L. BHUPATHY v. UNION OF INDIA — 1999 DIGILAW 1101 (MAD)

Judgment : ( 1 ) THE petitioner has filed the above writ petition to declare that Section 19 (3) (c) of prevention of Corruption Act, 1988 (hereinafter called the Act) is unconstitutional and void in so far as the petitioner is concerned. ( 2 ) ACCORDING to the petitioner, the 3rd respondent filed charge-sheet against the petitioner before the IX Addl. City Civil judge-cum-Principal Special Judge for CBI cases, Chennai in Crime No. R. C. 50 (A)/94 under Sections 7 and 13 (2) readwith section 13 (1) (d) of the Act. The said case has been numbered as C. C. No. 203 of 1997. Thereafter, the petitioner moved a petition before the said Court under Section 395, criminal Procedure Code, questioning the jurisdiction of the trial Court, in view of the fact that no valid notification has been issued by the Central Government as contemplated under Section 4 (2) of the Act, and prayed for an order to make reference to the High court. The trial Court dismissed the said petition. On these backgrounds the petitioner has approached this Court, questioning the constitutional validity of the said provision. ( 3 ) THE learned Counsel appearing for the petitioner has submitted that by introducing the said section the petitioners right to move any Court for the purpose of stay of the proceedings taken under the Act is curtailed and so it offends Article 21 of the constitution of India, and it is also an arbitrary exercise of powers. He has also submitted that the said Section should be struck down as it is a colourable legislation, and, as such it is invalid in law. His further submitted that it also discriminate the petitioner from other accused. According to him, even with respect to the other accused who are facing criminal prosecution even for serious offences are not restricted to that extent. So, it offends Article 14 of the constitution of India. ( 4 ) THE learned Public Prosecutor while defending validity of the said provision has submitted that the said provision was introduced only to safeguard the interest of the accused to have speedy trial and get the result as early as possible. This provision was introduced only with a view to complete the trial as early as possible. ( 4 ) THE learned Public Prosecutor while defending validity of the said provision has submitted that the said provision was introduced only to safeguard the interest of the accused to have speedy trial and get the result as early as possible. This provision was introduced only with a view to complete the trial as early as possible. ( 5 ) TO appreciate the said submissions, it is useful to extract the said provision which is as follows:-"19 (3) Notwithstanding anything contained in the Code of Criminal procedure. 1973 (2 of 1974):- (a ). . . . . . . . . . . . . . . . . . (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any enquiry trial, appeal or other proceedings". The said provision prohibits other Courts from staying any proceedings under the Act. But, under Section 19 (3) (b) of the Act, the courts can stay the proceedings, if the Court is satisfied that the error, omission or irregularity has resulted in failure of justice. This has been challenged by the petitioner saying that his right to approach the other courts for getting relief is taken away and so it offends his fundamental right by curtailing his liberty to approach the Courts to get redress provided under Article 21 of the Constitution of India. ( 6 ) EVEN under Articles 20 and 21 of the constitution of India the rights given under the said provisions are not absolute. The said rights can be restricted by law or by the procedure established under law enacted concerning the Legislature or Parliament. Merely because the petitioner cannot approach the other Courts for getting stay or file revision, the said provision cannot be said as illegal or void. There is no rule that every decision of every officer under a statute should be made appealable or the accused should be permitted to approach the other Courts for the purpose of getting stay, the statute should be struck down. There is no rule that every decision of every officer under a statute should be made appealable or the accused should be permitted to approach the other Courts for the purpose of getting stay, the statute should be struck down. In this case, after the completion of the trial, and the judgment of the trial Court in which proceedings have been initiated under the act, the accused is having substantial/ provision of appeal or revision as contemplated under the Code of Criminal procedure. By making such restrictions it cannot be said that the whole procedure has become oppressive and arbitrary so as to enable this Court to declare the said provision as unconstitutional especially when the petitioner has been conferred right to challenge the order under the substantial provision of appeal or revision, after the disposal of the case before the Special judge. While dealing with similar situation the apex Court in the decision in Khyberbari Tea co. vs. State of Assam has held as follows:-"we have already cited Section 34. The argument that the restriction imposed by Section 34 is unreasonable proceeds on the assumption that sub-section (2)prohibits a producer from ventilating his grievance against irregular, excessive, or illegal levy of tax before any forum, and such a prohibition, it is urged, is patently unreasonable. We are satisfied that the assumption on which the argument is founded, is completely misplaced. What Section 34 (2) (a)prohibits is merely a suit or the other proceedings in any Court. It does not prohibit the remedy of an appeal or revision specifically provided by sections 16 and 17 of the Act". ( 7 ) EVEN in the decision in State of Bihar vs. K. K. Misra and others while deciding the reasonableness on the restriction of the rights of the parties, the Apex Court has held as follows:-"exercise of power under Section 144 is intended to