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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.