Madras High Court
R.Pandivel vs The Secretary To Government on 22 March, 2017
Bench: S.Manikumar, G.Chockalingam
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2017
CORAM :
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Petition (MD) Nos.16543. 16544 and 16700 of 2014
and Connected Miscellaneous Petitions
R.Pandivel ... Petitioner in WP(MD)No.16543/14
V.Sribalaji ... Petitioner in WP(MD)No.16544/14
Human Rights Organization
(An International Organization)
represented through its
Founder Trustee,
Dr.S.Suresh Kannan ... Petitioner in WP(MD)No.16700/14
vs.
1. The Secretary to Government,
Union of India,
Ministry of Finance (Banking Division),
New Delhi.
2. The Joint Secretary,
Department of Financial Services,
Ministry of Finance, Government of India,
New Delhi.
3. The Registrar,
Debts Recovery Tribunal,
4th Floor, Kalyani Towers,
No.4/162, Madurai Melur Main Road,
Madurai 625 107. ... Respondents in all W. Ps.
http://www.judis.nic.in
2
Writ Petitions filed under Article 226 of the Constitution of India,
praying for Writs of Certiorari, to call for the records, pertaining to
the impugned Notification in G.S.R.(E) dated 17.09.2014 [F.No.
9/9/2012-DRT (Part)], issued by the second respondent,
delineating the Salem, Erode, Namakkal and Karur Districts, from
Debts Recovery Tribunal, Madurai to Debts Recovery Tribunal,
Coimbatore and quash the same.
For Petitioner in
WP(MD)No. 16543/14 : Mr.O.M.Prakash for
M/s. Vastla Associates
For Petitioner in
WP(MD)No. 16544/14 : Mr.J.S.B.Dolia for
Mr.S.Suresh
For Petitioner in
WP(MD)No. 16700/14 : Mr. Isaac Mohanlal
For Respondents 1 & 2 : Mr.G.R.Swaminathan
Asst. Solicitor General of India
JUDGMENT
(Judgement of the Court was made by Mr. Justice S.MANIKUMAR) The petitioners have challenged the Impugned Notification in G.S.R.(E) dated 17.09.2014 [F.No.9/9/2012-DRT (Part)], issued by the joint Secretary, Department of Financial Services, Ministry of Finance, Government of India, New Delhi, second respondent herein, delineating the Salem, Erode, Namakkal and Karur Districts, from Debts Recovery Tribunal, Madurai to Debts Recovery http://www.judis.nic.in 3 Tribunal, Coimbatore, on the grounds of improper and arbitrary exercise of the delegated powers, exercised under the DRT Act and in derogation of the decision of the Courts in upholding the principal Notification in G.S.R. 15(E), dated 09.01.2007, under which, the DRT, Madurai, was established and its jurisdiction was demarcated.
2. It is the case of the writ petitioners that the DRT Act was enacted by the Parliament as Act 51 of 1993 and was notified on 27.08.1993. The Act was primarily for the expeditious adjudication and recovery of debts, due to Banks and Financial Institutions Act and for matters connected therewith or incidental thereto. The need of such a legislature was sourced from the various reports of the Committees, constituted by the Central Government, due to the alarming NPAs, in the public sector banks and financial institutions, blogging the financial scenario in the country. Power to legislate and establish Tribunals under the DRT Act, was derived from Entry 46 read with Entry No.11-A, List III, Schedule VII of the Constitution of India.
http://www.judis.nic.in 4
3. It is the further case of the petitioners that the said Act was originally challenged before the Delhi High Court and the same was struck down in the case of Delhi High Court Bar Association v. Union of India reported in AIR 1995 Del 323. However the said judgement was set aside by the Hon'ble Supreme Court in Union of India v. Delhi High Court Bar Association reported in (2002) 4 SCC 275. Various amendments were brought forth to remove the anomalies, if any, in the implementation of the Act. In terms of the DRT Act, various Tribunals have been established throughout the country, as empowered under Section 3 of the DRT Act.
