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CASE NO.:

Appeal (civil) 684 of 2003

PETITIONER:

Municipal Committee, Patiala

RESPONDENT:

Model Town Residents Asson. & Ors

DATE OF JUDGMENT: 01/08/2007

BENCH:

B. Sudershan Reddy

JUDGMENT:

JUDGMENT

CIVIL APPEAL NO.684 OF 2003

WITH

Civil appeal Nos. 685/2003, 686/2003, 687/2003, 690-691/2003, 692/2003,

693-694/2003,695/2003,696-698/2003,699/2003,700-702/2003,703-

704/2003, 705-706/2003, 710-711/2003, 712/2003, 713-714/2003, 715-

717/2003, 718/2003, 719/2003, 721/2003, 722/2003, 724/2003, 727-

728/2003, 730/2003, 732/2003, 735/2003, 736/2003, 737/2003, 738/2003,

740-744/2003, 757/2003, 758/2003, 759/2003, 760/2003, 761/2003,

762/2003, 763/2003, 764/2003, 765/2003, 766/2003, 767/2003, 768-

774/2003, 781/2003, 782/2003, 790/2003, 791/2003, 792/2003, 793/2003,

795/2003, 796/2003, 797/2003, 798/2003, 799/2003, 800/2003, 801/2003,

802/2003, 803/2003, 804/2003, 805/2003, 806/2003, 807-808/2003, 825-

828/2003, 1425-1433/2003, 4616-4618/2003, 8426/2003, 4329/2004 and

C.A. No. 3387 @SLP)No. 13183/2003, C.A.No. 3388 @SLP)No. 13708/2003,

C.A.No. 3386 @SLP)No.14774/2003.

B. Sudershan Reddy, J.

While I entirely agree with my esteemed brother Kapadia, J. in the

judgment proposed to be delivered by him, I wish to add particularly to

supplement what he has said to the topic of separation of powers.

My excuse for inflicting this epilogue is for obvious reasons.

The Constitution is filled with provisions that grant Parliament or to

State legislatures specific power to legislate in certain areas. These granted

powers are of course subject to constitutional limitations that they may not

be exercised in a way that violates other specific provisions of the

Constitution. Nothing in the text, history or structure of the Constitution

remotely suggest the High Courts jurisdiction under Article 226 of the

Constitution should differ in this respect \026 that invocation of such power

should magically give High Court a free ride through the rest of

Constitutional document. If such magic were available the High Court could

structure, restructure legislative enactments. The possibilities are endless.

The Constitution makers cannot be charged with having left open a path to

such total obliteration of Constitutional enterprise.

In M/s. Narinder Chand Hem Raj and others vs. Lt. Governor,

Administrator, Union Territory, Himachal Pradesh and others [ 1971 (2)

SCC 747 ] a writ of mandamus was sought by the petitioners from

enforcing levy of sales tax on the sale of liquor. This Court held that the

appellants were liable to pay tax imposed under the law. The appellants in

reality wanted a mandate from court to the competent authority to delete the

certain entry from Schedule A and include the same in Schedule B. The

court proceeded to hold:

"The power to impose a tax is undoubtedly a

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legislative power, that power can be exercised by

the Legislature directly or subject to certain

conditions the Legislature may delegate that power

to some other authority. But the exercise of that

power , whether by the Legislature by its delegate

is an exercise of a legislative power. The fact that

the power was delegated to the executive does not

convert that power into an executive or

administrative power. No court can issue a

mandate to a Legislature to enact a particular

law. Similarly no court can direct a subordinated

legislative body to enact or not to enact a law

which it may be competent to enact. The relief as

framed by the applicant in his Writ Petition does

not bring out the real issue calling for

determination. In a reality he wants this court to

direct the Government to delete the entry in

question from Schedule A and include the same in

Schedule B. Article 265 of the Constitution lays

down that no tax can be levied and collect except

by authority of law. Hence the levy of a tax can

only be done by the authority of law and not by

any executive order. Unless the executive is

specifically empowered by law to give any

exemption, it cannot say that it will not enforce the

law as against a particular person. No court can

give a direction to a Government to refrain from

enforcing a provision of law." [Emphasis

supplied]

