Madras High Court
All India Anna Dravida vs The Chief Election Commissioner on 25 March, 2014
Equivalent citations: AIR 2015 (NOC) 453 (MAD.), 2014 AIR CC 3334 (MAD)
Author: M.M.Sundresh
Bench: Satish K. Agnihotri, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2014 C O R A M The Honourable Mr.SATISH K. AGNIHOTRI, ACTING CHIEF JUSTICE and The Honourable Mr. Justice M.M.SUNDRESH W.P. Nos.7955 and 8126 of 2014 and M.P.Nos.1 to 3 of 2014 W.P.No.7955 of 2014: All India Anna Dravida Munnetra Kazhagam, rep.by its General Secretary, Selvi J.Jayalalithaa Avvai Shanmugam Salai, Royapettah, Chennai 14. ... Petitioner Vs. 1.The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi, 2.The Chief Electoral Officer, Public (Elections) Department, Secretariat, Chennai 9 3.Dravida Munnetra Kazhagam, rep.by its Treasurer, M.K.Stalin, D.M.K.Head Quarters, Anna Arivalayam, No.367 & 369, Anna Salai, Chennai 18. 4.The Government of Tamil Nadu, rep.by its Secretary to Government, Transport Department, Fort St.George, Chennai 600 009. 5.The Metropolitan Transport Corporation (Chennai) Division Ltd., rep.by its Managing Director, Pallavan Salai, Chennai 600 002. ... Respondents Respondents No.4 and 5 are impleaded as parties as per order dated 21.3.2014 in M.P.No.3 of 2014. W.P.No.8126 of 2014: K.Saravanan ... Petitioner Vs. State represented by. 1.The Chief Election Commissioner, Government of India, New Delhi 2.The Chief Election Officer, Government of Tamil Nadu, Secretariat, Chennai 600 009. ... Respondents Prayer: Writ Petition in W.P.No.7955 of 2014 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of a writ of certioarari to call for the records of the impugned order dated 10.3.2014 issued by the 1st respondent to the 2nd respondent bearing reference No.437/TN-HP/2014 (MCC)/666 and quash the same as far as direction Number 3 is concerned. Writ Petition in W.P.No.8126 of 2014 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of mandamus to direct the respondents to take necessary action on the petitioner's representation dated 14.3.2014. For Petitioner in W.P.No.7955 of 2014 : Mr.K.Saravanan party in person For Petitioner in W.P.No.8126: Mr.R.Muthukmaraswamy, of 2014 Sr.Counsel for Mr.P.H.Manoj Pandian For Respondents 1 and 2 : Mr.G.Rajagopal,Sr.Counsel in both W.Ps For Respondent No.3 in W.P.: Mr.R.Viduthalai,Sr.Counsel No.7955 of 2014 for Mr.R.Neelakandan For Respondent Nos.4 and 5: Mr.A.L.Somayaji, in W.P.No.7955 of 2014 Advocate General assisted by Mr.S.T.S.Murthi, Govt.Pleader and Mr.I.S.Inbadurai,Spl.G.P. COMMON ORDER
Seeking to impugn the clarification issued by respondent No.1 to respondent No.2 stating that the paintings of leaves resembling the symbol of All India Anna Dravida Munnetra Kazhagam party appearing on mini-buses plying in Chennai are to be suitably covered, the petitioner has filed Writ Petition No.7955 of 2014. Describing himself as a pro-bono publico, Writ Petition in W.P.No.8126 of 2014 has been filed by the petitioner, being a member of the All India Anna Dravida Munnetra Kazhagam party, seeking a direction on behalf of the general public to direct the respondents therein to dispose of the representation made on 14.3.2014, by which a clarification has been sought for as to whether the election symbol of the party is two or four leaves.
2. For the sake of brevity, we would like to decide the writ petition No.7955 of 2014, as the decision to be rendered would cast its shadow and encompass the prayer sought for in the other writ petition also.