ensure the maintenance of law and order, and for that purpose the section authorises the Magistrate, exercising judicial power of the State, on being satisfied on sufficient grounds, and where it is necessary that immediate prevention or speedy remedy is desirable, to make an appropriate order. Normally an order made by a Magistrate under sub-section (1) of Section 144 remains in force so long as it serves its purpose, but not longer than two months. Normally an order made by a Magistrate under sub-section (1) of Section 144 remains in force so long as it serves its purpose, but not longer than two months. In case, the danger or emergency or apprehension thereof is deep-rooted, the State Government is competent by direction to extend the duration of the order. The duty of maintaining law and order ordinarily lies on the executive, but since the making of an order under Section 144 involves serious infringement of the rights of the citizens, exercise of the power is conditioned by a judicial evaluation of the circumstances which necessitate it. Whether the order remains operative for its normal duration, or is extended by direction of the executive the Magisterial verdict lends sustenance to it. Apprehension that the executive may abuse the power to extend the duration will not in my judgment, justify the Court in holding that the extension shifts the source of authority of the order, or vitiates the magisterial evaluation. I cannot accept the abstract standard that every statute in the execution of which fundamental rights of citizens may be infringed will be adjudged unreasonable, if within its framework the statute does not provide machinery for judicial scrutiny or for rescission of the action taken. Nor can I accept the plea that absence of machinery in the Code for approaching the High Court for redress against the direction of the State and absence of express provision for moving the State for rescission or alteration of the duration constitute a test of unreasonableness. Reasonableness of a statutory provision cannot be determined by the application of a set formula; it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances". ( 8 ) IN the decision in Sarwan Singh vs. State of Punjab, the Apex Court while dealing with the denial of the right of appeal has held as follows:-"again denial of the right of appeal available in the case of acquisition under the Acquisition Act does not make section 59 (a) ultra vires 14 of the constitution. ( 8 ) IN the decision in Sarwan Singh vs. State of Punjab, the Apex Court while dealing with the denial of the right of appeal has held as follows:-"again denial of the right of appeal available in the case of acquisition under the Acquisition Act does not make section 59 (a) ultra vires 14 of the constitution. The Improvement Act constitutes a Tribunal with two assessors unlike in the Acquisition Act. The President of the Tribunal shall be a person qualified for appointment as a judge of the High Court. One of the assessors is appointed by the State government and the other assessor is appointed by the Municipal Committee and on failure to do so by the Committee, by the State Government. The legislature by making the order of the tribunal final under Section 59 (d) seeks to avoid delay in the course of litigation to defeat the purpose of the schemes framed under the Act. Right of appeal is a creature of the statute and mere denial or taking away of such a right under the law cannot be considered as an infringement of a persons fundamental right. The first submission of the learned counsel cannot, therefore, be accepted". ( 9 ) SIMILARLY, in the decision in P. A. Shah vs. State of Gujarat the Apex Court has held as follows:-"32. Then it is contended that the Act which does not provide for an appeal from some of the decisions of the Town planning Officer taken under Section 32 of the Act while it has provided appeal to the Board of Appeal against some other decisions taken under the very same section was discriminatory. There is no rule that every decision of every officer under a statute should be made appealable and if it is not so made appealable the statute should be struck down. It may be salutary if an appeal is provided against decisions on questions which are of great importance either to private parties or to the members of the general public, but ordinarily on such matters the Legislature is the best Judge. Unless the Court finds that the absence of an appeal is likely to make the whole procedure oppressive and arbitrary, the court does not condemn it as unconstitutional. Unless the Court finds that the absence of an appeal is likely to make the whole procedure oppressive and arbitrary, the court does not condemn it as unconstitutional. On going through the provisions of Section 32 and other cognate provisions of the Act and considering the status of the officer who is appointed as a Town Planning Officer, we are of the view that it is not possible to hold that Section 32 of the Act is a provision which confers uncanalised and arbitrary power on the Town planning Officer, merely because of the denial of the right of appeal in some cases. Dealing with a similar contention advanced against Section 54 of the Act and Rule 27 of the Bombay Town planning Rules, 1955 framed under the act which authorised summary eviction of the occupants of land vesting in the local authority under Section 53 of the act this Court has held in Babubhai and co, vs. State of Gujarat (1985) 2 SCC 732 ( AIR 1985 SC 613 ) that the absence of a corrective machinery by way of an appeal does not always make a provision unreasonable. We agree with the above view. In any event the remedy under Article 226 of the Constitution of india is available to a person aggrieved by such orders. 33. . . . . . . . . . . . . . . . . . . . . . 