Andhra HC (Pre-Telangana)
Public Vigilance By Bharadwaja vs The Chief Secretary, Govt. Of A.P. And ... on 12 March, 1992
Equivalent citations: 1992(3)ALT725
ORDER M.N. Rao, J.
As the reliefs sought in these two writ petitions are identical we are inclined to dispose of the same by this common judgment.
1. The petitioners in Writ Petition 338/91 is an organisation styled as 'Public Vigilance' represented by one Y.Bharadwaj, its Joint Secretary. The Organisation claims to be interested in protecting rights and privileges of citizens. The petitioner in Writ Petition 1638/91 is Sri K. Ananta Rao, an advocate practising in this High Court.
2. An extent of 42 acres and 25 guntas of site at Malakpet, Hyderabad city, commonly known as "Mahboob Mansion" was acquired by the State Government for the Andhra Pradesh Housing Board for the purpose of construction of housing-cum-market complex, and the site was handed-over to the Housing Board on 21st January 1980. Proceedings were initiated for acquisition in May, 1972 for implementation of the housing scheme. The Housing Board negotiated with the owners of the Mahboob Mansion who were members of die royal family of the erstwhile Nizam of Hyderabad, settled the price at Rs. 21/- per square yard and requested the Government to acquire the land. Permission was accorded to the Housing Board by the Government by G.O.Ms. No. 95 dated 27th July, 1974. Draft declaration under Section 6 of the Land Acquisition Act was published in the Andhra Pradesh Gazette dated 16th June 1975 mentioning that the land was needed for the specified purpose - "for construction of A.P. Housing Board quarters". Award was passed by the Land Acquisition Officer on 16th January 1980. In accordance with the agreed price of Rs. 21/- per square yard and on deposit of Rs. 42,80,000/- by the Housing Board possession was handedover to the Housing Board.
3. The Andhra Pradesh Agricultural Market Committee, Hyderabad had requested the State Government to initiate proceedings to acquire land at Mahboob Mansion for establishment of an agricultural market in the year 1973. The State Government notified, in the meanwhile, the development plan of Hyderabad by G.O.Ms. No. 470 dated 6th November 1973 in the official Gazette under the provisions of the Municipal Corporation of Hyderabad Rules, 1967. In accordance with the procedure contemplated under the said rules, objections were called for and after considering the objections, the development plan was sanctioned under the provisions of Section 464 of the Hyderabad Municipal Corporation Act read with Rule 13 of the Municipal Corporation of Hyderabad (Development Plan) Rules, 1967. Under the said development plan, Mahboob Mansion was earmarked for developmentas one of the sevendistrict commercial centres.
4. Section 45 of the Andhra Pradesh Housing Board Act empowers the Board to lease out its land or buildings subject to any rules made by the Government. Rule 29 of the Housing Board Rules incorporates the procedure for disposal of the Board's property or sale of its land; the Board is permitted to sell or lease out its property by public auction. Dispensing with the above procedure, the Government, acting under Rule 29 of the said rules, issued G.O.Ms. No. 23 dated 29-3-1980 according sanction for transferring Mahboob Mansion on a permanent lease for 99 years to the Agricultural Market Committee, Hyderabad for the purpose of developing the land as commercial complex. The Government also permitted tine Market Committee to sub-lease the land divided into 444 individual plots to wholesale grain merchants for a period of 99 years.
5. Alleging that the whole exercise was mala fide and that persons occupying high positions in the Governmental hierarchy betrayed the trust reposed in them, Writ Petition 8860/81 was filed in this Court by way of 'public interest litigation' by an organisation styling itself as Malakpet Citizens' Forum. It was alleged therein that at a scandalously low consideration of Rs. 30-40 per square yard against the then current market value of Rs. 500/- per square yard the land was sold away and in doing so functionaries of the Government acted mala fide. Another contention raised in the said writ petition was that the whole transaction was contrary to the statutory provisions of the Andhra Pradesh Housing Board Act. The writ petition was dismissed by a learned single-Judge (A. Seetharam Reddy, J.) and the unsuccessful petitioner therein carried the matter in appeal to a Division Bench in Writ Appeal 476/82. The writ appeal was allowed by a Division Bench of this Court comprising P. Chennakesava Reddy and P. Kodandaramayya, JJ., on 25th February 1983 holding that the grant of long lease for 99 years for a low consideration of Rs. 40,80,250/- was neither as act of social justice nor was intended to promote public welfare. The transaction was held to be in disregard of the welfare of the people and it only promoted to interests of a few rich traders. Exercise of power in that regard by the Government was characterised as arbitrary action. Aggrieved by the decision of the Division Bench in Writ Appeal 476/82, two Civil Appeal Nos. 3919 and 3920/83 were preferred in the Supreme Court, one by the Association of Grain Merchants and tine other by one individual grain merchant. The matter was pending in the Supreme Court for nearly seven years. Finally, on the basis of a Memo of Compromise filed by both sides, the civil appeals were disposed of by the Supreme Court on 19th April in the following terms:
".... We have heard counsel for the parties and are satisfied that the terms indicated in the document effectively bring about a settlement which this Court had proposed. The two appeals are directed to be disposed of in terms of the settlement and the terms of settlement shall form part of the decree to be drawn up by this Court in these appeals.