3. Factual narration:
Respondent No.1, in pursuant to the notification issued, has undertaken the laborious and arduous task of conducting general elections to the Parliament of the largest democracy in the world. The election process is considered to be the biggest task ever undertaken covering 532 constituencies starting from Cape Comerin to Kashmir. The petitioner as well as respondent No.3 are two of the parties participating in the ensuing election to be conducted for the State of Tamil Nadu on 24.4.2014. A complaint was laid by respondent No.3 before respondent Nos.1 and 2 against the petitioner. Even though the complaint has got several facets, we are concerned in this writ petition on the paintings effected over the Government mini buses running in the city of Chennai. It is the grievance of respondent No.3 that they depict the symbol of the petitioner. A clarification was sought for by respondent No.2 before respondent No.1 which is produced as under:
"The issue of mini bus launched in Chennai, having paintings of leaves similar to that of AIADMK symbol, was raised during the Yercaud Bye-Election. Since these buses were not going to Yercaud, no decision was taken then on whether these symbols should be covered or not. Now that the General Election is to take place throughout the State, a decision needs to be taken whether to cover up the symbols on such buses or not."
In response to the aforesaid clarification, the order impugned has been passed by respondent No.1. The following passage is apposite:
"3. The painting of leaves resembling AIADMK symbol appearing on mini buses plying in Chennai may be suitably covered so that it does not become mobile advertisements for that party."
Now this part of the proceedings of respondent No.1, dated 10.3.2014 is under challenge before us.
4. Submissions of the learned counsel for petitioner:
Shri R.Muthukumaraswamy, learned Senior Counsel appearing for the petitioner has submitted that the order impugned is one without jurisdiction, power or authority. Admittedly, the act was done by the official respondents of the Government of Tamil Nadu much prior to the issuance of Notification. Therefore, for the act done preceding the notification, respondents No.1 and 2 do not have power to deal with. The order impugned is liable to be set aside for the violation of principles of natural justice. Admittedly, the petitioner has not been heard. The observations made upon the decision have civil consequences upon the petitioner. The symbol of the petitioner is "two leaves", whereas, what has been depicted on the side of the mini buses is a bunch of four leaves. The order passed is arbitrary and unreasonable. Accordingly, the learned Senior Counsel submitted that the same is liable to be interfered with.
5. Submissions of the learned Advocate General:
Shri A.L.Somayaji, learned Advocate General appearing for the impleaded respondents 4 and 5 submitted that it is these respondents, who painted the pictures. They have not been heard before passing the order impugned. The painting of four leaves is to create an awareness in environment with particular reference to ecology. As contended by the petitioner, there is an apparent lack of jurisdiction on the part of respondent No.1 in passing the order impugned. Respondents No.4 and 5 ought to have been heard. When there is no dispute on fact that respondents 4 and 5 have completed the act much prior to the election notification, the order impugned ought not to have been passed. In support of his contention, the learned Advocate General has made reliance upon the following decisions:
"(1) S.SUBRAMANIAM BALAJI VS. STATE OF TAMIL NADU AND OTHERS, (2013) 9 SCC 659;
(2) RAJAJI MATHEW THOMAS VS. THE ELECTION COMMISSION OF INDIA, (W.P.(C) NO.8178 OF 2011) DATED 21.3.2011 (Kerala High Court);
(3) BABU VS. ELECTION COMMISSION OF INDIA, (AIR 2006 KERALA 226 = 2006(2) KLT 135)."
6. Submissions of Respondent Nos.1 and 2:
Shri G.Rajagopal, learned Senior Counsel appearing for respondent Nos.1 and 2 has submitted that writ petition, as filed, is not maintainable in law and facts. The petitioner is not an aggrieved party. The judicial review is limited over a decision of a constitutional authority while exercising the discretionary and extraordinary power under Article 226 of the Constitution of India. This Court cannot sit in the arm chair of respondents No.1 and 2 and decide the issue. For the same reason, this Court also cannot act as an appellate authority. Considering the scope and ambit of Article 324 of Constitution of India, no interference is required. The learned Senior Counsel, while not tracing the earlier counter affidavit filed, which has not been placed before us, submitted that the subsequent affidavit may be taken for the purpose of deciding the case. Reliance has been made upon paragraph No.4 of the said counter affidavit by stating that the decision is only for the purpose of conduct of election. It was taken as there is a likelihood of confusion in the minds of the voters. This is only a temporary measure till the completion of election process. The petitioner as well as the respondent Nos.4 and 5 are not entitled to be heard as there is no procedure which contemplates so. No legal rights of the parties are affected. Duty of respondents No.1 and 2 is to conduct free and fair election. For the said purpose, respondents No.1 and 2 will have to create a level playing field. Respondents No.1 and 2 do not cast any aspersions or motive on the part of the petitioner as well as respondents No.4 and 5, as the action is only meant for a limited period and a specific purpose in conducting the election in a smooth manner.
