Gujarat High Court
Asok vs Union on 14 October, 2011
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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WPPIL/129/2011 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT
PETITION (PIL) No. 129 of 2011
For
Approval and Signature:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. A.L.DAVE
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ASOK
PANDE S/O LATE DAYANAND PANDEY - PETITIONER
Versus
UNION
OF INDIA & 4 - RESPONDENT
=========================================================
Appearance
:
PARTY-IN-PERSON
for
PETITIONER : 1,
None for RESPONDENT : 1 - 3, 5,
GOVERNMENT
PLEADER for RESPONDENT :
4,
=========================================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 14/10/2011
CAV
JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. A.L.DAVE) The petitioner who is a resident of State of Uttar Pradesh and practicing Advocate at Lucknow has preferred this writ-petition in the nature of Public Interest Litigation with the following prayers:-
"12(a) To issue a writ of Quo warranto thereby asking Dr.Kamla Benewal, the Government of Gujarat, the Respondent No.5 as to how she is holding the office of Government of Gujarat and by means of a writ of certiorari, her appointment may be quashed after summoning the same from the concerned Respondent Nos. 1 to 3 and 5.
(b) Issue a writ in the nature of mandamus thereby directing the respondent nos.1 and 2 to recall Dr.Kamla Benewal, the present Governor of Gujarat and to appoint some other suitable person after taking the approval of the Chief Minister."
This petition is a fine specimen of abuse of process of the Court in the name of Public Interest Litigation. It was expected from a member of a noble profession not to invoke jurisdiction of the Court in a matter where the position of law is abundantly clear.
The petitioner has submitted that he is a public spirited person. He submitted that he is of the view that the Constitution should be implemented in its letter and spirit. He wants that rule of law should prevail in the Nation and all the concerned should act in accordance with the provisions of law. He submitted that the appointment and the continuance of respondent no.5 as Governor of Gujarat is expressly violative of the provisions and the spirit of the Constitution. He submitted that Chief Minister of State of Gujarat by writing a letter dated 01.09.2011 addressed to the Hon'ble Prime Minister of India has prayed for recall of present Governor of the State Her Excellency Dr.Kamla Baniwal. He submitted that almost one month has lapsed, but, no recall of the Governor as desired by the Chief Minister of State of Gujarat has been effected. As a result of this, Her Excellency, Governor of Gujarat still continues in the office. He submitted that the Governor of State of Gujarat being executive head of the State is required and expected to function according to aid and advice by the Council of Ministers, as the Chief Minister is the head, who enjoys the confidence and majority desire of people, and the voters of the State. He relied upon Art.163(1), which says that "There shall be Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function, except in so far as he is by or under this Constitution required to exercise his funcitions or any of them in his discretion." He submitted that Governor of State of Gujarat, is appointed to function in total conformity with the solemn undertaking given by the constituent assembly to the people of India. He submitted that when the issue of appointment of Governor was being debated in the constituent assembly, so many members were of the view that there should not be any office of Governor in any form in the province. Some of the members debated in favour of elected office of Governor whereas some complained as to how the Governor is working against wishes of the elected Government and even trying to divide the party.
He further contended that so far the present case is concerned, it is a proved fact that Governor by breaking the norms of the Constitution and settled principle of law, has crossed the limit of democratic setup of the Government. The petitioner submitted that when Her Excellency, the Governor of State of Gujarat appointed Hon'ble Justice Mr.R.A.Mehta as Lokayukta of the State, the Governor did it without getting advice from the elected government of the State i.e. Chief Minister and his Council of Ministers in the office. This action of Governor was unconstitutional, illegal, unjust, improper and biased.
4.1 We inquired from the petitioner that as to what was the public interest involved in this petition and what is the base or the foundation for preferring this petition in the nature of Public Interest Litigation. Petitioner invited our attention to the letter written by Chief Minster of State of Gujarat addressed to Her Excellency, the President of India, requesting Her Excellency, the President of India, to recall the Governor of Gujarat. We inquired as to how the petitioner came in possession of such a letter to which petitioner replied that he has down loaded the same from the computer with the help of Internet.
4.2 Against this, we find that the grounds stated in the petition and the relief sought in the petition are totally different. There is no reference to appointment of Lokayukta in the petition or in the grounds and what is sought is quashment of appointment and recall of the Governor of Gujarat. The letter purporting to have been written by Chief Minister of the State, in such circumstances, looses significance even otherwise, it is not of any relevance for the purpose of this petition.