In view of the compromise entered into between the parties in the above appeals, Special Leave Petition No. 15006 of 1983 is dismissed as withdrawn without costs."
6. Subsequent to the judgment of the Supreme Court, the State Government issued G.O.Ms. No. 37 dated 10th August 1990 in order to implement the judgment of the Supreme Court dated 19th April 1990. Paragraphs 9 and 10 of the above G.O., which are material for the purpose of these two writ petitions, may be noticed: the same are in the following terms:
"9. In the light of the decree of the Supreme Court dated 19-4-1990, it is hereby ordered that the permission accorded in G.O.Ms. No. 23, Housing, dated 29-3-1980 for transfer of land measuring Ac. 40-25 at Mahaboob Mansion dispensing with Public Auction on a permanent lease for 99 years to the Agricultural Market Committee, Hyderabad for purpose of developing it as a Commercial Complex shall be subject to the following terms:-
1. A total area of 2.00 acres shall be allotted towards construction of buildings, houses or tenaments for weaker sections on the same terms and conditions as are followed by Government in respect of beneficiaries under the Andhra Pradesh Urban Development and Housing Corporation and without prejudice to the approved plan of the project.
2. The summar palace situated in tine land shall be demolished in view of the fact that it has become dilapidated. The land that would be released as a result of demolition will be used for a public purpose, such as, setting up a school.
3. The beneficiaries under the Weaker Sections Housing Programme shall be identified in accordance with the prescribed norms and drawn from the immediate vicinity of the area in question. The process of identification shall be done in consultation with the representatives of the Malakpet Citizens' Forum. The Andhra Pradesh Housing Board shall develop the whole area in accordance with the prescribed Town Planning Regulations providing for a separate approach road for the commercial portion.
"10. It is also hereby ordered that the rate at which the land has been allotted to the Agricultural Market Committee be enhanced to Rs. 23/per square yard and that the Agricultural Market Committee be however compensated for the loss of two acres of land agreed to be allotted towards construction of houses."
7. As already observed by us, the reliefs prayed for in the present two writ petitions are identical. The petitioners are praying for Writ of Mandamus 'declaring that the 99 years' lease issued by the Agricultural Market Committee to wholesale dealers and agents is ultra vires in excess of power and mala fide and accordingly the Court should strike down the CO., authorising such leasing out by the Agricultural Market Committee.
8. It is contended in these two writ petitions, inter alia, that in the earlier public interest litigation there could be no compromise; when once a public interest litigation was launched it must be heard and finally decided on merits and under no circumstances could it be withdrawn. The compromise memo which forms the basis for the decree granted by the Supreme Court does not constitute Res Jndicata. The petitioners being not parties to the earlier decision of the Supreme Court, the decree granted on 19th April, 1990 does not bind them. The compromise was an unholy one processed and engineered by the Government ultimately to deprive citizens of the area of right to residential quarters. There could be no compromise in respect of an ultra vires action.
9. As we entertained serious doubts about maintainability of the two writ petitions, we have asked the learned Counsel for both the sides to address arguments on the question of maintainability of the writ petitions. After hearing both sides, we are of the view that the two writ petitions are not maintainable. The prayer sought in the writ petitions if granted by us will inevitably be at variance with the decree granted by the Supreme Court on 19th April, 1990.
10. Under Article 375 of the Constitution of India, all courts and all authorities through out the territory of India shall continue to exercise their respective functions subject to the provisions of the Constitution. Under Article 141 the law declared by the Supreme Court shall be binding on all Courts within the territory of India,. In the hierarchical set up of the Courts in our country, as ordained by the Constitution, the High Court compared to the Supreme Court exercises jurisdiction of an inferior nature. The decree granted by a higher Court must be obeyed by the lower court. Any attempt, either directly or indirectly, to enquire into the validity or otherwise of the decree granted by the higher court would be subversive of judicial discipline, and negation of the Rule of Law.
