Ahmed Ehtesham Kawkab, S/o Mr. Ahmed Aziz v. Government of India
2009-09-18
ANIL R.DAVE, RAMESH RANGANATHAN
body2009
DigiLaw.ai
Judgment :- Ramesh Ranganathan, J. Is the Director, Software Technology Parks of India (STPI), Hyderabad, (a Society registered under the Societies Registration Act, 1860), an officer of the Central Government not below the rank of Deputy Secretary? It is only if he is, would he be eligible, under Section 11(1) of the Special Economic Zones Act, 2005 (S.E.Z. Act), to be appointed as a Development Commissioner of one or more Special Economic Zones. The petitioner herein seeks a writ of quo warranto to quash and set aside the order of the first respondent, as published in the Gazette of India dated 12.11.2007, appointing the 5th respondent as the Development Commissioner of thirty Special Economic Zones in Andhra Pradesh. Facts, in brief, are that the Government of India, by resolution dated 18.12.1986, announced its policy on software export, software development and training. The resolution provided for an inter-ministerial standing committee to function as an effective instrument for single point clearance and for coordination of all cases of software development and export. Thereafter, on 5.6.1991, STPI was registered as a Society under the Societies Registration Act, 1860. The Inter-Ministerial Standing Committee, constituted by the Department of Industrial Development, Ministry of Industry, Government of India issued notification dated 22.2.1992 delegating specific powers of the Committee to the jurisdictional Directors of STPI. Pursuant to the aforementioned resolution dated 18.12.1986 the Central Government, in exercise of its powers under Section 3(1) of the Foreign Trade (Development and Regulation) Act, 1992, (Act 22 of 1992), notified a Scheme on 22.3.1994 called the "Software Technology Parks (STP) Scheme". This 100% export oriented Scheme, for undertaking software development, was to be administered by the Department of Electronics through the Directors of the respective STPIs. By virtue of the said notification dated 22.3.1994, Directors of STPI were conferred the powers of Development Commissioner in respect of software related imports and exports. The Central Government issued notification dated 10.8.2000 appointing Directors of various STPIs, including the Director, STPI Hyderabad, as Designated officers for implementing the STP schemes. The Central Government issued notification dated 30.1.2006 appointing Designated officers, (including the Directors of STPI), to exercise powers of adjudication under Section 13 read with Section 11 of Act 22 of 1992.
The Central Government issued notification dated 10.8.2000 appointing Directors of various STPIs, including the Director, STPI Hyderabad, as Designated officers for implementing the STP schemes. The Central Government issued notification dated 30.1.2006 appointing Designated officers, (including the Directors of STPI), to exercise powers of adjudication under Section 13 read with Section 11 of Act 22 of 1992. Under the impugned notification the Central Government, in purported exercise of its powers under Section 11 (1) of the S.E.Z. Act, appointed the Director, STPI, Hyderabad to be the Development Commissioner of thirty Special Economic Zones. As the petitioner seeks a Writ of Quo warranto it is necessary, at the outset, to examine its scope. A writ of quo warranto is a writ which lies against the person who, according to the relator, is not entitled to hold an office of a public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds including on grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him from holding such office. (B.R. Kapur v. State of Tamilnadu ( 2001 (7) SCC 231 )). Quo warranto proceedings afford a judicial enquiry in which the person, holding an independent substantive public office or franchise, is called upon to show by what right he holds the said office or franchise. If the inquiry leads to the finding that the holder of the office has no valid title to it, issue of a writ of quo waranto ousts him from that office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions. These proceedings tend to protect the public from usurpers of public office and, if the jurisdiction of the Court to issue a writ of quo warranto is properly invoked, the usurper can be ousted.
These proceedings tend to protect the public from usurpers of public office and, if the jurisdiction of the Court to issue a writ of quo warranto is properly invoked, the usurper can be ousted. Before a citizen can claim a writ of quo warranto he must satisfy the Court, inter alia, that the office in question is a public office and is held by an usurper without legal authority, and that necessarily leads to the enquiry as to whether appointment of the alleged usurper has been made in accordance with law or not. (University of Mysore v. Govinda Rao ( AIR 1965 SC 491 ). A writ of quo warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Quo warranto proceedings afford a judicial remedy for removal of the usurper, from the office which he holds without title, by a judicial order. The proceedings give a weapon to control the executive from making appointments to a public office against the law. (N. Kannadasan v S. Ajoy Khose (JT 2009 (7) SC 601). If there is any complaint about appointment of an officer, who is not eligible under the statute/statutory rules to be appointed, the proper remedy is to make an application for the issue of a writ of quo warranto. (Mir Ghulam Hussain v. The Union of India ( AIR 1973 SC 1138 ). The power conferred on the Central Government, under Section 11(1) of the SEZ Act, is to appoint any of its officers, not below the rank of Deputy Secretary to the Government of India, as a Development Commissioner. The question which necessitates examination is whether the 5th respondent is an officer of the Central Government not below the rank of a Deputy Secretary.
The question which necessitates examination is whether the 5th respondent is an officer of the Central Government not below the rank of a Deputy Secretary. Sri D. Prakash Reddy, learned Senior Counsel appearing on behalf of the petitioner, would submit that the 5th respondent was not an officer of the Central Government let alone one not below the rank of Deputy Secretary to the Government of India, that his appointment as Development Commissioner of SEZ was illegal as he did not possess the qualifications prescribed under Section 11 (1) of SEZ Act, 2005, that, while Central Government officers are recruited by the Union Public Service Commission and their postings are through the Department of Personnel and Training, Directors of STPI were employees of STPI, (a Society), having been appointed as its Director on contract basis for a period of three years, they drew salary from the Society, their conditions of service were such as were stipulated under the Rules and Regulations of the Society and that appointment of the 5th respondent as Development Commissioner of S.E.Z, an office of substantive character, was usurpation of public office by a person not qualified under the Statute. On the other hand Sri S.R. Ashok, Learned Senior Counsel appearing for the fifth respondent, would submit that the Central Government had created STPI to carry out governmental functions and had assigned the Directors of STPI the task of acting as "its officers", that appointment of Directors of STPI as Development Commissioners of SEZ was a sequel to, and a reiteration of, their previous appointment to the Software Technology Parks and Electronics and Hardware Technology Parks from 1994 onwards, that STPI had adopted various statutory rules namely the Central Civil Services (Classification, Control and Appeal) Rules, the Central Civil Services (Conduct) Rules, the General Financial Rules etc., that the conditions of service of Directors of STPI were at par with Central Government employees, that Directors of STPI were pubic servants under the Vigilance Manual of the Government of India and that they were covered by the Central Vigilance Commission (CVC), the Comptroller and Auditor General of India (CAG) and under the Right to Information Act (RTI Act).
