Telangana High Court
B.Surapapaiah vs The Commissioner And Driector Of ... on 20 October, 2022
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
* THE HON'BLE SRI JUSTICE J.CHELAMESWAR
THE HON'BLE SRI JUSTICE P.S. NARAYANA
THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY
+ W.P.Nos.25161/2004, 1081/2005, 1716/2005, 3847/2005,
9034/2005, 16867/2005, 10387/2005 and 13938/2005
%Dated 06-04-2006
# W.P.NO.25161/2004
G.Nmarasimha Murthy ..Petititioner
And
The District Collector, Mahabubnagar
And three others .. Respondents
W.P.No.1081/2005
G.Vijayalakshmi .. Petitioner
And
The Government of Andhra Pradesh
And 5 others .. Respondents
W.P.No.1716/2005
C.Janardhan .. Petitioner
And
The Principal Secretary,
Revenue Dept., and another .. Respondents
W.P.No.3847/2005
B.V.Subba Rao .. Petitioner
And
The Director of School Education
And another .. Respondents
W.P.NO.9034/2005
S.Prasada Reddy .. Petitioner
And
State of A.P. and another .. Respondents
W.P.No.16867/2005
S.V.Surender Rao and another .. Petitioners
And
The Government of A.P. and 2 others .. Respondents
W.P.No.10387/2005
B.Surapapaiah .. Petitioner
And
The Commissioner and Director of
Intermediate Education and 2 others .. Respondents
W.P.No.13938/2005
Kunmalla Subhash .. Petitioner
And
The Controller, Legal Metrolory
And 2 others .. Respondents
<GIST
>HEAD NOTE:
! Counsel for the Appellant :Sri Rama Rao, Sri Subrahmanya Sarma,
Sri Krishna Murthy, C.Sai Reddy, P.Venkataswamy,
Sri C.Nagaiah, Sri K.Satyanarayana Rao, Sri K.Umapati,
And Sri G.Tuhini Kumar
^Counsel for the Respondent No.: GP FOR SERVICES II,
ASSISTANT SOLICITOR GENERAL.
? Cases referred
2005 (2) ALT, 469 (FB)
2 AIR 1997 S.C., 1125
3 2004 (4) A.L.T., 41 (DB)
4 AIR 1987 S.C., 357
5 1994 (1) APLJ, 1 (FB)
6 AIR 1955 S.C., 233
7 AIR 1963 S.C., 874
8 AIR 1965 S.C., 1595
9 AIR 1987 S.C., 1362
10 AIR 1979 S.C., 1725
11 AIR 1964 S.C., 1140
12 AIR 1961 S.C., 1669
13 AIR 1967 S.C., 898
14 AIR 1972 S.C., 187
15 AIR 1995 S.C., 2272
16 (2000) 9 S.C.C., 380
17 AIR 1974 S.C., 259
18 AIR 1980 S.C., 2056
19 (1997) 6 S.C.C., 473
20 AIR 1970 S.C., 150
21 AIR 1996 S.C., 1669
22 2004 (4) A.L.T., 722 (DB)
23 (2002) 2 S.C.C., 188
24 (2000) 7 S.C.C., 425
25 AIR 1961 S.C., 1170
26 AIR 1961 S.C., 751
27AIR 1981 S.C., 1127
28 AIR 1952 Bombay, 296
29 (2001) 2 S.C.C., 259
30 (2000) 3 S.C.C., 321
31 (2000) 3 S.C.C., 40
32 (2001) 1 S.C.C., 728
33(2004) 8 S.C.C., 747
34 (2004) 5 S.C.C., 409
35 AIR 1986 Kerala, 86 = 1985 Labour and Industrial Cases, 1591
THE HON'BLE SRI JUSTICE J.CHELAMESWAR
THE HON'BLE SRI JUSTICE P.S. NARAYANA
THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY
W.P.Nos.25161/2004, 1081/2005, 1716/2005, 3847/2005,
9034/2005, 16867/2005, 10387/2005 and 13938/2005
Common Orders:- (Per Justice P.S.NARAYANA)
1. The question of the power of the Andhra Pradesh Administrative
Tribunal (in short hereinafter referred to as 'A.P.A.T.') to condone the
delay beyond the period specified under Rule 17 of the Andhra
Pradesh Administrative Tribunal (Procedure) Rules, 1989 (in short
hereinafter referred to as 'Rules' for the purpose of convenience)
beyond the period of 30 days specified had been referred to the Full
Bench in the light of the decision of yet another Full Bench in
G.NARSIMHA RAO v. REGIONAL JOINT DIRECTOR OF SCHOOL
EDUCATION, WARANGAL AND OTHERS wherein it was held that
A.P.A.T. has no jurisdiction to condone delay in filing review
application in the light of the language of Rule 19 of the Rules.
2. Several writ petitions are being filed as against the orders of
A.P.A.T. wherein the applications moved beyond time under Rule 17
are being dismissed on the ground that A.P.A.T. has no power to
condone delay beyond the specified period.
3. Sri Rama Rao, the learned Counsel representing certain writ
petitioners would maintain that the language employed in Rule 19 is
different from the language in Rule 17 of the Rules. The learned
Counsel also would contend that in case of review application, the
matter would be within the knowledge of the concerned Counsel,
whereas in case of default orders, such orders may or may not be
within the knowledge of the concerned Counsel of the party, as the
case may be, and hence, inasmuch as there is no specific or express
exclusion on the applicability of the Limitation Act, 1963 under Rule
17 of the Rules, an application to condone delay can be definitely
maintained. The learned Counsel also made certain submissions in
relation to the powers of the Tribunal to dismiss for default which
would have the power to restore also by implication. The learned
Counsel also pointed out to Section 29 (2) of the Limitation Act, 1963.
4. Sri Subrahmanya Sarma, the learned Counsel representing certain
writ petitioners had drawn the attention of this Court to Section 22(3)
(h) of the Administrative Tribunals Act, 1985 (in short hereinafter
referred to s 'the Act') and Section 5 of the Limitation Act, 1963. The
learned Counsel also had carefully analyzed the language employed
in Section 22 of the Act and would contend that Section 35 of the Act
deals with the Rule making power and in exercise of the said power
the Rules had been framed. The learned Counsel while further
elaborating the submissions had traced the historical background
commencing from Sampath Kumar to Chandra Kumar and also
would maintain that the A.P.A.T. virtually is having all the powers of
the High Court. The learned Counsel had drawn the attention of this
Court to Sections 14 and 15 of the Act and also the relevant entries in
List-I and List-II and Articles 225, 226, 227 and 323-A of the
Constitution of India. The learned Counsel also would maintain that
default orders are of different kinds and there are several default
orders, which are being made in view of the defective Cause List like
wrong printing of the name of the Counsel or wrong printing of the
numbers of the relevant O.As., and the like reasons and hence the
learned Counsel would contend that in such matters, principles of
natural justice would come into play and when such default orders
are made due to such mistakes, the A.P.A.T. is having inherent
power to restore the matters, if not, the applicants would be seriously
p re ju d ic e d . Sri Subrahmanya Sarma while elaborating his
submissions also had drawn the attention of this Court to paras 62,
64, 65, 66 and 68 of the decision of L.CHANDRA KUMAR v. UNION
OF INDIA and would contend that all the powers of the High Court
under Article 226 of the Constitution of India so far as they relate to
Service matters are concerned, had been transferred to the A.P.A.T.
The learned Counsel also had drawn the attention of this Court to
Section 14(1) and Section 15(1) of the Act. The learned Counsel also
had drawn the attention of this Court to Rules 17 and 18 and would
submit that in the light of the language between these two Rules,
different treatment is being given to the litigants figuring as applicants
and respondents. The learned Counsel also had drawn the attention
of this Court to Rules 15 and 16 of the Central Administrative Tribunal
Rules.
5. Sri Krishna Murthy, the learned Counsel representing certain writ
petitioners while virtually adopting the same line of submissions, in
elaboration had carefully scrutinized the language of Rule 19 and
also the language of Rule 17 of the Rules and had pointed out to the
non-exclusion of the application of Section 5 of the Limitation Act,
1963. The learned Counsel also had drawn the attention of this Court
to Section 29 of the Limitation Act, 1963 and made certain
submissions relating to the powers of the Tribunal and also the
powers of the Courts and would maintain that in view of Section 29
(2) of the Limitation Act, 1963, the relevant provisions of the Limitation
Act, 1963 may have to be held to be applicable to the A.P.A.T. too.
6. Heard Sri C. Sai Reddy, Sri P.venkataswamy, Sri C.Nagaiah, Sri
K.Satyanarayana Rao, Sri K. Umapathy and Sri G.Tuhini Kumar, the
learned Counsel representing the writ petitioners. The learned
Counsel representing the petitioners in different writ petitions virtually
had adopted the arguments advanced by the other Counsel already
referred to supra.
7. Per contra, the learned Government pleader for Services II would
maintain that though the language of Rule 19 and Rule 17 of the
Rules are not exactly akin, the fact remains that even in Rule 17(2)
specifically period of 30 days had been specified and even to set
aside the default order on an application filed within time, the Tribunal
should be satisfied in relation to the sufficient cause for his non-
appearance when the application is called for hearing. The learned
Counsel would maintain that in that view of the matter, the Rule
making authority had been very specific in not giving such benefit of
condonation of delay beyond the specified period by making it very
clear and explicit and hence, it must be taken that the language in the
said Rule is imperative in nature and hence what had not been
specified in the Rule cannot be read into the Rule unless otherwise it
is permissible under Law. The learned Counsel also in detail
explained the decision of the Full Bench in G.NARSIMHA RAO's
case (referred 1 supra).
8. The learned Assistant Solicitor General, on notice issued by this
Court, made the following submissions:-
The learned Counsel explained that the Rule was framed specifying
30 days period keeping in view the difference between the applicants
approaching the Tribunal and the respondents who are expected to
contest such matters. The learned Counsel also explained that in
most of the cases, the State alone would be the contesting party
though incidentally certain other contesting respondents also may be
there shown as respondents. The learned Counsel also would
maintain that merely because the time had been specified in a
particular Rule and such time had not been specified in yet another
Rule, by that it cannot be said that the Rule is either arbitrary,
discriminatory, unreasonable, irrational or unconstitutional. The
learned Counsel also had drawn the attention of this Court to the
different provisions of the Administrative Tribunals Act, 1985, the Rule
making power and the competency in relation thereto and also would
maintain that a particular Rule cannot be held to be invalid on
comparison with yet another Rule or in the background of the another
analogous Rule. The Counsel also placed strong reliance on certain
decisions.
9. Heard the Counsel on record.
10. The question which had been referred to is of general
importance. The Act (Central Act 13 of 1985) is an Act to provide for
the adjudication or trial by Administrative Tribunals of disputes and
complaints with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with
the affairs of the Union or of any State or of any local or other
authority within the territory of India or under the control of the
Government of India or of any corporation or society owned or
controlled by the Government in pursuance of Article 323-A of the
Constitution and for matters connected therewith or incidental thereto.
Section 3 of the Act deals with definitions and Section 3 (aa) inserted
by Act 19 of 1986 defines Administrative Tribunal as in this Act,
unless the context otherwise requires, "Administrative Tribunal", in
relation to a State, means the Administrative Tribunal for the State or,
as the case may be, the Joint Administrative Tribunal for that State
and any other State or States. Section 14 of the Act deals with
jurisdiction, powers and authority of the Central Administrative
Tribunal. Likewise, Section 15 of the Act deals with jurisdiction,
powers and authority of State Administrative Tribunal. Section 19
of the Act deals with Applications to Tribunals. Section 20 of the
Act deals with Application not to be admitted unless other
remedies exhausted. Section 21 of the Act deals with Limitation.
Section 22 of the Act dealing with Procedure and powers of
Tribunals reads as hereunder:-
(1) A Tribunal shall not be bound by the procedure laid down
in the Code of Civil Procedure, 1908 (5 of 1908), but shall be
guided by the principles of natural justice and subject to the
other provisions of this Act and of any rules made by the
Central Government, the Tribunal shall have power to
regulate its own procedure including the fixing of places and
times of its inquiry and deciding whether to sit in public or in
private.
(2) A Tribunal shall decide every application made to it as
expeditiously as possible and ordinarily every application
shall be decided on a perusal of documents and written
representations and after hearing such oral arguments as
maybe advanced.