34. It was next contended that the denial of the solatium of 15 per cent (or 30 per cent as the law now is) of the market value of the land in addition to the compensation payable for lands taken by the local authority for purposes of the scheme makes the Act discriminatory. Reliance is placed on the decision of this court in Nagpur Improvement Trust vs. Vithal Rao, (1973) 3 SCR 39 ; ( AIR 1973 SC 689 ) in which it is held that the different terms of compensation for land acquired under two Acts would be discriminatory. In that case, the petitioner was a tenant of some field in a village. He had applied to the agricultural Land Tribunal under a local Act for fixing the purchase price of the said field. The land in question however was acquired under the nagpur Improvement Trust Act, 1936. In that case, the petitioner was a tenant of some field in a village. He had applied to the agricultural Land Tribunal under a local Act for fixing the purchase price of the said field. The land in question however was acquired under the nagpur Improvement Trust Act, 1936. Aggrieved by the said acquisition he filed a Writ Petition in the High Court of Bombay, Nagpur Bench, challenging the validity of the Nagpur Improvement trust Act, 1936 on various grounds one of the grounds being that the said Act empowered the acquisition of the land at prices lower than those payable under the Land Acquisition Act, 1894. He urged that the denial of the solatium at 15 per cent of the market value was discriminatory. The High Court held that as the acquisition was by the State in all cases where the property was required to be acquired for the purposes of a scheme framed by the Trust and such being the position, it was not open to the State to acquire any property under the provisions of the Land acquisition Act, 1894 as amended by the improvement Trust Act without paying the solatium also. It was therefore held by the High Court that the paragraphs 10 (2) and 10 (3) insofar as they added a new Clause 3 (a) to section 23 and a proviso to subsection (2) of Section 23 of the Land acquisition Act, 1894 were ultra vires as violating the guarantee of Article 14 of the Constitution. On appeal the judgment of the High Court was affirmed by this Court by the above decision. The provision under consideration in the above decision corresponds to Section 11 and to section 84 of the Act, which we are now considering. Section 59 of the Negpur improvement Trust Act, 1936 provided that the Trust might, with the previous sanction of the State Government acquire land under the provisions of the land Acquisition Act, 1894 as modified by the provisions of the said Act for carrying out any of the purposes of the said Act. But the provisions which are questioned before us are of a different pattern altogether. They deal with the preparation of a scheme for the development of the land. But the provisions which are questioned before us are of a different pattern altogether. They deal with the preparation of a scheme for the development of the land. On the final scheme coming into force the lands affected by the scheme which are needed for the local authority for purposes of the scheme automatically vest in the local authority. There is no need to set in motion the provisions of the Land acquisition Act, 1894 either as it is or as modified in the case of acquisition under section 11 or Section 84 of the Act. Then the Town Planning Officer is authorised to determine whether any reconstituted plot can be given to a person whose land is affected by the scheme. Under section 51 (3) of this Act the final scheme as sanctioned by the Government has the same effect as if it were enacted in the act. The scheme has to be read as part of the Act. Under Section 53 of the Act all rights of the private owners in the original plots would determine and certain consequential rights in favour of the owners would arise therefrom. If in the scheme reconstituted or final plots are allotted to them they become owners of such final plots subject to the rights settled by the Town Planning Officer in the final scheme. In some cases the original plot of an owner might completely be allotted to the local authority for a public purpose. Such private owner may be paid compensation or a reconstituted plot in some other place. It may be a smaller or a bigger plot. It may be that in some cases it may not be possible to allot a final plot at all. Sections 67 to 71 of the Act provide for certain financial adjustments regarding payment of money to the local authority or to the owners of the original plots. The development and planning carried out under the Act is primarily for the benefit of public. The local authority is under an obligation to function according to the Act. The local authority has to bear a part of the expenses of development. It is in one sense a package deal. The proceedings relating to the scheme are not like acquisition proceedings under the land acquisition Act, 1894. The local authority is under an obligation to function according to the Act. The local authority has to bear a part of the expenses of development. It is in one sense a package deal. The proceedings relating to the scheme are not like acquisition proceedings under the land acquisition Act, 1894. Nor are the provisions of the Land Acquisition Act, 1894 made applicable either without or with modification as in the case of the nagpur Improvement Trust Act, 1936. We do not understand the decision in nagpur Improvement Trusts case ( AIR 1973 SC 689 ) (supra) as laying down generally that wherever land is taken away by the Government under a separate statute compensation should be paid under the Land Acquisition Act, 1894 only and if there is any difference between the compensation payable under the Land Acquisition Act, 1894 and the compensation payable under the statute concerned the acquisition under the statute would be discriminatory. That case is distinguishable from the present case. In state of Kerala vs. T. M. Peter, (1980) 3 SCR 290 : ( AIR 1980 SC 1438 ) also Section 34 of the Cochin Town Planning Act which came up for consideration was of the same