4. The petitioners have further contended that Section 3 under Chapter II of the DRT Act is the enabling provision for the Central Government to establish the Tribunals and vests with such powers, in respect of the areas identified for exercise of jurisdiction and the said provision is extracted hereunder:
“3. Establishment of Tribunal - (1) The Central Government shall, by notification, establish one or more Tribunals, to be known as the Debts Recovery Tribunal, to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act.
http://www.judis.nic.in 5 (2) The Central Government shall also specify, in the notification referred to in sub-section (1), the areas within which the Tribunal may exercise jurisdiction for entertaining and deciding the applications filed before it."
5. The petitioners have further submitted that the Debts Recovery Tribunal at Madurai was established by the respondents 1 & 2, by notification G.S.R. 15(E), dated 09.01.2007. Further, the 2nd Respondent has also notified in terms of Section 3(2) of the DRT Act, the Districts, which falls under the jurisdiction of the Debts Recovery Tribunal, Madurai. In terms of the said notification, following Districts, which falls under the jurisdiction of the Debts Recovery Tribunal, Madurai, are, Madurai, Tiruchirappalli, Karur, Namakkal, Salem, Erode, Dindigul, Theni, Sivagangai, Virudhunagar, Ramanathapuram, Tirunelveli, Tuticorin and Kaniyakumari.
6. The petitioners have further submitted that out of the abovesaid 14 Districts, Karur and Namakkal Districts were bifurcated from Debts Recovery Tribunal - I, Chennai to Debts http://www.judis.nic.in 6 Recovery Tribunal, Madurai and all the other 12 Districts have been bifurcated from Debts Recovery Tribunal, Coimbatore to Debts Recovery Tribunal, Madurai. Ever since the establishment of the 3rd Respondent-Tribunal, in terms of the aforesaid notification, the Tribunal is functioning at Madurai, catering to the needs of the litigants of the aforesaid Districts.
7. It is the further case of the petitioners that the abovesaid notification, including the Districts of Erode, Salem and Namakkal, within the jurisdiction of Debts Recovery Tribunal, Madurai, was challenged before this Court in W.P.No.6077 of 2007 and this Court, while granting notice, granted interim stay of the notification. Ultimately, this Court dismissed the same, by order, dated 26.06.2008. As against the dismissal of the said writ petition, a Special Leave Petition in SLP(C)No.24189 of 2008, was filed before the Hon’ble Supreme Court and the same was also dismissed.
8. When the issue relating to the jurisdiction of the third Respondent-Tribunal, in respect of areas, which would be covered under its jurisdiction, had already attained finality, the 2nd http://www.judis.nic.in 7 respondent, without there being establishment of any new Debts Recovery Tribunal, issued the impugned notification, dated 17.09.2014, received by the 3rd respondent on 24.09.2014, amending the earlier notification and bifurcating Salem, Erode, Namakkal, and Karur Districts from the jurisdiction of Debts Recovery tribunal, Madurai and vesting the same with Debts Recovery Tribunal, Coimbatore. The said notification is under challenge.
9. It is the contention of the petitioners that in the absence of there being formation of any New Debts Recovery Tribunal, in terms of Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, respondents 1 and 2 do not have any jurisdiction or authority to issue the impugned notification, amending the earlier notification, especially when the earlier notification was upheld by the Hon’ble Supreme Court. Further, the Notification has been issued with total non application of mind, in an arbitrary manner.
10. Assailing the impugned notification, the petitioners have http://www.judis.nic.in 8 contended that the impugned notification has been issued, in violation of Section 3 of the DRT Act, which states that, only when a new Tribunal is established, the respondents 1 and 2 can exercise the powers conferred under Section 3 of the DRT Act and not otherwise. Section 3(2) of the DRT Act is only corollary to Section 3(2), as could be seen from the wording of the said provisions and respondents 1 and 2 cannot exercise any independent power under Section 3(2) for vesting with any jurisdiction of the area with a Tribunal under the DRT Act.
11. The petitioners have contended that while establishing the 3rd respondent-Tribunal, respondents 1 and 2 have issued the notification, including Salem, Erode and Namakkal Districts, with the jurisdiction of the 3rd respondent-Tribunal and the said notification was challenged upto the Hon'ble Apex Court and once the said notification was upheld by the Hon'ble Apex Court, respondents 1 and 2 do not have any power to amend the same.
12. When the object of the DRT Act itself, is for speedy and expeditious disposal of matters, the impugned notification defeats the very object of the enactment, since the transfer process may http://www.judis.nic.in 9 take 4 to 6 months. He further submitted that the impugned notification is bereft of the details, in terms of the provisions contained under Section 19(1) of the RDBI Act, 1993.