(3) A Tribunal shall have, for the purposes of discharging its
functions under this Act, the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, in respect of the following matters,
namely -
a. summoning and enforcing the attendance of any
person and examining him on oath;
b. requiring the discovery and production of
documents;
c. receiving evidence on affidavits
d. subject to the provisions of Sections 123 and 124
of the Indian Evidence Act, 1872 (1 of 1872),
requisitioning any public record or document or
copy of such record or document from any
office
e. issuing commissions for the examination of
witnesses or, documents
f. reviewing its decisions;
g. dismissing a representation for default or deciding
it ex parte;
h. setting aside any order of dismissal of any
representation for default or any order passed
by it ex parte and
i. any other matter which may be prescribed by the
Central Government.
Section 22 (3)(h) of the Act had been strongly relied upon by the
Counsel representing the writ petitioners. Section 35 (1) of the Act
reads as hereunder:-
"The Central Government may, subject to the provisions of
Section 36, by notification, make rules to carry out the
provisions of this Act."
Section 35 (2) (d), (e) and (f) of the Act read as hereunder:-
d. the form in which an application may be made under
Section 19, the documents and other evidence by
which such application shall be accompanied and
the fees payable in respect of the filing of such
application for the service or execution of
processes;
e. the rules subject to which a Tribunal shall have power
to regulate its own procedure under sub-section
(1) of Section 22 and the additional matters in
respect of which a Tribunal may exercise the
powers of a civil court under clause (i) of sub-
section (3) of that section; and
f. any other matter which may be prescribed or in respect
of which rules are required to be made by the
Central Government.
In exercise of the powers under the aforesaid provisions, the Rules
were made by the Central Government. Rule 19 dealing with review
of application to be filed within thirty days specifies "no application
for review shall be entertained unless it is filed within thirty days from
the date of the order of which the review is sought". Rule 17 is the
relevant Rule which deals with action on application for applicant's
default and the said Rule reads as hereunder:-
(1) Whereon on the date fixed for hearing of the application
or on any other date to which such hearing may be
adjourned, the applicant does not appear when the
application is called for hearing, the Tribunal may, in its
discretion, either dismiss the application for default or hear
and decide it on merits.
(2) Where an application has been dismissed for default and
the applicant files an application within thirty days from the
date of dismissal and satisfies the Tribunal that there was
sufficient cause for his non-appearance when the
application was called for hearing, the Tribunal shall make
an order setting aside the order dismissing the application
and restore the same.
Provided, however, where the case was disposed of on
merits the decision shall not be responded except by way of
review.
Sub-section (2) specifically says that where an application has been
dismissed for default and the applicant files an application within thirty
days from the date of dismissal and satisfies the Tribunal that there
was sufficient cause for his non-appearance when the application
was called for hearing, the Tribunal shall make an order setting aside
the order dismissing the application and restore the same.
1 1 . On the strength of the language employed in sub-section (2),
submissions at length were made by the Counsel on record. In
DIRECTOR, INTERMEDIATE EDUCATION, GOVERNMENT OF
A.P. v. RAMA PRABHAKARA RAO AND OTHERS, it was held that
the jurisdiction of A.P.A.T. to punish for their contempt in respect of
matters covered by Section 14(1) is the same as vested in High Court
under Article 215 of the Constitution of India read with the provisions
of the Contempt of Courts Act, 1971. Article 323 A of the Constitution
of India reads as hereunder:-
1. Parliament may, by law, provide for the adjudication or
trial by administrative tribunals of disputes and
complaints with respect to recruitment and
conditions of service of persons appointed to public
services and posts in connection with the affairs of
the Union or of any State or of any local or other
authority within the territory of India or under the
control of the Government of India or of any
corporation owned or controlled by the Government.
2. A law made under clause (1) may -
a. provide for the establishment of an
administrative tribunal for the Union and a
separate administrative tribunal for each
State or for two or more States;
b. specify the jurisdiction, powers (including the
power to punish for contempt) and
authority which may be exercised by each
of the said tribunals;
c. provide for the procedure (including
provisions as to limitation and rules of
evidence) to be followed by the said
tribunals;
d. exclude the jurisdiction of all courts, except
the jurisdiction of the Supreme Court
under Article 136, with respect to the
disputes or complaints referred to in
clause (1);
e. provide for the transfer to each such
administrative tribunal of any cases
pending before any Court or other
authority immediately before the
establishment of such tribunal as would
have been within the jurisdiction of such
tribunal if the causes of action on which
such suits or proceedings are based had
arisen after such establishment;
f. repeal or amend any order made by the
President under clause (3) of article 371
D;
g. contain such supplemental, incidental and
consequential provisions (including
provisions as to fees) as Parliament may
deem necessary for the effective
functioning of, and for the speedy
disposal of cases by, and the
enforcement of the orders of, such
tribunals.
3. The provisions of this article shall have effect
notwithstanding anything in any other provision of
this Constitution or in any other law for the time
being in force.
I n J.B.Chopra and others V . Union of India and others the two
Judge Bench of the Apex Court at para 2 held as hereunder:-
"In S.P.Sampath Kumar v. Union of India, 1986 JT (SC)996:
(AIR 1987 SC 386), the Constitution Bench has held that the
Act is a law made by Parliament under Cl.(1) of Art.323A to
exclude the jurisdiction of the High Courts under Arts.226
and 227 of the Constitution. S.28 of the Act which bars the
jurisdiction of all Courts except the Supreme Court is
relatable to Cl.2(d) of Art.323-A for adjudication of service
matters including questions involving the validity or
otherwise of such laws on the ground that they abridge the
fundamental rights under Arts.14 and 16(1) of the
Constitution, and that the Administrative Tribunal set up
under S.4 of the Act is a substitute of, and not supplemental
to, the High Court providing an equally efficacious alternative
remedy for adjudication of such disputes. It has further held
that the establishment of the Administrative Tribunal under
the Act therefore takes away the jurisdiction and power of
the High Court to interfere in such matters but it is not
violative of the doctrine of judicial review which is a
fundamental aspect of the basic structure of our Constitution
because S.28 of the Act which bars the jurisdiction of the
High Court under Arts.226 and 227 of the Constitution
preserves the jurisdiction and power of the Supreme Court
under Arts.32 and 136 of the Constitution. It accordingly
follows that the Administrative Tribunal being a substitute of
the High Court had the necessary jurisdiction, power and
authority to adjudicate upon all disputes relating to service
matters including the power to deal with all questions
pertaining to the constitutional validity or otherwise of such
laws as offending Arts.14 and 16(1) of the Constitution. That
being so, the contention advanced by the petitioners that the
Administrative Tribunal had no authority or jurisdiction to
strike down the impugned notification dated March 15, 1980
purporting to amend R.4 of the Central Hindi Directorate
(Class III and Class IV) Posts Recruitment Rules, 1961
reserving 100 per cent vacancies to the post of
Superintendent to be filled by the Head Clerks and thereby
debarring Stenographers (Sr.) from being considered for
promotion to that post, as being wholly mala fide, arbitrary
and irrational and thus offending Arts.14 and 16(1) of the
Constitution, must therefore fail."
The Full Bench of this Court in SAKINALA HARINATH & Ors V.
STATE OF A.P. & Ors held that Article 323-A(2)(d)of the Constitution
of India is unconstitutional to the extent it empowers Parliament, by
law to exclude the jurisdiction of the High Court under Article 226 and
consequently, further declare that Section 28 of the Administrative
Tribunal Act, 1985 to the extent it divests the High Court of its
jurisdiction under Article 226 is unconstitutional. As the vires of no
statute is questioned in any of the Writ Petitions, we are of the view
that the petitioners should approach the Andhra Pradesh State
Administrative Tribunal established under the Administrative
Tribunals Act, 1985 for redressal of their grievances : when the
petitioners have an effective alternative remedy, we are not inclined
to adjudicate the individual merits of any case. If the petitioners
approach the Administrative Tribunal, it shall entertain their
representations and dispose of them in accordance with law. With the
above declarations and directions, both the writ petitions and writ
appeals are disposed of." In Chandrakumar v . Union of India and
others (referred 2 supra) it was held that the Tribunals are
competent to hear matters where the vires of statutory provisions are
questioned. However, in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme Court which have
under our Constitutional set up, been specifically entrusted with such
an obligation. Their function in this respect is only supplementary and
all such decisions of the Tribunals will be subject to scrutiny before a
Division Bench of the respective High Courts. The Tribunals will
consequently also have the power to test the vires of subordinate
legislations and rules. However, this power of the Tribunals will be
subject to one important exception. The Tribunals shall not entertain
any question regarding the vires of their parent statutes following the
settled principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases alone, the
concerned High Court may be approached directly. All other
decisions of these tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of their parents
statutes, will also be subject to scrutiny before a Division Bench of
their respective High Courts. The Supreme Court further added that
the Tribunals, will, however, continue to act as the only Courts of first
instance in respect of the areas of law for which they have been
constituted. By this, it meant that it will not be open for litigants to
directly approach the High Courts even in cases where they question
the vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the concerned Tribunal. The directions
issued by the Supreme Court in respect of making the decisions of
Tribunals amenable to scrutiny before a Division Bench of the
respective High Court \s will, however, come into effect prospectively
i.e., will apply to decisions rendered hereafter. To maintain sanctity of
judicial proceedings, it invoked the doctrine of prospective overruling
so as not to disturb the procedure in relation to decisions already
rendered." Strong reliance was placed on HARI VISHNU KAMATH v
AHMAD ISHAQUE AND OTHERS wherein the scope of proceedings
under Article 226 of the Constitution of India had been dealt with in
detail by the Constitution Bench. Submissions at length were made in
relation to the expressions "Court" and also "Tribunal" and reliance
was placed on the under-noted decisions to explain the expression
"Tribunal":-
"ENGINEERING MAZDOOR SABHA v. HIND CYCLES LTD;
ASSOCIATED CEMENT COMPANIES LTD., v . P.N.SHARMA
AND ANOTHER; ABHIJIT v. DEAN, GOVERNMENT
MEDICAL COLLEGE, AURANGABAD AND ANOTHER;
COMMISSIONER OF INCOME TAX (CENTRAL), CALCUTTA
v . B.N.BATTACHARJEE AND ANOTHER; INDO-CHINA
STEAM NAVIGATION CO.LTD., v. JASJIT SINGH,
ADDITIONAL COLLECTOR OF CUSTOMS, CALCUTTA AND
OTHERS; HARINAGAR SUGAR MILLS LTD., v . SHYAM
SUNDER JHUNJHUNWALA AND OTHERS; SAMYUKTA
SOCIETY PARTY v. THE ELECTION COMMISSION OF INDIA
AND ANOTHER; and SADIQ ALI v. ELECTION COMMISSION
OF INDIA.
12. This question need not detain this Court any longer for the reason
that though the Tribunal may be having certain trappings of the Court,
the same cannot be equated with the Court. Suffice to state that for
the purpose of applicability or otherwise of the provisions of the
Limitation Act, 1963, the Tribunal cannot be equated with Court,
despite the fact that the Tribunal may be having certain trapping of
the Court. Strong reliance was placed on MUKRI GOPALAN v.
CHEPPILAT PUTHANPURAYIL ABOOBACKER where the two
Judge Bench of the Apex Court while dealing with, the Appellate
Authority constituted under Section 18 of the Kerala Buildings (Lease
and Rent Control) Act, 1965, whether a Court or a persona designata,
observed as hereunder:-
"When the first schedule of the Limitation Act prescribes no
time limit for a particular appeal, but this special law
prescribes a time limit for it, it can be said that under the first
schedule of the Limitation Act all appeals can be filed at any
time, but the special law by limiting it provides for a different
period. While the former permits the filing of an appeal at any
time, the latter limits it to be filed within the prescribed period.
It is therefore, different from that prescribed in the former and
thus S.29(2) would apply even to a case where a difference
between the special law and Limitation Act arose by the
omission to provide for limitation to a particular proceeding
under the Limitation Act. Once the two conditions namely (i)
There must be a provision for period of limitation under any
special or local law in connection with any suit, appeal or
application. (ii) The said prescription of period of limitation
under such special or local law should be different from the
period prescribed by the schedule to the Limitation Act are
satisfied S.29(2) on its own force will get attracted to appeals
filed before alternative accommodation under S.18 of the
Rent Act. When S.29(2) applies to appeal under S.18 of the
Rent Act, for computing the period of limitation prescribed for
appeals under that Section, all the provisions of Ss.4 to 24 of
the Limitation Act would apply. Section 5 being one of them
would therefore get attracted. It is also obvious that there is
no express exclusion anywhere in the Rent Act taking out
the applicability of S.5 of the Limitation Act to appeals filed
before appellate authority under S.18 of the Act.
