Kerala High Court
Mukhar Hussain T.P vs Union Of India on 24 October, 2019
Author: S.Manikumar
Bench: S.Manikumar, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941
W.P.(C).No.24625 OF 2019(C)
PETITIONER:
MUKHAR HUSSAIN T.P.
AGED 33 YEARS
S/O.ABDUL KHAER, THIRUVATHA PURA HOUSE KADAMATH,
KADAMATH ISLAND, LAKSHADWEEP-682 556.
BY ADVS.
SRI.E.C.AHAMED FAZIL
SRI.K.P.SUFIYAN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY CABINET SECRETARY,
SOUTH BLOCK, NEW DELHI-110001.
2 THE ADMINISTRATOR OF LAKSHADWEEP ISLANDS,
LAKSHADWEEP ADMINISTRATION, KAVARATTI ISLAND,
LAKSHADWEEP -682555.
3 THE DIRECTOR (PRINTING AND STATIONARY),
LAKSHADWEEP ADMINISTRATION, KAVARATTI ISLAND,
LAKSHADWEEP -682555.
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
R2-3 BY STANDING COUNSEL
SRI.MANU.S, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.24625 OF 2019(C)
: 2 :
JUDGMENT
Dated this the 24th day of October 2019 S.MANIKUMAR, C.J.
Being aggrieved by the Office Order No.F.No.10/02/2019-Press(K)(1) dated 30.8.2019 passed by the Director (Printing & Stationery), Lakshadweep Administration closing down the Printing Press at Kadamath Island, Lakshadweep and the consequential merging of the same with Kawarathi Island along with the Printing Press at Androth Island, instant public interest litigation is filed. Petitioner has prayed for a direction to quash Ext.P1, by issuing a writ of certiorari or any other appropriate writ order or direction and for a further direction to first respondent to reconsider the decision of closing down of the Printing Press at Kadamath Island, Lakshadweep, by issuing a writ of mandamus.
2. The Administrative Officer of Lakshadweep Administration at Kochi has submitted that closure of the press is pursuant to a policy decision of the Government of India. According to him, there are nine printing presses in the Union Territory of Lakshadweep. The Head Quarter press was established in the capital island, Kavaratti. Presses were established in Minicoy, Androth, Kadamat, Agatti, Kalpeni, Amini, Kiltan and Chetlat islands also. The other presses were WP(C).No.24625 OF 2019(C) : 3 :
established as decided by the Lakshadweep Administration. He has further submitted that unit presses in different islands were established with limited machinery and staff to cater to the basic printing requirements of Government institutions functioning in the respective islands. All heavy works and works involving bulk volumes are being done only by the Head Quarter press at Kavaratti. The concerned department of the Government of India intimated the Lakshadweep Administration that there is a policy decision for rationalization/merger of Government of India Presses and their modernization. After detailed analysis and deliberations, the union cabinet approved the proposal of the Ministry of Housing and Urban Affairs for rationalization/merger of their 17 presses all over India to 5 presses. Pursuant to the same, the Lakshadweep Administration issued an order on 14.5.2018 for closing down the unit presses at Amini and Chetlat island. The employees and machinery of the presses were redeployed to the remaining unit presses. It is further submitted that as of now, all the printing presses other than the head quarter press at Kavaratti and the Unit presses other than the Head Quarter press at Kavaratti and the unit press at Minicoy have been closed in compliance with the directions of the first respondent. However, Administration has requested to permit to continue the operations of the unit press at Minicoy. The request for exempting the unit press at Minicoy from closure/merger has been made for the reason that WP(C).No.24625 OF 2019(C) : 4 :
the residence of Minicoy island have a local language and the maintenance of the said unit press will be useful for printing works in the local language. He has further submitted that by way of implementing Ext.P1 order, the Block Development Officer, Kadamat relieved all the employees of the Union Press at Kadamat.
3. On the apprehension expressed by the writ petitioner that implementation of the impugned order Ext.P1 would adversely affect functioning of all the islands as far as nearby islands, the Administrative Officer of Lakshadweep Administration at Kochi has submitted that it is wholly misconceived. He has further submitted that transportation facilities between and among the islands and mainland are limited during the monsoon season. However, there are no hurdles on inter island conveyance during the remaining part of the year and the required items can be transported and stored in concerned islands during the fair season. Urgent requirements of the departments can be met even during the monsoon season based on the available conveyance. It is submitted that newspapers, books for students, files and notepads will be made available to the concerned on demand and any apprehension to the contrary is misconceived.
4. Heard learned counsel for the parties and perused the materials available on record.
WP(C).No.24625 OF 2019(C) : 5 :
5. It is trite that policy decision of the Government cannot be challenged until it is proved to be arbitrary or violative of constitutional provisions. Reliance can be made to few decisions:
The Hon'ble Supreme Court has observed that Courts cannot run Government. At this Juncture, we also deem it fit to consider few decisions, when a writ of mandamus can be issued.
