Gujarat High Court
Jagte Raho vs Director (Po And I) & 2....Opponent(S) on 11 September, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/133/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 133 of 2016
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JAGTE RAHO....Applicant(s) Versus DIRECTOR (PO AND I) & 2....Opponent(s) ========================================================== Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Applicant(s) No. 1 MR DEVANG VYAS, ADVOCATE for the Opponent(s) No. 3 MS TRUSHA K PATEL, ADVOCATE for the Opponent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date :11/09/2017 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This writ petition in the nature of Public Interest Litigation has been filed by Mr. Praful K. Desai as President of the petitioner, wherein the petitioner has prayed for the following relief/s:
"The petitioner prays to the Hon'ble Court, to direct the Director "PO & I) Department of Posts (PO Division) Government of India, Ministry of Communication and ID, Dak Bhavan, Sansad Marg, New Delhi 110116 to restore the services of "Certificate of Posting", particularly known as Under Postal Certificate (UPC), which earlier was made available to public at large under Rule 195 of the Indian Post Office Rule 1933, with immediate effect."Page 1 of 14
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2. Heard Mr. Praful K. Desai - party-in-person, learned Standing Counsel Ms. Trusha K. Patel for respondents.
3. The petitioner submitted that the respondent Department of Post, Government of India has discontinued the age-old service called 'certificate of posting', popularly known as Under Postal Certificate (UPC) (hereinafter referred to as 'UPC'). It is submitted that service of UPC came to be introduced as per Rule 195 of the Indian Post Office Rules, 1933. Before filing the present petition, the petitioner sought information on various aspects under the Right to Information Act by filing an application in the year 2011. After getting the information sought for by the petitioner, present petition is filed. From the information received by the petitioner, it is submitted that the respondent Department of Post given information that Ministry of Information & IT issued instructions to concerned Postal Authorities to discontinue UPC service which was made available to public since number of years. Under the said service, the certificate of posting is granted to the public to afford an assurance that letter and other articles for which no receipts are granted by the Post Office and entrusted to servants or messengers for posting having actually been Page 2 of 14 HC-NIC Page 2 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER posted. It is submitted that UPC service was availed/utilized by the citizens, and more particularly, the Public Trust Institutions and NGOs. Such Public Trusts and NGOs in their constitution also made provision for dispatching notice in respect of meetings by UPC. However, because of discontinuation of UPC service by the respondents, lot of inconvenience has been caused to the public at large.
4. The petitioner - party-in-person thereafter contended that the affidavit-in-reply filed by the respondent Department is misconceived and vague. From the affidavit-in-reply filed by the respondent, it is pointed out that to avoid the litigation, the Postal Department has discontinued UPC service and the respondent department has failed in communicating the message to the public at large that UPC is not substitute to Registered Post and no legal claim under the Rules is entertainable.
5. The petitioner thereafter submitted that Chapter III of Negotiable Instruments Act, 1881 read with Section 94 provides that the notice after dishonour of the cheque is to be sent by 'Regd.AD/UPC'. It is further submitted that there is a model of 'Criminal Complaint at the Court', which gives list of types of documents of which Page 3 of 14 HC-NIC Page 3 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER No.3 is 'copy of the notice dated _____ with postal receipt UPC and AD cards'. It is therefore contended that when there is provision for dispatching notice by 'Regd.A.D./UPC' in the concerned Act, the service of UPC cannot be discontinued until the provision regarding dispatch of notice by UPC is repealed. It is further submitted that because of the action of discontinuation of UPC service, the respondent Department has violated the constitutional right of freedom of communication and therefore the notification issued by the respondent Department discontinuing the UPC service be quashed and set aside.
6. On the other hand, learned Standing Counsel for respondent Department Ms. Trusha Patel submitted that by discontinuing the service of UPC, neither the fundamental rights nor any other rights of the citizens are violated by the respondent Department. Therefore, the petition under Article 226 of the Constitution of India is not maintainable. It is contended that nobody can seek any relief compelling the Government to provide or continue particular postal facility. The respondent Government took policy decision to discontinue the service of UPC after taking opinion of various circles of postal department.
Thereafter, the respondent Government followed
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the procedure prescribed under the law and issued the notification for discontinuation of UPC service. Therefore, when the respondent Government has followed the procedure and has taken the policy decision, this Court may not entertain the petition.
7. Ms. Patel thereafter submitted that the scope of judicial review of administrative action is very limited and merely because some hardship is to be caused to some of the persons because of discontinuation of UPC service is no ground to entertain the petition by this Court. It is submitted that the scope of judicial review in the matters of policy decision of the Government is also limited. In support of her submission, learned counsel has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Khoday Distilleries Ltd. & Others v. State of Karnataka & Others, reported in (1996) 10 SCC 304, in Ekta Shakti Foundation v. Government National Capital Territory of Delhi, reported in 2006(10)SCC 337 and in Directorate of Film Festivals v. Gaurav Ashwin Jain, reported in 2007 (4) SCC 737.
8. We have considered the submissions canvassed by the petitioner Mr. Desai and learned Standing Counsel Mr. Patel appearing for the respondents.
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We have also perused the material placed on
record and the decisions upon which the reliance is placed.
9. From the record, it is revealed that Section 21 of the Indian Post Office Act, 1898 empowers the Central Government to make rules to provide for granting of Certificate of Posting. The concerned portion of Section 21 of the Act provides as under:
"21. Power to make rules as to transmission by post of postal articles.-(1) The Central Govt. may make rules as to the transmission of articles by post. (2) In particular and without prejudice to the generality of the foregoing power, such rules may (a) to (c) xxx xxx xxx
(d) provide for the granting of receipts for, and the granting and obtaining of certificates of, posting and delivery of postal articles and the sums to be paid, in addition to any other postage, for such receipts and certificates; and..."