In T. Venkata Reddy and others versus State of Andhra

Pradesh [ (1985) 3 SCC 198], a constitution bench of this court while

considering the question as to whether it is permissible to strike down an

Ordinance which has the same force and effect or an Act of Parliament or an

Act of State Legislature on the ground of non-application of mind or

malafides or that the prevailing circumstances did not warrant the issue of an

Ordinance held that validity of an Ordinance cannot be decided on grounds

similar to those on which an executive or judicial action is decided. It is

observed :

"Any law made by the Legislature, which it is not

competent to pass, which is violated of the

provisions in Part III of the Constitution or any

other constitutional provision is ineffective. It is a

settled rule of constitutional law that the question

whether a statute is constitutional or not is always

a question of power of the Legislature concerned,

dependant upon the subject matter of the statute,

the manner in which it is accomplished and the

mode of enacting it. While the courts can declare

a statute unconstitutional when it transgresses

constitutional limits, they are precluded from

inquiring into the propriety of the exercise of the

legislative power. It has to be assumed that the

legislative discretion is properly exercised. The

motive of the Legislature in passing a statute is

beyond the scrutiny of courts. Nor can the courts

examine whether the legislature had applied its

mind to the provisions of a statute before passing

it. The propriety, expediency and necessity of a

legislative act are for the determination of the

legislative authority and are not for determination

by the courts."

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It is so well settled and needs no restatement at our hands that the

legislature is supreme in its own sphere under the Constitution subject to the

limitations provided for in the Constitution itself. It is for the legislature to

decide as to when and in what respect and of what subject matter the laws

are to be made. It is for the legislature to decide as to the nature of operation

of the statutes.

In State of Himachal Pradesh versus A Parent of a student of

Medical College, Simla and others [ (1985) 3 SCC 169 ], the High Court of

Himachal Pradesh required the State Government to initiate legislation

against ragging in educational institutions and for this purpose time of six

weeks was granted to the State Government. The decision was challenged

before this court. This court was of the opinion that the direction given by

the division bench was nothing short of an attempt to compel the State

Government to initiate legislation with a view to curb the evil of ragging. It

is held :

"\005\005\005..It is entirely a matter for the executive

branch of the Government to decide whether or not

to introduce any particular legislation. Of course,

any member of the legislature can also introduce

legislation but the court certainly cannot mandate

the executive or any member of the legislature to

initiate legislation, howsoever necessary or

desirable the court may consider it to be. That it is

not a matter which is within the sphere of the

functions and duties allocated to the judiciary

under the Constitution. If the executive is not

carrying out any duty laid upon it by the

Constitution or the law, the court can certainly

require the executive to carry out such duty and

this is precisely what the court does when it

entertains public interest litigation. Where the

court find, or being moved by an aggrieved party

or by any public spirited individual or social action

group, that the executive is remiss in discharging

its obligations under the Constitution or the law, so

that the poor and the underprivileged continued to

be subjected to exploitation and injustice or are

deprived of their social and economic entitlements

or that social legislation enacted for their benefit is

not being implemented thus depriving them of the

rights and benefits conferred upon them, the court

certainly can and must intervene and compel the

executive to carry out its constitutional and legal

obligations and ensure that the deprived and

vulnerable sections of the community are no

longer subjected to exploitation or injustice and

they are able to realize their social and economic

rights. When the court passes any orders in public

interest litigation, the court does so not with a view

to mocking at legislative or executive authority or

in a spirit of confrontation but with a view to

enforcing the constitution and the law, because it is

vital for the maintenance of the rule of law that the

obligations which are laid upon the executive by

the Constitution and the law should be carried out

faithfully and no one should go away with a

feeling that the Constitution and the law are meant

only for the benefit of a fortunate few and have no

meaning for the large members of half-clad, half-

hungry people of this country. That is a feeling

which should never be allowed to grow. But at

the same time the court cannot usurp the

functions assigned to the executive and the

legislature under the Constitution and it cannot

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even indirectly require the executive to introduce

a particular legislation or the legislature to pass

it or assume to itself a supervisory role over the

law making activities of the executive and the

legislature." [Emphasis supplied]

In Asif Hameed and others versus State of Jammu and Kashmir and

others [ 1989 Suppl. (2) SCC 364 ], this court had an occasion to have a

fresh look on the inter-se functioning of the three organs of democracy

under our Constitution. It is held :

"17. Although the doctrine of separation of

powers has not been recognized under the

Constitution in its absolute rigidity but the

Constitution makers have meticulously defined the

functions of various organs of the State.

