Amrik Singh Lyallpuri
Vs. Union of India & Others
J U D G M E N T
principal question raised in this appeal is the constitutional validity of Section
347D of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as, `the
said Act'). Similar provisions are also there in Section 256 of New Delhi Municipal
Council Act, 1994 (hereinafter referred to as, `the NDMC Act').
question was raised in a writ petition filed by the appellant who is a journalist
by profession and the editor of Urdu Weekly called `Lalkar'. In the petition it
has been urged that one Shri B.S. Mathur, Additional District and Sessions Judge
was appointed the Presiding Officer of the MCD/NDMC Appellate Tribunal in terms
of sub-sections (1) and (2) of Section 347 of the said Act. His appointment was
made for deciding appeals preferred under Section 343 or Section 347B of the said
Act. Shri B.S. Mathur was appointed in Appellate Tribunal to hear and dispose of
all appeals from the order passed by the Zonal Engineer (Buildings) of the respective
zones of Municipal Corporation of Delhi and that of New Delhi Municipal Council.
However, the grievance of the appellant is that orders of the Appellate Tribunal
are appealable before the Administrator of Delhi i.e. Lt. Governor under Section
347D of the said Act. The main grievance in the public interest litigation is when
an appeal is decided by an Appellate Authority which is manned by a Judge of the
Civil Court, appeal from the decision of such authority cannot be heard and by
an executive authority, however high such executive authority may be.
order to appreciate this controversy it is necessary to consider the relevant statutory
provisions. The provision for constitution of an Appellate Tribunal under
Section 347A of the said Act are as follows:- "347A. Appellate Tribunal .
a. The Central
Government shall, by notification in the Official Gazette, constitute one or more
Appellate Tribunals with headquarters at Delhi, for deciding appeals preferred under
section 343 or section 347B.
b. An Appellate Tribunal
shall consist of one person to be appointed by the Central Government on such terms
and conditions of service as may be prescribed by rules.
c. A person shall not be
qualified for appointment as the presiding officer of an Appellate Tribunal unless
he is, or has been, a district judge or an additional district judge or has, for
at least ten years, held a judicial office in India.
d. The Central
Government may, if it so thinks fit, appoint one or more persons having special
knowledge of, or experience in, the matters involved in such appeals, to act as
assessors to advise the Appellate Tribunal in the proceedings before it, but no
advice of the assessors shall be binding on the Appellate Tribunal.
e. The Central Government
shall, by notification in the Official Gazette, define the territorial limits within
which an Appellate Tribunal shall exercise its jurisdiction, and where different
Appellate Tribunals have jurisdiction over the same territorial limits, the
Central Government shall also provide for the distribution and allocation of work
to be performed by such Tribunals.
f. For the purpose of enabling
it to discharge its functions under this Act, every Appellate Tribunal shall have
a Registrar and such other staff on such terms and conditions of service as may
be prescribed by rules : Provided that the Registrar and staff may be employed jointly
for all or any number of such Tribunals in accordance with the rules."
the purpose of deciding the controversy of this case, the provisions of Sections
343 and 347B are not relevant, but Section 347C which provides for the procedure
before such Appellate Tribunal is relevant. Particularly, the provision of 347C
sub-section which is relevant for the purpose of deciding the controversy is
set out below:- "Section 347C - Procedure of the Appellate Tribunal - xxx xxx
xxx Every Appellate Tribunal, shall, in addition to the powers conferred on it under
this Act, have the same powers as are vested in a Civil Court while trying a
suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following
and enforcing the attendance of persons and examining them on oath;
the discovery and inspection of documents;
evidence on affidavits;
any public record or copies thereof from any court or office;
commisisons for the examination of witnesses or documents; and
other matter which may be prescribed by rules,
and every proceeding of
an Appellate Tribunal in hearing or deciding an appeal or in connection with execution
of its order, shall be deemed to be a judicial proceeding within the meaning of
sections 193 and 228 and for the purpose of section 196, of the Indian Penal Code
(45 of 1860), and every Appellate Tribunal shall be deemed to be a Civil Court for
the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973, (2 of 1974)."
a perusal of the provisions of Section 347A and 347C, sub-clause (7), it is clear
that the said tribunal shall be manned by a person who is or has been a District
Judge or an Additional District Judge or has, for at least ten years, held a judicial
office in India [Section 347A, sub-clause (3)]. Insofar as Section 347C is concerned,
it is very clear that such tribunal shall have in certain matters, the
trappings of a Civil Court trying a suit under the Civil Procedure Code. Clause
(f) of sub-section (7) of Section 347 further provides that proceedings before such
tribunal shall be judicial proceedings within the meaning of Section 193 and Section
228 for the purpose of Section 196 of the Indian Penal Code and every Appellate
Tribunal shall be deemed to be a Civil Court for the purpose of Section 195 and
Chapter XXVI of the Code of Criminal Procedure.
