SUNDARJAS KANYALAL BHATIJA & ORS. v. COLLECTOR, THANE, MAHARASHTRA & ORS

Citation: [1989] 3 S.C.R. 405

Court: Supreme Court of India

Bench: G.L. OZA, K. JAGANNATHA SHETTY

Case summary

The petitioners have not challenged the validity of the sub-section (2) of sec. "In our opinion, once it is accepted that this is a piece of conditional legislation, then 1t will have to be held that the principle of natural justice would not .

Judgment text

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 y~ 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- S. K. BHATJJA v. COLLECTOR, THANE [SHETTY, J.

[ 409 .. tations. They objected to the merger of their municipal areas into the :::; Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are ~f ' 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 indentity 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 It was permitted to be withdrawn on an assurance given by the Government.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 f decision. As per the assurance, they were given personal hearing on their representations.

The others who have filed similar representa- ~ tions were not heard. But their objections or representations were duly considered. Thereupon, the Government decided to exclude Ulhasnagar from the proposed Corporation. Accordingly, a notificalion under sec. 3(2) of the Act was issued. The Corporation was thus constituted without Ulhasnagar. That was the only alteration made in i 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 locaied 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 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 ~ontext 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, JJ) in writ petition No. 706-A of 1982 (The Village Panchayat Chikalthane and Anr. v. The State ofMaharashtra 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 non-complaince with the principles of natural justice. The conditions laid down by sec. 3 are fully complied with; apreliminary notification was issued as contemplated by sub-section (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 anxi- ·\:: S. K.. BHATIJA v. COLLECTOR, THANE [SHETfY, J. ] 411 -. ety to maintain their separate entity. If such a large part is 1 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. Ti)e High Court said that the decision to exclude Ulhasnagar was taken by the Government abrupily 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 obligat -/ traditional way to deal with such matters and it is founded 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 y of a Court. Speaking for the Constitution Bench Union of India v. Raghubir Singh, [1989] 2SCC 754 learned Chief Justice said (at 766): "The doctrine of binding precedent has the merit of pro- . S. K. BHATIJA v. . COLLECTOR, THANE [SHETTY, J. ] 417 . . , mating a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing ass.

urance to the individual as to the consequence of transactimis forming part of bis daily affairs. And, therefore, the t1eed for a clear and consistent enunciation of legal principle in the decisions of a Court. " Cardozo propounded a similar thought with more emphasis: "I 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 l 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 questjon of ]aw 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 pul;\lic would be in dilemma to obey or not to obey such law and it p ultimately falls into disrepute. Judge learned Hand has referred to lhe 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 . } . , ,, with inconsistencies. There could be waxing and wanning the principle y 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 sec 754 at 767: "Legal compulsions cannot be limited by ex1stmg legal propositions, because, there will always be, beyond the +-·I 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 compeling versions of a legal proposition, or the modalities of an ' indeterminacy such as "fairness" or "reasonableness" but '1 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: I The universe of problems presented for judicial choice- \ making 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, ecoμomic 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 p~rceived. " Holmes tells us: 'y·-, "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 n ~ .. S. K. BHATJJA v. COLLECTOR, THANE (SHETIY, J. ] 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 ill-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 sa\I life clearly and he saw it whole". The judges have to have a little bitof 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 Corporaf tion 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 cp'uld 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 can- ) not 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 Seclion 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 requiren\ent 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 Hai/sham 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 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 legislativ! ' 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 ihe legislative process at the suit of those wbo 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 Jaw. 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 (1119- S. K. BHA\IJA v. COLLECTOR, THANE [SHETTY, J. J 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 atea which is declarecl as a town area is clependent up011 such declaratio11. Section 3 of the A,ct is in the nature of a conditional legislation. Dealing with the nature of fu11ctio11s of a non-judicial authority, Prof. S. A. De Smith in Judicial Review of Administrative Action (third edition) observ@s at page 163: "However, the analytical classificati911 of a function may be a conclusive factor in excluding the operation of the audi a(teram 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 ofHimachal Pradesh, I1987] 2 SCC 510 similar question arose for consideration. An attempt was made to constitute a notified area as providecl under Section 256 of the Himachal Pradesh M_unicipal 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 co0seq\iences l\llcl therefore, it was necessary that persons who would be affected thereby ought to be given an opportu- .. nity of being heard. Ranganath Misra, J.

, did not accept that contention, b11t clarifiecl (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 opprotunity 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 A 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. B 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. ~ -