Sundarjas
Kanyalal Bhatija & Ors Vs. Collector, Thane, Maharashtra & Ors [1989] INSC
200 (13 July 1989)
Shetty,
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
CITATION:
1990 AIR 261 1989 SCR (3) 405 1989 SCC (3) 396 JT 1989 (3) 57 1989 SCALE (2)7
CITATOR
INFO : R 1990 SC 322 (8)
ACT:
Constitution
of India----1950.
Articles
32, 136, 226 and 141--Judicial Review--Part of the Constitutional scheme--Law
to be made clear, certain and consistent. Rules of natural justice--Not
applicable to legislative action plenary or subordinate--Requirement of hearing
not implied in exercise of legislative powers.
Bombay
Provincial Municipal Corporation Act 1949--Section 3--Draft
notification--Merger of municipal areas into Corporation issuance
of--Government not entitled to hear the parties.
HEAD NOTE:
On June 19, 1962, the Government of Maharashtra
issued a draft notification under Section 3(3) of the Bombay Provincial
Municipal Corporation Act, 1949 and thereby proposed the formation of "Kalyan
Corporation", by merging of municipal areas of Kalyan, Ambarnath, Domoivali
and Ulhasnagar.
The
proposal was resented to by the residents of the said areas and many objections
and representations by persons, companies and authorities including the
municipal bodies of Ambarnath, and Ulhasnagar were made. So far as Ulhasnagar was
concerned it was stated that Sindhi Community after partition has settled at Ulhasnagar and to keep the identity of Sindhies
distinct, they had formed All India Sindhi Panchayat Federation. The said
Federation challenged the draft notification by a Writ Petition before the High
Court.
On an
assurance being given by the Government before the High Court that the
representation made by the Federation would be duly considered, the Writ
Petition was allowed to be withdrawn. As per the assurance, the Federation was
given personal hearing on their representation. Only the Federation was heard,
none of the other representationists was afforded any hearing though their
objections were duly considered. After considering the matter in the manner
aforesaid, the Government decided to exclude Ulhasnagar from the proposed Corporation and accordingly a
notification under section 3(2) of the Act was issued. The Corporation was thus
Constituted excluding Ulhasnagar. Save as aforesaid no other
alteration was made in the notification.
406
The Residents of Ambarnath municipal area were not satisfied. They moved the
High Court challenging the validity of the notification issued under section
3(2) of the Act.
Their
main contention was that there has been hostile discrimination in the matter as
only the Federation was heard and none else. They also asserted that the
establishment of a Corporation without Ulhasnagar, keeping in view the geographical contiguity was unintelligibe and
incomprehensible.
According
to them it was arbitrary and opposed to the object of the Act.
Federation
and others interested in the proceedings were allowed to intervene and they
supported the stand taken by the Government which was the main respondent.
The State
pleaded that the formation of Corporation was an extension of the legislative
process and as such section 3 was a piece of conditional legislation, and the
notification issued in exercise of that power cannot be said to have been
vitiated by non-compliance with the principles of natural justice. According to
the State it was not obligatory for the State to issue a preliminary
notification over again before the final notification excluding Ulhasnagar was issued.
The
High Court took the view that the decision to exclude Ulhasnagar was taken by the State abruptly and
in an irrational manner and that the decision was against the object of the
Act. On the legality of the procedure followed by the Government, the High
Court held that once a decision was taken, it was obligatory on the part of the
Government to reconsider the proposal as a whole so for as the rest of the
areas were concerned.
The
High Court without quashing the impugned notification directed the State
Government to reconsider the proposal under subsection (3) of the Act either to
exclude or include any area and accordingly make amends in the notification. It
was also directed that the Petitioners and the Federation be given a reasonable
opportunity of being heard before any final decision in the matter is taken.
Against the aforesaid decision of the High Court only interveners have
preferred these appeals. The State and Kelyan City Corporation have not
appealed.