13. The petitioners have further contended that the establishment of Debts Recovery Tribunals is for speedy disposal of cases and for early recovery of NPA, by bifurcating the jurisdiction of the Tribunals in midway and transferring of cases would result in enormous delay in disposal of the cases and there had been cases, which were originally heard by DRT-I, Chennai, later transferred to DRT, Coimbatore and then to DRT, Madurai. By the impugned notification such cases have to be again transferred to DRT Coimbatore.
14. The petitioners have further submitted that the Notification is bereft of details and absolutely, there was no reasoning whatsoever in the impugned notification, as to be the circumstances that warranted for issuance of the impugned notification. Before issuing the notification, no public hearing was conducted and no consultative process undertaken. In any case, respondents 1 and 2 do not have any executive powers to act in http://www.judis.nic.in 10 derogation of the provisions of the DRT Act.
15. According to the petitioners, respondents 1 and 2 ought to have considered that already there is a proposal for establishment of one more Debts Recovery Tribunal in the State of Tamilnadu, shortly and if new Tribunal is established again, there will be delineation of districts and once again, transfer of cases from one Tribunal to other Tribunal. In any event, the impugned notification issued by the second respondent, bifurcating the Salem, Erode, Namakkal and Karur Districts from Debts Recovery Tribunal, Madurai to Debts Recovery Tribunal, Coimbatore is arbitrary and liable to be set aside.
16. The respondents have submitted that there had been demands from various presiding officers of Debt Recovery Tribunals (DRTs), for rationalization of work load, as some of the DRTs were heavily loaded with cases, while in some other DRTs, the situation was comparatively better. Keeping in view these demands and to bring about rationalization in the workload of DRTs, it was decided to conduct a study by Indian Banks Association. The IBA recommended for creation of some new DRTs and also for change http://www.judis.nic.in 11 in the jurisdiction of some existing DRTs. The recommendations of IBA were sent to Chairpersons of Debts Recovery Appellate Tribunals (DARTs) for their comments.
17. The respondents have further submitted that as on December, 2013, the pendency of OAs and SAs in DRT Coimbatore and DRT Madurai was 1110 and 2451 respectively. Based on the recommendation of Chairperson, Chennai and to bring about rationalization of workload and better efficiency, it was decided to change the jurisdiction of Erode, Salem, Namakkal and Karur from DRT, Madurai to DRT Coimbatore, on the ground that all these four districts are nearer to DRT Coimbatore, rather than DRT Madurai.
18. Questioning the very locus standi of the petitioners in W.P.(MD)Nos.16543 and 16544 of 2014, the respondents have further submitted that the petitioners are practicing lawyers and they cannot be said to be suffering from any legal injury on account of the alteration of the areas of jurisdiction. Similarly, there is no violation of any human rights in this case.
19. The respondents have further submitted that as per http://www.judis.nic.in 12 section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, respondents 1 and 2 are fully empowered to issue the impugned notification for prescribing or altering the jurisdiction of the Debts Recovery Tribunals and hence, it cannot be said that the jurisdiction of the DRTs can be changed, only if a new DRT is established. No such restriction or condition is imposed on the Central Government in the statute.
20. The respondents have further submitted that the the impugned notification is issued in the larger interest of the public and with a view to rationalize the workload of the Debts Recovery Tribunals at Madurai and Coimbatore. It also serves to achieve the main objective of the RDBI Act, 1993, i.e., to provide for speedy adjudication and recovery of debts due to banks and financial institutions. On the other hand, decision has been taken consciously based on the demands of the presiding officers, study conducted by Indian Banks Association and Chair Person, DRAT, Chennai.
21. The respondents have further contended that the Central http://www.judis.nic.in 13 Government have got wide statutory powers to issue the impugned notification and therefore, reliance made on Section 3 of the DRT Act, by the petitioner, is erroneous. According to them, the main object of the said Act, is to ensure uniformity in the distribution of workload and that the territorial contiguity and nearness of Erode, Salem, Namakkal and Karur to DRT, Coimbatore compare to DRT, Madurai is a matter, which cannot be disputed. Hence, they prayed for dismissal of the writ petitions.