provisions of Section 253 of the NDMC Act are virtually on the same lines. Under
sub-section (3) of Section 347A and sub-section (3) of Section 253 of the NDMC Act,
a person shall not be qualified for appointment as a presiding officer of an
Appellate Tribunal unless he is, or has been, a District Judge or an Additional
District Judge or has, for at least ten years, held a judicial office. Similarly,
Section 355 of the NDMC Act virtually is pari materia with sub-section (7) of
Section 347C of the said Act. Therefore, on a reading of the aforesaid two provisions
it is clear that the Appellate Tribunals created under the aforesaid statutes are
quasi judicial bodies with the trappings of the Civil Court and that they are manned
by judicial officers of considerable experience. In discharging their functions,
such bodies are acting as a Civil Court in respect of some of its functions,
and the proceedings before such bodies are judicial proceedings.
an appeal is provided against the order of such Appellate Tribunals under both the
Section 347D of the said Act, such appeal shall lie to the Administrator. The relevant
provision is set out below:- "Section 347D - Appeal against orders of Appellate
Tribunal - (1) An appeal shall lie to the Administrator against an order of the
Appellate Tribunal, made in an appeal under section 343 or section 347B, confirming,
modifying or annulling an order made or notice issued under this Act. (2) The provisions
of sub-sections (2) and (3) of section 347B and section 347C and the rules made
thereunder, shall, so far as may be, apply to the filing and disposal of an appeal
under this section as they apply to the filing and disposal of an appeal under
those sections. (3) An order of the Administrator on an appeal under this section,
and subject only to such order, an order of the Appellate Tribunal under section
347B, and subject to such orders of the Administrator or an Appellate Tribunal,
an order or notice referred to in sub- section (1) of that section, shall be final."
under Section 256 of the NDMC Act, appeal also lies to the Administrator. Both the
sections, namely, Section 347D of the said Act and Section 256 of the NDMC Act are
couched in similar terms. Under both the Acts, the jurisdiction of the Civil Court
has been barred; vide Section 347E of the said Act and Section 257 of the NDMC
main question which was raised in the writ petition moved before the High Court
was whether an appeal from an order of the Appellate Tribunal constituted under
the aforesaid two Acts can be heard and decided by the Administrator. The term "Administrator"
has been defined under Section 2(1) of the said Act as follows:- "Section
2 - Definitions.- In this Act, unless the context otherwise requires,-- (1) "Administrator"
means the Lieutenant Governor of the National Capital Territory of Delhi;"
Section 2(1) of the NDMC Act, the term "Administrator" has been
defined as follows:- "Section 2 - Definitions.- In this Act, unless the
context otherwise requires, (1)"Administrator" means the Administrator
of the National Capital Territory of Delhi;"
a comparison of the aforesaid definitions, it is clear that there is not much
difference in the aforesaid two definitions and by Administrator is meant "Lieutenant
Governor of the National Capital Territory of Delhi".
Harish Salve, learned senior counsel, who on the request of the Court appeared as
an Amicus Curie in this matter, contended that the aforesaid provision of hearing
of the appeal by the Administrator from an order of the Appellate Tribunal is violative
of the concept of judicial review which is enshrined in our Constitution. The learned
counsel submitted that the order of the Appellate Tribunal is certainly a quasi
judicial one being passed by Judicial Authority which has the trappings of the Court
and the appeal from such an order cannot lie to any authority except a judicial
our constitutional scheme it was contended, an executive authority cannot
entertain an appeal from an order passed by the judicial authority even though such
judicial authority is acting in a quasi-judicial capacity. In support of this contention,
reliance was placed on the judgment of this Court in the case of P. Sambamurthy
and others v. State of Andhra Pradesh and another, (1987) 1 SCC 362, wherein a
Constitution Bench of this Court speaking through Chief Justice Bhagwati examined
the constitutional validity of Article 371D (5) of the Constitution, inserted
by nd Constitution Amendment Act, 1973. In P. Sambamurthy (supra), this Court was
called upon to decide an issue similar to the one at hand. Clause (3) of Article
371-D provided for the creation of an administrative tribunal for the State of Andhra
Pradesh so as to exercise jurisdiction with respect to the matters mentioned in
sub clauses (a), (b) and (c). Clause (5) however, subjected the decision of the
said administrative tribunal to the confirmation of the State Government. The Court
held it as violative of the principle of `rule of law', insofar it placed the power
of reviewing the decision of a quasi judicial tribunal in the hands of the executive
which according to this Court, contravened the principle of judicial review.