Counsel
for the appellants reiterated the stand taken by the Government before the High
Court and urged that the State had a wide discretion in the selection of areas
for constituting the Corporation and the Court cannot interfere with such
discretion. State's power to consti407 tute a corporation is legislative in
character and rules of natural justice have no application. It was urged that
the state had complied with all the statutory requirements and it was not
necessary for the state to go through that exercise again. It was further urged
that the decision of this Court has been disregarded and a binding decision of
a coordinate bench of the same Court in Village Panchayat Chikalthane & Anr.
v. State of Maharashtra has been ignored.
Allowing
the appeals, this Court,
HELD:
In our system of judicial review which is a part of our constitutional scheme,
this Court holds it to be the duty of Judges of superior Courts and tribunals
to make the law more predictable. The question of law directly arising in the
case should not be dealt with apologetic approaches.
The
law must be made more effective as a guide to behaviour.
It
must be determined with reasons which carry convictions within the Courts,
professions and public otherwise the lawyers would be in a predicament and
would not know how to advise their clients. Subordinate Courts would find
themselves in an embarrassing position to choose between the conflicting
opinions. The general public will be in a dilemma to obey or not to obey such
law and it ultimately fails into disrepute. [417D-F] It is needless to state
that the judgment of superior Courts and Tribunals must be written only after
deep travail and positive vein. One should never let a decision go unless he is
absolutely sure it is right. The law must be made clear, certain and
consistent. But ceritude is not the test of certainty and consistency does not
mean that there should be no word of new content. The principle of law may
develop side by side with new content but not in consistencies.
There
could be waxing and waning the principle depending upon the pragmatic needs and
moral yearings. Such development of law particularly is inevitable in our
developing country. [417G-H; 418A-B] The rules of natural justice are not
applicable to legislative activity plenary or subordinate. The procedural
requirement of hearing is not implied in the exercise of legislative powers
unless hearing was expressly prescribed.
[419F]
The High Court, therefore, was in error in directing the Government to hear the
parties who are not entitled to be heard in law; section 3 of the Bombay
Provincial Municipal Corporation Act 1949. [419F-G] The Government in the
exercise of its powers under section 3 is 408 not subject to the Rules of
natural justice any more than is legislature itself. [419F] Mahadeolal Kanodia
v. The Administrator General of West Bengal, A.I.R. (1960) S.C.p. 926; Sri Bhagwan and Anr. v. Ram Chand and Anr.,
A.I.R. (1965) S.C. 1767 at 1773; Union of India v. Raghbir Singh, [1989] 2
S.C.C. 754; The Nature of Judicial Process by Benjamin N. Cardozo; Bates v.
Lord Heilsham of St. Marylebone and Others, 1, W.L.R. 1373;
Tulsipur
Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur, [1980] 2 S.C.R. 1111
and Baldev Singh v. State of Himachal Pradesh,
[1987] 2 S.C.C. 510, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 5736 of 1985 & C.A. No. 508/1986.
From
the Judgment and Order dated 14.8.1985 of the Bombay High Court in Civil Writ
Petition No. 3420 of 1983.
N.N. Keswani
and R.N. Keswani for the Appellants.
G. Ramaswamy
Additional Solicitor General, S.K. Dholakia, Shishir Sharma, P.H. Parekh, A.S. Bhasme
and V.B. Joshi for the Respondents.
The
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. The case
involved in these two appeals, with leave, seems indeed straight forward
enough, but the High Court of Bombay made it, as we venture to think,
unsatisfactory and in a sense against judicial propriety and decorum.
The
facts which are of central importance may be stated as follows.
On June 19, 1982, the Government of Maharashtra
issued a draft notification under sec. 3(3) of the Bombay Provincial Municipal
Corporation Act, 1949 (the "Act"). The draft notification proposed
the formation of what is termed as "Kalyan Corporation" (the
"Corporation"). It suggested the merging of Municipal areas of Kalyan,
Ambarnath, Domoivali and Ulhasnagar. Against this proposal, there were
many objections and representations from persons, companies and the
authorities. Ambarnath and Ulhasnagar Municipal bodies and also some of the
residents therein submitted their represen409 tations. They objected to the
merger of their municipal areas into the Corporation. It is said that in Ulhasnagar
Municipal area, Sindhies are predominant. In 1947, they were the victims of
partition of the country. Being uprooted from their home land, they have since settled
down at Ulhasnagar.
