Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 804 (CAL)

A. Selvaraj v. UNION OF INDIA

2007-10-15

KALYAN JYOTI SENGUPTA, PARTHA SAKHA DATTA

body2007
Judgment : KALYAN JYOTI SENGUPTA, J (1) THE above public interest writ petition (hereinafter referred to as PIL) has been initiated by the petitioner for the following reliefs: - (A) A writ in the nature of Mandamus directing the respondents, their men, agent and servants to act in accordance with law setting aside the impugned notification dated 30th March, 2007, which is contrary to law. (B) A writ in the nature of Certiorari directing the respondents to transmit the case record before this Honble Court, so that after perusing the same conscionable justice may be rendered directing the respondents to act in accordance with law by not interfering with the work of North and Middle Andaman Zilla Parishad. (C) A writ in the nature of prohibition restraining the respondents to interfere in any manner whatsoever with the grass route level administration of Zilla Parishad, North and Middle Andaman District except in accordance with law. (D) Rule NISI in terms of pray (A), (B) and (C) above. (E) An interim order be passed directing the respondents especially the deputy Commissioner, Mayabunder, North and Middle Andaman district to elect the Zilla Parishad Adhakshya, Upadhakshya by calling meeting as per notification dated 19th March, 2007 under section 150 (1) of the A and N Islands (Panchayats) Regulation, 1994 as the administrator under section 144 of the said Regulation constitute Zilla parishad for North and Middle Andaman District. (2) THE fact gives rise to filing of the instant application is short and the same is set out briefly as follows:-The A and N Islands originally had two Districts, namely, Andaman and nicobar. Thereafter on or about 25th May, 2006 the Administrator namely the Lieutenant Governor, respondent No. 3 herein with the approval of the government of India, Ministry of Home Affairs, bifurcated the Andaman district into two with renaming, i.e. South Andaman and North and Middle andaman having headquarters at Port Blair and Mayabunder respectively. In view of bifurcation, the people of the newly formed District viz. North and middle Andaman were demanding creation of separate Zilla Parishad. In view of bifurcation, the people of the newly formed District viz. North and middle Andaman were demanding creation of separate Zilla Parishad. After deliberation and discussion made, the Lieutenant Governor, under the provisions of section 144 of the A and N Islands (Panchayats) Regulation, 1994 (No. 1 of 1994) (hereinafter referred to as the said Regulation) by a notification published on 19th March, 2007 in the A and N Gazette created one more Zilla parishad in view of bifurcation of the original Andaman District. In view of the notification dated 19th March, 2007 the name of the Zilla Parishad was changed and amended. One is termed as South Andaman having its headquarters at Port Blair and another one is termed as North and Middle andaman having its headquarters at Mayabunder. The Zilla Parishad for south Andaman District comprises of four Panchayat Samities namely prothrapur, Ferrargunj, Little Andaman and Campbell Bay; whereas Zilla parishad for North and Middle Andaman District comprises of Diglipur, mayabunder and Ranghat. By the said notification it was mentioned that this creation of new Zilla Parishad would come into force with effect from 1st April, 2007. As many as 15 members will constitute newly formed Zilla Parishad for North and Middle Andaman District. With this notification the long standing demand of the people of that area was fulfilled and to achieve this purpose duly elected people representative including the Member of Parliament and other members of Zilla Parishad supported and approved the same. These facts are admitted. Dispute started when the impugned notification dated 30th March, 2007 was issued by the respondent No. 3 whereby and whereunder paragraph 3 of the earlier notification, whereby the date of commencement was mentioned as 1st April, 2007, is sought to be modified. In the latter notification it is said that the notification shall come into force on such date as may be specified by the order of the Administrator. Therefore, the true purport and meaning of the notification under challenge is to keep functioning of another Zilla Parishad for the newly formed District in abeyance indefinitely. (3) WHEN the matter came up for hearing for the first time on 5th July, 2007 direction for filing affidavit was given and at that stage maintainability point was not raised. After having several extension of time for filing affidavit, the respondent Nos. 3 to 7 filed affidavit-in-opposition on 16th August, 2007. (3) WHEN the matter came up for hearing for the first time on 5th July, 2007 direction for filing affidavit was given and at that stage maintainability point was not raised. After having several extension of time for filing affidavit, the respondent Nos. 3 to 7 filed affidavit-in-opposition on 16th August, 2007. On 25th September, 2007 the learned advocate for the respondent Nos. 1 and 2 made appearance and sought for direction for filing affidavit. So time was granted to file affidavit, on that date the learned advocate for the petitioner prayed for interim order in terms of prayer (E) to the writ petition. However, such prayer was not granted. On that date also question of maintainability and locus standi were not taken by the respondents. Inspite of the direction given by the Court the respondent Nos. 1 and 2 did not file any affidavit-in-opposition and the matter came up for hearing on 9th October, 2007 and extension for filing affidavit-in-opposition was asked for by the learned counsel for respondent Nos. 1 and 2. This Court did not grant such extension as in the previous order dated 25th September, 2007 there was a direction for filing affidavit by the