22. The petitioner in W.P.No.16543 of 2014, has filed a rejoinder and contended that the first respondent had acted on the recommendation of Indian Bank of Association, which is not tenable in law. Admittedly, IBA is a body of banks, who are on of the litigants before the Tribunals. As such, the first respondent ought not to have acted on the recommendations of IBA and as such, the exercise of power in issuing the notification on such recommendations, is not sustainable in law.
23. According to the petitioner, the first respondent has not placed any materials, regarding the averments about the demands from various presiding officers or the comments received from the http://www.judis.nic.in 14 chairperson, DRAT, in the subject matter. When the principal notification was challenged before this Court, the first respondent had chosen to place all the statistics, as regards the pendency of cases before the various tribunals and thereby, justifying the bifurcation of the districts, among the various DRTs.
24. The petitioner in W.P.No.16543 of 2014 has further submitted that on query under RTI Act, the third respondent has reported that there are no such records available in the tribunal with respect to the suggestion, if any, sent by the tribunal, regarding pendency of the cases. The third respondent has also reported that there are no records, relating to district-wise date maintained by the tribunal. Therefore, the petitioner has submitted that there is no exercise of bifurcation for rationalization of the workload at DRTs.
25. The contention of the first respondent that the four districts are nearer to DRT Coimbatore than DRT Madurai, is not tenable, in view of the order in the earlier writ petition, on the bases of contentions raised therein and also decided by this Court. Without there being a new establishment of DRT, the first http://www.judis.nic.in 15 respondent do not have any power to issue a notification under Sec 5(2) of the Act.
26. Record of proceedings shows that this Court, vide order, dated 30.10.2014, has passed the following orders, "2.The Notification, dated 09.01.2007, in F.No.G-26036/2/2005, issued by the Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India, under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions, Act, 1993, notifying the establishment of new Debts Recovery Tribunal at Madurai, carving out the jurisdiction of the earlier Debts Recovery Tribunal, Coimbatore, was challenged before the Principal Bench of this Court by one R.Prabakaran, in W.P.No. 6077 of 2007 and a Division Bench of this Court, to which one of us (VDPJ) was a party, by order dated 26.06.2008, dismissed the writ petition and upheld the notification and when the order of the Division Bench was taken on appeal before the Supreme Court in 5LP (C) No.24189 of 2008, the Supreme Court has dismissed the said special leave petition by order, dated 23.09.2013, thereby confirming the order of the Division Bench of this Court.
3.When that being the factual position, now, by http://www.judis.nic.in 16 virtue of another Notification in G.S.R.(E) dated 17.09.2014 [F.No.9/9/2012/DRT (Part)], issued by the Joint Secretary, Department of Financial Services, Ministry of Finance, Government of India, the jurisdiction of four districts, namely, Karur, Namakkal, Salem and Erode, which vests with the Debts Recovery Tribunal, Madurai, has been transferred to the jurisdiction of the Debts Recovery Tribunal, Coimbatore. Pursuant thereto, the Debts Recovery Tribunal, Madurai, is not in a position to entertain any application in the pending matters, pertaining to the above four districts or entertain any fresh SARFAESI Appeals, after the date of receipt of the impugned Notification, due to which, certain developments had taken place. Therefore, some of the aggrieved persons, on the transfer of the jurisdiction of the above four districts, namely, Erode, Salem, Namakkal and Karur, from the jurisdiction of the Debts Recovery Tribunal, Madurai, are before this Court challenging the impugned Notification, dated 17.09.2014.