Consequently, all the legal requirements for applicability of
S.5 of the Limitation Act to such appeals in the light of
S.29(2) of Limitation Act can be said to have been satisfied.
It is therefore clear that the Appellate Authority constituted
under S.18 of the Kerala Rent Act, 1965 functions as a Court
and the period of limitation prescribed therein under S.18
governing appeals by aggrieved parties will be computed
keeping in view the provisions of Set aside.4 to 24 of the
Limitation Act, 1963. Such proceedings will attract S.29(2) of
the Limitation Act and consequently S.5 of the Limitation Act
would also be applicable to such proceedings. Appellate
Authority will have ample jurisdiction to consider the
question whether delay in filing such appeals could be
condoned on sufficient cause being made out by the
concerned applicant for the delay in filing such appeals."
13. The Counsel representing the writ petitioners also made
elaborate submissions on the applicability of principles of natural
justice to such Tribunals and would maintain that apart from the usual
default orders, several other default orders are being passed for
several mistakes which are occurring in the cause-list and other like
reasons for no default of either the Counsel on record or the
concerned parties. Strong reliance was placed on HASHMATULLAH
v. DISTRICT MAGISTRATE/ADHYAKSHA ZILA PARISHAD BASTI
AND OTHERS wherein the Apex Court while dealing with restoration
of Writ Petition dismissed for want of prosecution observed that
where the cause-list had not shown the party names and only
mentioned name of the Counsel, there was sufficient cause for non-
appearance and the petition was dismissed for default on 16-2-1993
and the appellant came to know of the default order on 4-7-95 and
filed restoration application two days later, High Court dismissing the
restoration application as highly belated and refusing to restore the
Writ Petition when the defect in the cause-list had been established
and in such case restoration would be justified and declining to
restore would be unjustified." The applicability of the principles of
natural justice to the Tribunals being well settled, need not be over-
emphasized and repeated again, the catena of decisions in this
regard reiterate the well settled legal position. I n RAMCHANDRA
SHANKAR DEODHAR AND OTHERS v . THE STATE OF
MAHARASHTRA AND OTHERS it was held "We find in the course of
our judicial experience, and we notice this fact with some
apprehension, that members of public services in alarmingly large
numbers resort to legal remedies in courts of law for agitating their
grievances in regard to service matters. This phenomenon is
symptomatic of a sense of injustice and subversive of that undivided
and devoted attention to official duties which is so essential for
efficient and dynamic functioning of the Government. While taking
judicial notice of the ingredients of litigation between State and the
Public servants, in KAMAL KANT DUTTA v. UNION OF INDIA AND
OTHERS the Apex Court observed:-
"There are few other litigative areas than disputes between
members of various services inter se, where the principle
that public policy requires that all litigation must have an end
can apply with greater force. Public servants ought not to be
driven or required to dissipate their time and energy in Court-
room battles. Thereby their attention is diverted from public
to private affairs and their inter se disputes affect their sense
of oneness without which an institution cannot function
effectively. The Constitution of Service Tribunals by State
Government with an Apex Tribunal at the Centre which in
the generality of the cases should be the final arbiter of
controversies relating to conditions of service, including the
vexed question of seniority, may save the Courts from the
avalanche of Writ Petitions and appeals in service matters.
The proceedings of such Tribunals can have the merit of
informality and if they will not be tied down to strict rules of
evidence, they might be able to produce solutions which will
satisfy many......"
In K.AJIT BABU v. UNION OF INDIA their Lordships of the Supreme
Court while considering the powers of Tribunal to exercise the right of
review under Rule 17 of the Central Administrative Tribunal
Procedure Rules, it was observed:
"The right of review is not a right of appeal where all
questions decided are open to challenge. The right of review
is possible only on limited grounds, mentioned in Order 47 of
the Code of Civil Procedure. Although strictly speaking
Order 47 of the Code of Civil Procedure may not be
applicable to the tribunals but the principles contained
therein surely have to be extended. Otherwise there being
no limitation on the power of review it would be an appeal
and there would be no certainty of finality of a decision.
Besides that, the right of review is available if such an
application is filed within the period of limitation. The decision
given by the Tribunal, unless reviewed or appeals against,
attains finality. If such a power to review is permitted, no
decision is final, as the decision would be subject to review
at any time at the instance of the party feeling adversely
affected by the said decision. A party in whose favour a
decision has been given cannot monitor the case for all
times to come. Public policy demands that there should be
an end to law suits and if the view of the Tribunal is
accepted the proceedings in a case will never come to an
end."
Strong reliance was placed on paras 11, 12 and 13 of the Full Bench
decision in G.Narasimha Rao's case (referred 1 supra) wherein it
was observed as hereunder:-
"Even assuming that the Limitation Act is not expressly
excluded by the Administrative Tribunals Act or the Rules
made thereunder, we have to see whether the scheme of
the special law i.e., in this case Administrative Tribunals
Act/Rules and the nature of remedy provided therein are
such that the legislature intended it to be a complete code
by itself which alone should govern all the matters provided
by it. If on an examination of the relevant provisions it is
found that the provisions of the Limitation Act are
necessarily excluded, then the benefits conferred therein
cannot be called in aid to supplement the provisions of the
Act and the Rules made there-under. In our view, even in
case the Act/Rules does not exclude the provisions of
Section 4 to 22 of the Limitation Act by an express
reference, it would none the less has to be examined
whether and to what extent the nature of those provisions or
the nature of the subject matter and the scheme of the
Act/Rules exclude their operations. The provisions of
Section 3 of the Limitation Act envisages that a suit
instituted, appeal preferred and application made after the
prescribed period shall be dismissed. Whereas Rule 19 of
the Rules which gives an preemptory command that no
application for review shall be entertained unless it is filed
within thirty days from the date of the order of which the
review is sought.
Even otherwise the provisions of the Limitation Act which
unless expressly excluded would be attracted can be made
applicable to the nature of the proceedings under the
Act/Rules, but the same is not what S 29 (2) of the Act says
because it provides that Sections 4 to 24 (inclusive) shall
apply only insofar as and to the extent to which they are not
expressly excluded by such special or local law. If none of
them are excluded all of them are applicable whether those
Sections are applicable or not is not determined by the terms
of those Sections, but by their applicability or inapplicability
to the proceedings under the special or local law. Section 6
of the Limitation Act, which provides for the extension of the
period of limitation till after the disability in the case of a
person who is either minor or insane or an idiot, is
inapplicable to the proceedings under the Act/Rules.
Similarly Sections 7 to 24 are in terms inapplicable to the
proceedings under the Act, particularly in respect of filing of
applications and the procedure to be followed under the
Ac t/Ru le s . The applicability of those provisions has,
therefore, to be judged not from the terms of Limitation Act
but by the provisions of the Administrative Tribunals Act
1985 and the Rules made thereunder relating to the filing of
original applications and review applications and their
disposal to ascertain whether it is a complete code in itself
which does not admit of the application of any of the
provisions of the Limitation Act mentioned in Section 29(2) of
the Act.
Rule 19 is couched in negative form and disables the
person from seeking review under Section 22(3) of the Act,
in case review is not filed within 30 days of the order.
However, in the Act nowhere it is stated the method or
manner or time limit to file such review except Rule 19. In
view of the same, the power of Tribunal to condone the
delay under Section 21 of the Act is applicable only to the
applications filed under Section 19, but the same cannot be
made applicable to the review sought under Section 22(3)(f).
Sub-section (1) of Section 22 puts an embargo on exercise
of such power by the Tribunal, namely that the power of the
Tribunal shall be guided by the principles of natural justice
and of any rules made by the Central Government. In the
absence of any provisions prescribed for condoning the
delay either in the Act or in the Rules, the Tribunal will not
have jurisdiction to condone the delay in taking aid and
assistance of Section 5 of Limitation Act on the premise that
Limitation Act is made applicable in view of sub-section (2)
of Section 29 of the Limitation Act."
14. It is no doubt true that the language employed in Rule 19 and
Rule 17 of the Rules which had been referred to supra are not exactly
similar. Though, the rigor of negative language employed in Rule 19
had not been as it is incorporated in Rule 17, the fact remains that
even while fixing the period of 30 days for restoration, satisfying the
Tribunal relating to the sufficient cause for non-appearance was
made a sine quo non. In the light of the same, the present question in
controversy may have to be decided.
15. It is no doubt true that there may be some default orders of
dismissal of proceedings not falling under Rule 17 and these orders
may be of varied forms and though such orders may be illustratively
specified, they cannot be exhaustively given. One example being
such orders made due to the omissions and the defects in the cause
list and of like nature. It is needless to say that the A.P.A.T. may have
to judge whether such an order would squarely fall within the ambit of
Rule 17 and if it does not fall within Rule 17, whether A.P.A.T. to
exercise the power by invoking the principles of natural justice,
dehors Rules 17 of the Rules. If an order does not fall within the ambit
of the any specified Rules relating to the setting aside of the default
orders, the A.P.A.T. may be at liberty to examine whether such
default orders be set aside for violation of the principles of natural
justice. In A.K.KRAIPAK v. UNION OF INDIA the Constitution Bench
at para 20 held:-
"The aim of the rules of natural justice is to secure justice to
put it negatively to prevent miscarriage of justice. These
rules can operate only in areas not covered by any law
validly made. In other words they do not supplant the law of
the land but supplement it. The concept of natural justice
has undergone a great deal of change in recent years. In the
past it was though that it included just two rules, namely (1)
no one shall be a judge in his own cause (Nemo debet esse
judex propria causa), and (2) no decision shall be given
against a party without affording him a reasonable hearing
(audi alteram partem). Very soon thereafter a third rule was
envisaged and that is that quasi-judicial enquiries must be
held in good faith, without bias and not arbitrarily or
unreasonably. But in the course of years many more
subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that
unless the authority concerned was required by the law
under which it functioned to act judicially there was no room
for the application of the rules of natural justice. The validity
of that limitation is not questioned. If the purpose of the rules
of natural justice is to prevent miscarriage of justice one fails
to see why those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to draw
the line that demarcates administrative enquiries from quasi-
judicial enquiries. Enquiries which were considered
administrative at one time are now being considered as
quasi-judicial in character. Arriving at a just decision is the
aim of both quasi-judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative enquiry
may have more far reaching effect than a decision in a
quasi-judicial enquiry. As observed by this Court in Suresh
Koshy George v. University of Kerala, Civil Appeal
No.990 of 1968, D/-15-7-1968 = (AIR 1969 SC 198) the
rules of natural justice are not embodied rules. What
particular rule of natural justice should apply to a given case
must depend to a great extent on the facts and
circumstances of that case, the frame-work of the law under
which the enquiry is held and the constitution of the Tribunal
or body of persons appointed for that purpose. Whenever a
complaint is made before a Court that some principle of
natural justice had been contravened the Court has to
decide whether the observance of that rule was necessary
for a just decision on the facts of that case."
In STATE BANK OF PATIALA v. S.K.SHARMA a two Judge Bench
of the Apex Court while dealing with the principles to be followed in
matters of disciplinary enquiries, evolved certain basic principles of
natural justice keeping in view the context of disciplinary enquiries
and orders of punishment imposed by an employer upon the
employee as hereunder:-
1. An order passed imposing a punishment on an
employee consequent upon a
disciplinary/departmental enquiry in violation of the
rules/regulations/statutory provisions governing
such enquiries should not be set aside
automatically. The Court or the Tribunal should
enquire whether (a) the provision violated is of a
substantive nature, or (b) whether it is procedural in
character.
2. A substantive provision has normally to be complied
with and the theory of substantial compliance or the
test of prejudice would not be applicable in such a
case.
3. In the case of violation of a procedural provision, the
position is this: procedural provisions are generally
meant for affording a reasonable and adequate
opportunity to the delinquent officer/employee. They
are, generally speaking, conceived in his interest.