In any Public Interest Litigation, the Courts should prima-facie verify the credentials of the petitioner before entertaining Public Interest Litigation. The Courts before entertaining such petitions should ensure that Public Interest Litigation is aimed at redressal of genuine public harm or public injury.
We could have rejected this petition solely on the ground that the bonafides of the petitioner are doubtful and we do not find any genuine Public Interest involved in the litigation.
However, two questions of law directly or indirectly fall for our consideration, and therefore, we have thought fit to look into and answer these questions.
Questions for consideration before entertaining this writ petition on the file of this Court, by issuing a notice to the respondents, would be as to:-
"(A) Whether a writ in the nature with the terms of relief as couched in the prayer contained in memorandum of the writ petition could be maintained against the first respondent or not in view of the immunity and the consequent embargo contained in Art.361 of the Constitution of India;
(B) Whether petitioner could claim to have the locus to maintain a writ petition even as a Public Interest Litigation as it is made to appear?
In Part-VI of the Constitution of India, under Art.153, it is stated that there shall be a Governor for each State and under Art.154, the excecutive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Under Art.155, the Governor of the State shall be appointed by the President by warrant under his hand and seal. Under Art.156, it is stated that the Governor shall hold office during the pleasure of the President. Art.157 speaks of qualification for appointment as Governor and Art.158 provides for condition of Governor's office. It is in the following terms.
:158(1).
The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First scheduled, and if the member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor."
For the purpose of this case, it is enough to extract Art.158(1). A reading of this Articles already shows that the Governor is appointed by the President of India and he shall holds office during the pleasure of the President. It is clear from a reading of Art.158(1) that a Governor should not be a member of either House of Parliament or of a House of Legislature of any State. If a member of either House of Parliament or of a House of Legislature of any such State is appointed Governor, he shall be deemed to have vacated his seat in that House on that date on which he enters upon his office as Governor.
Art.361(i) of the Constitution is in the following terms;
"361.(1) The-President, or the Governor or Rapramukh of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties, of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:
Provided that the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State."
Art.361(4) is in the following terms:
"No civil proceeding in which relief is claimed against the president or the Governor of a State shall be instituted during his terms of office in any Court in respect of any act done or purporting to be done by him in his personal property whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered, to the President or the Governor as the case may be, of left at his office stating the nature of the proceedings, the cause of action therefore, the name description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims."
In our view, the present relief is asked for only against the President of India, which we are afraid, cannot be granted in view of Art.361 of the Constitution of India. Art.361 of the Constitution of India has been held to extend the immunity conferred on the President of India not only for acts of the President, which are done by him or her in the exercise of his function, but, also for act purporting to be done by the President in exercise of his or her powers.
The petitioner seeks for specific directions to the first respondent-President of India, to act in a particular manner in the discharge of her duties, and in our view, this is what that could not be done at the instance of the petitioner, in the truthful of Art.361 of the Constitution of India.
We have to our profit, a Full Bench decision of Madras High Court rendered in case of Mathialagan Vs. Governor of Tamilnadu reported in AIT 1973 Madras 198 wherein the Full Bench considering the scope of Art.361 of the Constitution of India, has approved judgment of the Single Judge of the Calcutta High Court held as follows.
" A single learned Judge of the Calcutta High Court in Biman Chandra Vs.H.C.Mukerjee, Governor of West Bengal (AIR 1652 Cal 799) held that a comparison of Cl.(1) of Art.361 with Cl.(4) thereof made it clear that in respect of Official acts, an absolute bar war created, but, in respect of acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil proceedings was imposed. We concur with him in this view."
In our view, the writ petition itself is not maintainable. It has to be dismissed in limine.
The Governor of State shall hold office during the pleasure of the President under Art.156 of the Constitution. As such, it is not open for the petitioner to make allegations based on a letter said to have been written by the Chief Minister of the State to Her Excellency the President of India claimed to be downloaded through Internet from the computer. It is a settled law that the Governor is not answerable to the Court even in respect of a charge of mala fides. In such eventuality Governor cannot be said to be under duty to deal with allegations of mala fides in order to assist the Court, which in effect would mean that she is answerable to the Court. The Governor in terms of Art.156 of the Constitution of India holds office during the pleasure of the President. No direction can be given to President of India to recall the Governor as immunity is provided to the President of India. Any mala fide actions of the Governor may, therefore, conceivably be gone into by the President.