Sri A. Rajasekhar Reddy, Learned Assistant Solicitor General, would submit that the words "its officers", in Section 11 (1) of the SEZ Act, meant officers belonging to the Central Government, that Development Commissioners of SEZ were required to report to the Ministry of Commerce, Government of India, that, for all actions taken as Development Commissioners of SEZ, they were accountable to the Department of Commerce, that their personnel matters were governed by the Department of Information Technology, that the sole objective of creating STPI was to have a pool of "its officers" who could support and nurture the IT Industry to grow and establish unassailable leadership in the global context, that STPI was created and controlled by the Central Government, that the 5th respondent was in the pay scale of Rs.16,400-20,000 (pre-revised) which was higher than the pay scale of Rs.12,000-16,500/-(pre-revised) of the Deputy Secretary, Government of India and the 5th respondent was above the rank of Deputy Secretary to the Government of India. Section 11(1) of the SEZ Act uses the words "Its officers" with reference to the Central Government. The word "Its" means possessive or genitive of "it". The words "Its Officers" in Section 11(1) would, therefore, mean officers of, or belonging to, the Central Government. To be eligible, for appointment as a Development Commissioner of a Special Economic Zone, a person must satisfy the twin conditions stipulated in Section 11(1) of the SEZ Act. He should be (a) an officer of the Central Government; and (b) not below the rank of Deputy Secretary to the Government of India. The 5th respondent was an employee of STPI society before his appointment as Development Commissioner of SEZ. Can such a person be held also to be an officer of the Government of India? Several tests have been laid down to determine when a person can be said to be an officer of the Central Government. There is a relationship of master and servant between the State and a person said to be holding a post under it.
Can such a person be held also to be an officer of the Government of India? Several tests have been laid down to determine when a person can be said to be an officer of the Central Government. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service and the nature of duties to be performed by the employee, the right to control the manner and method of his doing the work, the right to issue directions, the right to determine the source from which wages or salary are paid and the payment by it of his wages or remuneration. (State of Assam v. Kanak Chandra Dutta ( AIR 1967 SC 884 ) ; State of Gujarat v. Raman Lal Keshav Lal Soni ( AIR 1984 SC 161 ), Mohanlal Kedia Mathuradas v. S.D. Munshaw ( AIR 1981 SC 53 ); Union Public Service Commission v. Girish Jayanti Lal Vaghela ( 2006(2) SCJ 207 )). The Office or post must not only be under the control of the State, it must also be open to the State to abolish the post and regulate the conditions of service of the officer. (Lachmi v. Military Secretary to the Government of Bihar (AIR 1956 Patna 398 (DB). In view of the Constitutional Provisions, such as Articles 309 and 311, the position of a Government servant is different from a private employment. (Girish Jayanti Lal Vaghela (supra)). Once appointed to his post or office, the Government servant acquires a status and his rights and obligations, including his emoluments, are determined by the Statute or Statutory rules or rules made under Article 309 of the Constitution, which may be made and altered unilaterally by the Government. The legal position of a Government servant, and the legal relationship between the Government and its servant, is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.
The legal position of a Government servant, and the legal relationship between the Government and its servant, is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. (Roshan Lal Tandon v. Union of India ( AIR 1967 SC 1889 ) ; Girish Jayanti Lal Vaghela (supra)) As the 5th respondent is an employee of STPI, (a society registered under the Societies Registration Act), there exists no master and servant relationship between the Central Government and himself. It is not even the case of the 5th respondent that the Central Government has the right to select and appoint the Director of STPI or that it has the right to terminate his services. The right to control the manner and method of work being done by the Director of STPI lies with the Governing Council of S.T.P.I and its Chairman and Vice Chairman. The salary and emoluments of the Director is paid by the Society. The Central Government has no power to take any disciplinary action against the 5th respondent as Director of S.T.P.I since such a power is conferred only on the Society. Similarly the right to prescribe the conditions of service of, and the nature of duties to be performed by, the 5th respondent as a Director lies only with S.T.P.I. The right to issue directions to him etc., are all exercised by the Society and not by the Central Government. Adoption of the C.C.S. (C.C.A) Rules, and other rules applicable to Central Government employees, by the Society makes such rules the rules of the Society. It does not make employees of the Society employees/officers of the Central Government. Nowhere is it suggested by the fifth respondent that the rules governing his service conditions, as a Director of S.T.P.I, Hyderabad, are those made under Article 309 of the Constitution of India. The 5th respondent is also not entitled for protection under Article 311 of the Constitution of India. The legal relationship between the 5th respondent and STPI is purely contractual and is not in the nature of status. There is no master and servant relationship between the Central Government and the 5th respondent.
The 5th respondent is also not entitled for protection under Article 311 of the Constitution of India. The legal relationship between the 5th respondent and STPI is purely contractual and is not in the nature of status. There is no master and servant relationship between the Central Government and the 5th respondent. Further, Section 11 (1) of the Special Economic Zones Act, 2005 stipulates that, in order to be eligible to be appointed to the post of Development Commissioner of a SEZ, the officer of the Central Government should not be below the rank of a Deputy Secretary. Merely because the pay scales of the Director of STPI is higher than that of a Deputy Secretary to the Government of India does not make him an officer of the Central Government higher in the rank than a Deputy Secretary. The word "rank", in its ordinary sense, means grade or status. (N.C. Dalwadi v. State of Gujarat ( AIR 1987 SC 1933 ) ; P. Ramanatha Aiyer, The Law Lexicon reprint Edition-2002). An employee of a Society cannot be equated either with the grade or the status of an officer of the Central Government. If pay scales were to be the sole criterion for deciding equivalence in rank, nothing prevented Parliament from using the words "drawing a pay scale not lower than that of a Deputy Secretary to the Government of India" instead of the words "not lower in rank than that of a Deputy Secretary to the Government of India." We are satisfied that a Director of STPI is neither an officer of the Central Government nor is he an officer not below the rank of a Deputy Secretary to the Government of India. IS S.T.P.I. UNDER THE PERVASIVE CONTROL OF THE CENTRAL GOVERNMENT? IF SO, WOULD THAT MAKE DIRECTORS OF STPI OFFICERS OF THE CENTRAL GOVERNMENT NOT BELOW THE RANK OF DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA?
IS S.T.P.I. UNDER THE PERVASIVE CONTROL OF THE CENTRAL GOVERNMENT? IF SO, WOULD THAT MAKE DIRECTORS OF STPI OFFICERS OF THE CENTRAL GOVERNMENT NOT BELOW THE RANK OF DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA? Sri S.R. Ashok, Learned Senior Counsel appearing for the fifth respondent, would submit that the word "Officer" meant a person holding a public post, that the post of Chief Executive Officer of STPI was a public post and he was, therefore, an Officer, that STPI, (a single window for regulating, finalizing and guiding entrepreneurs, both with regards exports and imports), was an extended arm of the Central Government, that the Directors of STPI fell within the ambit of the words "its Officers" as used in Section 11(1) of the SEZ Act and could not be understood as "officers appointed by the Central Government". He would submit that there was no warrant for construing the expression "its officers", in Section 11 of the SEZ Act, narrowly so as to cover only persons recruited through the Public Service Commission and borne on the cadre of the Union Government, that, as the expression 'its officers' was a wide expression which encompassed within its purview officers under the pervasive control of the Central Government and officers in the extended arm of the Government, the impugned notification could not be faulted, that, viewed from any angle, Directors of STPI were, indeed, officers of the Central Government or atleast officers of the extended arm of the Central government. A perusal of the Employment Notice No. STPI/HQ/2A/2007, which forms part of the record placed before this Court, shows that STPI had invited applications from eligible candidates for appointment to several posts including that of Directors, that the prescribed source of recruitment was either by direct recruitment or transfer (absorption) and that officers of the Central Government were also eligible to be appointed by transfer (absorption) as Directors of STPI. It is, however, not in dispute that the fifth respondent was appointed as a Director by direct recruitment and not by transfer as an officer of the Central Government. As the 5th respondent was appointed by STPI, (a Society registered under the Societies Registration Act), he is an employee of the said Society.