7. Submission of respondent No.3:
Learned Senior Counsel Shri R.Viduthalai appearing for respondent No.3 has submitted that it is only at the instance of the third respondent alone the action was taken by respondent Nos.1 and 2. There is no civil consequence involved. What is sought to be done is not to interdict a policy decision. The decisions relied upon by the learned Advocate General do not apply to the present case, as they were dealing with policy decisions and against the Government. Hence, no interference is required.
8. Discussion:
(i) Jurisdictional issue: Conduct of an election in a free and fair manner is the basic foundation of democracy. Article 324 of the Constitution of India coming under Part XV deals with elections. It, in specific terms, vests with the Election Commission the solemn duty of conducting election in an impartial manner. In order to have a fair play between the various contestants, there has to be a fair field. This job has been entrusted to respondent No.1 under the Constitution. Therefore, the exercise of the power by respondents No.1 and 2 will have to be in commensurate with the object enshrined in Article 324 of the Constitution. That is the reason why sufficient safeguards have been provided under Article 324 and the appointments are to be made by the President of India. Article 329 deals with the bar to interference by the Courts in electoral mattes. Keeping the above said object enshrined in the Constitution in mind, we are of the view that the powers of respondent Nos.1 and 2 are rather wide to be exercised for the purpose of conducting the elections in an appropriate manner. The submissions made by the learned Senior Counsel appearing for the petitioner as well as the learned Advocate General that no power lies with respondent Nos.1 and 2 to deal with the action of an authority prior to the notification for an election cannot be countenanced, as such a technical approach would nullify the very basis of Article 324. What is important is to conduct election in a proper manner. The power of respondents to deal with to prevent a public authority to do an act and to interdict an action done already are co-existent with each other. This is for the reason that the same power is to be exercised in both cases for the very same purpose. It is to be borne in mind that respondent Nos.1 and 2 are exercising the said power only for the purpose of conducting the election, meaning thereby, it is temporary and only to be used for the avowed purpose.
9. In this connection, it is useful to refer Instruction No.23, which is as follows:-
"INSTRUCTION Sl. No. 23ECI letter No.437/6/INST/2008-CC&BE Dated: 13th April, 2009 addressed to the Chief Secretaries and Chief Electoral Officers of all States and UTs Subject: Applicability of Model Code of Conduct -
Display of advertisements and hoardings at the cost of public exchequer It has come to the notice of the Commission that a number of hoardings depicting the achievements of the party in power are being displayed by the Union and the States/UT Governments at the cost of public exchequer Your attention is invited to sub-para (iv) of para VII - Party in Power- of the Model Code of Conduct for the Guidance of Political Parties and Candidates which is as under:-
The party in power whether at the Centre or in the States/UTs concerned. shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign and in particular-(iv) Issue of advertisement at the cost of public exchequer in the newspapers and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided. With the announcement of the schedule of General Elections to Lok Sabha and to the Legislative Assemblies of various States on 2nd March, 2009, the Model Code of Conduct came into force immediately. The continuing display of such hoardings and advertisements at the cost of public exchequer, even if such Hoardings, advertisements or posters were displayed prior to the date of announcement of elections, constitutes a violation of the Model Code of Conduct as it provides an undue advantage to the party in power and has the effect of influencing the voters in favour of the party in power.
The Commission directs that all such hoardings, advertisements, etc. on display at the cost of Public exchequer shall be removed forthwith by the authorities concerned and a compliance report furnished to the Commission......"
Therefore, action of Respondent Nos.1 and 2, being prospective, it cannot be confined to present and future actions alone, but past action as well.