4.After hearing the learned counsel for the parties on 27.10.2014, we have directed the respective counsel to come out with the prevailing situation, after the transfer of jurisdiction. Accordingly, they have filed statements in the form of affidavits, wherein it is stated that as on 30.09.2014, 2338 http://www.judis.nic.in 17 Original Applications/ Transferred Applications, 709 SARFAESI Appeals/ Transferred SARFAESI Appeals and 2 Review Applications, totalling 3049 cases are pending before the Debts Recovery Tribunal, Madurai. It is further stated that by virtue of the impugned Notification, dated 17.09.2014, transferring four Districts from the jurisdiction of the Debts Recovery Tribunal, Madurai, to the Debts Recovery Tribunal, Coimbatore, approximately around 2200 cases, relating to four districts, are to be transferred to the Debts Recovery Tribunal, Coimbatore. The same is detailed in the following tabular statement:
Sl.No. Description Approximate No. Difficulties faced of cases pertaining to 4 districts 1 Number of Original 1400 Not able to move any Applications pending interim applications 2 Number of SARFAESI 450 Not able to move any Appeals pending interim applications 4 No. of Transferred 75 Not able to move any Applications pending interim applications
5 No. of cases filed but 55 Not entertained in view of not numbered the Notification 6 No. of cases made 80 Since DRT, Madurai, is not ready but could not entertaining in view of filed the notification
5.In the light of above stated position, the learned counsel for the petitioners highlighted upon the difficulties and hardships faced by the litigant http://www.judis.nic.in 18 public as well as the learned counsel for the parties and according to them, they are not in a position to move any interim applications in the pending matters or to file any new SARFAESI Appeals and further DRT, Madurai, is not taking up any pending applications for disposal, in view of the impugned Notification and since DRT, Madurai, is not entertaining any of the applications to be filed and numbered, they have been put to lot of inconvenience and hardship, including all the stakeholders involved in this process and, therefore, they prayed for interim orders, pending disposal of the main writ petitions.
6.Mr.G.R.Swaminathan, learned Assistant Solicitor General of India, on oral instructions from the respondents 1 and 2, would submit that they may require further time to file counter and he suggested that the main writ petitions themselves may be takenup, after four weeks, for counter and disposal. However, while opposing grant of any interim order, the learned Assistant Solicitor General of India submitted that till counter is filed by the respondents, this Court may pass appropriate orders, considering the prevailing circumstances.
7. In view of the above facts and circumstances and considering the submissions made by the learned counsel on either side, we are of the opinion that it http://www.judis.nic.in 19 may not be proper for any forum created and established for that purpose to keep the matters pending without granting any relief and disposing them of. We, therefore, issue the following directions, for a period of four weeks:
(i)The Debts Recovery Tribunal, Madurai, the 3rd respondent herein, shall not transfer any cases pertaining to Erode, Salem, Karur and Namakkal Districts, pending on its file, to the jurisdiction of Debts Recovery Tribunal, Coimbatore;
(ii)The Debts Recovery Tribunal, Madurai, is hereby directed to entertain new applications, SARFAESI Appeals and any other interim applications pertaining to the pending cases relating to the above said four districts and decide those matters, on merits and in accordance with law.
(iii)However, the above directions are without prejudice to the rights of the parties in the writ petition."
27. Heard the learned counsel appearing for the parties and perused the materials available on record. http://www.judis.nic.in 20
28. Before adverting to the rival contentions, this Court deems it fit to extract the impugned notification, dated 09.01.2017, issued by the second respondent, as follows:
F.No.G-26036/2/2005-DRT Government of India Ministry of Finance Department of Economic Affairs [Banking Division] New Delhi, dated the 9th January, 2006 Notification G.S.R.(E)........... in exercise of the power conferred by Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) the Central Government hereby notifies the establishment of new Debts Recovery Tribunals at Madurai and Chennai with effect from 16th January, 2007. Consequent upon establishment of new Debts Recovery Tribunal at Madurai and Debts Recovery Tribunal-Ill, Chennai, in supersession of this Ministry's Notification No. 20/3/2001-DRT dated 22.03.2002. the jurisdictions of Debts Recovery Tribunals set up in Tamil Nadu and Pondicherry will be as shown in the Table given below, http://www.judis.nic.in 21 Sl. DRT & ITS LOCATION AREA OF JURISDICTION No. 1 Debts Recovery Tribunal, Madurai Districts of Madurai, Kanyakumari, 3rd and 4th floor Kalyani Towers, Tirunelveli, Tuticorin, Virudhunagar, 4/162, Madurai Melur Road, Sivagangai, Ramnad, Theni Erode, Uthangudi, Madurai - 625 107. Salem, Namakkal, Trichy, Karur and Dindigul.
2 Debts Recovery Tribunal-1, Areas under Egmore-Nungambakkam Chennai Spencer Towers, 6th & Mylapore-triplicane Taluk limits of floor, 770-A, Anna Salai, Chennai Chennai and Union Territory of
- 600 002. Pondicherry.