It is, however, not in dispute that the fifth respondent was appointed as a Director by direct recruitment and not by transfer as an officer of the Central Government. As the 5th respondent was appointed by STPI, (a Society registered under the Societies Registration Act), he is an employee of the said Society. Clause 9 of the Memorandum of Association of STPI prescribes the functions and powers of the Governing Council and, under Clause 9.1 (d), the Council shall lay down rules regulating recruitment, disciplinary matters, promotion and delegation of powers for appointment to various posts, conditions of service of staff etc., subject to the approval of the Government of India, wherever necessary. Clause 10 relates to the status of STPI which, under clause 10(i), shall be a Society under the Societies Registration Act. Clause 15.4 provides that the Director shall be the technical and administrative head of the Technology Park and shall be responsible for its efficient functioning. Under Clause 15.6, the Director shall exercise such powers and functions and perform such duties as may be assigned to him by the Director General with the approval of the Governing Council. Clause 20 provides that all the provisions under all the Sections of the Societies Registration Act, 1860, as applicable to the Union Territory of Delhi, shall apply to the Society. A society, registered under the Societies Registration Act, 1860, is not a body corporate or a corporation having a distinct legal entity from the members constituting it in the sense of a company incorporated under the Indian Companies Act or a Society registered under the Cooperative Societies Act, yet it has its own identity, personality or entity which, for all purposes, is not identical with that of the members constituting it. A Society, when registered, comes into existence as a registered Society and has properties of its own. Although legal title in the properties may vest in the trustees or the Board of Governors yet the equitable title vests in the Society. (K.C. Thomas v. R.L. Gadeock (AIR 1970 Patna 163) (DB)). Such a Society is independent of the Central Government even if it has been established by the latter.
Although legal title in the properties may vest in the trustees or the Board of Governors yet the equitable title vests in the Society. (K.C. Thomas v. R.L. Gadeock (AIR 1970 Patna 163) (DB)). Such a Society is independent of the Central Government even if it has been established by the latter. On the legal status of statutory corporations, Denning L.J, in Tamlin v. Hannaford (1950 (1) Law Reports (King's Bench Division) page 18), opined:- "................In the eye of the law, the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a government department nor do its powers fall within the province of government.............." (emphasis supplied). Accepting the submission that S.T.P.I is financially, functionally and administratively dominated by, or is under the pervasive control of, the Central Government, would merely bring it within the ambit of "State" under Article 12 of the Constitution of India. (Pradeep Kumar Biswas v. Indian Institute of Chemical Biology ( 2002(5) SCC 111 ). It would neither make it a department of the Government of India nor would employees of such a society become officers of the Central Government. Even if STPI is covered by the Central Vigilance Commission, or the Comptroller and Auditor General or even under the Right to Information Act, that would neither make S.T.P.I a department of the Central Government, nor its employees officers of the latter.
Even if STPI is covered by the Central Vigilance Commission, or the Comptroller and Auditor General or even under the Right to Information Act, that would neither make S.T.P.I a department of the Central Government, nor its employees officers of the latter. CONFERMENT OF POWERS OF ADJUDICATION ON DIRECTORS OF STPI UNDER ACT 22 OF 1992: Sri S.R. Ashok, Learned Senior Counsel, would then submit that the legal frame-work for establishment of STPI is provided under Act 22 of 1992, that, as Designated Officers of the Department of Information Technology, Directors of STPI were authorized to exercise adjudicatory powers under Section 13 read with 11 of Act 22 of 1992, that they were given such powers from the year 2006, that the post of Development Commissioner under the EXIM policy was a post created in the cadre of the Government of India, that Development Commissioners under the said Act were appointed by way of rules made under Article 309 of the Constitution, that they were officers of the Central Government in matters pertaining to export and import of goods, that the powers of Development Commissioner were conferred on Chief Executives of STPI by the notification issued by the Government of India dated 22.3.1994, that Directors of STPI were discharging the functions of Development Commissioner in IT related export oriented units and they should, therefore, be considered to be "Officers of the Central Government" at least by implication. He would submit that the functions of the Development Commissioner, as prescribed in the EXIM policy, were sovereign in nature, and that Directors of STPI were officers of the Central Government. Learned Assistant Solicitor General would submit that STPI functioned as a single window for statutory discharge of regulatory and monitoring functions associated with 100% Export Oriented schemes i.e., STP/EHTP and for other promotional activities pertaining to software export units, that the legal framework for the schemes was provided under Act 22 of 1992 and that the role of STPI was detailed in Chapter-6 of the Foreign Trade Policy made thereunder.
On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that STPI was created under Section 3(1) of Act 22 of 1992 which empowered the Central Government to make provision for the development and regulation of foreign trade, that the functions discharged by the Director of STPI, drawing power from various provisions of Act 22 of 1992, was not determinative, that the only requirement for conferment and delegation of powers under Act 22 of 1992 was publication in the Official Gazette and merely because the functions prescribed under the said Act were discharged by Directors of STPI did not make them officers of the Central Government. In exercise of the powers conferred under Section 3(1) of Act 22 of 1992 the Central Government made the Software Technology Parks (STP) Scheme and notified it on 22.3.1994. Para 2.10 of the STP Scheme made the provisions of Paragraphs 111 to 117 of Chapter IX of the Exim Policy, as applicable to export oriented units (EOUs) and units in Export Processing Zones (EPZs), applicable mutatis mutandis to the STP Scheme subject to substitution of the words "Development Commissioner" by the words "Chief Executive Officer of STP Society". The Central Government, vide notification dated 10.8.2000, published the list of Designated Officers of the Ministry of Information Technology for implementation of the STP Scheme along with their jurisdiction. The said list includes the Director, STPI, Hyderabad and his jurisdiction is shown as Andhra Pradesh. As the STP Scheme itself is made in exercise of the powers conferred under Act 22 of 1992 the list of designated officers notified on 10.8.2000, for implementation of the STP scheme, is also referable to Act 22 of 1992. With regards the powers of adjudication, and other powers, conferred on Directors of STPI, under Act 22 of 1992 and the schemes made thereunder, the said Act does not require the officer so authorized to be an officer of the Central Government. Section 2(a) of Act 22 of 1992 defines "adjudicatory authority" to mean an authority specified in, or under, Section 13. Section 3 empowers the Central Government, by order published in the Official Gazette, to make provision for the development and regulation of foreign trade by facilitating imports and increasing exports.