They
have formed union or federation called the All India Sindhi Panchayat
Federation. It is interested in having a separate identity for Ulhasnagar. The Federation challenged the said
draft notification by a writ petition before the Bombay High Court. The writ
petition was not disposed of on merits. It was permitted to be withdrawn on an
assurance given by the Government. The Government gave the assurance that the
representatives of the Federation would be given an opportunity of being heard
before taking a final decision.
As per
the assurance, they were given personal hearing on their representations. The
others who have filed similar representations were not heard. But their
objections or representations were duly considered. Thereupon, the Government
decided to exclude Ulhasnagar from the proposed Corporation.
Accordingly, a notification under sec. 3(2) of the Act was issued. The
Corporation was thus constituted without Ulhasnagar. That was the only
alteration made in the proposal earlier notified. All other areas indicated in
the draft notification were merged in the Corporation.
The
residents of Ambarnath Municipal areas were not satisfied. They were, perhaps,
more worried by the exclusion of Ulhasnagar than the inclusion of their own
area. They moved the High Court under Article 226 of the Constitution
challenging the notification issued under sec. 3(2) of the Act. They inter-alia,
contended that the action of the Government affording an opportunity of being
heard only to the Federation and not to other objectors was contrary to Article
14. It was a hostile discrimination to hear only one of the objectors. They
asserted that the establishment of the Corporation without Ulhasnagar Municipal
area, having regard to the geographical contiguity was unintelligible and
incomprehensible. It was arbitrary and opposed to the object of the Act. They
also contended that there ought to have been a fresh draft notification after
taking a decision to exclude Ulhasnagar from the proposal. With similar
contentions and for the same relief, there was another writ petition before the
High Court. It was filed by the National Rayon Corporation Limited which is a
company located within the Municipal limits of Ambarnath.
The
Sindhi Panchayat Federation was not a party to the writ petitions. It was,
however, allowed as an intervener.
Some
other persons who were interested in the outcome of the writ petitions were 410
also permitted to intervene in the proceedings. They supported the stand taken
by the Government which was the main respondent in the writ petitions.
The
State in its counter affidavit resisted the petitioners' claim raising several
grounds. The first point to be noted in this context is this:
"That
the formation of Municipal Corporation under sec. 3 of the Act is an extension
of the legislative process and, therefore, sec. 3 is nothing but a piece of
conditional legislation. The principles of natural justice will not apply to
such legislative function nor it could be imparted into it even by necessary
implication. The petitioners have not challenged the validity of the
sub-section (2) of sec. 8 of the Act and even otherwise the said validity has
been upheld by a Division Bench of this Court (Shah and Deshpande, J J) in writ
petition No. 706-A of 1982 (The Village Panchayat Chikalthane and Anr. v. The
State of Maharashtra and Anr. decided on 23/24 December, 1982. Therefore, it
cannot be said that the notification issued in exercise of the said legislative
power is vitiated by noncomplaince with the principles of natural justice. The
conditions laid down by sec. 3 are fully complied with; a preliminary
notification was issued as contemplated by subsection (4) of sec. 3 of the Act;
the objections and suggestions made by the various citizens and persons were
duly considered by the State Government and thereafter the final notification
was issued. In the very nature of things there is bound to be difference and
variance between the preliminary notification and the final notification. Only
because the Ulhasnagar Municipal Council is excluded from the final
notification, it cannot be said that there was any major departure from the
preliminary notification or it was necessary to issue a preliminary
notification over again before the final notification was issued in that
behalf." The second factual point to be noted is this:
"Due
to partition of India in 1947, the Sindhi people have
been uprooted from their homeland and with hard labour they have settled
themselves in different parts of the country. One can appreciate their feelings
about their anxi411 ety to maintain their separate entity. If such a large part
is forcibly included in the Corporation ignoring their sentiments and wishes,
it may not result in smooth working of the proposed Corporation which is
necessary for proper development. It is, therefore, desirable to constitute the
new Kalyan Corporation without including Ulhasnagar for the time being." The High Court was not impressed with the
above reasonings. The High Court said that the decision to exclude Ulhasnagar
was taken by the Government abruptly and in an irrational manner. The decision
was arbitrary and against the purpose of the Act. On the legality of the
procedure followed by the Government, the High Court said:
"Once
that decision was taken, it was obligatory on the part of the Government to
reconsider the proposal as a whole so far as the rest of the areas are
concerned." Reference was also made to the report of the "Sathe
Commission" to fortify the conclusion that Ulhasnagar could not have been
isolated. The "Sathe Commission" was a one man Commission appointed
by the State Government to enquire and report on the establishment of new
Municipal Corporations.