11. In Narender Singh v. Surjeet Singh, while considering the legality of an order passed by a learned Judge of the Punjab and Haryana High Court which was contrary to the direction issued by the Supreme Court on the earlier occasion, it was observed:
"It may be that the learned Judge felt that the decision in respect of paragraphs 29 to 36 was not to his liking but when its own decision was set aside by this Court it became the law of the land and it was duty of everybody including High Court to obey the order and not try to avoid it. Nor was it open to the High Court to find fault with the same."
12. Emphasising in no uncertain terms that the direction issued by the appellate court binds all the courts subordinate to it, it was held by the Supreme Court in Kausalya Devi Bogra v. Land Acquisition Officer, (1984) 2 SCC 325 at 332:
"The direction of the appellate Court is certainly binding on the courts subordinate thereto. That apart, in view of the provisions of Article 141 of the Constitution, all courts in India are bound to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants that appellate directions should be taken as binding and followed."
13. Any decision rendered by any Court if in conflict with a decision of the Supreme Court "would be non-est and absolutely without jurisdiction and violative of Article 141 of the Constitution of India" vide Krishna Singh v. Mathura Ahir, .
14. Although Shri S. Ramachandra Rao, learned Counsel appearing for some of the respondents has contended that the earlier litigation was not a public interest litigation but one purely of a personal nature and a vexatious one engineered to settle personal scores, the learned Advocate-General and Sri Subrahmanya Reddy learned Counsel have submitted that the decree passed by the Supreme Court on 19th April 1990 could not be equated with a decree in a private litigation; in exercise of its constituent power under Article 142 in order to render complete justice, the decree was passed by the Supreme Court and, therefore, it is not open to the petitioners even to indirectly make an attemptained at disturbing the said decree. In reply to this Sri P.R. Ramachandra Rao, learned Counsel for the petitioners, contends that the power under Article 142 does not extend to passing orders in violation of the statutory provisions. Put another way, the learned Counsel says that, inasmuch as the decree passed by the Supreme Court on 19th April 1990 is contrary to certain statutory provisions, it must be treated as non-est and so the protective umbrella of Article 142 is not available. In support of this contention he relies upon Prem Chand v. Excise Commr. LT.P., Wherein the Constitution Bench speaking through Gajendragadkar J., (as he then was) observed:
"The position of an order made either under the rules framed by this Court or under the jurisdiction of this Court under Article 142(1) can be no different. If this aspect of the matter is borne in mind, there would be no difficulty in rejecting the Solicitor-General's argument based on Article 142(1)."
While considering the provisions of Article 142(1) of the Constitution in the context of the arguments advanced by the learned Solicitor-General that the power of the Supreme Court under Article 142(1) is comparable to the privileges claimed by the members of the State Legislatures (under Article 194(3)) and, therefore the order passed by the Supreme Court under Article 142(1) cannot be interfered with on the ground that it is inconsistent with Article 32, the Supreme Court observed:
"The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. Therefore, we do not think it would be possible to hold that Article 142(1) confers upon this Court powers which can contravene the provisions of Article 32."
15. Preinchand's case was considered by a Constitution Bench of the Supreme Court in a recent decision, Union Carbide Corporation v. Union of India, . After referring to certain precedents dealing with the scope of Article 142, Venkatachaliah, J. speaking for the majority, clarified the legal position:
"It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is rounded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous...."
Expounding the law that the provisions of a statute cannot limit the content and plenitude of the power of the Supreme Court under Article 142, the learned Judge observed:
".... It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a cause of matter, the apex court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public-policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise."
16. The judgment of the Supreme Court dated 19th April 1990 cannot therefore be interfered with by any Court. If any one feels aggrieved the only course open, according to our comprehension of law, is to seek a review of the judgment from the highest Court. There is no question of any party contending that the decision rendered by the highest Court in the country is either non-est or contrary to law. The principle of law laid down by the Privy Council in Isaacs v. Robertson, (1984) 3 All E.R. 140 at 143 viz., "The .... legal concepts of voidness and voidability form part of the English Law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it on application to that court; if it is regular it can only be set aside by an appellate court on appeal if there is one to which appeal lies."
was approvingly cited by the Supreme Court in Union Carbide Corporation's case (5 supra).
15. We are not inclined to got into the contention advanced by Sri P.R. Ramachandra Rao on behalf of the petitioners that public interest litigation when once launched cannot be withdrawn but must be decided on merits. Consideration of this contention would inevitably lead to an inquiry into the correctness of the decree passed by the Supreme Court of India in the two civil appeals; the provisions of Article 141 and 142 of the Constitution in no unmistakable terms forbid this Court from considering the above contention. The sweep of Article 142 is very wide. Once the Supreme Court "has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter", Delhi Judicial Service Assn. v. State of Gujarat, .
16. For the aforesaid reasons, we are of tine view that the two writ petitions are not maintainable and accordingly the same are dismissed. No costs.