respondent Nos. 1 and 2 positively within a period of two weeks from the date of passing of the order. (4) IN view of the aforesaid peremptory direction this Court did not entertain the prayer of extension for filing affidavit, however, the matter was fixed for hearing on 12th October, 2007 and it was declared in that event respondent nos. 1 and 2 may file affidavit. (5) WHEN the matter was taken up for hearing on 12th October, 2007 learned counsel Smt. T. Biswas submits that she has no instructions to make any submission. Therefore, she is neither opposing this application nor supporting it. Accordingly, the matter was taken up for hearing without their any version. Indeed the challenge in the writ petition is against the action of the respondent No. 3 not, against the respondent Nos. 1 and 2. Though at earlier point of time question of locus and maintainability were not raised, now at the time of final hearing Mr. Mandal, learned Government Pleader, has raised this question for the first time taken in the affidavit-in-opposition. He contends that this application is really a political interest litigation not a public interest one. 1 and 2. Though at earlier point of time question of locus and maintainability were not raised, now at the time of final hearing Mr. Mandal, learned Government Pleader, has raised this question for the first time taken in the affidavit-in-opposition. He contends that this application is really a political interest litigation not a public interest one. No member of the public has ventilated their grievance against the notification issued subsequently. He has drawn our attention to the cause title wherein it has been mentioned that the petitioner is an organizing secretary of Rashtriya Janata Dal which is a recognized political party. Therefore, this petitioner is admittedly involved in politics. Through this petition the petitioners political ambition is sought to be established rather than public interest. None of the members of Zilla Parishad nor pramukh nor any member of Gram Panchayat has come forward to complain against the subsequent decision. In this petition he contends that there is no justiciable right as notice issued subsequently is policy decision of the executive Government and this is not liable to be challenged by any citizen nor the Court can interfere with such decision. (6) IN answer to this preliminary point, Ms. S. Ganguly, learned advocate for the petitioner contends that her client is truly involved in the politics but he is social activist in the area of newly formed North and Middle Andaman district. He is looking after interest of all the sections of the people. He is neither a member of the Zilla Parishad nor is aspiring after any port-folio in the newly formed Zilla Parishad. He is one of the citizens and resident of that area and functioning of the newly created Zilla Parishad is an utmost importance. Therefore, it cannot be said that her client cannot have any locus or interest in the matter. (7) ON the question of maintainability of the writ petition, we observed that this point should have been agitated at the threshold but it has not been done as we have already recorded, but that does not mean that this point cannot be taken subsequently if it relates to the question of law. Mr. Mandal has cited two pronouncement of the Supreme Court an the question of locus standi and/or maintainability of the writ petition. Mr. Mandal has cited two pronouncement of the Supreme Court an the question of locus standi and/or maintainability of the writ petition. One is the decision rendered in case of Dattarqj Nathuji Thaware v. State of Maharashtra and others reported in (2005) 1 Supreme Court Cases 590 and another one rendered in case of kansing Kalusing Thakore and others v. Rabari Maganbhai Vashrambhai and others reported in (2006) 12 Supreme Court Cases 360. (8) THE pronouncement on the point of law by the Supreme Court is the law. If upon reading of the judgments of the Supreme Court, it is found that the present petitioner cannot have any locus certainly this Court will not hesitate to non suit the petitioner. (9) IN the case of Dattarqj Nathuji Thaware v. State p/maharashtra and others (supra) the Supreme Court has cautioned in paragraph 14, while entertaining a public interest litigation to the effect that the Court must be satisfied about (a) the credentials of the applicant, (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (if) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. (10) WHILE entertaining public interest litigation the Court in the same paragraph has been further cautioned that while redressing a public grievance in the P1l the Court must not encroach upon the sphere reserved by the constitution to the executive and the legislature. (11) SUBSTANTIALLY similar voice has been echoed in the case of Kansing kalusing Thakore and others v. Rabari Maganbhai Vashrambhai and others (Supra) paragraph 24 by the Apex Court. That Court must be very careful whether it has an individual interest or any public interest. (12) WHILE respectfully bearing in mind the aforesaid caution note given by the Honble Apex Court we have now examined the pleadings of both the parties. It is true that admittedly the petitioner belongs to a political party and holding an office of recognized political party. (12) WHILE respectfully bearing in mind the aforesaid caution note given by the Honble Apex Court we have now examined the pleadings of both the parties. It is true that admittedly the petitioner belongs to a political party and holding an office of recognized political party. We are of the view that just because he is a politician it does not mean that he is debarred all the time from utilizing the Courts process. Only and essential precautionary step is to see whether with this litigation the petitioners object to achieve political mileage or ambition and/or purely other individual interest. In the petition