The
Commission in its report among others, seems to have indicated that Kalyan, Ulhasnagar and Ambarnath are one contiguous
stretch of territory with a length of about 8 kms. from North-West to
South-East.
The
High Court then made some general observations as to the purpose for which
Municipal Corporations should be constituted went on:
"It
was the avowed policy after independence to change the socio-economic map of
the village and town. A corporate life can only be ensured if there is a
corporate conscience and an attitude to live together. City is an epitome of
the social world where all belts of civilization interest along its avenues. A
Municipal Corporation is ....... in nature, where people belonging to different
castes, creeds, religious and language want to live with each other. Town
planning cannot be denominational or fractional. It is not a museum of human
beings otherwise Harijan Bastis, Mominpures and such other Mohallas will have
to be preserved to maintain its separate identity and the socio 412 economic
map of the village or city will never change. It cannot be forgotten that we
are heading towards a global village. By saying this, we do not want to
belittle the achievements of sacrifice of the Sindhi Community.
However,
that is not very relevant for deciding the question of the establishment of a
Municipal Corporation. Its main object is to ensure better municipal government
of the city. It appears that Government was also aware of this and this seems
to be the reason why the decision "for the time being is pertinent and
clearly indicates that the Government wanted to reconsider the issue at a later
stage. However, unfortunately till today Government has not taken any decision
in that behalf." The High Court, however, felt that it was not necessary
to quash the notification establishing the Corporation. This is how the
conclusion was reached:
"It
will not be fair to quash the notification as a whole and unsettle the
Municipal Administration. In our view, that is also not necessary since from
the affidavit of the Government, it is clear that the decision taken in that
behalf was tentative, i.e., for the time being and it is not all-time permanent
decision. Under sub-section (3) of sec. 3 of the act, the State Government has
power to exclude or include any area specified in the notification issued so
far as Ambarnath Town is concerned, reconsideration of the present case of the
whole matter was absolutely necessary when the decision to exclude the Ulhasnagar
Municipal Council from the proposed Municipal Corporation, ,though tentative in
nature, was taken." Finally, the operative portion of the Order was put in
the following terms:
"Therefore,
without setting aside the final notification, we direct the State Government to
reconsider the proposal under sub-sec. (3) of sec. 3 of the Bombay Provincial
Municipal Corporations Act either to exclude or include any area, within a
period of six months from today. The writ of mandamus to be issued accordingly.
It is needless to say that after the necessary steps are taken under sec. 3(3)
of the Act, the State Government shall make the necessary 413 amends in the
notification issued.
XXX XXX
XXX XXX XXX XXX XXX XXX "In the result, therefore, the rule is made partly
absolute and the State Government is directed to exercise its power under sec.
3 sub-sec. (3) of the Act in accordance with law within a period of six months.
It is needless to say that the petitioners will be entitled to raise objections
and make their suggestions in that behalf after a notification under sub-sec
(3) read with sub-sec (4) of sec. 3 of the Act is issued. Since the popular
local self-Government is not in existence in any of the Municipal Councils or
even in the newly established municipal corporation and having regard to the
peculiar facts and circumstances of the case, in our view, this is a fit case where
the petitioners of these two petitions and All India Sindhi Panchayat
Federation should be given a reasonable opportunity of being heard before any
final decision in the matter is taken." Against the judgment of the High
Court, the State Government has not preferred any appeal. The Kalyan City
Corporation though vitally concerned with the matter, has also not appealed to
this Court. The present appeals are only by those who were impleaded as
interveners in the writ petitions.