Violation of any and every procedural provision
cannot be said to automatically vitiate the enquiry
held or order passed. Except cases falling under 'no
notice', 'no hearing' categories, the complaint of
violation of procedural provision should be
examined from the point of view of prejudice, viz.,
whether such violation has prejudiced the delinquent
officer/employee in defending himself properly and
effectively. If it is found that he has been so
prejudiced, appropriate orders have to be made to
repair and remedy the prejudice including setting
aside the enquiry and/or the order of punishment. If
no prejudice is established to have resulted there
from, it is obvious, no interference is called for. In this
connection, it may be remembered that there may
be certain procedural provisions which are of a
fundamental character, whose violation is by itself
proof of prejudice. The Court may not insist on proof
of prejudice in such cases. Take a case where there
is a provision expressly providing that after the
evidence of the employer/Government is over, the
employee shall be given an opportunity to lead
defence in his evidence, and in a given case, the
enquiry officer does not give that opportunity in spite
of the delinquent officer/employee asking for it. The
prejudice is self-evident. No proof of prejudice as
such need be called for in such a case. To repeat,
the test is one of prejudice, i.e., whether the person
has received a fair hearing considering all things.
Now, this very aspect can also be looked at from the
point of view of directory and mandatory provisions,
if one is so inclined. The principle stated under (4)
herein below is only another way of looking at the
same aspect as is dealt with herein and not a
different or distinct principle.
4. (a) In the case procedural provision which is not of a
mandatory character, the complaint of violation has
to be examined from the standpoint of substantial
compliance. Be that as it may, the order passed in
violation of such a provision can be set aside only
where such violation has occasioned prejudice to
the delinquent employee.
(b) In the case of violation of a procedural provision,
which is of a mandatory character, it has to be ascertain
whether the provision is conceived in the interest of the
person proceeded against or in public interest. If it is
found to be the former, then it must be seen whether the
delinquent officer has waived the said requirement, either
expressly or by his conduct. If he is found to have waived
it, then the order of punishment cannot be set-aside on
the ground of said violation. If, on the other hand, it is
found that the delinquent officer/employee has not
waived it or that the provision could not be awarded by
him, then the Court or Tribunal should make appropriate
directions (include the setting aside of the order of
punishment). The ultimate test is always the same, viz.,
test of prejudice or the test of fair hearing, as it may be
called.
5. Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only
obligation is to observe the principle of natural
justice - or, for that matter, wherever such principles
are held to be implied by the very nature and impact
of the order/action - the Court or the Tribunal should
make a distinction between a total violation of
natural justice (rule of audi alteram partem) and
violation of a facet of the said rule. In other words, a
distinction must be make between "no opportunity"
and no adequate opportunity i.e., between "no
notice"/"no hearing" and "no fair hearing". (a) In the
case of former, the order passed would undoubtedly
be invalid (one may call it "void" or a nullity if one
chooses to). In such cases, normally liberty will be
reserved for the Authority to take proceedings afresh
according to law, i.e., in accordance with the said
rule (audi alteram partem). (b) But in the latter case,
the effect of violation (of a facet of the rule of audi
alteram partem) has to be examined from the
standpoint of prejudice, in other words, what the
Court or Tribunal has to see is whether in the totality
of the circumstances, the delinquent
officer/employee did or did not have a fair hearing
and the orders to be made shall depend upon the
answer to the said query. (It is made clear that this
principle (No.5) does not apply in the case of rule
against bias, the test in which behalf are laid down
elsewhere).
6. While applying the rule of audi alteram partem (the
primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind
the ultimate and overriding objective underlying the
said rules, viz., to ensure a fair hearing and to
ensure that there is no failure of justice. It is this
objective which should guide them in applying the
rule to varying situations that arise before him
7. There may be situations where the interest of State or
public interest may call for a curtailing of the rule of
audi alteram partem. In such situations, the Court
may have to balance public/State interest with the
requirement of natural justice and arrive at an
appropriate decision.
16. A Futile attempt was made to convince this Court that the powers
of A.P.A.T. are analogous to the powers of the High Court under
Article 226 of the Constitution of India and hence, A.P.A.T. to be
taken to be having powers of restoration, dehors the Rules. This
contention can not find favour at the hands of this Court and liable to
be rejected for the simple reason that the very Constitutional scheme
as envisaged by Articles 226, 227 and 323 A of the Constitution of
India would disapprove such stand. The basic structure of the
Constitution, the power of judicial review of High Courts under Article
226 of the Constitution of India and the supervisory powers under
Article 227 of the Constitution of India also would suggestively
negative such stand. Similarity of exercise of certain powers in
Service matters by these Tribunals cannot be equated with the
extraordinary jurisdiction in relation to the issuance of prerogative
writs etc., conferred on the High Courts by the Constitution of India.
Be that as it may, on a careful analysis of the scheme of the Act, the
Rules framed there-under and on the crystalization and assimilation
of the whole Constitutional scheme, this Court is of the considered
opinion that the powers of the A.P.A.T. in this regard cannot be
equated with the powers of the High Courts under the different
provisions of the Constitution of India. I n Chandra Kumar's case
(referred 2 supra) it was held:-
In. Kesavananda Bharati's case(1973(4) SCC 425 AIR
1973 SC 1461, a 13-Judge Constitution Bench, by a
majority of 7:6, held that though, by virtue of Article 368,
Parliament is empowered to amend the Constitution, that
power cannot be exercised so as to damage the basic
features of the Constitution or to destroy its basic structure.
The identification of the features which constitute the basic
structure of our Constitution has been the subject-matter of
great debate in Indian Constitutional Law. The difficulty is
compounded by the fact that even the judgments for the
majority are not unanimously agreed on this aspect. (There
were five judgments for the majority, delivered by Sikri, C. J.,
Shelat & Grover, JJ., Hedge & Mukherjee, JJ., Jaganmohan
Reddy. J. and Khanna, J. While Khanna, J. did not attempt
to catelogue the basic features, the identification of the basic
features by the other Judges are specified in the following
paragraphs of the Court's judgments: Sikri . C. J. (para 292),
Shelat and Grover, JJ. (para 582). Hegde and Mukherjee.
JJ. (paras 632, 661) and Jaganmohan Reddy. J. (paras
1159. 1161). The aspect of judicial review does not find
elaborate mention in all the majority judgments. Khanna, J.
did, however, squarely address the issue (at para 1529):
"... The power of judicial review is, however,
confine not merely to deciding whether in making the
impugned laws the Central or State Legislatures have
acted within the four corners of the legislative lists
earmarked for them; the Courts also deal with the
question as to whether the laws are made in
conformity with and not in violation of the other
provisions of the Constitution....As long as some
fundamental rights exist and are a part of the
Constitution, the power of judicial review has also to be
exercised with a view to see that the guarantees
afforded by those rights are not contravened ....Judicial
review has thus become an integral part of our
constitutional system and a power has been vested in
the High Courts and the Supreme Court to decide
about the constitutional validity of provisions of
statutes. If the provisions of the statute are found to be
violative of any article of the Constitution, which is the
touchstone for the validity of all laws, the Supreme
Court and the High Courts are empowered to strike
down the said provisions."
In, Indira Nehru Gandhi v. Rai Narain, (1975 Supp SCC
1 AIR 1975 SC 2299), a five-Judge Constitution Bench had
to, inter alia, test the Constitutional validity of provisions
which ousted the jurisdiction of all Courts including the
Supreme Court, in election matters. Consequently, the Court
was required to express its opinion on the concept of judicial
review. Though all five Judges delivered concurring
judgments to strike down the offending provisions, their
views on the issue of judicial review are replete with
variations, Ray, C.J., was of the view that the concept of
judicial review, while a distinctive feature of American
Constitutional Law, is not founded on any specific Articles in
our Constitution. He observed that judicial review can and
has been excluded in several matters; in election matters,
judicial review is not a compulsion. He, however, held that
our Constitution recognises a division of the three main
functions of Government and that judicial power, which is
vested in the judiciary cannot be passed to or shared by the
Executive or the Legislature, (Paras 32, 43, 46, 52). Khanna
J. took the view that it is not necessary, within a democratic
set up, that disputes relating to the validity of elections be
settled by Courts of Law; he, however, felt that even so the
legislature could not be permitted to declare that the validity
of a particular election would not be challenged before any
forum and would be valid despite the existence of disputes.
(Para 207). Mathew, J. held that whereas in the United
States of America and in Australia, the judicial powers is
vested exclusively in Courts, there is no such exclusive
vesting of judicial power in the Supreme Court of India and
the Courts subordinate to it. Therefore, the Parliament could,
by passing a law within its competence, vest judicial power
in any authority for deciding a dispute. (Paras 322 and 323).
Beg J. held that the power of Courts to test the legality or
ordinary laws and constitutional amendments against the
norms laid down in the Constitution flows from the
supremacy of the Constitution which is a basic feature of the
Constitution. (para 622). Chandrachud, J. felt that the
contention that judicial review is a part of the basic structure
and that any attempt to exclude the jurisdiction of Courts in
respect of election matters was unconstitutional, was too
broadly stated. He pointed out that the Constitution, as
originally enacted, expressly excluded judicial review in a
large number of important matters. The examples of Articles
136(2) and 226(4) (exclusion of review in laws relating to
armed forces), Article 262(2) (exclusion of review in river
disputes), Article 103(1) (exclusion of review in
disqualification of Members of Parliament), Article 329(a)
(exclusion of review in laws relating to delimitation of
constituencies in laws relating to delimitation of
constituencies and related matters), were cited for support.
Based on this analysis. Chandrachud, J. came to the
conclusion that since the Constitution, as originally enacted,
did not consider that judicial power must intervene in the
interests of purity of elections, judicial review cannot be
considered to be a part of the basic structure in so far as
legislative elections are concerned.
The foregoing analysis reveals that the judges in, Indira
Gandhi's case, (AIR 1975 SC 2299). all of whom had been
party to Kesavananda Bharati's case, did not adopt similar
approaches to the concept of judicial review. While Beg J.
clearly expressed his view that judicial review was a part of
the basic structure of the Constitution, Ray, CJ and Mathew,
J. pointed out that unlike in the American context, judicial
power had not been expressly vested in the judiciary by the
Constitution of India. Khanna, J. did ad to consider the
validity of certain provisions of the Constitution (42nd
Amendment) Act, 1976 which, inter alia, excluded judicial
review. The judgment for the majority, delivered by
Chandrachud, CJ for four Judges, contained the following
observations :
"... Our Constitution is founded on a nice balance of
power among the three wings of the State, namely,
the Executive, the Legislature and the Judiciary. it is
the function of the Judges, nay their duty, to
pronounce upon the validity of laws. If Courts are
totally deprived of that power, the fundamental rights
conferred upon the people will become a mere
adornment because rights without remedies are as
writ in water. A controlled Constitution will then
become uncontrolled."
If the power under Article 32 of the Constitution, which
has been described as the "heart" and "soul" of the
Constitution, can be additionally conferred upon "any other
Court," there is no reason why the same situation cannot
subsist in respect of the jurisdiction conferred upon the High
Courts under Article 226 of the Constitution. So long as the
jurisdiction of the High Courts under Article 226/227 and that
of this Court under Article 32 is retained, there is no reason
why the power to test the validity of legislations against the
provisions of the Constitution cannot be conferred upon
Administrative Tribunals created under the Act or upon
Tribunals created under Article 323B of the Constitution. It is
to be remembered that, apart from the authorisation that
flows from Articles 323A and 323B, both Parliament and the
State Legislatures possess legislative competence to effect
changes in the original jurisdiction of the Supreme Court and
the High Courts. This power is available to Parliament under
Entries 77, 78, 79 and 95 of List I and to the State
Legislature under Entry 65 of List II; Entry 46 of List III can
also be availed of both of Parliament and the State
Legislatures for this purpose.
I n GURRAM SATYASESHAMAMBA v. GURRAM
KRISHNAVENAMMA the Division Bench of which one of us (Justice
P.S.Narayana) was a party, while dealing with Article 226 of the
Constitution of India and period of limitation by ordinary legislation or
the Rules observed:
The journey of law from KESAVANANDA BHARATI Vs.
