http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

PETITIONER: SUNDARJAS KANYALAL BHATIJA & ORS.

       Vs.

RESPONDENT: COLLECTOR, THANE, MAHARASHTRA & ORS.

DATE OF JUDGMENT13/07/1989

BENCH: SHETTY, K.J. (J) BENCH: 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--Sec- tion  3--Draft notification--Merger of municipal areas  into Corporation issuance of--Government not entitled to hear the parties.

HEADNOTE:     On June 19, 1962, the Government of Maharashtra issued a draft notification under Section 3(3) of the Bombay  Provin- cial  Municipal Corporation Act, 1949 and  thereby  proposed the formation of "Kalyan Corporation", by merging of munici- pal  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 Court that the representation made by  the  Federation would  be duly considered, the Writ Petition was allowed  to be withdrawn.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  Federa- tion  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

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 validi- ty of the notification issued under section 3(2) of the Act. Their  main contention was that there has been hostile  dis- crimination  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  geo- graphical 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  notifica- tion 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 obligato- ry  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  ex- clude  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  notifica- tion directed the State Government to reconsider the propos- al  under  subsection (3) of the Act either  to  exclude  or include any area and accordingly make amends in the  notifi- cation.  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 consti- 407 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  exer- cise  again. It was further urged that the decision of  this Court  has been disregarded and a binding decision of a  co- ordinate  bench of the same Court in Village Panchayat  Chi- kalthane & 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

lawyers would be in a predicament and would not know how  to advise  their clients. Subordinate Courts would  find  them- selves  in  an embarrassing position to choose  between  the conflicting opinions. The general public will be in a dilem- ma  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  develop- ment  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.

JUDGMENT:     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.  Dhola- kia, 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  pro- priety 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

"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 represen- 409 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 Govern- ment decided to exclude Ulhasnagar from the proposed  Corpo- ration.  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 propos- al 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  conten- tions and for the same relief, there was another writ  peti- tion  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  sup- ported the stand taken by the Government which was the  main respondent in the writ petitions.     The  State in its counter affidavit resisted  the  peti- tioners’  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

             legislative process and, therefore, sec. 3  is               nothing  but a piece of  conditional  legisla-               tion.  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  chal-               lenged 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  Decem-               ber,  1982. Therefore, it cannot be said  that               the  notification  issued in exercise  of  the               said  legislative  power is vitiated  by  non-               complaince  with  the  principles  of  natural               justice.  The conditions laid down by  sec.  3               are fully complied with; a preliminary notifi-               cation  was  issued as  contemplated  by  sub-               section  (4) of sec. 3 of the Act; the  objec-               tions  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 prelim-               inary  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  them-               selves in different parts of the country.  One               can  appreciate  their  feelings  about  their               anxi-               411               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  Corpo-               ration  without including Ulhasnagar  for  the               time being."     The High Court was not impressed with the above  reason- ings.  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  obliga-               tory  on the part of the Government to  recon-               sider  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

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  vil-               lage  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  achieve-               ments  of sacrifice of the  Sindhi  Community.               However, that is not very relevant for  decid-               ing  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 perti-               nent 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 Adminis-               tration. In our view, that is also not  neces-               sary  since from the affidavit of the  Govern-               ment,  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  deci-               sion.  Under sub-section (3) of sec. 3 of  the               act, the State Government has power to exclude               or include any area specified in the notifica-               tion  issued so far as Ambarnath Town is  con-               cerned, reconsideration of the present case of               the whole matter was absolutely necessary when               the decision to exclude the Ulhasnagar Munici-               pal Council from the proposed Municipal Corpo-               ration,  ,though  tentative  in  nature,   was               taken."     Finally,  the operative portion of the Order was put  in the following terms:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

             "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  Gov- ernment has not preferred any appeal. The Kalyan City Corpo- ration  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  peti- tions.     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 Govern- ment  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  Gov- ernment 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 appel- lants 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  opin-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

ion,  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  peti- tion  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 conten- tion 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 reconsid- er the deci- 415 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  prin- ciple  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  contempla-               tion  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

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  ob- served 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  Corpora- tion  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  pro- priety  demand that where a learned single judge or a  Divi- sion  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 Gener- al 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 previ-               ous  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  Divi-               sion  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  judi-               cial  decorum and propriety. It is to  be  re-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

             gretted 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 pro-               417               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  transac-               tions forming part of his daily affairs.  And,               therefore, the need for a clear and consistent               enunciation  of legal principle in  the  deci-               sions 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  inconsisten-               cies  and irrelevancies and  artifical  excep-               tions 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  pre- dictable.  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  posi- tive  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 inevita- ble  in  our developing country. In  Raghubir  Singh,  case, learned  Chief Justice Pathak had this to say (1989)  2  SCC 754 at 767:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

             "Legal compulsions cannot be limited by exist-               ing  legal propositions, because,  there  will               always be, beyond the frontiers of the  exist-               ing 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  judi-               cial 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  re-               veals 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  ap-               proaching, 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 consist-               ent 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  legisla- tive process indeed. No judicial duty is laid on the Govern- ment 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

publish  the proposal by a draft notification and also  con- sidered  the representations received. It was only  thereaf- ter, 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  natu- ral  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  hear- ing  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  legisla- tive  process under Section 56 of the Solicitors  Act,  1957 said (at 1378):               "In  the present case, the committee in  ques-               tion 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  remu-               neration  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 repre-               sentative bodies by the legislative  authority               is a commonplace; but although a few  statutes               have  specifically  provided  for  a   general               process of publishing draft delegated legisla-               tion  and  considering  objections  (see,  for               example, the Factories Act 1961 Schedule 4), I               do  not know of any implied right to  be  con-               sulted  or make objections, or  any  principle               upon which the courts may enjoin the  legisla-               tive 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 legisla-               tive."     There  are equally clear authorities on this point  from this  Court.  The  case in Tvlsipur Sugar Co.  Ltd.  v.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

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 petition- er’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 advisabili- ty  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  applica-               tion  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 authori-               ty, Prof. S.A. De Smith in Judicial Review  of               Administrative Action (third edition) observes               at page 163: "However, the analytical  classi-               fication  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  subordi-               nate  legislative instrument need not be  pre-               ceded  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  oppor- tunity 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  con-               sidering the view of the residents. Denial  of               such opportunity is not in consonance with the               scheme of the rule of law governing our socie-               ty.  We must clarify that the hearing  contem-               plated  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

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  mat- ter. 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. 423