We
have heard counsel for all parties and gave our best attention to the questions
raised by the appellants. Counsel for the appellants reiterated the stand taken
by the Government before the High Court. He urged that the State has a wide
discretion in the selection of areas for constituting the Corporation and the
Court cannot interfere with such discretion. The Court has no jurisdiction to
examine the validity of the reason that goes into the decision of the
Government. The power to constitute Municipal Corporations under sec. 3 of the
Act is legislative in character. It is an extension of legislative process for
which rules of natural justice have no application. He said that the Government
in the instant case has complied with the statutory requirements and it was not
expected to do anything more in the premises. And, at any rate, it is wholly
unnecessary according to the counsel to go through that exercise again as the
High Court has suggested.
414
The other limb of the argument of counsel for the appellants relates to the
manner in which the High Court disposed of the matter. it was said that a
decision of this Court has been disregarded and a binding decision of a
co-ordinate Bench of the same Court has been ignored.
The
grievance of the appellants' counsel, in our opinion, is not wholly unjustified.At
the beginning of the judgment, we have said that the High Court rendered the
judgment in a sense against the judicial propriety and decorum. We were not
happy to make that observation, but constrained to say so in the premise and
background of the case. It may be noted that the result of the writ petitions
before the High Court turns on the nature and scope of the power conferred on
the Government under sec. 3 of the Act. A Division Bench of the High Court has
taken the view that that power is in the nature of legislative process. That
judgment was rendered on 23/24 December, 1982, by a Bench consisting of Shah
and Deshpande, JJ. It was in writ petition No. 706-A of 1982--The Village Panchayat
Chikalthana and Another v. The State of Maharashtra and Another, In that case,
the challenge was to the validity of sec. 3(2) of the Act on the ground that it
suffers from the vice of excessive delegation for want of guidelines for the
exercise of power.
Repelling
the contention, it was held that sec. 3 is in the nature of a conditional
legislation and, therefore, laying down the policy or guidelines to exercise
the power was unnecessary. It was emphasized that the exercise of power under
sec. 3(2) is conditioned by only two requirements, viz., (1) previous
publication as contemplated by sub-sec.
(4) of
sec. 3 of the Act, (2) issuance of a notification by the Government after such
previous publication. Once the Government publishes such a notification, the
legislation becomes complete and the other provisions of the Act are ipso facto
attracted to the Corporation so constituted. This was the view taken by the
High Court in Chikalthane case. To reach that conclusion, the learned judges
relied upon the decision of this Court in Tulsipur Sugar Company, case 1980 2
SCR 1111.
The
attention of the High Court in the present case was drawn to the decision in Chikalthane,
case. Counsel for the State and interveners seemed to have argued that the
present case really fell fairly and squarely within what was said there. They
were indeed on terra firma since the decision in Chikalthane case was a clear
authority against every contention raised by the petitioners. Faced with this
predicament, counsel for the petitioners urged before the High Court that their
case should be referred to a larger Bench to reconsider the deci415 sion m Chikalthane,
case. But learned Judges, (Dharmadhikari and Kantharia, J J) did not heed to
that submission. They neither referred the case to a larger Bench nor followed
the view taken in the Chikalthane, case. It was not as if they did not
comprehend the issue to be determined and the principle to be applied. They
were very much aware of it when they remarked:
"In
our opinion, once it is accepted that this is a piece of conditional legislation,
then it will have to be held that the principle of natural justice would not
apply to such a case as held by the Division Bench of this Court in village Panchayat
Chikalthane's case nor it could be said that because under a mistaken notice
the Federation was heard, the denial of such a right to the petitioners will
amount to hostile discrimination within the contemplation of Article 14 of the
Constitution of India." After referring to these simple legal principles,
it is unfortunate that the issue at stake was little explored. The key question
raised in the case was side-tracked and a new strategy to interfere with the
decision of the Government was devised. The learned Judges directed the
Government to publish again a draft notification for reconsideration of the
matter. They gave liberty to the writ petitioners and the interveners to submit
their representations. They observed that "this is a fit case where the
parties should be given a reasonable opportunity of being heard." They did
not quash the impugned notification, but told the Government to make necessary
changes in the light of fresh consideration.