before us we have examined the statements and found admittedly the petitioner is neither a member of Zilla Parishad nor holding any office of any level of Panchayati system. At present his status is nothing but a member of public. He has come forward to espouse the cause on behalf of all the members of public so that the newly formed district get the separate Zilla Parishad as it is required to be formed under the statutory provision namely section 144 of the said Regulation. The grievance of the petitioner is that with the second notification the functioning of the newly formed Zilla Parishad has been kept in abeyance on extraneous consideration and under the pressure of the outsiders. We therefore hold that the petitioner does not have any personal interest not to speak of any political interest by filing this application. Therefore, the decisions cited by Mr. Mandal are not helpful in this present ease. The election of Zilla Parishad or Panchayat is not happening now. Therefore, at present, the petitioner though being an office bearer of a political party does not have any scope or chance to get any political advantage at the present moment. We, therefore, hold that this application can be entertained and we shall proceed to decide the matter on merit. (13) MS. Ganguly submits that the respondent No. 3, Lieutenant Governor, after notifying under section 144 of the said Regulation has no power to modify such notification for the purpose of keeping functioning of the new Zilla parishad in abeyance for an indefinite period. (13) MS. Ganguly submits that the respondent No. 3, Lieutenant Governor, after notifying under section 144 of the said Regulation has no power to modify such notification for the purpose of keeping functioning of the new Zilla parishad in abeyance for an indefinite period. She has taken us through various letters and documents annexed to the petition and averments of the affidavits and submits that the decision of the Administrator of keeping the effect of the earlier notification in abeyance is absolutely capricious. Virtually it is not his own act or action, rather under pressure of interested lobby namely the Ministry of the Central Government and also the local Member of parliament this has been done illegally. In the regulation there is no power to change the earlier notification. (14) IN the affidavit-in-opposition nothing has been disclosed under what authority such impugned modification has been done. (15) MR. Mandal submits on the other hand that under the provisions of section 21 of the General Clauses Act, 1897 the Lieutenant Governor has ample power to modify or rescind any notification and/or decision. Therefore, there is no illegality in this matter and this can very well be exercised. The meaning of this section is very clear. In support of the submission he has relied upon the decision reported in AIR 1988 Andhra Pradesh 124 (Chavali shivaji and others v. Govt. of A. P. and others) and also a decision of the Division bench of the Gujarat High Court ( AIR 1970 Guj 53 ) in this connection. (16) WE have heard respective contention of the learned counsel on this issue. We have checked up the said Regulation. Ms. Ganguly is correct in saying that there is no power conferred upon the Lieutenant Governor to vary and/or alter or rescind any notification or orders under the said Regulation. Therefore, apparently he is not having any power, but Mr. Mandal has drawn our attention to section 21 of the General Clauses Acts, 1897 which is set out hereunder: "21. Ms. Ganguly is correct in saying that there is no power conferred upon the Lieutenant Governor to vary and/or alter or rescind any notification or orders under the said Regulation. Therefore, apparently he is not having any power, but Mr. Mandal has drawn our attention to section 21 of the General Clauses Acts, 1897 which is set out hereunder: "21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.- Where, by any Central Act or regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. " (17) UPON plain reading of the orders of the aforesaid section it is thus clear to us that the Lieutenant Governor in absence of power in the regulation can derive power from the aforesaid section. Though in the affidavit it is not stated so, but when the provision of law empowers the Lieutenant Governor to amend or modify, it is presumed to have done under above provision, since it is an exercise of power under a Regulation. But on the facts and in the circumstances of this case whether such power has been exercised by the lieutenant Governor lawfully and/or constitutionally is a question fallen for consideration of this Court. What prompted the Lieutenant Governor to modify the impugned notification is admitted in the affidavit-in-opposition affirmed by one M. K. Biswas. In no uncertain terms in paragraph 3 (f), (g) and (h)thereof, that after issuance of such notification dated 19th March, 2007 there was disagreement with all members of Zilla Parishad and also Pramukh of panchayat Samity. In addition to the above fact, the Honble Member of parliament requested Honble Prime Minisler that the Lt. Governor may be requested not to proceed further with the notification dated 19. 3. 2007. The honble Member of Parliament also mentioned the fact that the Honble panchayati Raj Minister Shri Mani Shankar Iyer visited these Islands and taken unanimous opinion of the members of Zilla Parishad that there should not be bifurcation of Zilla Parishad at the present moment. Governor may be requested not to proceed further with the notification dated 19. 3. 