UNION OF INDIA (1973) 4 S.C.C., 225), MINERVA MILLS
LIMITED Vs. UNION OF INDIA (1980) 3 S.C.C., 625) to
L.CHANDRA KUMAR Vs. UNION OF INDIA (1997) 3
S.C.C., 261) would clearly go to show that power of judicial
review under Articles 226 and 227 of the Constitution of
India is a part of the basic structure of the Constitution of
India. In the light of the same, can there by imposition of any
fetter on this power of Constitutional Courts by importing
ordinary Rules of limitation specified by the Rules ? No
doubt, for practice and procedure such Rules may be there,
but they can neither control nor over-ride the Constitutional
power vested in High Courts by virtue of either Article 226 or
227 of the Constitution of India. Hence, the contention that
this is only a revisional power under Article 227 and hence it
being not a new power and such power also can be
restricted by ordinary Rules of limitation, cannot be
accepted. Rules under Section 122 of the Code no doubt
form part and parcel of the Code. Reliance was placed on
SAWAN RAM Vs. GUMAN SINGH (AIR 1959 H.P., 25),
SETHO DAS Vs. PARO DEVI (AIR 1975 PATNA 351),
PULIN BEHARI Vs. BYOMKESH MITRA (AIR 1953 CAL.
40), WARYAM SINGH Vs. AMARNATH (1954 S.C.R., 565).
I n STATE OF M.P. Vs. BHAI LAL BHAI (AIR 1964 S.C.,
1006) at para 21 it was held :
"The learned Judges appear to have failed to notice
that the delay in these petitions was more than the
delay in the petition made in Bhailal Lal Bhai's case,
1960 M.P.C. 304 out of which Civil Appeal No.362 of
62 has arisen. On behalf of the respondents-
petitioners in these appeals (C.A.Nos.861 to 867 of
1962) Mr.Andley has argued that the delay in these
cases even is not such as would justify refusal of the
order for refund. We argued that assuming that the
remedy of recovery by action in a civil Court stood
barred on the date these applications were made that
would be no reason to refuse relief under Article 226 of
the Constitution. Learned Counsel is right in his
submission that the provisions of the Limitation Act do
not as such apply to the granting of relief under Article
2 2 6 . It appears to us however that the maximum
period fixed by the legislature as the time within which
the relief by a suit in a civil Court must be brought may
ordinarily be taken to be a reasonable standard by
which delay in seeking remedy under Article 226 can
be measured. This Court may consider the delay
unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy but
where the delay is more than this period, it will almost
always be proper for the Court to hold that it is
unreasonable. The period of limitation prescribed for
the recovery of money paid by mistake under the
Limitation Act is three years from the date when the
mistake is known. If the mistake was known in these
cases on or shortly after January 17, 1956 the delay in
making these applications should be considered
unreasonable. If, on the other hand, as Mr.Andley
seems to argue, that the mistake discovered much
later this would be a controversial fact which cannot
conveniently be decided in writ proceedings. In either
view of the matter we are of opinion the orders for
refund made by the High Court in these seven cases
cannot be sustained."
I n TILOKCHAND MOTICHAND Vs. H.B. MUNSHI (AIR
1970 S.C., 898) at paras 16, 17, 36 and 37 it was held:
"In England, as pointed out by Bachawat,J., the Court
of Chancery acted on the analogy of Statute of
Limitation (vide Halsbury, Vol.14, P.647, art.1190).
It seems to me, however, that the above solution is
not quite appropriate for petitions under Article 32. A
delay of 12 years or 6 years would make a strange
bed-fellow with a direction or order or writ in the nature
of mandamus, certiorari and prohibition. Bearing in
mind the history of these writs I cannot believe that
the Constituent Assembly had the intention that five
Judges of this Court should sit together to enforce a
fundamental right at the instance of a person, which
had without any reasonable explanation slept over his
rights for 6 or 12 years. The history of these writs both
in England and the USA convinces me that the
underlying idea of the Constitution was to provide an
expeditious and authoritative remedy against the
inroads of the State. If a claim is barred under the
Limitation Act, unless there are exceptional
circumstances, prima facie it is a stale claim and
should not be entertained by this Court. But even if it
is not barred under the Indian Limitation Act, it may
not be entertained by this Court if on the facts of the
case there is unreasonable delay. For instance, if the
State had taken possession of property under a law
alleged to be void, and if a petitioner comes to this
Court 11 years after the possession was taken by the
State, I would dismiss the petition on the ground of
delay, unless there is some reasonable explanation.
The fact that a suit for possession of land would still
be in time would not be relevant at all. It is difficult to
lay down a precise period beyond which delay should
be explained. I favour one year because this Court
should not be approached lightly, and competent
legal advice should be taken and pros and cons
carefully weighed before coming to this Court. It is
common knowledge that appeals and representations
to the higher authorities take time; time spent in
pursuing these remedies may not be excluded under
the Limitation Act, but it may ordinarily be taken as a
good explanation for the delay.
......
......
The next and the more fundamental question is
whether in the circumstances the Court should give
relief in a writ petition under Article 32 of the
Constitution. No period of limitation is prescribed for
such a petition. The right to move this Court for
enforcement of fundamental rights is guaranteed by
Article 32. The writ under Article 32 issues as a matter
of course if a breach of a fundamental right is
established. Technical rules applicable to suits like
the provisions of Section 80 of the Code of Civil
Procedure are not applicable to a proceeding, under
Article 32. But this does not mean that in giving relief
under Article 32 the Court must ignore and trample
under foot all laws of procedure, evidence, limitation,
res judicata and the like. Under Article 145(1)(c) rules
may be framed for regulating the practice and
procedure in proceedings under Article 32. In the
absence of such rules the Court may adopt any
reasonable rule of procedure. Thus a petitioner has
no right to move this Court under Article 32 for
enforcement of his fundamental right on a petition
containing misleading and inaccurate statements,
and if he files such a petition the Court will dismiss it,
see W.P.No.183 of 1966, Indian Sugar and Refineries
Ltd. Vs. Union of India decided on March 12, 1967
( S C ) . On grounds of public policy it would be
intolerable if the Court were to entertain such a
petition. Likewise the Court held in 1962-1 SCR 574 =
(AIR 1961 SC 1457) that the general principles of res
judicata applied to a writ petition under Article 32.
Similarly, this Court has summarily dismissed
innumerable writ petitions on the ground that it was
presented after unreasonable delay.
The normal remedy for recovery of money paid
to the State under coercion or mistake of law is by
suit. Articles 32 and 226 of the Constitution provide
concurrent remedy in respect of the same claim. The
extraordinary remedies under the Constitution are not
intended to enable the claimant to recover monies the
recovery of which by suit is barred by limitation.
Where the remedy in a writ application under Article
32 or Article 226 corresponds to a remedy in an
ordinary suit and the latter remedy is subject to the
bar of a statute of limitation, the Courts in its writ
jurisdiction acts by analogy to the statute, adopts the
statute as its own rule of procedure and in the
absence of special circumstances imposes the same
limitation on the summary remedy in the writ
jurisdiction. On similar grounds the Court of Chancery
acted on the analogy of the Statutes of limitation in
disposing of stale claims though the proceeding in a
Chancery was not subject to any express statutory
bar, see Halsbury's Laws of England, Vol.14, page
647, Article 1190, Knox v. Gye, 5 HL 656 at p.674.
Likewise, the High Court acts on the analogy of the
statute of limitation in a proceeding under Article 226
though the statute does not expressly apply to the
proceeding. The Court will almost always refuse to
give relief under Article 226 if the delay is more than
the statutory period of limitation".
In AIDAL SINGH Vs. KARAN SINGH (AIR 1957 All.414) it
was held at para 120:
"To sum up, the powers contemplated by the
Constitution makers under Articles 226 and 227
appear to be different. The former is described as the
power to issue certain writ orders or directions. The
latter is described as the power of superintendence.
There are two separate sections in the Constitution
next door to each other dealing with these powers. The
power under Article 226 is only judicial. The power
under Article 227 is both judicial and administrative.
The power under Article 226 is exercised on the
application of a party and for the enforcement of a legal
right.
The power under Article 227 can be exercised
suo motu by the Court as the custodian of all justice
within the limits of its territorial jurisdiction and for the
vindication of its position as such. For the exercise of
the power under Article 226, the Court has framed
rules. There are no such rules for the exercise of
power under Article 227. Article 226 appears to be self-
restrictive. On the other hand, there are no restrictions,
if any, are self-imposed. The power under Article 227 is
a power that can be exercised only over courts and
tribunals.
On the other hand, the power under Article 226 is
a power that can be exercised not only over courts and
Tribunals, but also over other bodies like the
Government. Article 226 confers a new power, at any
rate, so far as the Allahabad High Court is concerned.
On the other hand, Article 227 relates to a power which
is merely a continuation of an old power. In India,
legislative history discloses that there has been in the
past and there is at present a rupture between the two
powers. Prior to the Constitution, the power to issue
writs could not be considered to be a branch of the
power of superintendence, because the power of
superintendence possessed by the High Courts did
not carry with it the power to issue writs.
Even under the Constitution, the power of
superintendence is treated as a power divorced from
the power to issue writs. This is borne out by the fact
that the Supreme Court possesses the power to issue
writs, yet it does not possess the power of
superintendence. The analogy of English law cannot
hold good in India. In England the power to issue writs
is a part and parcel of the power of superintendence,
because the power there is exercised by the Court as
a delegate of the Sovereign who is the fountain of all
justice.
This is not so in India where the source or power
has always been the Statute which is at present the
Constitution of India. The power conferred under
Article 26 in India is also wider than the power to issue
high prerogative writs in England. The power exercised
under Article 226 is original. On the other hand, the
power exercised under Article 227 is not original.
Further, it is more reasonable to hold that an appeal
should lie in cases where the judgment of a single
Judge relates to the judgment of a Court or Tribunal
than to take a contrary view.
The contrary view would also bar the right of
appeal of a party to the Supreme Court under Article
133 of the Constitution. There may be cases where
both the Articles 226 and 227 are applicable. In cases
where the relief can be given under both, the Court
should exercise its power under Article 226 on the
principle that where a specific remedy is provided, the
general provisions of law should not be resorted to. In
any case, if a party is otherwise entitled to a right of
appeal against an order under Article 226, the fact that
the same relief could be granted under Article 227 is
no reason for depriving it of the said right where the
party has given the application itself under Article 226,
has claimed its right to relief under the said Article, and
the case itself has been entertained and disposed of
by the Court under the same Article."
The contention that the Rule specifying the period of
limitation cannot be rendered nugatory in view of it being
public policy cannot be accepted especially in view of the
p o s t Chandra Kumar's(AIR 1997 S.C., 1125) scenario.
Definitely no such fetters can be imposed on exercise of
Constitutional power by these Courts. It is no doubt true that
in several of the matters as against interlocutory orders
under the Code, since in view of the amended Section 115
of the Code, Revisions cannot be maintained, even beyond
the period of limitation the remedy under Article 227 of the
Constitution of India is being invoked. This question is more
concerned with the exercise of power and mode of exercise
of such power. Definitely, the Court can decline to interfere
on the ground of delay and laches but not on the ground that
it is barred by limitation specified by the Rules. It is no doubt
true that to file Revisions under Section 115 of the Code,
there is a period of limitation. When the object of introducing
the amending provisions itself is to check the delay being
caused in disposal of the main matters in view of
entertaining of Civil Revision Petitions as against every
interlocutory order, to hold that the ordinary period of
limitation is not applicable to the Civil Revision Petitions
under Article 227 of the Constitution of India preferred as
against such interlocutory orders, would be in a way
defeating the said object. Procedural rules or safeguards
cannot override the exercise of power of judicial review by
Constitutional Courts inclusive of the Constitutional remedy
under Article 227 of the Constitution of India. No guidelines
need be laid down in this regard. We do hope that the
Constitutional Courts would exercise sound judicial
discretion while either entertaining or declining to entertain
such Civil Revision Petitions as against such interlocutory
orders which are otherwise not revisable under Section 115
of the Code. Limitation cannot be imposed in exercise of
Constitutional powers by higher Courts in judicial hierarchy,
suffice to state that these Courts would be definitely cautious
in such matters keeping in view the broader spectrum and
horizon of this procedural anomaly of ordinary Rules of
limitation vis-à-vis the Constitutional remedies.
It is no doubt true that Rule of reading down a provision has
a rule of harmonious construction in a different name. In
CALCUTTA GUJARATI EDUCATION SOCIETY Vs.