Section 2(a) of Act 22 of 1992 defines "adjudicatory authority" to mean an authority specified in, or under, Section 13. Section 3 empowers the Central Government, by order published in the Official Gazette, to make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. Section 5 empowers the Central Government to formulate and announce, by notification in the Official Gazette, the export and import policy as also to amend the policy. Section 7 prohibits a person from making any import or export except under an Importer and Exporter code number granted by the Director General or the officer authorized by the Director General in this behalf. By way of a notification the Director General authorized several officers, including the Development Commissioners of a Free Trade Zone or an Export Processing Zone, to exercise powers under Section 7 of the Act. The words used in Section 7 are "the officer authorized by the Director General". It is not necessary that such officers should be officers of the Central Government. Likewise, under Section 9 (2), the Director General or an officer authorized by him may grant or renew a licence to import or export. Under Section 9(4), the Director General, or the officer authorized under sub-section (2), may suspend or cancel any licence granted under the Act. In exercise of the powers conferred by Sections 9(2) and (4) the Director General authorized certain officers, including Development Commissioners of a Foreign Trade Zone or an Export Processing Zone, to grant, renew, suspend or cancel licences for the purpose of import or export of goods. Like Section 7, the words used in Section 9(2) are "an officer authorized by him". Section 9(2) does not also require the officer to be an officer of the Central Government. Similarly, under Section 13, any penalty may be imposed or any confiscation may be adjudged under the Act either by the Director General or by such other officer as the Central Government may, by notification in the Official Gazette, authorize in this behalf. The adjudicating authority under Section 13 can be any officer provided he is specified as such by the Central Government by way of a notification in the Official Gazette. In exercise of the powers conferred by Section 13, powers of adjudication have been conferred on Development Commissioners of Export Processing Zones also.
The adjudicating authority under Section 13 can be any officer provided he is specified as such by the Central Government by way of a notification in the Official Gazette. In exercise of the powers conferred by Section 13, powers of adjudication have been conferred on Development Commissioners of Export Processing Zones also. Unlike Section 11(1) of the SEZ Act, Section 13 does not require the specified authority to be an officer of the Central Government not below the rank of a Deputy Secretary. The Exim policy was also made in exercise of the powers conferred under Act 22 of 1992. Paragraph 111 of Chapter IX of the EXIM policy deals with Sub-contracting; paragraphs 112 and 113 with Sale of Imported Materials; paragraph 114 with disposal of scrap and paragraph 115 with private bonded warehouses. Paragraph 116 prescribes the period of bonding and paragraph 117 relates to De-Bonding. Under Para 112, imported goods may be re-exported with the permission of the Development Commissioner. Similarly, under para 114, the Development Commissioner may, subject to guidelines, permit sale or their disposal in any other manner in the DTA of scrap/waste etc. Act 22 of 1992, in several of its provisions mentioned hereinabove, does not confer powers only on, and discharge of functions only by, officers of the Central Government, in as much as such powers have been conferred on, and the functions are to be discharged by, any officer who need not, necessarily, be an officer of the Central Government. Reliance placed by Sri S.R. Ashok, Learned Senior Counsel, on the Ministry of Commerce notification dated 24.10.1997 whereby the Central Government, in exercise of its powers under Article 309 of the Constitution of India, framed rules for regulating recruitment to the post of Development Commissioner, is misplaced. It is evident from the Noida Export Processing Zone (Group "A" and "B" posts) Recruitment Rules, 1997, notified on 24.10.1997, that Development Commissioners of the Noida Export Processing Zone are required to be appointed either by deputation and transfer from the Central Government or by promotion from the post of Departmental Joint Development Commissioners. Under these rules only officers of the Central Government are eligible to be appointed as Development Commissioners of the Noida Export Processing Zone. The petitioner is neither an officer of the Central Government nor has he been appointed as the Development Commissioner of the Noida Export Processing Zone.
Under these rules only officers of the Central Government are eligible to be appointed as Development Commissioners of the Noida Export Processing Zone. The petitioner is neither an officer of the Central Government nor has he been appointed as the Development Commissioner of the Noida Export Processing Zone. IS SECTION 11(1) OF THE SEZ ACT, 2005 CAPABLE OF MORE THAN ONE CONSTRUCTION: Sri S.R. Ashok, Learned Senior Counsel, would submit that a statutory provision must not be read in a restricted manner, that a pragmatic and broad approach should be adopted while interpreting statutory provisions of the nature involved in the present writ petition and that a statutory provision cannot be interpreted in such a manner as to take away from the Central Government the power to appoint such officers who, in its view, are competent to hold the post. On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that Section 11 of the SEZ Act, 2005 was clear and unambiguous, that the language employed therein was incapable of any other meaning or construction, that the provisions of a statute must be understood in their natural, ordinary or popular sense, that phrases and sentences used in the statute must be construed according to their grammatical meaning unless it leads to some absurdity or there is something in the context, or in the object, of the statute to suggest to the contrary. The primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. (Unique Butyle Tube Industries Pvt. Ltd., v. Uttar Pradesh Financial Corporation ( 2003 (2) SCC 455 )). Statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances, (Chertsey Urban District Council v Mixnam's Properties Ltd. ((1964) 2 All ER 627), and must be construed according to the rules of grammar. When the language is plain and unambiguous, and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. The meaning must be collected from the expressed intention of the legislature. (State of U.P. v. Dr Vijay Anand Maharaj ( (1963) 1 SCR 1 )).
When the language is plain and unambiguous, and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. The meaning must be collected from the expressed intention of the legislature. (State of U.P. v. Dr Vijay Anand Maharaj ( (1963) 1 SCR 1 )). If the words used are capable of one construction only, it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the Statute must be interpreted in their plain grammatical meaning, (Kanai Lal Sur v. Paramnidhi Sadhukhan ( 1958 SCR 360 ), and must be construed it in its ordinary sense as it is well recognised that the language used speaks the mind and reveals the intention of the framers. (C.I.T. v. T.V. Sundaram Iyengar (P) Ltd. ( 1976 (1) SCC 77 ). It would be impermissible to call in aid any external aid of construction to find out the hidden meaning. A statute should be construed according to the intention expressed in the Statute itself (D.D. Joshi v. Union of India ( (1983) 2 SCC 235 ). Resort can be had to the legislative intent for the purpose of interpreting a provision of law, when the language employed by the legislature is doubtful or susceptible of meanings more than one. However, when the language is plain and explicit and does not admit of any doubtful interpretation Courts cannot, by reference to an assumed legislative intent, expand the meaning of an expression employed by the legislature and therein include such category of persons as the legislature has not chosen to do. (Ombalika das and another v. Hulisa Shaw ( (2002) 4 SCC 539 ). Unless there is any ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principles and practice. (CIT v. Sodra Devi ( AIR 1957 SC 832 ).