During the course of hearing much emphasis was placed by the petitioner on the debate of the constituent assembly in so far as the appointment of Governor of a particular State is concerned. We may only say as held by the Supreme Court in case of State of Travancore-Cochin and Ors. Vs. Bombay Company Ltd., Alleppey, reported in AIR 1952 SC 366, that:-
"It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the constituent assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-see Administrator-
Governor General of Bengal Vs. Premal Mallick, 22 Ind. APP. 107 (P.C.) at p.18. The reason behind the rule was explained by one of us in Gopalan Vs. State of Madras, 1950 S.C.88 thus:
"A speech made in the course of the debate on a bill could at best be indicative of the subject intent of the Speaker, but, it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were accord."
or, as it is more tersely put in American case-
"Those who did not speak may not have agreed those who did; and those who spoke might differ from each other - United States Vs. Trans.-Missouri Frieght Association (1897) 169 U.S. 290 at p. 318(sic.)"
This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Austrial-see Craise on statute law, 5th Edn.p.122)."
With regard to Public Interest Litigation, it is worthwhile to refer to the decision of Hon'ble Supreme Court in case of Shri Sachidanand Pandey Vs. State of West Bengal reported in AIR 1987 SC 1109 observed as follows;
"Today public spirited litigants rush to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down, clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation , the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villian in delaying disposal of cases....
It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.
In a recent pronouncement of Hon'ble Supreme Court in the case of State of Uttaranchal Vs. Balwant Singh Chaufal and Ors., reported in (2010) 3 SCC 402, in Para-178, 179 and 181, laid down the following guidelines relating to Public Interest Litigation:-
"178. We must abundantly make it clear that we are not discouraging the Public Interest Litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the Courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life etc. It is the bounden duty and obligation of the Courts to encourage genuine bonafide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the laws.
179. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger pubic interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of Court's directions in PIL.
180. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other Courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous consideration.
(2) Instead of every individual judge devising his own procedure for dealing with the Public Interest Litigation, it would be appropriate for each High Court to properly formulates rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima-facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima-facie satisfied regarding the correctness of the contents of the petition before entertaining petition.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the Public Interest Litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
In a much recent pronouncement of Hon'ble Supreme Court in the case of P.Seshadri Vs. S. Mangati Gopal Reddy and Ors., reported in (2011) 5 SCC 484, has observed that:-
"Public Interest Litigation can only be entertained at the instance of bonafide litigants. It cannot be permitted to be used by unscrupulous litigants to disguise personal or individual grievances as Public Interest Litigations. The Supreme Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or not interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at threshold.
In the case of T.N.Godavarman Thirumulpad Vs. Union of Indian and Ors., reported in (2006) 5 SCC 28, Hon'ble Suprme Court has observed that:-
"Howsoever genuine a cause brought before a Court by a public interest litigant may be, the Court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bonafides of a public interest litigant are in doubt, the Court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing an amicus curiae to assist the Court but under no circumstances with the assistance of a doubtful public interest litigant. No trust can be placed by the Court on a malafide applicant in Public Interest Litigation. These are basic issues which are required to be satisfied by every Public Interest Litigation.
In a very very recent pronouncement of the Supreme Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Anr., reported in (2011) 7 SCC 639, in Para-14, while laying emphasis on the object and purpose of pleadings held as under:-
"13.
Strict rules of pleading may not apply in PIL, however, there must be sufficient material in the petition on the basis of which th Court may proceed. The PIL litigant has to lay a factual foundation for his averments on the basis of which such a person claims the reliefs. The information furnished by him should not be vague and indefinite. Proper pleadings are necessary to meet requirements of the principles of natural justice. Even in PIL, the litigant cannot approach the Court to have a finishing or roving enquiry. He cannot claim to have a chance to establish him claim. However, the technicalities of the rules of pleading cannot be made applicable vigorously. Pleading prepared by the layman must be construed generously as he lacks the standard of accuracy and precision particularly when a legal wrong is caused to a determinate class."