CALCUTTA MUNICIPAL CORPORATION (2003) 10
S.C.C., 533) it was held :
"The rule of "reading down" a provision of law is now
well recognized. It is a rule of harmonious construction
in a different name. It is resorted to to smoothen the
crudities or ironing out the creases found in a statute to
make it workable. In the garb of "reading down",
however, it is not open to read words and expressions
not found in it and thus venture into a kind of judicial
legislation. The rule of reading down is to be used for
the limited purpose of making a particular provision
workable and to bring it in harmony with other
provisions of the statute. It is to be used keeping in
view the scheme of the statute and to fulfil its
purposes. See the following observations of this Court
in the case of B.R.Enterprises V. State of U.P. (1999) 9
SCC 700):
"First attempt should be made by the Courts
to uphold the charged provision and not to
invalidate it merely because one of the possible
interpretations leads to such a result, howsoever
attractive it may be. Thus, where there are two
possible interpretations, one invalidating the law
and the other upholding, the latter should be
a d o p te d . For this, the Courts have been
endeavoring, sometimes to give restrictive or
expansive meaning keeping in view the nature of
legislation, may be beneficial, penal or fiscal etc.
Cumulatively it is to sub serve the object of the
legislation. Old golden rule is of respecting the
wisdom of legislature that they are aware of the
law and would never have intended for an invalid
legislation. This also keeps courts within their track
and checks individual zeal of going wayward. Yet
in spite of this, if the impugned legislation cannot
be saved the Courts shall not hesitate to strike it
down. Similarly, for upholding any provision, if it
could be saved by reading it down, it should be
done, unless plain words are so clear to be in
defiance of the Constitution. These interpretations
spring out because of concern of the courts to
salvage a legislation to achieve its objective and
not to let it fall merely because of a possible
ingenious interpretation. The words are not static
but dynamic. This infuses fertility in the field of
interpretation. This equally helps to save an Act
but also the cause of attack on the Act. Here the
Courts have to play a cautious role of weeding out
the wild from the crop, of course, without infringing
the Constitution. For doing this, its historical
background, the purpose of enacting such a
provision, the mischief, if any which existed, which
is sought to be eliminated....This principle of
reading down, however, will not be available
where the plain and literal meaning from a bare
reading of any impugned provisions clearly shows
that it confers arbitrary, uncanalised or unbridled
power."
Reliance also was placed on P.TULSI DAS Vs. GOVT. OF
A.P. (2003) 1 S.C.C., 364), ST.JOHNS TEACHERS
TRANING INSTITUTE Vs. REGIONAL DIRECTOR
NATIONAL COUNCIL FOR TEACHER EDUCATION (2003)
3 S.C.C., 321 in this regard. The Constitutional power of the
High Courts under Article 227 of the Constitution of India
cannot be in any way curtailed or limited by imposing such
rule of restriction under the rule making power and such
rules cannot in any way affect the Constitutional powers of
these Courts concerned with the power of judicial review
and hence these Rules imposing such limitation may have
to be read down and the powers of the High Courts under
Article 227 of the Constitution of India are left unaffected by
such restrictions specified in the procedural Rules."
17. The constitutional validity of Rule 17 (2) of A.P.A.T. Procedure
Rules 1989 where-under the time limit of 30 days had been specified
had been questioned by moving an application in this regard. The
main ground of the attack is that imposing such restriction specifying
time limit under Rule 17 only in case of applicants and non-imposition
of any such restriction in the subsequent Rule, Rule 18 in the case of
ex parte hearing and disposal of applications being arbitrary and
discriminatory since the same is not based on any valid classification
wh a ts o e v e r. Incidentally Rules 15 and 16 of the Central
Administrative Tribunal procedural Rules, 1987, also had been
referred to and the absence of any such condition in Rule 15 of the
said Rules also had been pointed out. I n SHARMA TRANSPORT
REP. BY SHRI D.P.SHARMA v . GOVERNMENT OF ANDHRA
PRADESH it was held as hereunder:-
"Freedom granted by Article 301 is of the widest
amplitude and is subject to only such restrictions as are
contained in the succeeding Articles in Part XIII of the
Constitution. The following observations in Automobile's
case are relevant :
"Even in the matter of textual construction there are
difficulties. One of the difficulties which was adverted to
during the Constituent Assembly debates related to the
somewhat indiscriminate or inappropriate use of the
expressions 'subject to' and 'notwithstanding' in the
articles in question. Article 302, as we have seen,
makes a relaxation in favour of Parliament. Article 303
again imposes a restriction on that relaxation
'notwithstanding anything in Article 302 but Article 303
relates both to Parliament and the State Legislature,
through Article 302 makes no relaxation in favour of
the State Legislature. The non obstante clause in
Article 303 is, therefore, somewhat inappropriate.
Clause (2) of Article 303 carves out an exception from
the restriction imposed on Parliament by clause(1) of
Article 303. But again clause (2) relates only to
Parliament and not the State Legislature even though
clause (1) relates to both. Article 304 again begins with
a non-obstante clause mentioning both Article 301 and
Article 303, though Article 304 relates only to the
Legislature of the State. Articles 303 relates to both the
State Legislature and Parliament and again the non
obstinate clause in article 304 is somewhat
inappropriate. The fact of the matter is that there is
such a mix up of exception upon exception in the
series of articles in Part XIII that a purely textual
interpretation may not disclose the true intendment of
the articles. This does not mean that the text of the
articles, the words used therein, should be ignored.
Indeed, the text of the articles is a vital consideration in
interpreting them; but we must at the same time
remember that we are dealing with the constitution of a
country and the inter-connection of the different parts
of the Constitution forming part of an integrated whole
must not be lost sight of. Even textually, we must
ascertain the true meaning of the word 'free' occurring
in Article 301. From what burden or restrictions is the
freedom assured? This is a question of vital
Importance even in the matter of construction. In
Section 92 of the Australian Constitution the
expression used was 'absolutely free' and repeatedly
the question was posed as to what this freedom
meant. We do not propose to recite the somewhat
chequered history of the Australian decisions in
respect of which Lord Porter, after a review of the
earlier cases, said in Commonwealth of Australia v.
Bank of New South Wales (1950 AC 235) that in the
'labyrinth of cases decided under Section 92 there was
no golden thread.' What is more important for our
purpose is that he expressed the view that two general
propositions stood out from the decisions : (i) that
regulation of trade, commerce and intercourse among
the States is compatible with its absolute freedom, and
(ii) that Section 92 of the Australian Constitution is
violated only when a legislative or executive act
operates to restrict such trade, commerce and
intercourse directly and immediately as distinct from
creating some indirect or inconsequential impediment
which may fairly be regarded as remote. Lord Porter
admitted "that in the application of these general
propositions, in determining whether an enactment is
regulatory or something more or, whether a restriction
is direct or only remote or incidental, there cannot fail to
be difference of opinion." It seems clear, however, that
since "the conception of freedom of trade, commerce
and intercourse in a community regulated by law
presupposes some degree of restriction upon the
individual", that freedom must necessarily be delimited
by considerations of social orderliness. In one of the
earlier Australian decisions (Duncan v. The State of
Queensland) (1916 (22)CLR 556), Griffith, C.J. said:
"But the word "free" does not mean extra legem,
any more than freedom means anarchy. We boast
of being an absolutely free people, but that does
not mean that we are not subject to law."
As the language employed in Article 301 runs
unqualified the Court, bearing in mind the fact that
provision has to be applied in the working of an orderly
society, has necessarily to add certain qualifications
subject to which alone that freedom may be exercised.
This point has been very lucidly discussed in the
dissenting opinion which Fullagar, J., wrote in Mc
Carter v. Brodie [(1950) 80 CLR 432], an opinion which
was substantially approved by the Privy Council in
Hughes and Vale Proprietary Ltd. v. State of New
South Wales [(1955) AC 241]. The learned Judge
gave several examples to show the distinction
between what was merely permitted regulation and
what true interference with freedom of trade and
commerce. He pointed out that in the matter of motor
vehicles, most countries have legislation which
requires the motor vehicle to be registered and a fee to
be paid on registration. Every motor vehicle must carry
lamps of a specified kind in front and at the rear and in
the hours of darkness these lamps must be alight if the
vehicle is being driven on the road, every motor
vehicle must carry a warning device, such as horn; it
must not be driven at a speed or in a manner which is
dangerous to the public. In certain localities a motor
vehicle must not be driven at more than a certain
speed. The weight of the load which may be carried on
a motor vehicle on a public highway is limited. Such
examples may be multiplied indefinitely. Nobody
doubts that the application of rules like the above does
not really affect the freedom of trade and commerce;
on the contrary they facilitate the free flow of trade and
commerce. The reason is that these rules cannot fairly
be said to impose a burden on a trader or deter him
from trading: it would be absurd, for example, to
suggest that freedom of trade is impaired or hindered
by laws which require a motor vehicle to keep to the
left of the road and not drive in a manner dangerous to
the public. If the word 'free' in Article 301 means
'freedom to do whatever one wants to do' then chaos
may be the result; for example, one owner of a motor
vehicle may wish to drive on the left of the road while
another may wish to drive on the right of the road. If
they come from opposite directions, there will be an
inevitable clash. Another class of examples relates to
making a charge for the use of trading facilities, such
as, roads, bridges, aerodromes etc. The collection of a
toll or a tax for the use of a road or for the use of a
bridge or for the use of an aerodrome is no barrier or
burden or deterrent to traders who in their absence
may have to take a longer or less convenient or more
expensive route. Such compensatory taxes are no
hindrance to anybody's freedom so long as they
remain reasonable; but they could of course be
converted into a hindrance to the freedom of trade. If
the authorities concerned really wanted to hamper
anybody's trade, they could easily raise the amount of
tax or toll to an amount which would be prohibitive or
deterrent or create other impediments which instead of
facilitating trade and commerce would hamper them. It
is here that the contrast, between 'freedom' (Article
301) and 'restrictions' (Articles 302 and 304) clearly
appears: that which in reality facilitates trade and
commerce is not a restriction, and that which in reality
hampers or burdens trade and commerce is a
restriction. It is the reality or substance of the matter
that has to be determined. It is not possible a priori to
draw a dividing line between that which would really be
a charge for a facility provided and that which would
really be a deterrent to a trade but the distinction: if it
has to be drawn, is real and clear. For the tax to
become a prohibited tax it has to be a direct tax the
effect of which is to hinder the movement part of trade.
So long as a tax remains compensatory or regulatory it
cannot operate as a hindrance."Para 14
It was further observed:
"After carefully considering the arguments advanced
before us we have come to the conclusion that the
narrow interpretation canvassed for on behalf of the
majority of the State cannot be accepted, namely, that
the relevant articles in Part XIII apply only to legislation
in respect of the entries relating to trade and
commerce in any of the lists of the Seventh Schedule.
But we must advert here to one exception which we
have already indicated in an earlier part of this
judgment. Such regulatory measures as do not impede
the freedom of trade, commerce and intercourse and
compensatory taxes for the use of trading facilities are
not hit by the freedom declared by Article 301. They
are excluded from the purview of the provisions of Part
XIII of the Constitution for the simple reason that they
do not hamper trade, commerce and intercourse but
rather facilitate them".
I n CONSUMER ACTION GROUP v. STATE OF TAMIL NADU the
Apex Court held as hereunder:-
"The catena of decisions referred to above concludes
unwaveringly in spite of very wide power being conferred on
delegatee that such a section would still not be ultra vires, if
guideline could be gathered from the Preamble, Object and
Reasons and other provisions of the Acts and Rules. In
testing validity of such provision, the Courts have to
discover, whether there is any legislative policy purpose of
the statute or indication of any clear will through its various
provisions, if there be any, then this by itself would be a
guiding factor to be exercised by the delegatee. In other
words, then it cannot be held that such a power is unbridled
or uncanalised. The exercise of power of such delegatee is
controlled through such policy. In the fast changing scenario
of economic, social order with scientific development
spawns innumerable situations which Legislature possibly
could not foresee, so delegatee is entrusted with power to
meet such exigencies within the in built check or guidance
and in the present case to be within the declared policy. So
delegatee has to exercise its powers within this controlled
path to subserve the policy and to achieve the objectives of
the Act. A situation may arise, in some cases where strict
adherence to any provision of the statute or rules may result
in great hardship, in a given situation, where exercise of
such power of exemption is to remove this hardship without
materially effecting the policy of the Act, viz., development in
the present case then such exercise of power would be
covered under it. All situation cannot be culled out which has
to be judiciously judged and exercised, to meet any such
great hardship of any individual or institution or conversely in
the interest of society at large. Such power is meant rarely to
be used. So far decisions relied by the petitioner, where the
provisions were held to be ultra vires, they are not cases in
which Court found that there was any policy laid down under
the Act. In A. N. Parasuraman (AIR 1990 SC 40) (supra)
Court held Section 22 to be ultra vires as the Act did not lay
down any principle or policy. Similarly, in Kunnathat
Thathunni Moopil Nair (AIR 1961 SC 552) (supra) Section 7
was held to be ultra vires as there was no principle or policy
laid down.