It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principles and practice. (CIT v. Sodra Devi ( AIR 1957 SC 832 ). A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is ambiguous only if it contains a word or phrase which, in that particular context, is capable of having more than one meaning. (Kirkness (Inspector of Taxes) Vs.John Hudson & Co., Ltd. ((1955) AC 696 (HL)). It is only when the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, would Courts prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct (Kannai Lal Sur18). In the instant case, however, we find no reason to resort to any secondary canon. Sri S.R. Ashok, Learned Senior counsel, would contend that, as there was nothing in the scheme of the Act to restrict its operation, the expression "its officers", occurring in Section11 of the SEZ Act, should not be understood in a restricted sense to be limited only to those officers appointed by, or in the service of, the Central Government and that it should be given a wide import as conferring on the Central Government the power to choose "its officers", that Section 8 of the SEZ Act specified various personnel drawn from specific departments who constituted the Board of Approval, that Section 11 consciously used a wider expression 'its officers' without mentioning the department, that the contrast between the two statutory provisions indicated that Parliament had consciously used a wider expression in Section 11 so that an appropriate person could be chosen for being appointed as the Development Commissioner depending upon the exigencies of the particular SEZ and that the Government had been given wide liberty to choose the Development Commissioner.
He would submit that there was nothing in Section 11 of the SEZ Act to deviate from the pre-existing position of Chief Executives of STPI being chosen to discharge the functions of a Development Commissioner from 1994 onwards and that no deviation could be assumed unless Parliament indicated it by positive language. The Special Economic Zones Act, 2005 is an Act to provide for the establishment, development and management of Special Economic Zones, for the promotion of exports and for matters connected therewith or incidental thereto. Section 2(e) defines the 'Board' to mean the Board of Approval constituted under sub-section (1) of Section 8. Section 2(h) defines 'Development Commissioner' to mean the Development Commissioner appointed for one or more Special Economic Zones under sub-section (1) of Section 11. Sections 8(1) and (2), in juxta-position with Sections 11(1) to (3) of the SEZ Act, read thus:- Section 8(1) and (2) Section 11(1) to (3) (1) The Central Government shall, within fifteen days of the commencement of this Act, by notification, constitute, for the purposes of this Act, a Board to be called the Board of Approval.
Sections 8(1) and (2), in juxta-position with Sections 11(1) to (3) of the SEZ Act, read thus:- Section 8(1) and (2) Section 11(1) to (3) (1) The Central Government shall, within fifteen days of the commencement of this Act, by notification, constitute, for the purposes of this Act, a Board to be called the Board of Approval. (2) The Board shall consist of:- a) an officer not below the rank of an Additional Secretary to the Government of India in the Ministry or Department of the Central Government dealing with commerce-Chairperson, ex officio; b) two officers, not below the rank of a Joint Secretary to the Government of India, to be nominated by the Central Government to represent the Ministry or Department of the Central Government dealing with revenue-Members, ex officio; c) one officer not below the rank of a Joint Secretary to the Government of India to be nominated by the Central Government to represent the Ministry or Department of the Central Government dealing with economic affairs (financial services) Member, ex officio: d) such number of officers, not exceeding ten, not below the rank of the Joint Secretary to the Government of India, to be nominated by the Central Government to represent the Ministries or Departments of the Central Government dealing with commerce, industrial policy and promotion, science and technology, small scale industries and agro and rural industries, home affairs, defence, environment and forests, law, Overseas Indian Affairs and urban development – Members, ex officio: e) a nominee of the State Government concerned - Member, ex officio: f) the Director General of Foreign Trade or his nominee - Member, ex officio: g) the Development Commissioner concerned - Member, ex officio: h) a Professor in the Indian Institute of Management, being a society registered under the Societies Registration Act, 1860 (21 of 1860) or the Indian Institute of Foreign Trade, being a society registered under the Societies Registration Act, 1860 (21 of 1860), as may be, nominated by the Central Government-Member, ex officio: i) an officer not below the rank of Deputy Secretary to the Government of India dealing with the Special Economic Zones in the Ministry or Department of the Central Government, dealing with commerce to be nominated by the Central Government-Member-Secretary, ex officio: Provided that the member, being the Joint Secretary nominated under clauses (b) to (d) of this sub-section may, if he is unable to attend the meeting of the Board, authorise any other officer to attend the meeting of the Board on his behalf.
(1) The Central Government may appoint any of its officers not below the rank of Deputy Secretary to the Government of India as the Development Commissioner of one or more Special Economic Zones. (2) The Central Government may appoint such officers and other employees as it considers necessary to assist the Development Commissioner in the performance of his functions in the Special Economic Zones established by a Developer (other than the Central Government) under this Act on such terms and conditions as it deems fit. (3) Every Development Commissioner, officer and other employee shall be entitled to such salary and allowances and subject to such terms and conditions of service in respect of leave, pension, provident fund and other matters as may, from time to time, be specified by the Central Government. Section 8 (2) (h) of the SEZ Act enables the Central Government to nominate a Professor from either the Indian Institute of Management or the Indian Institute of Foreign Trade, (both of which are Societies registered under the Societies Registration Act, 1860), as an Ex-officio member of the Board. While making employees of certain Societies eligible to be appointed as members of the Board of Approval, Parliament, in its wisdom, has, however, chosen not to make employees of the STPI Society eligible to be appointed as Development Commissioners of SEZ. Similarly, while Sub-section (1) of Section 11 of the SEZ Act requires the Central Government to appoint only its officers, not below the rank of Deputy Secretary to the Government of India, as Development Commissioners, sub-section (2) of Section 11 gives it a wider latitude in appointing officers and employees to assist the Development Commissioner. Section 11 (2) empowers the Central Government to appoint such officers and other employees as it considers necessary. The "Officers" and "employees" referred in Section 11(2) need not, necessarily, be officers and employees of the Central Government. While Sections 8(2)(h) and 11(2) enable the Central Government to appoint persons other than its officers, Section 11(1), however, mandates it to do so. When the situation has been differently expressed in different provisions of a statute the legislature must be taken to have intended to express a different intention.(Commissioner of Income Tax, New Delhi V. M/s. East West Import & Export (P) Ltd. ( AIR 1989 SC 836 ).
When the situation has been differently expressed in different provisions of a statute the legislature must be taken to have intended to express a different intention.(Commissioner of Income Tax, New Delhi V. M/s. East West Import & Export (P) Ltd. ( AIR 1989 SC 836 ). Sri S.R. Ashok, learned Senior Counsel, would submit that, while issuing the impugned notification, the Central Government had understood the expression "its officers" as including the 5th respondent, that the Directors of STPI were being treated as "its Officers" by the ministry concerned, that prior conduct must be the guiding factor in interpreting Section 11(1) in the absence of any contra indication and that the interpretation placed by the Central Government, on Section 11(1) of the SEZ Act, prior to issuing the impugned notification, should be given effect to. Even if the historical background, of appointment of Development Commissioners of S.E.Z, is borne in mind while interpreting Section 11 (1) of the SEZ Act, 2005, it is evident that Parliament, though conscious that Directors of STPI were being appointed from the year 1994 as Development Commissioners under Act 22 of 1992, or the schemes made or policies framed thereunder, has chosen to make a departure and has restricted eligibility under section 11(1) of the SEZ Act, for appointment as Development Commissioners of S.E.Z, only to officers of the Central Government not below the rank of Deputy Secretary to the Government of India. Sri S.R. Ashok, Learned Senior Counsel, would submit that the interpretation placed by the petitioner would necessitate reading into Section 11 the words "officers borne on the cadre of the Government" instead of the word "its officers", that it should be so read as to include "officials within the pervasive control of the Central Government". Accepting such submissions, would require the words "an officer within the pervasive control of the Central Government whose scale of pay is not less than a Deputy Secretary to the Government of India" to be inserted in Section 11 (1) of the SEZ Act in the place of the words "its officers not below the rank of Deputy Secretary to the Government of India". It is not for courts to supply words to or delete words from Section 11 (1) of the SEZ Act.