All
these directions were issued after recording a positive finding that the
exclusion of Ulhasnagar from the Corporation was arbitrary
and irrational. The net result of it is that there is now no discretion with
the Government to keep Ulhasnagar away from the Corporation.
It
would be difficult for us to appreciate the judgment of the High Court. One
must remember that pursuit of the law, however glamorous it is, has its own
limitation on the Bench. In a multi-judge court, the Judges are bound by
precedents and procedure. They could use their discretion only when there is no
declared principle to be found, no rule and no authority. The judicial decorum
and legal propriety demand that where a learned single judge or a Division
Bench does not agree with the decision of a Bench of co-ordinate jurisdiction,
the matter shall be referred to a larger Bench. It is a subversion of judicial
process not to follow this procedure.
416
Deprecating this kind of tendency of some judges, Das Gupta, J., in Mahadeolal Kanodia
v. The Administrator General of West Bengal, AIR 1960 SC 926 said (at 941):
"We
have noticed with some regret that when the earlier decision of two Judges of
the same High Court in Deorajin's case, 58 Cal WN 64 (AIR 1954 Cal 119) was
cited before the learned Judges who heard the present appeal they took on
themselves to say that the previous decision was wrong, instead of following
the usual procedure in case of difference of opinion with an earlier decision,
of referring no less than legal propriety form the basis of judicial procedure.
If one thing is more necessary in law than any other thing, it is the quality
of certainty. That quality would totally disappear if Judges of co-ordinate
jurisdiction in a High Court start overruling one another's decision." The
attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan and Anr. v. Ram
Chand and Anr., AIR 1965 SC 1767 was not quite different (at 1773):
"It
is hardly necessary to emphasize that considerations of judicial propriety and
decorum require that if a learned single judge hearing a matter is inclined to
take the view that the earlier decisions of the High Court, whether of a Division
Bench or of a single, Judge, need to be reconsidered, he should not embark upon
that enquiry sitting as a single judge, but should refer the matter to a
Division Bench or, in a proper case, place the relevant papers before the Chief
Justice to enable him to constitute a larger Bench to examine the question.
That is the proper and traditional way to deal with such matters and it is
rounded on healthy principles of judicial decorum and propriety. It is to be
regretted that the learned Judges departed from this traditional way in the
present case and choose to examine the question himself." The Chief
Justice Pathak, in a recent decision stressed the need for a clear and
consistent enunciation of legal principle in the decisions of a Court. Speaking
for the Constitution Bench Union of India v. Raghubir Singh, [1989] 2 SCC 754
learned Chief Justice said (at 766):
"The
doctrine of binding precedent has the merit of pro417 moting a certainty and
consistency in judicial decisions, and enables an organic development of the
law, besides providing assurance to the individual as to the consequence of
transactions forming part of his daily affairs. And, therefore, the need for a
clear and consistent enunciation of legal principle in the decisions of a
Court." Cardozo propounded a similar thought with more emphasis:
"1 am not to mar the symmetry of the legal structure by the
introduction of inconsistencies and irrelevancies and artifical exceptions
unless for some sufficient reason, which will commonly by some consideration of
history or custom or .policy or justice. Lacking such a reason, I must be
logical just as I must be impartial, and upon like grounds. It will not do to
decide the same question one way between one set of litigants and the opposite
way between another" (The Nature of the Judicial Process by Benjamin N. Cardozo
p.33) In our system of judicial review which is a part of our Constitutional
scheme, we hold it to be the duty of judges of superior courts and tribunals to
make the law more predictable. The question of law directly arising in the case
should not be dealt with apologetic approaches. The law must be made more
effective as a guide to behaviour. It must be determined with reasons which
carry convictions within the Courts, profession and public. Otherwise, the
lawyers would be in a predicament and would not know how to advise their
clients. Subordinate courts would find themselves in an embarrassing position
to choose between the conflicting opinions. The general public would be in
dilemma to obey or not to obey such law and it ultimately falls into disrepute.