10. Similarly, Instruction Sl.No.36 mandates a party in power to ensure that no cause is given for any complaint that it has misused its official position. The relevant passage is produced hereunder:
"INSTRUCTION Sl. No. 36Election Commissions letter No. 437/6/2004-PLN III, dated 24.12.2004 addressed to the Chief Secretaries/Chief Electoral Officers of Bihar & Jharkhand Subject: - Display of advertisements and hoardings at the cost of public exchequer.
It has come to the notice of the Commission that a number of hoardings depicting the achievements of the party in power are displayed during the run up to the elections by the State Government/Union Government at the cost of public exchequer. Your attention is invited to sub-para (iv) of para VII - 'Party in Power'- of the Model Code of Conduct for the Guidance of Political Parties and Candidates which is as under: -
"The party in power whether at the Centre or in the States/UTs concerned, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign and in particular- ...."
It is nobody's case that these instructions are not binding. The impugned decision has been taken in accordance with the instructions in the interest of the voters.
11. The decisions relied upon by the learned Advocate General are not cases in point. In all the decisions, the issue was one of the policy decision of the public party concerned. We are not concerned with any policy decision in this matter. In S.SUBRAMANIAM BALAJI VS. STATE OF TAMIL NADU AND OTHERS, (2013) 9 SCC 659, the Supreme Court was dealing with a policy decision made over various welfare schemes. Similar is the decisions of the two Division Bench judgments of the Kerala High Court relied on by the learned Advocate General. In BABU VS. ELECTION COMMISSION OF INDIA, (AIR 2006 KERALA 226 = 2006(2) KLT 135), the Division Bench of the Kerala High Court was dealing with the decision to implement the recommendation of the Pay Commission, which was taken before the announcement of the election. Likewise, in RAJAJI MATHEW THOMAS VS. THE ELECTION COMMISSION OF INDIA, (W.P.(C) No.8178 OF 2011) DATED 21.3.2011 (Kerala High Court), the Division Bench of Kerala High Court was dealing with a project envisaged much earlier to the election. Therefore, the above said decisions do not have any application to the case on hand.
12. In the case on hand, it is not as if respondents No.1 and 2 have interdicted the policy decision enunciated by respondents No.4 and 5, rather, the impugned order deals with a particular action of respondents No.4 and 5. Therefore, for the aforesaid reasons, we are of the view that the submissions made on the jurisdiction of respondents No.1 and 2 deserve to be rejected and accordingly the same are rejected.
(ii) Principles of Natural Justice:
13. Admittedly, the impugned order is only a clarification sent by respondent No.1 to respondent No.2. It merely states that there is a resemblance with that of the symbol of the petitioner. This position has also been clarified by respondent No.4 in the following manner:
"4. I respectfully submit that the Election Commission of India, the 1st Respondent, is of the view that since the AIADMK, the petitioner political party, has the symbol "two leaves" and the painting of leaves on Government buses is likely to be confused with the symbol of the Petitioner party, which may cause confusion in the minds of electors, and hence, in order to ensure equal level playing field among all political parties and in the interest of free and fair elections, it was decided that the painting of leaves in the Government buses which was done at government cost should be suitably covered during the currency of the model code of conduct."
In such a situation we are of the view that neither the petitioner nor respondent Nos.4 and 5 are entitled for a notice of hearing. As discussed earlier, the said decision is only a temporary measure. The apprehension raised by the petitioner as well as respondents No.4 land 5 has been suitably answered in the statement made in paragraph No.4 of the affidavit filed by respondent No.2. There is no prescription in law, which mandates a prior hearing. While considering the alleged violation of principles of natural justice, a Court of law should not take a technical and a pedantic view, rather, a practical and a reasonable approach is required. The Court will have to see the nature of inquiry apart from the contextual situation. We cannot adopt a straight jacket formula in applying the principles of natural justice. Considering the said legal principle, the Supreme Court in MANEKA GANDHI VS. UNION OF INDIA, ((1978) 1 SCC 248), has held as under:
"14. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.