3 Debts Recovery Tribunal-II, Areas under Tondiarpet & Mambalam Chennai Spencer Towers, 4th Guindy Taluk limits of Chennai.
floor, 770-A, Anna Salai, Chennai
- 600 002.
4 Debts Recovery Tribunal-III, Areas under Perambur-
Chennai Spencer Towers, 5th Purasaiwalkkam Taluk limits of floor, 770-A, Anna Salai, Chennai Chennai and Districts of
- 600 002. Kanchipuram, Tiruvallur, Vellore, Villupuram, Cuddalore, Tiruvannamalai, Pudukottai, Thanjavur, Thiruvarur, Nagapattinam, Perambulur and Dharmapuri.
5 Debts Recovery Tribunal, Districts of Coimbatore and Nilgiris.
Coimbatore 1670, Trichy Road, Ramanathapuram, Coimbatore -
641 045.
29. On the main contention that the respondents 1 and 2 cannot exercise any independent powers, under Section 3(2) of the DRT Act, for vesting with any jurisdiction of the area, with a Tribunal, under the DRT Act. Upon perusal of the Constitutional Powers, under Article 73, dealing with extent of executive powers http://www.judis.nic.in 22 of the Union and Article 245, dealing with extent of laws made by Parliament and by the Legislatures of the States, it is clear that the executive power is co-extensive with that of the legislative power. The Legislature has powers to pass laws in relation to "Banking, Bills of Exchange, Cheques, Promissory Notes and other like instructions" and in relation to "Administration of Justice; Constitution and Organization of all Courts, except the Supreme Court and the High Courts". Therefore, the Executive has power to frame policy (manifested in the form of rules, regulations, notifications, circulars, etc., which are also considered as law for the purpose of Article 12) on the above areas.
30. Even in the absence of any legislative law, executive, by virtue of Article 73 read with Article 245 read with Schedule 7 of the Constitution of India, has powers to frame policy. Useful reference can be made to few decisions,
(i) In Ram Sahib Ram Jawaya Kapur v. State of Punjab reported in 1955 (2) SCR 225, the Hon'ble Supreme Court, held as follows:
"Thus under this article the executive authority of the State is executive in respect to matters http://www.judis.nic.in 23 enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to made laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect http://www.judis.nic.in 24 to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution."
(ii) In Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh reported in 1982 (1) SCC 39, the Hon'ble Supreme Court held as follows:
"Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab, Mukherjea, C.J., dealt with the scope of Arts. 73 and 162 of the Constitution. The learned Chief Justice observed that http://www.judis.nic.in 25 neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed:
"Ordinarily the executive power con-notes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill."
(iii) In Jayantilal Amrit Lai Shodhan v. F.N.Rana reported in http://www.judis.nic.in 26 AIR 1964 SC 648, the Hon'ble Supreme Court, held as follows:
"It cannot however be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the executive and judicial functions by the judiciary alone. The Constitution has not made an absolute or rigid division of functions between the three agencies of the State. To the executive, exercise of functions legislative or judicial are often entrusted. For instance power to frame rules, regulations and notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by legislation to the executive authority. In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character."
31. The other contention of the petitioner is that when the Notification No.G-26036/2/2005, dated 09.01.2017, ie., the earlier notification, was upheld by the Hon’ble Supreme Court in S.L.P. (Civil)No.24189 of 2008, dated 23.09.2013 and exercise jurisdiction http://www.judis.nic.in 27 of the 3rd respondent had already been attained finality, the 2nd respondent cannot issue the impugned notification, without there being establishment of any new Debts Recovery Tribunal, amending the earlier notification. Merely because the earlier policy had been upheld by the Hon'ble Supreme Court, it does not mean that a new policy cannot be formulated by the executive. Modification of the policy is within the domain of the executive. Useful reference can be made to a decision of the Hon'ble Supreme Court in Dhampur Sugar (Kashipur) Ltd., v. State of Uttaranchal and others reported in 2007 (8) SCC 418, wherein, it has been held as follows:
"61. The State and its instrumentality has also power to change policy. The executive power is not limited to frame a particular policy. It has untrammeled power to change, rechange, adjust and readjust the policy taking into account the relevant and germane considerations. It is entirely in the discretion of the Government how a policy should be shaped. It should not, however, be arbitrary, capricious or unreasonable.
