure P-5 (letter)
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04.09.2013
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12.
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Annexure
P-6 (letter)
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14.03.2012
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13.
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Annexure P-7 (Details of expenditure)
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27.04.2013
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14.
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Annexure P-8 (representation)
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11.11.2013
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15.
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Annexure P-9 (Scheme)
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2010
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16.
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Power of Attorney
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Total
Court fees affixed:
i.
The main law points are contained in para on
page & of
the petition.
ii.
Relevant Statutes: The Constitution of India
iii.
Whether caveat petition has been filed in
this case:- No
iv.
Any other pending or identical case:-No.
v.
The petition is maintainable under clause 6
of PIL Rules 2010.
vi.
The petition has been filed in accordance
of directions issued by the Hon’ble
Court
vii.
The petitioner has approached to the
authorities vide annexure P-8.
Dated:
Through
counsel
(Veena
Kumari) & (Jatinder Kumar Kamboj)