It is not for courts to supply words to or delete words from Section 11 (1) of the SEZ Act. A construction which requires, for its support, addition or substitution of words, or which results in rejection of words, has to be avoided, (Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests (AIR 1990 SC 1741), Shyam Kishori Devi v. Patna Municipal Corpn (AIR1966 SC 1678), A. R. Antulay Vs. Ramadas Sriniwas Nayak ((1984) (2) SCC 500), Dental Council of India v. Hari Prakash ( (2001) 8 SCC 61 ), J.P. Bansal Vs. State of Rajasthan ( (2003) 5 SCC 134 ) and State of Jharkhand v. Govind Singh ( (2005) 10 SCC 437 )), especially when a literal reading thereof produces an intelligible result. ( Delhi Financial Corpn v. Rajiv Anand ( 2004 (11) SCC 625 ). The construction suggested on behalf of the respondents would also require the word "its", as used in Section 11(1), to be ignored. Courts have adhered to the principle that effort should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute, as being inapposite surplusage, if they can have a proper application in circumstances conceivable within the contemplation of the statute. (Gurudevdatta VKSSS Maryadit v. State of Maharashtra ( 2001 (4) SCC 534 ); Manohar Lal v. Vinesh Anand ( (2001) 5 SCC 407 ). A construction that reduces one of the provisions to a "dead letter" must be avoided. (Anwar Hasan Khan v. Mohd. Shafi ( (2001) 8 SCC 540 ). There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. (State of Kerala v. Mathai Verghese ((1986) (4) SCC 746); Union of India v. Deoki Nandan Aggarwal ( AIR 1992 SC 96 ). A Judge is not entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. (Union of India v. Elphinstone Spinning and Weaving Co. Ltd. ( (2001) 4 SCC 139 ). The legislative casus omissus cannot be supplied by the judicial interpretative process. (Maruti Wire Industries Pvt. Ltd., Vs. S.T.O., I.S.T. Circle, Mattancherry ( (2001) 3 SCC 735 ); and Govind Singh).
(Union of India v. Elphinstone Spinning and Weaving Co. Ltd. ( (2001) 4 SCC 139 ). The legislative casus omissus cannot be supplied by the judicial interpretative process. (Maruti Wire Industries Pvt. Ltd., Vs. S.T.O., I.S.T. Circle, Mattancherry ( (2001) 3 SCC 735 ); and Govind Singh). Sri S.R. Ashok, Learned Senior Counsel, would then submit that amongst the avowed purposes for proposal of the SEZ bill, as was evident from its Statement of objects and reasons, was to impart greater administrative autonomy and to augment exports of various products from the country, that a statute must be interpreted having regard to the purpose and object which it seeks to achieve, that a purposive construction should be placed on Section 11(1) so as to enable the Central Government to have "a play in the joints" in choosing the officer best suited for the SEZ and that only technocrats being appointed by the Central Government, as Development Commissioners of SEZs relating to software and hardware exports and imports, fairly indicated the intention of the mover of the SEZ bill. Though it is not legitimate to refer to the Statement of Objects and Reasons as an aid to the construction or for ascertaining the meaning of any particular word used in the Act it may be referred for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy.(Sodra Devi22; Aswani Kumar Ghose v. Arabinda Bose ( AIR 1952 SC 369 ); State of West Bengal v. Subodh Gopal Bose ((AIR) 1954 SC 92)). It is evident, from the Statement of Objects and Reasons, that the SEZ Bill was proposed in order to give a long term and stable policy framework with minimum regulatory regime and to provide an expeditious and a single window clearance mechanism. A literal construction, of Section 11(1) of the SEZ Act, that only officers of the Central Government not below the rank of Deputy Secretary can be appointed as Development Commissioners of SEZ, would not fall foul of the objects for which the SEZ Act was made. Sri S.R. Ashok, Learned Senior Counsel would submit that, in enacting Section 11(1), Parliament did not intend to make a departure and that the doctrine of contemporanea expositio, should be applied.
Sri S.R. Ashok, Learned Senior Counsel would submit that, in enacting Section 11(1), Parliament did not intend to make a departure and that the doctrine of contemporanea expositio, should be applied. Reliance is placed by the learned Senior Counsel on the letter addressed on 23.08.2007 by the Director, Department of Commerce to the Additional Secretary, Department of IT, seeking his clarification as to whether STPI Directors fulfilled the conditions specified in Section 11 (1) of the SEZ Act, 2005. The Secretary, Ministry of Communications and IT, replied, vide letter dated 12.9.2007, that the Directors of STPI had been notified as Designated officers of the Central Government in respect of STP/EHTP Schemes, that, keeping in view the pay scales of Directors of STPI, they were above the rank of Deputy Secretary and that, in view of their expertise in the field, appointment of Directors of STPI as Development Commissioners of IT/ITES specific SEZs would help the Central Government in the smooth and efficient administration of SEZs relating to IT and ITES. Where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time. (National & Grindlays Bank Ltd. v. Municipal Corpn. of Greater Bombay ( AIR 1969 SC 1048 ). The terms of the statute can well be construed by reference to such exposition, in the absence of anything in the statute to indicate to the contrary. (State of T.N. v. Mahi Traders ( (1989) 1 SCC 724 ); Desh Bandhu Gupta v. Delhi Stock Exchange Association Ltd. ( AIR 1979 SC 1049 ) and K.P. Varghese v. ITO ( (1981) 4 SCC 173 ). Contemporanea expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes. (Baktawar Singh Bal Kishan v. Union of India ( (1988) 2 SCC 293 ) but not to interpreting Acts which are comparatively modern. (Senior Electric Inspector v. Laxmi Narayan Chopra ( AIR 1962 SC 159 ); J.K. Cotton Spg. & Wvg. Mills Ltd. v. Union of India, (1987 Supp SCC 350). Even if persons who dealt with the statute understood its provisions in another sense, such mistaken construction of the statute does not bind the court so as to prevent it from giving it its true construction.
& Wvg. Mills Ltd. v. Union of India, (1987 Supp SCC 350). Even if persons who dealt with the statute understood its provisions in another sense, such mistaken construction of the statute does not bind the court so as to prevent it from giving it its true construction. (National & Grindlays Bank Ltd.41; Punjab Traders v. State of Punjab ( (1991) 1 SCC 86 ). We are satisfied that Section 11(1) is capable of only one construction and that, on a literal construction of the words "its officers not below the rank of Deputy Secretary to the Government of India", as used in Section11 (1) of the SEZ Act, it is an Officer of the Central Government in the rank of the Deputy Secretary and above, who alone is eligible to be appointed as a Development Commissioner for a Special Economic Zone. The rule of construction, by reference to contemporanea expositio, must give way where the language of the statute is plain and unambiguous. (K.P. Varghese44). Sri S.R. Ashok, Learned Senior Counsel would submit that if only bureaucrats, recruited through the Public Service Commission, were appointed as Development Commissioners it would lead to an anomalous situation in as much as the system would be riddled with bureaucratic rigidities in which the manager of the IT/ITES SEZ (Development Commissioner) would not be able to contribute much to the system envisaged under the SEZ Act. He would submit that the words "its officers", used in Section 11 of the SEZ Act, must be liberally construed to include persons such as Directors of STPI because of their technical expertise and administrative qualifications and as their appointment is in public interest. He would submit that, if there were two possible meanings, while interpreting a statutory provision, that alternative should be chosen which would be consistent with the smooth working of the system which the statute purported to regulate, that the Court should ascertain the true intention of the legislation, make an attempt to uphold the statutory provision and interpret it in such a manner which would make it workable. He would rely on High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat ((2003) 4 SCC 712) and Girnar Traders Vs. State of Maharastra50 in this regard.