2007. The honble Member of Parliament also mentioned the fact that the Honble panchayati Raj Minister Shri Mani Shankar Iyer visited these Islands and taken unanimous opinion of the members of Zilla Parishad that there should not be bifurcation of Zilla Parishad at the present moment. It is also stated as a ground that the Ministry of Panchayati Raj is of the opinion that the present Zilla Parishad was constituted by election for five years and bifurcation of the Zilla Parishad would superimpose administrative decision on the democratically elected body. Thus, it is clear that the Administrator has to change his mind because of above factor to amend and/or modify the earlier notification. Under section 144 of the said regulation, in our view, it is the duty coupled with power of the Administrator to form Panchayat system of local government at district level to be called Zilla Parishad. When there has been bifurcation of the district in the executive level there must be corresponding bifurcation as required under the aforesaid section of local government in the district level also. It is always desirable that this thing should be done simultaneously. It is constitutional obligation on the part of the government to see that local Government namely Panchayati Raj is constituted for effectuating democracy in the grass root level. According to us, it is the sole and exclusive power, if not duty of the administrator who can take action under section 144. Accordingly, there is no alternative other than to create new Zilla Parishad the moment new district is created. It appears from the records that admittedly after due deliberation and consideration of facts and circumstances the decision was taken to create new Zilla Parishad by the respondent No. 3 few weeks before issuance of impugned notification. (18) WE are of the view that neither the member of Parliament nor any other person has any say in any manner under the said regulation or otherwise to influence or for that matter the respondent has any authority under the said regulation to consult or to be guided by any Minister or M. P. or MLAs. We have no doubt in our mind the decision to amend the earlier notification for creating new Zilla Parishad is not taken on independent application of mind of Lieutenant Governor. We have no doubt in our mind the decision to amend the earlier notification for creating new Zilla Parishad is not taken on independent application of mind of Lieutenant Governor. The Lieutenant Governor has not come forward to say nor the Secretary of the Panchayat Raj has come forward to say why such change has occurred. According to us, this decision is capricious and at the whims and dictate of some other unauthorized persons. It is better not to specifically mention who are the persons who influenced and rather compelled the Lieutenant Governor to change his decision. A bogey has to be taken to justify that in the event bifurcation is implemented, there will be serious repercussion on the election already held, of members of Zilla Parishad and perhaps fresh election has to be held if new Zilla Parishad is implemented. (19) WE do not find any substance in this plea on fact or in law. It is not the fact that after issuance of first notification election of members of Zilla parishad was held. This election was held two years ago. When taking into consideration of fact election of members of existing Zilla Parishad was held, the Lieutenant Governor created new Ziila Parishad notifying to make it functioning from 1st April 2007, there was no reason to modify or change the same without any radical change of circumstances subsequently. This decision is in our considered opinion, what is called a sequel of colourable exercise of power, and capricious and it does not stand to the scrutiny of article 14 of the Constitution. We are of the view that under the provision of the regulation in the event the earlier notification is allowed to be implemented and newly created Zilla Parishad is allowed to function, there will be no impact as far as the elected members of those areas are concerned. In other words there is no need to hold fresh election of members. A good number of states in recent past had been bifurcated during continuance of the tenure of legislative assembly. There was no impact on bifurcation of the state assembly and with the elected members of the legislative assembly of bifurcated portion new assembly was created by the states. (20) WE feel that this is also possible in this case. A good number of states in recent past had been bifurcated during continuance of the tenure of legislative assembly. There was no impact on bifurcation of the state assembly and with the elected members of the legislative assembly of bifurcated portion new assembly was created by the states. (20) WE feel that this is also possible in this case. But there is one practical problem which has got really adverse implication and this has been divulged and disclosed in course of argument before us. Adhakshya and Upadhakshya have been elected by all the members for the purpose of present undivided zilla Parishad and if earlier notification is allowed to be operative this election has to be nullified and fresh election for two different Adhakshya and upadhakshya has to be undertaken. We are told that tenure of office of adhakshya and Upadhakshya is only for one year from the date of assumption which has been held recently. (21) TAKING note of the aforesaid fact and circumstances we declare and hold that the subsequent impugned notification is invalid and ultravlres of constitutuin of India is not lawful action of the Lieutenant Governor under as the same has been admittedly issued on extraneous, illegal unauthorized influence, without independent application of mind of the Administrator and the same is set aside. (22) HOWEVER, we add that the function of the newly created Zilla Parishad should not start till the present Adhakshya and Upadhakshya remain in their office lawfully either an completion of terms or lawful termination of their holding of office, whichever is earlier. In the meantime other ground work may be started to make newly created Zilla Parishad for North and Middle andaman district functional. There will be no order as to costs. Writ application succeeds.