This Court said: "...The State Government is given the power to modify or annul
any order of the Administrative Tribunal before it becomes effective either by confirmation
by the State Government or on the expiration of the period of three months from
the date of the order....It will thus be seen that the period of three months from
the date of the order is provided in clause (5) in order to enable the State Government
to decide whether it would confirm the order or modify or annul it. Now almost invariably
the State Government would be a party in every service dispute brought before the
Administrative Tribunal and the effect of the proviso to clause (5) is that the
State Government which is a party to the proceeding before the Administrative Tribunal
and which contests the claim of the public servant who comes before the Administrative
Tribunal seeking redress of his grievance against the State Government, would have
the ultimate authority to uphold or reject the determination of the Administrative
Tribunal....Such a provision is, to say the least, shocking and is clearly subversive
of the principles of justice." (See page 368)
Court further explained that "...Now if the exercise of the power of judicial
review can be set at naught by the State Government by overriding the decision given
against it, it would sound the death knell of the rule of law. The rule of law would
cease to have any meaning, because then it would be open to the State Government
to defy the law and yet to get away with it. The proviso to clause (5) of Article
371-D is therefore clearly violative of the basic structure doctrine."
a subsequent Constitution Bench decision of this Court in L. Chandra Kumar v. Union
of India and others, AIR 1997 SC 1125, Chief Justice Ahmadi, after an analysis of
different decisions of this Court, affirmatively held that judicial review is one
of the basic features of our Constitution. Such a finding of this Court, obviously
means that there cannot be an administrative review of a decision taken by a judicial
or a quasi judicial authority which has the trappings of a court. Since judicial
review has been considered an intrinsic part of constitutionalism, any statutory
provision which provides for administrative review of a decision taken by a judicial
or a quasi judicial body is, therefore, inconsistent with the aforesaid postulate
and is unconstitutional.
learned senior counsel for the Union of India in this case has sought to support
the impugned judgment by referring to the decision of this Court in the case of
Indo-China Steam Navigation Company Limited v. Jasjit Singh, Additional Collector
of Customs, Calcutta, and Others (AIR 1964 SC 1140). The said decision deals with
the provisions of the Sea Customs Act, 1878, which is a pre-Constitutional law.
Apart from that, the scheme of the Sea Customs Act would show that when a dispute
is raised by an aggrieved party either by way of an appeal or revision, that
dispute has to be decided in the light of the facts adduced in the proceedings.
And this Court held that the decision of such an authority amounts to a decision
which is given in accordance with the principles of natural justice and such proceedings
are quasi judicial in nature. This Court also accepted that even though the
status of the customs officer who adjudicates under Section 167 (12A) and Section
183 of the Act is not that of the tribunal, that does not make a difference when
the matter reaches the stage of appeal and revision. On the basis of such reasoning,
this Court held that when such disputes are decided by appellate or revisional
authority, it becomes a tribunal within the meaning of Article 136 of the Constitution
and such tribunals being invested with the judicial power of the State are required
to act judicially and that they are tribunals within the meaning of Article 136
of the Constitution.
the instant case, the issue is totally different. Here the issue is whether an order
passed by a quasi judicial authority, which has the trappings of a civil court,
can be reviewed by an administrative authority. Therefore, the ratio in Indo-China
Steam Navigation Company (supra) does not support the case of the Union of India.
Nagendra Rai, learned senior counsel for the third respondent also wanted to support
the impugned judgment by relying on the Constitution Bench decision of this Court
in the case of Harinagar Sugar Mills Ltd., v. Shyam Sunder Jhunjhunwala and others
(AIR 1961 SC 1669). In that case the issue raised was that of a company's power
to refuse registration of transfer of share. On the refusal to register the
transfer of shares, the aggrieved party has two remedies for seeking relief under
the Companies Act. One was to apply to the Court for rectification of register and
the other was to appeal to the Central Government under Section 111 of the Act against
the resolution of the company refusing to register the share. In such a
situation, this Court held that when Government, in exercise of its power of appeal
under Section 111 Clause (3) is acting it is invested with the judicial power of
the State to decide disputes according to law. In such a case, the Central
Government is acting as a Tribunal and it is amenable to the jurisdiction of this
Court under Article 136. (See paras 10 and 23 of the report).