We may also quote with profit eminent jurist Mr.H.M.Seervai, Constitutional Law of India, Fourth Eddition, Para-18.28 quoted as under:-
"As to the constituent assembly debates, it is submits that except for limited purpose mentioned in Para-2.34 to 2.36 Vol.I of this edition, the debates are not permissible aids to the interpretation of the Constitution for the reasons given in Paras 2.37 to 2.43, Vol.I of this edition. The futility of resorting to these debates except for limited purposes, is clear if we examine the extensive citation of the discussion between Dr.Ambedkar and Dr.Rajendra Prasad (President of the Constituent Assembly) which is set out in the judgment of Krishna Iyer J. Dr.Rajendra Prasad repeatedly asked whether there was any provision of the Constitution which bound the President to act according to the advice of his Ministers. As he was not satisfied with the answers, the following dialogue took place between him and Dr.Ambedkar:
Mr.President:"Is there any real difficulty in providing somewhere that the President will be bound by the advice of the Ministers?
Dr.Ambedkar:"We are going that, if I may say so, there is a provision in the Instrument of Instructions."
Mr. President:" I have considered that also."
Dr.Ambedkar:"Paragraph 3 reads: In all matters within the scope of the executive power of the Union, the President shall, in exercise of the powers conferred upon him be guided by the advice of the ministers. We propose to make some amendment to that."
Mr.President:"You want to change that? As it is, it lays down that the President will be guided by the Ministers in the exercise of the executive powers of the Union and not in its legislative power."
Dr.Ambedkar:"
Article 61 follows almost literally various other constitution and the President have always understood that languange means that they must accept the advice. If there is any difficulty, it will certainly be remidied by suitable amendment."
Therefore, according to Dr.Ambedkar, the provision that the President of India was bound to accept the advice of his Ministers was incorporated in clause 3 of the Instrument of Instructions. "If there is any difficulty,"
said Dr.Ambedkar, "it will certainly be remedied by suitable amendment". But, the Constitution as finally enacted contained no Instrument of Instructions. If the debates in the Constituent Assembly were permissible aids to interpreting the provisions of our Constitution, it could be plausibly argued that by dropping the Instrument of Instructions, and consequently Clause-3, the constituent Assembly indicated its intention that the President was not to be bound by the advice of his Ministers. At any rate, the question whether the President was bound to follow the advice of his Ministers was left in a State of doubt and uncertainty since the only provision which was said to resolve that doubt was omitted. It is submitted that the thesis of the concurring judgment is not "strengthened" by the Constituent Assembly debates, but, if anything, is weakened by the reference to them."
One more aspect that needs to be addressed is that the petitioner challenges the appointment of the Governor of Gujarat and seeks quashment of the appointment on the ground that the appointment was made dehors the establish norms of appointment. It is the case of the petitioner that appointment of the Governor should be made by the President of India in consultation with the Prime Minister of India and Home Minister should have no say in the matter, whereas in the case of appointment of Governor of Gujarart, the file was processed by Home Ministry. The petitioner has not supplied any data or material to support his say. This, the petitioner is doing after several years of the appointment of the Governor of Gujarat.
We fail to understand as to how & why the petitioner, a resident of Uttar Pradesh and a practicing Advocate of Lucknow has travelled all the way to the State of Gujarat to prefer this petition seeking writ against Her Excellency, the President of India and Her Excellency, the Governor of Gujarat.
We are of the view that the petition is not only wholly misconceived, but, we find that the bonafides of the petitioner in preferring this petition also appears to be doubtful.
We are disturbed to note that a member of a noble profession, a practicing lawyer has not exercised any restraint even while drafting the petition. We also find that the averments are quite derogatory and not acceptable at least from the petitioner who is appearing as a Pary-in-Person.
Public Interest Litigation has been devised as a means to provide easy access to the weaker sections of the society to combat exploitation and injustice and in order to secure to the underprivileged segments of the society their social and economic entitlements and to rescue persons who are unable to approach the Court on their own for justice. It is not meant to be abused or misused for selfishness. The petition lacks the basics of a Public Interest Litigation. We do not know if this is a Publicity Interest Litigation (PIL) or Politics Interest Litigation (PIL), but, are certain that this is not a Public Interest Litigation, which it is supposed to be or which it is projected to be.
In the result, the petition fails and is hereby summarily rejected with cost of Rs.25,000/-. The petitioner Party-in-Person is directed to deposit sum of Rs.25,000/- towards cost to the Gujarat State Legal Services Authority within a period of four weeks from today. Registry to report compliance as regards the order of imposition of cost by this Court.
(A.L.DAVE, ACTG.C.J.) (J.B.PARDIWALA,J.) Girish Top