14. In A.S.MOTORS PRIVATE LIMITED VS. UNION OF INDIA AND OTHERS, ((2013) 10 SCC 114), it has been held by the Supreme Court that the rules of natural justice are not rigid, immutable or embodied rules that may be capable of being to be in straight jacket nor they can be applied to all enquiries. It is fruitful to recapitulate the following passages in the said judgment:
"7. It was argued on behalf of the appellant that the termination of the contract between the parties was legally bad not only because the principles of natural justice requiring a fair hearing to the appellant were not complied with but also because there was no real basis for the respondent Authority to hold that the appellant had committed any breach of the terms and conditions of the contract warranting its termination. We find no merit in either one of the contentions. The reasons are not far to see.
8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the tribunal and the rules and regulations under which it functions. A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are legion. We may refer to only some of the decisions on the subject which should in our opinion suffice.
9. In Suresh Koshy George v. University of Kerala, (AIR 1969 SC 198) this Court while examining the content and the sweep of the rules approved the view expressed in Russell v. Duke of Norfolk, (1949) 1 All ER 109 (CA) in the following words: (Suresh Koshy case (AIR 1969 SC 198), AIR p.201, paras 7-8) 7. The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.
8. In Russell v. Duke of Norfolk, (1949) 1 All ER 109 (CA), All ER at p. 118 D-F, Tucker, L.J., observed:
There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
10. In Keshav Mills Co. Ltd. v. Union of India, (1973) 1 SCC 380 this Court extracted with approval the observations of Lord Reid in Ridge v. Baldwin, (1964 AC 40: (1963) 2 WLR 935 = (1963) 2 All ER 66 (HL) and said: (Keshav Mills Co. Ltd. case, (1973) 1 SCC 380, SCC p.387, para 8) 8. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. [See, for instance, the observations of Lord Parker in H.K. (An infant), In re, (1967) 2 QB 617 = (1967) 2 WLR 962 + (1967) 1 All ER 226 (DC).] It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin, (1964 AC 40) case as insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J., observed in Russell v. Duke of Norfolk, (1949) 1 All ER 109 (CA): (All ER p.118 E) The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.
11. Reference may also be made to P.D. Agrawal v. SBI, (2006) 8 SCC 776: (2007) 1 SCC (L&S) 43 where this Court approved the observations made by Mukharji, J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 in the following words: (P.D. Agrawal case, (2006) 8 SCC 776, SCC pp.791 & 793-94, paras 30-31 & 39) 30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.
31. In Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764, a three-Judge Bench of this Court opined: (SCC pp.785-86, para 44) 44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge, (1723) 1 Str 557 = 93 ER 698.) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: To do a great right after all, it is permissible sometimes to do a little wrong. (Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, SCC at p.705, para 124.) While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential. * * *
39. Decision of this Court in S.L. Kapoor v. Jagmohan ((1980) 4 SCC 379, whereupon Mr Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read as it causes difficulty of prejudice, cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364) and Rajendra Singh v. State of M.P.( 1996) 5 SCC 460), the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. (See Viveka Nand Sethi v. J&K Bank Ltd, (2005) 5 SCC 337 and State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 6676. See also Mohd. Sartaj v. State of U.P. (2006) 2 SCC 315)
12. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 this Court while reiterating the legal position observed: (SCC p.738, para 22) 22. The omnipresence and the omniscience (sic) of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straitjacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances.
13. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27), (SCC p.38, para 12) this Court reiterated the observations made by Matthew, J. in Union of India v. Mohan Lal Capoor, (1973) 2 SCC 8360, that: (SCC p.863, para 56) 56. it [was] not expedient to extend the horizons of natural justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they might be.
14. We may finally refer to the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, where this Court with approval quoted the following observations of Sir William Wade (Administrative Law, 5th Edn., pp.472-75): (SCC pp.539-40, para 24) 24. 31. it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
15. Applying the ratio laid down in the above said judgments to the facts of this case, we do not find that the order impugned is liable to be interfered with on the ground of violation of principles of natural justice. In the same way, we do not find any legal injury leading to civil consequences.