He would rely on High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat ((2003) 4 SCC 712) and Girnar Traders Vs. State of Maharastra50 in this regard. Learned Assistant Solicitor General would submit that, at present, more than 8,000 STP/EHTP Units were approved and were being served by the Jurisdictional Directors of STPI, that it was for this reason that the Central Government had appointed the Jurisdictional Directors of STPI in various States as Development Commissioners for IT/ITES SEZs and that it would not be in public interest to disturb their appointment made by the Government in furtherance of IT development and export. On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that the expertise or otherwise of the 5th respondent to discharge the functions of a Development Commissioner was immaterial as he was not eligible to be appointed as such and since he did not fulfill the conditions prescribed under Section 11 (1) of the S.E.Z Act, 2005. In Girnar Traders ( (2007) 7 SCC 555 ), the Supreme Court held that where the legislature has used words in an Act which, if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to place on such words a reasonable limitation, on the ground that the legislature could not have intended such a consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act, that where the language of the legislation admits of two constructions and if construction in one way would lead to obvious injustice, the courts act upon the view that such a result could not have been intended unless the intention had been manifested in express words, that from out of the two interpretations that language of the statute should be preferred to that interpretation which would frustrate it, that when the language of the legislation admits of two constructions the court should not adopt the construction which would lead to an absurdity or obvious injustice, that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion in the working of the system.
In our opinion, the language of Section 11 (1) is capable of only one meaning and that meaning does not lead to any absurd or mischievous result but to a sensible and just result which is consonant with the clear objective of the Act. If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it may lead to absurd or mischievous results (Johnson V. Moreton ((1978) 3 All ER). If the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of the consequences. The expression used in the statute alone declares the intent of the legislature. The construction must not be strained to include cases plainly omitted from the natural meaning of the words.(Nelson Motis v. Union of India ((1992) 4 SCC 711); Dr Vijay Anand Maharaj17). Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute. (Commissioner of Agricultural Income Tax, Bengal v. Sri Keshab Cdhandra Mandal ( 1950 SCR 435 ). If two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used in order to meet a possible injustice (T.V. Sundram Iyengar (P) Ltd.19). Denigration of the bureaucrats by the fifth respondent notwithstanding, if Parliament has, in its wisdom, chosen to restrict eligibility, for appointment as Development Commissioners of SEZs, only to bureaucrats in the rank of Deputy Secretary and above, it is not for Courts to interpret Section 11(1) on the hypothesis that technocrats are better suited to man such posts. LOCUS STANDI: In Dr. Devinder Gupta Vs.
LOCUS STANDI: In Dr. Devinder Gupta Vs. Union of India (Vol.128 (2006) DLT 337), a Division bench of the Delhi High Court observed that public interest litigation should be conducted with great care and circumspection, that the real intention of the petitioner ought be kept in mind while entertaining such a petition, that a writ of quo warranto could not be filed by a person who did not have any direct connection or grievance or interest in the matter and that, where the averments relating to the petitioner's locus standi were vague, and he did not show his credentials, a writ petition was not maintainable. Relying on the aforesaid judgment, Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the 5th respondent, would submit that the petitioner does not have the locus standi, that he lacks bonafides to file the present writ petition, that the petitioner had neither given details of his credentials nor had he stated how he was even remotely connected with the subject, that it was his duty atleast to aver in his affidavit as to what were the circumstances which led him to file the writ petition and that such a writ petition should not be entertained in order to ensure that the process of law was not abused by unscrupulous persons acting on behalf of forces which were bent upon stalling establishment of Special Economic Zones. He would submit that W.P.No. (C)No.161 of 2009, similar to the present writ petition, was dismissed by the Delhi High Court on 13.1.2009. Sri A. Rajasekhar Reddy, Learned Assistant Solicitor General, would contend that the petitioner had been setup by some persons who did not want the SEZ (IT/ITES) to be administered by the Jurisdictional Directors of STPI and that the fifth respondent, who had been appointed as a Development Commissioner, was an expert and a specialist in the statutory administration of IT/ITES export oriented schemes. He would rely on Statesman (PVT) Ltd., Vs. H.R. Deb ( AIR 1968 SC 1495 ); A.N. Sastry v. State of Punjab (1988 Supplement SCC 127) and B. Srinivas Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association ( 2006(11) SCC 731 ) to submit that, in Quo Warranto proceedings, Courts should be slow to pronounce upon the matter unless there was a clear infringement of the law.
On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that this Court would be justified in scrutinizing the qualifications of the person whose appointment to a public office was called in question as it was a matter of public importance and that the locus standi of the petitioner, a practicing lawyer, was immaterial as it was open to any person to seek a writ of quo warranto on the ground that an appointment, to a public office of a substantive character, has been made in violation of the statute. In H.R. Deb55 appointment of a person, as the Presiding Officer of the Labour Court, was in issue. The qualification prescribed, under Section 7 (3) (d) of the Industrial Disputes Act for appointment as a Presiding Officer of the Labour Court, is not less than 7 years service as Judicial Officer. The services rendered by the officer concerned, as Sub-Deputy Collector and Circle Officer, were taken into consideration for computing the period of service as a Judicial Officer as he was conferred the powers of a III Class Magistrate. After coming to the conclusion that a Magistrate also held a judicial office the Supreme Court observed that, even if there be some doubt, it should be resolved in favour of upholding the appointment on the ground that the Legislature itself, under Section 9 of the I.D. Act, had contemplated that such appointments should not be called in question. The Supreme Court further held that, although the provisions of Section 9 cannot shut out an inquiry, (if there was a clear usurpation), for the purposes of a writ of quo warranto but atleast in an unclear case the intent of the legislature was entitled to great weight, that the Legislature had created the conditions of appointment and, with its last voice, had shut out an inquiry, that Section 7(3) (d) was not so absolute as to be wholly mandatory in the same way as the provisions of other clauses were and did not require construction, that in a quo warranto proceeding the High Court should be slow to pronounce upon the matter unless there was a clear infringement of the law and, when a person exercising judicial functions was appointed, it could not be said that the person did not hold a judicial office.