Whenever any statute confers any power on any
statutory authority including a delegatee under a valid
statute, howsoever wide the discretion may be, the same
has to be exercised reasonably within the sphere that
statute confers and such exercise of powers must stand the
test to (sic) judicial scrutiny. This judicial scrutiny is one of
the basic features of our Constitution. The reason recorded
truly discloses the justifiability of the exercise of such power.
The question whether the power has been exercised validly
by the delegatee, in the present case, if yes, then it can only
be for the furtherance of that policy, What is that policy? The
policy is the development and use of rural and urban land
including construction of, colonies, buildings etc. in
accordance with the policy of the planning as laid down
under the Act and the Rules. When such a wide power is
given to any statutory authority including a delegatee then it
is obligatory on the part of such authority to clearly record its
reason in the order itself for exercising such a power.
Application of mind of such authority at that point of time
could only be revealed when order records its reason. Even
if Section is silent about recording of reason, it is obligatory
on the Government while passing orders under Section 113
to record the reason. The scheme of the Act reveals, the
Government is conferred with wide ranging power, including
power to appoint all important statutory authorities; appoints
Director and its members of Town and Country Planning
under Section 4; constitutes Tamil Nadu Town and Country
Planning Board under Section 5; Board to perform such
functions as Government assigns under Section 6; appoints
Madras Metropolitan Development Authority under Section
9-A; Government entrusted for making master plan or any
other new plan; any plant or modification is subject to the
approval of Government. In fact, every statutory Committee
is created by the Government and its planning is subject to
the approval by the Government. It is because of this that
very wide power is given to it under Section 113. In a given
case, where a new development in rural or urban area may
be required urgently and provisions under the Act and Rules
would take long procedure, it may in exercise of its
exemption power exempt some of the provisions of the Act
and Rules to achieve the development activity faster or in a
given case, if any hardship arises by following or having not
followed the procedure as prescribed, the power of
exemption could be exercised but each of these cases
would be for furtherance of the development of that area.
When such a wide power is vested in the Government it
has to be exercised with greater circumspection. Greater is
the power, greater should be the caution. No power is
absolute, it is hedged by the checks in the statute itself.
Existence of power does not mean to give one on his mere
asking. The entrustment of such power is neither to act in
benevolence nor in the extra statutory field. Entrustment of
such a power is only for the public good and for the public
cause. While exercising such a power the authority has to
keep in mind the purpose and the policy of the Act and while
granting relief has to equate the resultant effect of such a
grant on both viz., the public and the individual. So long it
does not materially effect the public cause, the grant would
be to eliminate individual hardship which would be within the
permissible limit of the exercise of power. But where it
erodes the public safety, public convenience, public health
etc., the exercise of power could not be for the furtherance of
the purpose of the Act. Minor abrasion here and there to
eliminate greater hardship, may be in a given case, be
justified but in no case effecting the public at large. So every
time Government exercises its power it has to examine and
balance this before exercising such a power. Even
otherwise every individual right including fundamental right is
within reasonable limit but if it inroads public rights leading to
public inconveniences it has to be curtailed to that extent. So
no exemption should be granted effecting public at large.
Various development rules and restrictions under it are
made to ward off possible public inconvenience and safety.
Thus, whenever any power is to be exercised, Government
must keep in mind, whether such a grant would recoil on
public or not and to what extent. If it does then exemption is
to be refused. If the effect is marginal compared to the
hardship of an individual that may be considered for
granting. Such an application of mind has not been made in
any of these impugned orders. Another significant fact which
makes these impugned orders illegal is that Section 113
empowers it to exempt but it obligates it to grant subject to
such condition as it deems fit. In other words, if any power is
exercised then Government must put such condition so as
to keep in check such person. We find in none of these
sixty-two orders any condition is put by the Government. If
not this then what else would be the exercise of arbitrary
power."
I n J.K.COTTON SPINNING AND WEAVING MILLS CO.LTD., v.
STATE OF UTTA PRADESH AND OTHER it was held that in the
interpretation of statutes the courts always presume that the
legislature inserted every part thereof for a purpose and the
legislative intention is that every part of the statute should have effect
and these presumptions will have to be made in the case of rule
making authority also. In STATE OF UTTAR PRADESH AND
OTHERS v. BABU RAM UPADHYA it was held that the Rules made
under a statute must be treated for all purposes of construction or
obligation exactly as if they were in the Act and are to be of the same
effect as if contained in the Act and are to be judicially noticed for all
purposes or construction or obligation and the statutory Rules cannot
be described as, or equated with, administrative directions. Similar
views had been expressed in RAMESHCHANDRA KACHARDAS
PORWAL :M/S NARAYANDAS GOVINDDAS:SHA MOTEEJEE
VIRCHANDJI:PRAVINCHANDRA KESHAVLAL:M V
MANJUNATH:M/S APPASAHEB BHARAMAPPA
VANKUNDRE:BASUDEO PRASAD:BHAGWAN DAS G Vs. STATE
OF MAHARASHTRA and MULCHAND v. MUKUND. I n K.
THIMMAPPA v . CHAIRMAN, CENTRAL BOARD OF DIRS, SBI it
was held as hereunder:-
Mr. Shanti Bhushan and Mr. Kapil Sibal, learned
counsel, appearing for the bank, on the other hand
contended that Conditions of Service Order, 1979, is a
statutory order, made in exercise of powers conferred under
sub-section (1) of Section 43 of the State Bank of India Act,
1955 and the said order purports to rationalise and
standardise in restructuring the administrative set up of the
Management cadres and in process of such restructuring if
on consideration of relevant and germane materials,
placement of the officers has been made, as provided under
paragraph 7 of the Conditions of Service Order, then such
placement is not liable to the interfered with by a Court of
law, unless a strong case is made out, either on the ground
of mala fides or on the ground of infraction of a constituional
provision. According to the learned counsel, when officers of
a pre-existing Grade are sought to be placed in the different
grades, which emanated on account of standardisation and
re-structuring, then it may not be possible in a given situation
to put all the officers of a particular grade to be placed in a
corresponding grade or scale of pay evolved in the process
of restructuring. This being the position, while grafting of
these officers in the newly created grade and scale, if there
is a bifurcation of officers of a particulars grade into two,
based on their period of service, experience and other
relevant factors, such bifurcation would not tantamount to
treating them (sic) officers, on the basis of the
responsibilities and functions exercisable by such officers
whereas paragraph 7 deals with the placement and
paragraph 8 deals with the fitment in the new scale of pay
and this being the position, notwithstanding paragraph 7 is
subject to paragraph 6, there would be no bar in bifurcating
the officers of a particular grade and placing them in two
different grades, as has been done in the present case, if
there is any reasonable basis for such bifurcation. According
to the learned counsel, the provision for confirmation,
contained in paragraph 16 would not attract the mischief of
inglorious uncertainty of confirmation in the service and on
the other hand, it is the satisfactory completion of training of
the officers, which is determinative of the confirmation in
service and failure on the part of the officer, who is not found
fit for confirmation by the Competent Authority, would entail
termination of service in case of a direct appointee and
reversion to the substantive grade in case of a promotee.
This being the position with regard to confirmation, the ratio
in Patwardhan's case as well as Direct Recruits case (AIR
1990 SC 1607 : 1990 Lab IC 1304) on which reliance has
been placed by the counsel, appearing for the petitioners,
would have no application at all. According to Mr. Shanti
Bhushan, the judgment of this Court in Tarsem Lal Gautam
v. State Bank of Patiala, (1989) 1 SCC 182 : (AIR 1989 SC
30 : 1989 Lab IC 1138) fully governs the present batch of
cases and as such, there is no infirmity with the classification
that has been made amongst the officers of Grade I on the
basis of their date of confirmation, whether prior to 31-12-
1972 or thereafter. Mr. Sibal, further urged that it would be a
sound and wise exercise of discretion for the Courts to
refuse to exercise their extraordinary powers under Article
226 in the case of persons who do not approach the Court
expeditiously for relief and who stand by and allow things to
happen and then approach the Court to put forward stale
claims and try to unsettle settled matters and in the case in
hand, the placement that was made in the year 1979 is now
sought to be assailed in writ petition filed in different High
Courts, the earliest being in the year 1988 and the latest
being in the year 1998 and such delay in approaching the
Court disentitles the petitioners from invoking the
extraordinary jurisdiction of the Court under Article 226 of the
Constitution, and, therefore, these petitions are liable to be
dismissed. In support of this contention, reliance was placed
on the decision of this Court in the case of P.S.
Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 :
(AIR 1974 SC 2271 : 1974 Lab IC 1431). Before we deal
with the respective contentions of the parties it would be
appropriate for us to notice that what Article 14 prohibits is
class legislation and not reasonable classification for the
purpose of legislation. If the rule Making Authority takes care
to reasonably classify persons for a particular purpose and if
it deals equally with all persons belonging to a well defined
class then it would not be open to the charge of
discrimination. But to pass the test of permissible
classification two conditions must be fulfilled:-
(A) that the classification must be founded on an intelligible
differentia which distinguishes persons or things which are
grouped together from others left out of the group; and
(B) that the differentia must have a rational relation to the
object sought to be achieved by the statute in question.
The classification may be founded on different basis and
what is necessary is that there must be a nexus between the
basis of classification and the object under consideration.
Article 14 of the Constitution does not insist that the
classification should be scientifically perfect and a Court
would not interfere unless the alleged classification results in
apparent inequality. When a law is challenged to be
discriminatory essentially on the ground that it denies equal
treatment or protection, the question for determination by
Court is not whether it has resulted in inquality but whether
there is some difference which bears a just and reasonable
relation to the object of legislation. Mere differentiation does
not per se amount to discrimination within the inhibition of
the equal protection clause. To attract the operation of the
clause it is necessary to show that the selection or
differentiation is unreasonable or arbitrary; that it does not
rest on any rational basis having regard to the object which
the legislature has in view. If a law deals with members of
well defined class then it is not obnoxious and it is not open
to the charge of denial of equal protection on the ground that
it has no application to other persons. It is for the Rule
Making Authority to determine what categories of persons
would embrace within the scope of the rule and merely
because some categories which would stand on the same
footing as those which are covered by the rule are left out
would not render the Rule or the Law enacted in any manner
discriminatory and violative of Article 14. It is not possible to
exhaust the circumstances or criteria which may afford a
reasonable basis for classification in all cases. It depends on
the object of the legislation, and what it really seeks to
achieve.
I n ST.JOHNS TEACHERS TRAINING INSTITUTE v. REGIONAL
DIRECTOR, NATIONAL COUNCIL FOR TEACHER EDUCATION it
was held as hereunder:-
"A regulation is a rule or order prescribed by a superior for
the management of some business and implies a rule for
general cause of action. Rules and regulations are all
comprised in delegated legislations. The power to make
subordinate legislation is derived from the enabling Act and
it is fundamental that the delegate on whom such a power is
conferred has to act within the limits of authority conferred by
the Act. Rules cannot be made to supplant the provisions of
the enabling Act but to supplement it. What is permitted is
the delegation of ancillary or subordinate legislative
functions, or, what is fictionally called, a power to fill up
details. The legislature may, after laying down the legislative
policy confer discretion on an administrative agency as to
the execution of the policy and leave it to the agency to work
out the details within the framework of policy. The need for
delegated legislation is that they are framed with care and
minuteness when the statutory authority making the rule,
after coming into force of the Act, is in a better position to
adapt the Act to special circumstances. Delegated
legislation permits utilisation of experience and consultation
with interests affected by the practical operation of statutes.
Rules and regulations made by reason of the specific power
conferred by the statutes to make rules and regulations
establish the pattern of conduct to be followed. Regulations
are in aid of enforcement of the provisions of the statute. The
process of legislation by departmental regulations saves
time and is intended to deal with local variations and the
power to legislate by statutory instrument in the form of rules
and regulations is conferred by Parliament. The main
justification for delegated legislation is that the legislature
being overburdened and the needs of the modern-day
society being complex, it cannot possibly foresee every
administrative difficulty that may arise after the statute has
begun to operate. Delegated legislation fills those needs.