(iii) Resemblance of the Symbol:-
16. Even though the learned Senior Counsel as well as the learned Advocate General made submissions that the symbol of the petitioner does not resemble the pictures depicted in the mini buses, we are not inclined to go into the said issue. This we do so for the reason that respondents No.1 and 2 themselves have stated that the decision has been taken as the pictures in the mini-buses are likely to confuse the minds of the voters. Therefore, no positive statement has been made regarding the resemblance that the symbols of the petitioner as well as the depiction made in the mini-buses that they are one and the same. It is also not the case of the petitioner that what has been depicted on the mini-buses is that of the party symbol. As discussed above, the issue is not one of the resemblance, but one of a likelihood of creating a confusion in the minds of the voters. When there is a reasonable doubt leading to a decision made by respondent Nos.1 and 2, then this Court, in the normal circumstances, shall not sit in judgment over the same. We do not find anything unreasonable or arbitrary in the action of Respondent No.1. In fact, the said authority has rejected the other complaints made indicating the fairness in the decision made. Moreover, in view of the stand taken in para 4 of the affidavit of Respondent No.2, the grievance of the petitioner is satisfied as it is its own case that the painting does not resemble its symbol. We also take note of the fact that respondents No.4 and 5 have not challenged the order impugned.
Judicial Review:-
17. Judicial restraint is the hall mark of a judicial process, that too, while exercising a discretionary power of review over a decision rendered by a Constitutional body, a self-restraint is required. There has to be a harmony between two constitutional functionaries. Unless a judicial review is warranted in a fact situation, the same cannot be exercised as a matter of course. Justice Frankfurter in Trop v. Dulles, (2 L Ed 2d 630 = 356 US 86 (1958) held as follows:-
1"... All power is, in Madison's phrase, "of an encroaching nature".... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. (Ibid., L Ed p. 653))
18. The Supreme Court in STATE OF MADHYA PRADESH VS. PRAMOD KUMAR SHUKLA AND ANOTHER, ((2010) 9 SCC 44)), while dealing with judicial restraint, has held in the following manner:
"6. ... The Division Bench evidently forgot that restraint is the hallmark of judicial process and getting carried away is a luxury that the court can ill afford....."
19. In this connection, we would like to refer the decision rendered by the Supreme Court in Maru Ram v. Union of India, (1981) 1 SCC 107, wherein Hon'ble Justice V.R.Krishna Iyer (as he then was), in his own inimitable style, while considering exercise of legal power held that no legal power can run unruly like John Gilpin on the horse, but "must keep sensibly to a steady course". Therefore, rule of law should be the overreaching Constitutional justification for a judicial review. Hence, on the facts of this case, we are not inclined to exercise our judicial review over the decision made by respondents No.1 and 2.
20. W.P.No.8126 of2014:
This writ petition has been filed as a public interest litigation by the petitioner claiming to be a member of an All India Anna Dravida Munnetra Kazhagam party seeking a direction to respondents to take appropriate action on the representation dated 14.3.2014. In view of the fore-going discussion, the relief sought for in this writ petition no longer survives. We are also of the view that the writ petition, as filed, is neither maintainable in law nor on facts. The petitioner does not represent his party. He is also not a person aggrieved, as he knows his party symbol very well. He cannot also file this writ petition on behalf of others, since this writ petition has been filed on mere surmises and presumptions. It is settled position of law that a public litigation will have to be filed based upon a strong factual edifice. The petitioner has not given any material about the so called misconception in the minds of the general public. The symbol of the party, which the petitioner is stated to have belonged, has been in vogue for quite some time. It is not the case of the said party itself that there is likelihood of confusion as to whether the party symbol is two leaves or four leaves. The petitioner has rushed to this Court by filing writ petition after giving representation dated 14.3.2014, which also indicates that he has been following the progress of the other writ petition.
21. Considering the scope and ambit of the public litigation, the Supreme Court in a recent pronouncement in CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA VS. DHOBEI SAHOO AND OTHERS, ((2014) 1 SCC 161) has held as under:
"24. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the judge-made law within the constitutional parameters and serves as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalized sections of the society and to check the abuse of power at the hands of the Executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained, the people in impecuniosity do not die of hunger, the national economy is not jeopardized; the rule of law is not imperiled; human rights are not endangered, and probity, transparency and integrity in governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage.