(i) In Narmada Bachao Andolan Vs. Union of India and Others, reported in (2000 (10) SCC - 664), the Hon'ble Supreme Court observed as follows:-
"232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction.
233. At the same time, in exercise of its enormous power, the Court should not be called upon to or undertake governmental duties or functions. The Courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under values of the Constitution and the rights of Indians. The Courts must therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in WP(C).No.24625 OF 2019(C) : 6 :
matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the Court itself is not above the law.
234. In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government.
If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the Court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation, the Court should not refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision."
The above mentioned observations have been quoted with approval by WP(C).No.24625 OF 2019(C) : 7 :
the Hon'ble Supreme Court in BALCO EMPLOYEES' UNION (REGD) Vs. UNION OF INDIA AND OTHERS (2002 (2) SCC - 333).
(ii) In DIVISIONAL MANAGER, ARAVALI GOLF CLUB AND ANOTHER (2008 (1) SCC - 683), in paragraphs Nos.17, 19, 20 and 22, the Hon'ble Supreme Court held thus:-
"17. Before parting with this case, we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State - the legislature, the executive and the judiciary - must have respect for the other and must not encroach into each other's domains.
22. In Tata Cellular Vs. Union of India (vide AIR para 113 :
WP(C).No.24625 OF 2019(C)
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SCC para 94), this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many Courts are not following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges' preferences. The Court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the filed of administration while the Court does not. In the words of Neely VJ (Scc p.681, para 82).
"82.... I have very few illusions about my own limitations as a Judge ... I am not an accountant, electrical engineer, financier, banker, expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation."
It is not the function of a Judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator."
(iii) In COMMON CAUSE (A REGD. SOCIETY) VS. UNION OF INDIA AND OTHERS, {2008 (5) SCC - 511}, wherein at paragraph No.40, the Hon'ble Supreme Court, held thus:-
"The justification given for judicial activism is that the executive and legislature have failed in performing their functions. Even if this WP(C).No.24625 OF 2019(C) : 9 :
allegations is true, does it justify the judiciary in taking over the functions of the legislature or executive? In our opinion it does not: firstly, because that would be in violation of the high constitutional principle of separation of powers between the three organs of the State, and secondly, because the judiciary has neither the expertise nor the resources for this. If the legislature or executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful means e.g., peaceful demonstrations and agitations, but the remedy is surely not by the judiciary in taking over the functions of the other organs."
6. In the case on hand, the Administrative Officer of Lakshadweep Administration at Kochi has submitted that action taken by the Administration of Union Territory, towards implementation of the policy of the Union Government only has been challenged and not the policy. Even taking it for granted there is a challenge, in the light of the decisions considered the same cannot be held as arbitrary or violative of any constitutional provision. Policy appears to have been based on rationalization/merger of the Government of India presses and for their modernisation. After detailed analysis and deliberations, Union Cabinet has approved the proposal of Ministry of Housing and Urban Arrairs for rationalization/merger of their 17 presses all over India to 5 presses. Material on record further discloses that subsequent to the decision and closure of press unit WP(C).No.24625 OF 2019(C) : 10 :
at Kadamat, Block Development Officer, Kadamat has also issued relieving order dated 16.9.2019 in F.No.2/2/2009-LGP(KDT) transferring and posting the press staff to Kavaratti. Exercise has been completed.
7. The Administrative Officer of Lakshadweep Administration at Kochi has also had categorically stated that the urgent requirements of the departments can be met even during the monsoon season based on the available conveyance. It is submitted that newspapers, books for students, files and notepads will be made available to the concerned on demand and any apprehension to the contrary is misconceived.
8. In the abovesaid circumstances, no prejudice would be caused to the writ petitioner. Shifting or locating a press is purely based on policy decision. In the light of the discussions and decision, we find no merit in the instant public interest litigation warranting shifting of Government Press at Kadamat to Kavaratti.
Writ petition is dismissed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
C.K.ABDUL REHIM JUDGE jes WP(C).No.24625 OF 2019(C) : 11 :
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF OFFICE ORDER F.NO.10/02/2019-PRESS (K)(1)/765 DATED 30.08.2019 PASSED BY DIRECTOR (PRINTING AND STATIONARY), LAKSHADWEEP ADMINISTRATION.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE ORDER F.NO.10/06/2016-PRESS(K)/329 DATED 14.5.2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT R2(B) TRUE COPY OF THE ORDER F.NO.10/6/2016-PRESS(K) DATED 30.7.2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT R2(C) TRUE COPY OF THE ORDER F.NO.2/2/2009-LGP(KDT) DATED 16.9.2019 ISSUED BY THE BLOCK DEVELOPMENT OFFICER, KADAMAT FOR RELIEVING THE EMPLOYEES.
// TRUE COPY // P.S. TO JUDGE