10. Rule 195 of the Indian Post Office Rules, 1933 as it stood prior to amendment was statutory basis for UPC service, whereas Clause 32 of Post Office Guide Part I provides for 'the Object in Issuing Certificates'. Clause 32 of the said guide provides as under:
"32. The object in granting certificates of posting is to afford the public an assurance that letters and other articles Page 6 of 14 HC-NIC Page 6 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER entrusted to servants or messengers for posting have actually been posted. The grant of a certificate will not, however, mean that the letters and articles in respect of which the certificate is issued were fully prepaid with postage stamps, nor will it guarantee in any way the dispatch of the articles entered in the certificate on the same day, unless they are handed over well in time to catch the last dispatch of mails for the day for the particular destination, concerned. It must be clearly understood that the articles in respect of which such certificates are issued are not registered and that they are treated in exactly the same manner as if they had been posted in a letter box. In the event of loss, damage or delay, the certificates will confer no claim for compensation, nor do they furnish any proof of the nature of the contents."
11. Thus, from the aforesaid provisions of the Act and the Rules as well as Post Office Guide, it is clear that purpose behind granting UPC was to afford the public an assurance that letters and other articles for which no receipts are granted by the Post Office, entrusted to servants or messengers for posting have actually been posted. The said certificate neither provides that letters and articles in respect of which such certificate is issued, were fully prepaid with postage stamp, nor it guarantees in any way that letters have been dispatched. The said certificate also did not confer any claim for compensation in the event of loss, damage or Page 7 of 14 HC-NIC Page 7 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER delay.
12. From the affidavit-in-reply filed by the respondent Government, it is revealed that on 20.11.2008, Director (PO & G), Rajasthan Circle made a proposal for amendment of Rules in context of providing for compulsory registration of postal articles which were relating to examination application forms and call letters of such examination, interview. Thereafter, on 28.11.2008, the Dy. Director General (PO) made a proposal for abolition/withdrawal of UPC. Thereafter the Assistant Director General (PO) asked for the details regarding the views from other Circles in December, 2008 and accordingly the views of different Circles were received by the Department with regard to withdrawal of UPC service. The details of the views given by the different circles are reproduced in the affidavit-in-reply filed by the Department.
13. From the record, it is further revealed that the respondent Government after following the procedure prescribed under the relevant provisions of the Indian Post Office Act, 1898 and the Rules framed thereunder, has decided to discontinue the service of UPC and therefore the Notification to that effect was issued. Thus, in the facts and circumstances of the present case, Page 8 of 14 HC-NIC Page 8 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER we are of the view that the respondent Government has taken the policy decision to discontinue the service of UPC for which procedure prescribed under the law has been followed. Merely because hardship would be caused to some of the citizens on account of discontinuation of the service of UPC is no ground for quashing and setting aside the policy decision taken by the respondent Government. The scope of judicial review in the matter of policy decision taken by the respondent Government is very limited.
14. At this stage, we would like to refer to the decisions upon which the reliance is placed by the learned Standing Counsel of the respondent Government in the case of Khoday Distilleries Ltd. (supra), in which the Hon'ble Supreme Court observed in para 12 to 14 as under:
"12. The appellants also contend that the amended Rules are beyond the legislative competence of the State. This argument must be rejected. The Act is clearly within the legislative competence of the State Legislature. Nobody has challenged it. The amended Rules are within the scope of the delegated authority under Section
71. If the main Act is within the legislative competence of the State Legislature and the Rules have been framed under a validly delegated authority and are within the scope of that authority, we fail to see how the Rules can be challenged on the ground of Page 9 of 14 HC-NIC Page 9 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER lack of legislative competence. If the Act is valid, so are the Rules.
13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(9) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of Indian & Ors. (1985 (2) SCR 287 at p.243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, "Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires". In India, arbitrariness Page 10 of 14 HC-NIC Page 10 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.
14. In this connection, we would also like to refer to a decision of this Court in the State of Madhya Pradesh & Ors. v. Nandlal Jaiswal & Ors. (1987 (1) SCR 1 at p.53). This Court has held that though there is no fundamental right in a citizen to carry on trade or business in liquor; and the State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants such as its manufacture, storage, export, import, sale and possession; nevertheless when the State decides to grant such right or privilege to others, the State cannot escape the rigor of Article 14. The Court, however, observed:
"But while considering the applicability of Article 14 in such a case we must bear in mind that having regard to the nature of the trade or business the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of Page 11 of 14 HC-NIC Page 11 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done unless it appears to be plainly arbitrary, irrational or mala fide."
15. In the case of Ekta Shakti Foundation (supra), the Hon'ble Supreme Court observed as under:
"10. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.
11. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
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12. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government."
16. In the case of Directorate of Film Festivals (supra), the Hon'ble Supreme Court has taken the same view and observed that the scope of judicial review in administrative action/policy decision of the Government is very limited and Courts cannot change the policy of Government.
17. It is trite law that power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and Page 13 of 14 HC-NIC Page 13 of 14 Created On Tue Sep 12 01:54:52 IST 2017 C/WPPIL/133/2016 CAV ORDER is concerned only with whether the decision making authority exceeded its power, committed an error, committed a breach of Rules of natural justice, reached an unreasonable decision or abuse its powers.
18. Keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court, if the facts as stated hereinabove are examined, we are of the view that when the respondent Government has taken the policy decision to discontinue the service of UPC and that too after obtaining views from various circles of the Department as well as after following due procedure of law, the said decision is not required to be quashed and set aside as prayed for by the petitioner. Accordingly, petitioner is not entitled to claim the relief as prayed for in the petition. Hence, the petition is dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 14 of 14 HC-NIC Page 14 of 14 Created On Tue Sep 12 01:54:52 IST 2017