noted above, the issue in this case is not whether the administrator under the aforesaid
statutory provision is a tribunal under Article 136 of the Act. The issue is,
as discussed above, whether the administrative authority can sit in appeal over
the decisions of a judicial or quasi judicial authority which has the trappings
of the Civil Court. Therefore, the decision in Harinagar (supra) cannot sustain
the impugned judgment.
though the Administrator under the aforesaid two Acts may be the Lieutenant Governor
of the National Capital Territory of Delhi which may be a high constitutional authority,
it cannot be disputed that the said authority is an executive authority.
senior counsel for Delhi Municipal Corporation argued by referring to the provisions
of Article 239AA of the Constitution, where provisions in respect to Delhi have
been made. For a proper appreciation of this question, Article 239AA, sub-article
(1) is set out below:- "239AA. Special provisions with respect to Delhi.- (1)
As from the date of commencement of the Constitution (Sixty- ninth Amendment) Act,
1991, the Union territory of Delhi shall be called the National Capital Territory
of Delhi (hereafter in this Part referred to as the National Capital Territory)
and the administrator thereof appointed under Article 239 shall be designated as
the Lieutenant Governor."
this connection, we can also refer to the provision of Government of National Capital
Territory of Delhi Act, 1991, namely, Section 41 and particularly Section 41(3).
Section 41 runs as under: "41. Matters in which Lieutenant Governor to act
in his discretion. (1) The Lieutenant Governor shall act in his discretion in a
matter- (i) which falls outside the purview of the powers conferred on the Legislative
Assembly but in respect of which powers or functions are entrusted or delegated
to him by the President; or (ii) in which he is required by or under any law to
act in his discretion or to exercise any judicial or quasi-judicial functions. (2)
If any question arises as to whether any matter is or is not a matter as respects
which the Lieutenant Governor is by or under any law required to act in his discretion,
the decision of the Lieutenant Governor thereon shall be final. (3) If any question
arises as to whether any matter is or is not a matter as respects which the Lieutenant
Governor is required by any law to exercise any judicial or quasi-judicial functions,
the decision of the Lieutenant Governor thereon shall be final.
referring to the aforesaid two provisions, the learned counsel argued that the Administrator,
who is none other than the Lieutenant Governor, has no connection with the State
and is totally independent. Therefore, when he hears the appeal, he does it as an
independent appellate authority. This Court is unable to accept the aforesaid contention.
It is not suggested for a moment that the Administrator, who is the Lieutenant Governor
in Delhi is not acting independently. The question is: having regard to the concept
of rule of law and judicial review, whether a review by an executive authority of
a decision taken by the judicial or quasi-judicial authority which has the trappings
of the Court is permissible. In view of the consistent opinion expressed by this
Court in P. Sambhamurty (supra) and L. Chandra Kumar (supra), discussed above, we
are unable to uphold the constitutional validity of Section 347D of Delhi
Municipal Corporation Act, 1957 and Section 256 of the NDMC Act. Both the aforesaid
provisions are, therefore, declared unconstitutional being violative of Article
14 of the Constitution. In a recent Constitution Bench judgment of this Court in
Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 11 SCC
1], Justice Raveendran, speaking for the unanimous Bench held:- "102. The fundamental
right to equality before law and equal protection of laws guaranteed by Article
14 of the Constitution, clearly includes a right to have the person's rights,
adjudicated by a forum which exercises judicial power in an impartial and independent
manner, consistent with the recognised principles of adjudication. Therefore wherever
access to courts to enforce such rights is sought to be abridged, altered, modified
or substituted by directing him to approach an alternative forum, such
legislative Act is open to challenge if it violates the right to adjudication by
an independent forum. Therefore, though the challenge by MBA is on the ground of
violation of principles forming part of the basic structure, they are relatable
to one or more of the express provisions of the Constitution which gave rise to
such principles. Though the validity of the provisions of a legislative Act cannot
be challenged on the ground it violates the basic structure of the Constitution,
it can be challenged as violative of constitutional provisions which enshrine the
principles of the rule of law, separation of powers and independence of the
view of this decision by this Court, till a proper judicial authority is set up
under the aforesaid Acts, the appeals to the Administrator under Section 347D of
the Delhi Municipal Corporation Act, 1957 and also under Section 256 of the NDMC
Act shall lie to the District Judge, Delhi. All pending appeals filed under the
erstwhile provisions, as aforesaid, shall stand transferred to the Court of District
Judge, Delhi. However, the decisions which have already been arrived at by the Administrator
under the aforesaid two provisions will not be reopened in view of the
principles of prospective overruling.
judgment of the High Court is, therefore, set aside and the appeal is allowed. There
will be, however, no orders as to costs.
(ASOK KUMAR GANGULY)