In A.N. Shashtri56, erstwhile students of an Ayurvedic Medical college questioned the promotion of the appellant as Director on the ground that he did not possess the qualifications prescribed under the rules. The appellant was initially appointed as a Professor of Ayurvedic Medicine, later promoted as a Deputy Director and further promoted as a Director. The Supreme Court noted that a degree or diploma was considered to be sufficient qualification for appointment to the post of Deputy Director, that there was no challenge to the appointment of the appellant to the post of Deputy Director, that the prescribed qualifications was the same for Directors and Assistant Directors and, as the appellant held the post of Deputy Director which was in between the two, it could not be said that he did not possess the requisite qualifications. The Supreme Court further held that there was material on record to show that the appellant had obtained his degree on completion of the five year course, that he had undergone study as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor though it was not a study in a regular institution and, after reading for five years, he had obtained the degree from a recognized University. In such circumstances, the Supreme Court found it difficult to agree with the reasons given by the High Court for its conclusion that the appellant did not have the qualification prescribed under the Rules. In B. Srinivasa Reddy57, appointment of the appellant as Managing Director of the Karnataka Urban Water Supply and Drainage Board was under challenge. The Regulations were amended providing for appointment of the Chief Engineer of the Board as the Managing Director and the appellant was appointed to the said post. He retired as the Managing Directed and was, thereafter, re-appointed to the said post.
The Regulations were amended providing for appointment of the Chief Engineer of the Board as the Managing Director and the appellant was appointed to the said post. He retired as the Managing Directed and was, thereafter, re-appointed to the said post. The Supreme Court opined that the High Court did not record any finding that the appellant did not possess the qualification as prescribed under the rules for appointment as Managing Director of the Board, that Section 7 (1) (d) did not apply to an officer or servant who ceased to be such on the date of his appointment as Managing Director, that, as the appellant was an erstwhile employee of the Board, the disqualification under Section 7 (1) (d) disappeared when the appellant retired from service, that the High Court was under the misconception that the appellant had been reappointed to the said office, whereas it was a fresh appointment under the provisions of the Act and that the appellant was appointed as he fulfilled the qualification and eligibility criteria prescribed under the Act. Grant of relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction of the High Court. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or a quo warranto or a writ filed in public interest, (Vinoy Kumar Vs. State of UP ( (2001) 4 SCC 734 )), where the rule of locus standi is relaxed. (Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed ( (1976) 1 SCC 671 ). In Quo-Warranto proceedings the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from office. The legality of an appointment to high office can be challenged by any citizen. (M.S. Mahadeokar v. Chief Commissioner, Territory, Chandigarh (1973 (1) S.L.R. 1042). An information would lie even at the instance of a relator who has no personal interest in the matter. Information in the nature of quo warranto can be filed on the relation of private parties.
The legality of an appointment to high office can be challenged by any citizen. (M.S. Mahadeokar v. Chief Commissioner, Territory, Chandigarh (1973 (1) S.L.R. 1042). An information would lie even at the instance of a relator who has no personal interest in the matter. Information in the nature of quo warranto can be filed on the relation of private parties. It is open to a private individual to bring it to the notice of the Court that a person who is disqualified to hold an office is still holding it. A person who is not legally entitled to hold an office should not be permitted to hold it. (Venkataraya vs. Sivarama Prasad ( AIR 1961 AP 250 (APHC DB)). A writ petition, even at the instance of a busy body, for issuance of a writ of quo warranto would be maintainable. (N. Kannadasan3). In A.N. Shashtri56, and B. Srinivasa Reddy57 the Supreme Court held that a writ of quo warranto should be refused where it is the outcome of malice or ill will and that an imposter coming before the Court invoking a public law remedy at the hands of a Constitutional Court suppressing material facts has to be dealt with firmly. On the other hand, in Dr.Kashinath G. Jalmi v. The Speaker ( (1993) 2 SCC 703 ); and in N. Kannadasan3, the Supreme Court held that, while examining if a person holds a public office under valid authority or not, the Court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. A writ of quo warranto is a writ which merely asks the question as to whether there is a warrant of appointment for holding the office and the question of malafides is completely irrelevant to the matter. (P.L. Lakhanpal v. A.N Ray (AIR 1975 Delhi 66 (FB)); Malik v. P.P. Sharma (AIR 1982 Delhi 83 S.C). Be that as it may, if any other member of the public, to whom the oblique motive and conduct alleged against the petitioner in the present case could not be attributed, could file such a writ petition for the same relief, this disability on the ground of oblique motive and conduct would not attach to him.
Be that as it may, if any other member of the public, to whom the oblique motive and conduct alleged against the petitioner in the present case could not be attributed, could file such a writ petition for the same relief, this disability on the ground of oblique motive and conduct would not attach to him. This being so, the relief claimed by the petitioner in the writ petition being in the nature of a class action, without seeking any relief personal to him, ought not to be dismissed merely on this ground, since this is a matter of public concern and relates to the good governance of the State itself. (Dr. Kashinath G. Jalmi62). In "Mr. Gopal Singh Vs. Sri J. Parthasarthy" ((Judgment in W.P.(C). No. 161/2009 dated 13-01-2009) the Delhi High Court observed that, apart from relying upon the employment notice issued prior to coming into force of the Act, and also annexing a copy of the notification dated 08.08.2008, the petitioner had nowhere averred about the qualifications of the first respondent nor had he attempted to disclose that the said respondent was ineligible for consideration or appointment, that the writ petition merely extracted the provisions of the Act and the petitioner had only urged that the first respondent did not possess the required qualifications. The Delhi High Court dismissed the writ petition as not maintainable as the petitioner had rushed to the Court without verifying any details or particulars. Unlike the writ petition filed before the Delhi High Court, in the present writ petition the petitioner has established that the appointment of the fifth respondent, as Development Commissioner of SEZ, was contrary to Section 11 (1) of the SEZ Act and that his continuance in office is illegal. As we are of the opinion that the fifth respondent does not satisfy the conditions prescribed in Section 11(1) of the SEZ Act to be appointed as Development Commissioner of SEZ, and that he does not have any right to continue to hold the said office, we see no reason to non-suit the petitioner on the ground of locus standi as neither the strict rules of standing, nor the motives of the petitioner, would justify the fifth respondent continuing in office as his appointment falls foul of Section 11(1) of the SEZ Act, 2005.
As a result, the writ petition is allowed and the order of the first respondent, published in Gazette of India dated 12.11.2007, appointing the 5th respondent as Development Commissioner of thirty Special Economic Zones in Andhra Pradesh is, hereby, set aside. The 5th respondent shall henceforth not exercise any of the powers conferred, on the Development Commissioner of a Special Economic Zone, under the SEZ Act, 2005. Necessary action shall be taken by the first respondent to appoint a person, who fulfils the statutory qualifications prescribed under Section 11(1) of the SEZ Act, 2005, as the Development Commissioner for the thirty Special Economic Zones in Andhra Pradesh. No costs. ANIL R. DAVE, CJ RAMESH RANGANATHAN, J. After pronouncement of the order, a request is made both by Sri S.R. Ashok, learned Senior Counsel appearing for the 5th respondent and Sri A. Rajasekhar Reddy, learned Assistant Solicitor General, to stay the operation of the order for a period of four weeks to enable them to approach the Hon'ble Supreme Court. We consider it appropriate to direct stay of the operation of the order for a period of three weeks from today. The order shall come into force immediately thereafter.