Judge
learned Hand has referred to the tendency of some judges "who win the game
by sweeping all the chessmen off the table". (The Spirit of Liberty by
Alfred A. Knopf, New York (1953) p. 131). This is indeed to be deprecated. It
is needless to state that the judgment of superior courts and Tribunals must be
written only after deep travail and positive vein. One should never let a
decision go until he is absolutely sure it is right. The law must be made
clear, certain and consistent. But certitude is not the test of certainty and
consistency does not mean that there should be no word of new content. The
principle of law may develop side by side with new content but not 418 with
inconsistencies. There could be waxing and wanning the principle depending upon
the pragmatic needs and moral yearnings. Such development of law particularly,
is inevitable in our developing country. In Raghubir Singh, case, learned Chief
Justice Pathak had this to say (1989) 2 SCC 754 at 767:
"Legal
compulsions cannot be limited by existing legal propositions, because, there
will always be, beyond the frontiers of the existing law, new areas inviting
judicial scrutiny and judicial choice-making which could well affect the
validity of existing legal dogma.
The
search for solutions responsive to a changed social era involves a search not
only among competing propositions of law, or competing versions of a legal
proposition, or the modalities of an indeterminacy such as "fairness"
or "reasonableness" but also among propositions from outside the
ruling law, corresponding to the empirical knowledge or accepted values of
present time and place, relevant to the dispensing of justice within the new
parameters.
And he
continued:
The
universe of problems presented for judicial choicemaking at the growing points
of the law is an expanding universe. The areas brought under control by the
accumulation of past judicial choice may be large. Yet the areas newly
presented for still further choice, because of changing social, economic and
technological conditions are far from inconsiderable. It has also to be
remembered, that many occasions for new options arise by the mere fact that no
generation looks out on the world from quite the same vantage-point as its
predecessor, nor for that matter with the same perception. A different vantage
point or a different quality of perception often reveals the need for choicemaking
where formerly no alternatives, and no problems at all, were perceived."
Holmes tells us:
"The
truth is, that the law is always approaching, and never reaching, consistency.
It is forever adopting new principles from life at the end, and it always
retains old ones from history at the other, which have not yet been absorbed or
419 sloughed off. It will become entirely consistent only when it ceases to
grow." (Holmes the Common Law, p. 36 (1881).
Apart
from that the judges with profound responsibility could iII-afford to take
stolid satisfaction of a single postulate past or present in any case. We think,
it was Cicero who said about someone "He saw life clearly and he saw it
whole"; The judges have to have a little bit of that in every case while
construing and applying the law.
Reverting
to the case, we find that the conclusion of the High Court as to the need to
reconsider the proposal to form the Corporation has neither the attraction of
logic nor the support of law. It must be noted that the function of the
Government in establishing a Corporation under the Act is neither executive nor
administrative. Counsel for the appellants was right in his submission that it
is legislative process indeed. No judicial duty is laid on the Government in
discharge of the statutory duties. The only question to be examined is whether
the statutory provisions have been complied with. If they are complied with,,
then, the Court could say no more. In the present case the Government did
publish the proposal by a draft notification and also considered the
representations received. It was only thereafter, a decision was taken to
exclude Ulhasnagar for the time being. That decision
became final when it was notified under Section 3(2). The Court cannot sit in
judgment over such decision. It cannot lay down norms for the exercise of that
power. It cannot substitute even "its juster will for theirs."
Equally, the rule issued by the High Court to hear the parties is untenable.
The Government in the exercise of its powers under Section 3 is not subject to
the rules of natural justice any more than is legislature itself. The rules of
natural justice are not applicable to legislative action plenary or
subordinate. The procedural requirement of hearing is not implied in the
exercise of legislative powers unless hearing was expressly prescribed. The
High Court, therefore, was in error in directing the Government to hear the
parties who are not entitled to be heard under law.
Megarry,
J., in Bates v. Lord Hailsham of St. Marylebone and Ors., [1972] 1 WLR 1373
while dealing with the legislative process under Section 56 of the Solicitors
Act, 1957 said (at 1378):
"In
the present case, the committee in question has an entirely different function:
it is legislative rather than 420 administrative or executive. The function of
the committee is to make or refuse to make a legislative instrument under
delegated powers.