Legislature, executive and judiciary have to

function within their own spheres demarcated

under the Constitution. No organ can usurp the

function assigned to another. The Constitution

trusts to the judgment of these organs to function

and exercise their discretion by strictly following

the procedure prescribed therein. The functioning

of democracy depends upon the strange and

independents of each of its organ. Legislature and

executive, the two facets of people's will, they

have all the powers including that of finance.

Judiciary has no power over sword or the purse

nonetheless it has power to ensure that the

aforesaid two main organs of State function within

the constitutional limits. It is the sentinel of

democracy. Judicial review is a powerful weapon

to restrain unconstitutional exercise of power by

the legislature and executive. The expanding

horizon of judicial review has taken in its fold the

concept of social and economic justice. While

exercise of powers by the legislature and executive

is subject to judicial restrain, the only check on our

own exercise of power is the self-imposed

discipline of judicial restraint.

xxx xxx xxx

18. Frankfurter , J. of the U.S. Supreme Court

dissenting in the controversial expatriation case of

Trop vs. Dulles observed as under :

"All power is, in Madison's phrase, "of an

encroaching nature". Judicial power is not

immune against this human weakness. It also must

be on guard against encroaching beyond its proper

bounds, and nor the less so since the only restraint

upon it is self-restraint\005.

Rigorous observance of the difference

between limits of power and wise exercise of

power \026 between questions of authority and

questions of prudence \026 requires the most alert

appreciation of this decisive but subtle relationship

of two concepts that too easily coalesce. No less

does it require a disciplined will to adhere of the

difference. It is not easy to stand aloof and allow

want to wisdom to prevail to disregard once own

strongly held view of what is wise in the conduct

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of affairs. But it is not the business of this court to

pronounce policy. It must observe a fastidious

regard for limitations on its own power, and this

precludes the courts giving effect to its own notion

of what is wise of politic. That self-restraint is of

the essence in the observance of the judicial oath,

for the Constitution has not authorized the judges

to sit in judgment on the wisdom of what

Congress and the executive branch do."

19. When a State action is challenged, the

function of the court is to examine the action in

accordance with law and to determine whether the

legislature or the executive has acted within the

powers and functions assigned under the

Constitution and if not, the court must strike down

the action. While doing so the court must remain

within its self imposed limits. The court sits in

judgment of the action of a coordinate branch of

the Government. While exercising power of

judicial review of administrative action, the court

is not an appellate authority. The Constitution

does not permit the court to direct or advise the

executive in matters of policy or to sermonize qua

any matter which under the Constitution lies

within the sphere the legislature or executive,

provided these authorities do not transgress their

constitutional limits or statutory powers."

The court cannot usurp the functions assigned to the legislative bodies

under the Constitution and even indirectly require the legislature to exercise

its power of law making in particular manner. The court cannot assume to

itself a supervisory role for the law making power of the legislature under

the provisions of the Constitution. The High Court must ensure that while

exercising its jurisdiction which is supervisory in nature it should not over

step the well recognized bounds of its own jurisdiction.

In Chandigarh Administrator and others versus Manpreet

Singh and others [ 1992 (1) SCC 380 ], the High Court while disposing of a

petition under Article 226 of the Constitution changed the categorization and

order of priority specified in the Rule framed by the University for giving

admissions to engineering colleges. The Supreme Court while reversing the

decision observed :

"\005\005.if the High Court thought that this

categorization was discriminatory and bad it ought

to have struck down the categorization to that

extent and directed the authority to reframe the

rule. It would then have been upon to the rule

making authority either to merge these two

categories or delete one or both of them,

depending upon the opinion they would have

formed on a review of the situation. We must

make it clear again that we express no opinion on

the question of validity or otherwise of the rule.

We are only saying that the High court should not

have indulged in the exercise of 'switching' the

categories \026 and that too without giving any

reasons thereafter. Thereby, it has practicably

assumed the role of rule making authority, or, at

any rate, assumed the role of an appellate

authority. That is clearly not the function of the

High Court acting under Article 226 of the

Constitution of India."

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The High Court's directions to make the law in a particular manner

are clearly unsustainable.

I agree with S.H. Kapadia, J. that the appeals preferred by the State as

well as Municipal Committee, Patiala should be allowed.