62. In Sangwan v. Union of India, 1980 Supp SCC 559 : AIR 1981 SC 1545, this Court observed that a policy once formulated is not good forever, it is http://www.judis.nic.in 28 perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and imperatives of national considerations.
.......
68. But as already discussed earlier, a Court of Law is not expected to propel into the unchartered ocean of Government Policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation."
32. It is well settled that Courts should not ordinarily interfere in policy decisions, unless it is shown to the Court that the policy is arbitrary, capricious or unreasonable. Useful reference can be made to few decisions, http://www.judis.nic.in 29
(i) In Rusom Cavasiee Cooper v. Union of India reported in (1970) 1 SCC 248, wherein, the Hon'ble Apex Court has expressed thus:
“It is again not for this Court to consider the relative merits of the different political theories or economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament in enacting a law”.
(ii) In Asif Hameed v. State of J&K reported in AIR 1989 SC 1899, the Hon'ble Apex Court, at Paragraph 19, held that, "When a State action is challenged, the function of the court is to examine the action in accordance with law and to, determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising http://www.judis.nic.in 30 power of judicial review of administrative action, the court is not an appellate authority.
The Constitution does not permit the court to direct or advice the executive in matters of police or to sermonize qua any matter which under the Constitution lies within the sphere or legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
(iii) In Premium Granites v. State of Tamil Nadu reported in (1994) 2 SCC 691, while dealing with the power of the courts in interfering with policy decisions, the Hon'ble Supreme Court held that, "It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights http://www.judis.nic.in 31 guaranteed by the Constitution of India or any other statutory right."
(iv) In M.P. Oil Extraction and Ann V. State of M.P. and Ors., reported in (1997) 7 SCC 592, the Hon'ble Supreme Court opined that:
“The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State.”
(v) The Hon'ble Supreme Court in Technical Executive (Anti-
Pollution) Welfare Association v. Commr. of Transport Department and another., reported in (1997) 9 SCC 38, has http://www.judis.nic.in 32 emphasised the need for self restraint, as follows:
"...It would be for the appropriate Government to take policy decision. The Tribunal is not competent to give directions to lay down the policy or to issue directions to create promotional avenues. Such a direction would amount to entrenching upon area of policy-making which is exclusively within the purview of the appropriate Government."
(vi) In Narmada Bachao Andolan v. Union of India reported in (2000) 10 SCC 664, the Hon'ble Supreme Court held thus, “It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are illequipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution.” http://www.judis.nic.in 33
(vii) In N.D. Jayal v. Union of India reported in (2004) 9 SCC 362, the Hon'ble Apex Court has observed that in the matters of policy, when the Government takes a decision bearing in mind, several aspects, the Court should not interfere with the same.
(viii) In State of M.P. V. Narmada Bachao Andolan and Anr., reported in (2011) 7 SCC 639, after referring to a decision in State of Punjab v. Ram Lubhaya Bagga reported in (1998) 4 SCC 117, the Hon'ble Apex Court ruled thus:
“The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U,P. [(2007) 6 SCC 44], Villianur lyarkkai Padukappu Maiyam v. Union of India [(2009) 7 SCC 561] and State of Kerala v. Peoples Union for Civil Liberties [(2009) 8 SCC 46])."
http://www.judis.nic.in 34
(ix) In Census Commissioner v. R.Krishnamurthy reported in 2015 (2) SCC 796, the Hon'ble Supreme Court held as follows:
"it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the Court is not expected to sit as an appellate authority on an opinion."
In view of the above, the writ petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
(S.M.K., J.) (G.C., J.) 22.03.2017 skm To http://www.judis.nic.in 35
1. The Secretary to Government, Union of India, Ministry of Finance (Banking Division), New Delhi.
2. The Joint Secretary, Department of Financial Services, Ministry of Finance, Government of India, New Delhi.
3. The Registrar, Debts Recovery Tribunal, 4th Floor, Kalyani Towers, No.4/162, Madurai Melur Main Road, Madurai 625 107.
S. MANIKUMAR, J.
AND G.CHOCKALINGAM, J.
skm http://www.judis.nic.in 36 Writ Petition (MD) Nos.16543. 16544 and 16700 of 2014 and Connected Miscellaneous Petitions 22.03.2017 http://www.judis.nic.in