The
order, when made, will lay down the remuneration for solicitors generally and
the terms of the order will have to be considered and construed and applied in
numberless cases in the future. Let me accept that in the sphere of the
so-called quasi-judicial the rules of natural justice run, and that in the
administrative or executive field there is a general duty of fairness.
Nevertheless, these considerations do not seem to me to affect the process of
legislation, whether primary or delegated. Many of those affected delegated
legislation, and affected very substantially, are never consulted in the
process of enacting that legislation; and yet they have no remedy.
Of
course, the informal consultation of representative bodies by the legislative
authority is a commonplace; but although a few statutes have specifically
provided for a general process of publishing draft delegated legislation and
considering objections (see, for example, the Factories Act 1961 Schedule 4), I
do not know of any implied right to be consulted or make objections, or any
principle upon which the courts may enjoin the legislative process at the suit
of those who contend that insufficient time for consultation and consideration
has been given. I accept that the fact that the order will take the form of a
statutory instrument does not per se make it immune from attack, whether by
injunction or otherwise; but what is important is not its form but its nature,
which is plainly legislative." There are equally clear authorities on this
point from this Court. The case in Tvlsipur Sugar Co. Ltd. v. The Notified Area
Committee, Tulsipur, [1980] 2 SCR 1111 was indeed a hard case. But then, this
Court did not make a bad law. There a notification dated August 22, 1955 was issued under Section 3 of the U.P. Town Area
covering the petitioner's factory. Consequently, the octroi was levied on goods
brought by the factory management into the limits of Town Area Committee. The
Company questioned the validity of that notification. The case pleaded was that
the company had no opportunity to make representation regarding the
advisability of extending the limits of the Town Area Committee.
Venkataramiah,
J., as the present learned Chief Justice then was, while rejecting the
contention observed (111920):
421
"The power of the State Government to make a declaration under Section 3
of the Act is legislative in character because the application of the rest of
provisions of the Act to the geographical area which is declared as a town area
is dependent upon such declaration.
Section
3 of the Act is in the nature of a conditional legislation. Dealing with the
nature of functions of a non-judicial authority, Prof. S.A. De Smith in
Judicial Review of Administrative Action (third edition) observes at page 163:
"However, the analytical classification of a function may be a conclusive
factor in excluding the operation of the audi alteram partem rule. It is
generally assumed that in English law the making of a subordinate legislative
instrument need not be preceded by notice or hearing unless the parent Act so
provides." In Baldev Singh v. State of Himachal Pradesh, [1987] 2 SCC 510 a similar question arose for
consideration. An attempt was made to constitute a notified area as provided
under Section 256 of the Himachal Pradesh Municipal Act, 1968, by including
portions of the four villages for such purposes. The residents of the villages
who were mostly agriculturists challenged the validity of the notification
before the High Court on the ground that they had no opportunity to have their
say against that notification. The High Court summarily dismissed the writ
petition. In the appeal before this Court, it was argued that the extension of
notified area over the Gram Panchayat limits would involve civil consequences
and therefore, it was necessary that persons who would be affected thereby
ought to be given an opportunity of being heard. Ranganath Misra, J., did not
accept that contention, but clarified (at 515):
"We
accept the submission on behalf of the appellants that before the notified area
was constituted in terms of Section 256 of the Act, the people of the locality
should have been afforded an opportunity of being heard and the administrative
decision by the State Government should have been taken after considering the
view of the residents. Denial of such opportunity is not in consonance with the
scheme of the rule of law governing our society. We must clarify that the
hearing contemplated is not required to be oral and can be by inviting
objections and disposing them of in a fair way." The principles and
precedents thus enjoin us not to support the 422 view taken by the High Court.
We may only observe that the Government is expected to act and must act in a
way which would make it consistent with the good administration. It is they,
and no one else--who must pass judgment on this matter. We must, therefore,
leave it to the Government.
In the
result and for the reasons stated, we allow the appeals and set aside the
judgment of the High Court. In the circumstances of the case, we make no order
as to costs.
Y. Lal
Appeals allowed.
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