The regulations made under power conferred by the statute
are supporting legislation and have the force and effect, if
validly made, as an Act passed by the competent
legislature."
I n KUNJ BEHARI LAL BUTAIL AND OTHERS v. STATE OF
H.P. AND OTHERS it was held that delegated legislation must
advance the purposes of the statute it is framed under and unless
it does so, it cannot be sustained. I n STATE OF KARNATAKA
AND ANOTHER v. B.SUVARNA MALINI AND ANOTHER it was
held that where the Rules were made under the statute after duly
complying with requirements, they are legislative in character
having the force as if framed by the State Legislature. In
MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR
LEGISLATIVE COUNCIL the Apex Court while dealing with the
scope and ambit of subordinate legislation held as hereunder:-
"It may be noted that under Paragraph 8, the Chairman or
the Speaker of a House is empowered to make rules for
giving effect to the provisions of the Tenth Schedule. The
rules being delegated legislation are subject to certain
fundamental factors Underlying the concept of delegated
legislation is the basic principle that the legislature delegates
because it cannot directly exert its will in every detail. All it
can in practice do is to lay down the outline. This means that
the intention of the legislature, as indicated in the outline
(that is the enabling Act), must be the prime guide to the
meaning of delegated legislation and the extent of the power
to make it. The true extent of the power governs the legal
meaning of the delegated legislation. The delegate is not
intended to travel wider than the object of the legislature.
The delegate's function is to serve and promote that object,
while at all times remaining true to it That is the rule of
primary intention. Power delegated by an enactment does
not enable the authority by regulations to extend the scope
or general operation of the enactment but is strictly ancillary.
It will authorise the provision of subsidiary means of carrying
into effect what is enacted in the statute itself and will cover
what is incidental to the execution of its specific provision.
But such a power will not support attempts to widen the
purposes of the Act, to add new and different means of
carrying them out or to depart from or vary its ends. (See
Section 59 in chapter Delegated Legislation in Francis
Bennion's Statutory Interpretation 3rd Edn.). The aforesaid
principle will apply with greater rigour where rules have been
framed in exercise of power conferred by a constitutional
provision. No rules can be framed which have the effect of
either enlarging or restricting the content and amplitude of
the relevant constitutional provisions. Similarly, the rules
should be interpreted consistent with the aforesaid principle.
Sub-Rule (1) of Rule 6 says that no reference of any
question as to whether a member has become subject to
disqualification under the Tenth Schedule shall be made
except by a petition in relation to such member made in
accordance with the provisions of the said Rule and Sub-
rule (6) of the same Rule provides that every petition shall be
signed by the petitioner and verified in the manner laid down
in the Code of Civil Procedure for the verification of
pleadings. The heading of Rule 7 is 'PROCEDURE". Sub-
rule (1) of this Rule says that on receipt of petition under
Rule 6, the Chairman shall consider whether the petition
complies with the requirement of the said Rule and Sub-rule
(2) says that if the petition does not comply with the
requirement of Rule 6, the Chairman shall dismiss the
petition. These rules have been framed by the Chairman in
exercise of power conferred by paragraph 8 of Tenth
Schedule The purpose and object of the rules is to facilitate
the job of the Chairman in discharging his duties and
responsibilities conferred upon him by paragraph 6, namely,
for resolving any dispute as to whether a member of the
House has become subject to disqualification under the
Tenth Schedule. The rule being in the domain of procedure,
are intended to facilitate the holding of inquiry and not to
frustrate or obstruct the same by introduction of innumerable
technicalities. Being subordinate legislation the rules cannot
make any provision which may have the effect of curtailing
the content and scope of the substantive provision namely,
the Tenth Schedule There is no provision in the Tenth
Schedule to the effect that until a petition which is signed
and verified in the manner laid down in the CPC for
verification of pleadings is made to the Chairman or the
Speaker of the House, he will not get the jurisdiction to give
a decision as to whether a member of the House has
become subject to disqualification under the Schedule
Paragraph 6 of the Schedule does not contemplate moving
of a formal petition by any person for assumption of
jurisdiction by the Chairman or the Speaker of the House
The purpose of Rules 6 and 7 is only this much that the
necessary facts on account of which a member of the
House becomes disqualified for being a member of the
House under paragraph 2, may be brought to the notice of
the Chairman. There is no lis between the person moving
the petition and the member of the House who is alleged to
have incurred a disqualification It is not an adversarial kind
of litigation where he may be required to lead evidence Even
if he withdraws the petition it will make no difference as the
duty is cast upon the Chairman or the Speaker to carry out
the mandate of the constitutional provision, viz. the Tenth
Schedule. The object of Rule 6 which requires that every
petition shall be signed by the petitioner and verified in the
manner laid down in the CPC for the verification of
pleadings, is that frivolous petitions making false allegations
may not be filed in order to cause harassment. It is not
possible to give strict interpretation to Rules 6 and 7
otherwise the very object of the Constitution (Fifty-second
Amendment) Act by which Tenth Schedule was added
would be defeated. A defaulting legislator, who has
otherwise incurred the disqualification under paragraph 2,
would be able to get away by taking the advantage of even
a slight or insignificant error in the petition and thereby
asking the Chairman to dismiss the petition under Sub-rule
(2) of Rule 7. The validity of the Rules can be sustained only
if they are held to be directory in nature as otherwise, on
strict interpretation, they would be rendered ultra vires.
I n RAMESH MEHTA v. SANWAL CHAND SINGHVI AND
O T H E R S while dealing with the aspect of meaningful
interpretation to be given to subordinate legislation held as
hereunder:-
"A subordinate or delegated legislation must also be read in
a meaningful manner so as to give effect to the provisions of
the statute. In selecting the true meaning of a word regard
must be had to the consequences leading thereto. If two
constructions are possible to adopt, a meaning which would
make the provision workable and in consonance with the
statutory scheme should be preferred."
I n P.V.MANI v. UNION OF INDIA His Lordship Sivaraman Nair, J,
speaking on behalf of the Full Bench of the Kerala High Court
observed as hereunder:-
In Kruse v. Johnson (1898) 2 QB 91, Lord Russel of
Killowen C.J., upheld the validity of a Municipal Bye-law
against singing within 50 yards of dwelling houses for the
following reason:-
"But, when the Court is called upon to consider the bye-law
of public representative bodies clothed with the ample
authority which I have described, and exercising that
authority accompanied by the checks and safeguards which
have been mentioned, I think the consideration of such bye-
laws ought to be approached from a different standpoint.
They ought to be supported if possible. They ought to be, as
has been said, "benevolently" interpreted, and credit ought
to be given to those who have to administer them that they
will be reasonably administered. This involves the
introduction of no new canons of construction. But, further,
looking to the character of the body legislating under the
delegated authority of Parliament, to the subject-matter of
such legislation, and to the nature and extent of the authority
given to deal with matters which concern them, and in the
manner which to them shall seem meet, I think Courts of
justice ought to be slow to condemn an invalid any bye-law,
so made under such conditions, on the ground of supposed
unreasonableness."
Lord Russel C.J., had indicated the extent to which Courts
may go even in a case of municipal bye-laws in assessing
its reasonableness in the following words:
"But unreasonable in what sense? If, for instance, they were
found to be partial and unequal in their operation as
between different classes; if they were manifestly unjust; if
they disclosed bad faith; if they involved such oppressive or
gratuitous interference with the right of those subject to them
as could find no justification in the minds of reasonable men,
the Court might well say, "Parliament never intended to give
authority to make such rules; they are unreasonable and
ultra vires". But it is in this sense, and in this sense only, as I
conceive, that the question of reasonableness can properly
be regarded. A bye-law is not unreasonable merely because
particular Judges may think that it goes further than is
prudent or necessary or convenient, or because it is not
accompanied by a qualification or an exception which some
judges may think ought to be there. Surely it is not too much
to say that in matters which directly and mainly concern the
people of the county, which have the right to choose those
whom they think best fitted to represent them in their local
Government bodies, such representatives may be trusted to
understand their own requirements better than judges.
Indeed, if the question of the validity of bye-laws were to be
determined by the opinion of Judges as to what was
reasonable in the narrow sense of that word, the cases in
the books on this subject are no guide; for they reveal, as
indeed one would expect, a wide diversity of judicial opinion,
and they lay down no principle of definite standard by which
reasonableness or unreasonableness may be tested."
It is therefore needless to add that the Courts shall approach
subordinate legislative instruments with considerable
amount of caution and examine them for absence of
competence or reasonableness of fairness and other
invalidating circumstances with almost the same standards
as legislative enactments are dealt with by Courts. The
presumption of constitutionality, competence and
reasonableness ordinarily attaches to such instruments just
as much as to legislative enactments, as is evidence from
the following observations from "Administrative Agencies
and the Courts" by Cooper:-
"Where the legislature has clearly delegated such authority,
the only issue that can normally be raised as to the validity
of the rule concern the question whether it is ultra vires as
exceeding the scope of the authority delegated, and
whether it is violative of due process guarantees. These
issues are not often presented and accordingly such
regulations are normally treated on the same basis as
legislative acts".
It is not that such instruments are absolutely immune from
attack. But such attacks should be considered only on
production of prima facie proof as to such invalidating
circumstances. The Court shall not assume that a
subordinate legislative instrument is invalid for absence of
competence or bona fides or fairness or reasonableness
and cast the negative burden on the rule-making authority. It
should be just the other way; the person who challenges the
vires of a rule has to prove his challenge just as much as a
person who challenges a legislative enactment."
18. No doubt, an attempt was made to draw a distinction between the
terms "the applicants" and "the respondents" and a contention was
advanced that the applicants and the respondents constitute two
different well defined classes and hence it cannot be said that fixing
of 30 days time only in the case of applicants and non-fixing of such
time in the case of respondents would amount to either being
arbitrary or discriminatory. It is no doubt true that the applicants
approach the Tribunal first and the respondents contesting or not
contesting the litigation may depend upon several factors and due to
several reasons. By that itself, it cannot be said that the applicants or
the respondents would fall under well defined classes so as to treat
them as separate classes inasmuch as these parties are coming
before the Tribunal for the purpose of agitating their legal rights and it
is needless to say that several suitable directions also would be
issued depending upon the facts and circumstances of a particular
given case. Keeping in mind the object for which the Service
Tribunals had been in fact established and also taking into
consideration the different provisions of the Administrative Tribunals
Act, 1985, it cannot be said that the parties coming before the
Tribunal can be classified on the ground of the parties approaching
the Tribunal at the first instance and the parties expected to contest
the matters and this cannot be taken as a valid classification for the
purpose of putting a discrimination of fixing 30 days in the case of
applicants and not putting any such restriction at all in the case of
respondents. It may not be out of context if it is referred here itself that
in the corresponding Rule under Central Administrative Tribunal
Procedure Rules, 1987, such restriction had not been imposed. Even
if the test of reasonableness to be applied, such imposition of
restriction while exercising the Rule making power cannot be said to
be reasonable and viewed from any angle, the restriction of imposing
30 days time for moving an application cannot be said to be
reasonable, the same being arbitrary and discriminatory and being
violative of Article 14 of the Constitution of India. In the facts and
circumstances of the case, the application W.P.M.P.No.25935/2005
in W.P.No.25161/2004 is hereby allowed.
19. Conclusion:-
Rule 17(2) of the A.P.A.T. Procedure Rules, 1989 so far as "within
30 days from the date of dismissal" are hereby declared as
arbitrary, discriminatory, unreasonable, irrational and unconstitutional
being violative of the Article 14 of the Constitution of India and the
same is hereby struck down. The reference is answered accordingly.
Let these matters appear in the list before the appropriate Division
Bench for disposal in accordance with Law.
____________________
J.Chelameswar, J
____________________
P.S.Narayana, J
____________________
B.Seshasayana Reddy, J
Date:
smr
THE HON'BLE SRI JUSTICE J.CHELAMESWAR
THE HON'BLE SRI JUSTICE P.S. NARAYANA
THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY
W.P.M.P.No.25935 of 2005
In
W.P.No.25161/2004
ORDER:-
In the facts and circumstances of the case, the application is hereby allowed.
____________________ J.Chelameswar, J ____________________ P.S.Narayana, J ____________________ B.Seshasayana Reddy, J Date:
smr