pattern as the provision in the nagpur Improvement Trust Act, 1936 and for that reason the Court followed the decision in the Nagpur Improvement trusts case (supra ). But, in that decision itself the Court observed at pages 302 and 303 (of SCR): (at Page 1446 of AIR)thus:-"we are not to be understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Article 14. No such circumstances are present here not pressed". We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of compensation may comfortably comport with Article 14. No such circumstances are present here not pressed". ( 10 ) WHILE considering the validity of section 54 of the Bombay Town Planning act, 1955, the Apex Court has held as follows:-"it cannot be disputed that the absence of a provision for a corrective machinery by way of appeal or revision to a superior authority to rectify an adverse order passed by an authority or body on whom the power is conferred may indicate that the power so conferred is unreasonable or arbitrary but it is obvious that providing such corrective machinery is only one of the several ways in which the power could be checked or controlled and its absence will be one of the factors to be considered along with several others before coming to the conclusion that the power so conferred is unreasonable or arbitrary; in other words mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary, much less would render the provision invalid. Regard will have to be had to several factors, such as on whom the power is conferred, whether on a high official or a petty officer, what is the nature of the power -whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it to be exercise objectively by reference to some existing facts or tests, whether or not it is a quasi judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc. , the last mentioned factor particularly ensures application of mind on the part of the authority or body only to pertinent or germane material on the record excluding the extraneous and irrelevant and also subjects the order of the authority or body to a judicial review under the writ jurisdiction of the Court on grounds of perversity, extraneous influence mala fides and other blatant infirmities. Moreover, all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision. Moreover, all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision. If on an examination of the scheme of the enactment as also the purpose of the concerned provision it is found that the power to decide or do a particular thing is conferred on a very minor or petty officer, that the exercise thereof by him depends on his subjective satisfaction, that he is expected to exercise the power administratively without any obligation to make a speaking order then, of course, the absence of corrective machinery will render the provision conferring such absolute and unfettered power invalid. But it is the cumulative effect of all three factors that will render the provision unreasonable or arbitrary and liable to be struck down. In three of the decisions referred to by Counsel where the concerned provision was struck down the cumulative effect of several factors that were present in each was taken into consideration by the Court, while in c. R. H. Ready moneys case the provision was held to be valid". ( 11 ) FROM the abovementioned decisions, it is clear that merely because certain restrictions have been imposed, restraining the accused from getting stay order, it cannot be said that the fundamental right of the accused has been infringed, as the said provision is made only to achieve the object which is also beneficial to the accused. The same has been made on the basis of the recommendations and on the basis of the decisions of, the Supreme Court so as to protect the public servants from haying mental agony of facing prosecution for a long time and to have a speedy disposal of the main case itself. It is only a restriction and not prohibition, and such a restriction is permissible under the Constitution. It is not the case of the petitioner that Parliament has no jurisdiction to enact such a provision. ( 12 ) THE learned Counsel appearing for the petitioner has submitted that the said provision should be held to be a piece of colourable legislation. I am not in a position to accept the said submission. Doctrine of colourable legislation does not involve any bona fides or mala fides on the part of the legislature. ( 12 ) THE learned Counsel appearing for the petitioner has submitted that the said provision should be held to be a piece of colourable legislation. I am not in a position to accept the said submission. Doctrine of colourable legislation does not involve any bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of at particular Legislature to enact a particular law. If the Legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. I seek support from the decision in K. C. G. Narayan Deo vs. State of Orissa, to sustain the above said views. ( 13 ) EVEN with respect to the argument on the basis of discrimination, I do not think that the petitioner can sustain the same successfully. When the accused under the provisions of the Act can be treated as a different class, the petitioner cannot compare him with the accused in other criminal cases, merely on the basis that punishment with respect to other criminal cases are more and the punishment under the provisions of the Act is less. Such a classification cannot be sustained in law. Such a comparison amounts to making unequals as equals. It cannot be said that the accused under the provisions of the Act are similarly situated with other accused in other criminal cases under the relevant provisions of law. In view of the above said facts, the said submission cannot be sustained to that extent. ( 14 ) IN view of the above said discussion, i do not find any merits in this writ petition. Accordingly, this writ petition is dismissed. No costs. Consequently, W. M. P. No. 16271 of 1999 is closed.