25. As advised at present, we may refer to certain authorities in the field in this regard. In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161), Bhagwati, J., (as his Lordship then was) had observed thus: -
When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realization of the constitutional objectives.
22. In Dr. D.C. Wadhwa and others v. State of Bihar, ((1987) 1 SCC 378), the Constitution Bench, while entertaining a petition under Article 32 of the Constitution on behalf of the petitioner therein, observed that it is the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. It has also been stated therein that the rule of law constitutes the core of our Constitution and it is the essence of rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitation and if any practice is adopted by the executive which is in flagrant violation of the constitutional limitations, a member of the public would have sufficient interest to challenge such practice and it would be the constitutional duty of the Court to entertain the writ petition.
27. In Neetu v. State of Punjab, ((2007) 10 SCC 614), the Court has opined that it is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigation. Commenting on entertaining public interest litigations without being careful of the parameters by the High Courts the learned Judges observed as follows: - (SCC. p.617, para 5) 5. "16. ....Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives. High Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases.' (Ashok Kumar Pandey Vs. State of West Bengal, (2004) 3 SCC 349 = (2011) 1 SCC (Cri) 865) SCC p.358, para 16) Thereafter, giving a note on caution, the Court stated: -
6. . '12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens.
28. In State of Uttaranchal v. Balwant Singh Chaufal, ((2010) 3 SCC 402), this Court adverted to the growth of public interest litigations in this country, and the view expressed in various PILs and the criticism advanced and eventually conceptualized the development which is extracted below: -
We deem it appropriate to broadly divide the public interest litigation in three phases:
Phase I. It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.
Phase II. It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.7 Phase III. It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.
31. Thus, from the aforesaid authorities it is quite vivid that the public interest litigation was initially evolved as a tool to take care of the fundamental rights under Article 21 of the Constitution of the marginalised sections of the society who because of their poverty and illiteracy could not approach the court. In quintessence it was initially evolved to benefit the have-nots and the handicapped for protection of their basic human rights and to see that the authorities carry out their constitutional obligations towards the marginalized sections of people who cannot stand up on their own and come to court to put forth their grievances. Thereafter, there has been various phases as has been stated in Balwant Singh Chaufal (supra). It is also perceptible that the court has taken note of the fact how the public interest litigations have been misutilized to vindicate vested interests for the propagated public interest. In fact, as has been seen, even the people who are in service for their seniority and promotion have preferred public interest litigations. It has also come to the notice of this Court that some persons, who describe themselves as pro bono publico, have approached the court challenging grant of promotion, fixation of seniority, etc. in respect of third parties."
22.Therefore, in the light of the above decision and the facts of the case on hand, we are of the view that the writ petition W.P.No.8126 of 2014 is totally misconceived. Accordingly, the same is dismissed.
23. The other Writ Petition W.P.No.7955 of 2014 is disposed of in the following manner:
"(i) The impugned order passed by respondent No.1 stating that the painting of the leaves on the mini buses plying in Chennai is to be suitably covered is upheld.
(ii) There is no wilful or deliberate act on the part of the respondent Nos.4 and 5 in undertaking the painting on the mini-buses.
(iii) The impugned order cannot be construed to be stigmatic on the petitioner.
(iv) In view of the statement made in paragraph No.4 of the affidavit filed by respondent No.2, the observation made on the resemblance between the symbol of the petitioner and the painting on the mini buses is to be construed only for the purpose of avoiding a possible confusion in the minds of the voters.
Consequently, the connected miscellaneous petitions are closed. However, there is no order as to costs.
(S.K.A.,A.C.J.) (M.M.S.,J.) 25.03.2014 Index:Yes/No Internet:Yes/No usk To
1. The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi,
2. The Chief Electoral Officer, Public (Elections) Department, Secretariat, Chennai 9
3.The Secretary to Government, Transport Department, Government of Tamil Nadu, Fort St.George, Chennai 600 009.
4.The Managing Director, Metropolitan Transport Corporation (Chennai) Division Ltd., Chennai.
The Hon'ble The Acting Chief Justice and M.M.Sundresh,J.
usk W.P.Nos.7955 and 8126 of 2014 25.03.2014