Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 412 (ALL)

Anoop Baranwal v. State of U. P.

2016-02-02

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT Per : Dr D Y Chandrachud, CJ. The petition has been filed in the form of a public interest litigation seeking to challenge the constitutional validity of the provisions of the first proviso to sub-section (1) of Section 5 of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975. 2. The provision was introduced by UP Act No. 4 of 2012 by substituting the erstwhile legislative provision with effect from 15 March 2012 in the following terms: "(1) Every person appointed as the Lokayukta or Up-Lokayukta shall hold office for a term of eight years from the date on which he enters upon his office: Provided that the Lokayukta or an Up-Lokayukta shall, notwithstanding the expiration of his term continue to hold office until his successor enters upon his office: Provided further that, - (a) the Lokayukta or an Up-Lokayukta may, by writing under his hand addressed to the Governor, resign his office: (b) the Lokayukta or an Up-Lokayukta may be removed from office in the manner specified in Section 6." 3. The constitutional validity of the first proviso is sought to be questioned on the ground that providing for the continuance of an incumbent in office beyond the expiry of the term of appointment until the new selection is made would militate against the independence of the office of the Lokayukta. The submission is that this would confer upon the Government an unbridled discretion whether or not to complete the selection process for new appointment after the expiry of the term of the earlier appointee. 4. The first issue which falls for consideration is whether such a submission is open to be urged before this Court in view of the fact that in a judgment of a Bench of three Hon'ble Judges of the Supreme Court in Mohd. Saeed Siddiqui vs. State of UP, a challenge to the constitutional validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 was addressed and repelled. In our view, the answer to the submission clearly is that once the provisions of the Act have been upheld by the Supreme Court, it would not be open to the High Court while exercising its jurisdiction under Article 226 to again inquire into the validity of the amendment. 5. At the outset, it would be necessary to elucidate that the constitutional validity was in issue before the Supreme Court. 5. At the outset, it would be necessary to elucidate that the constitutional validity was in issue before the Supreme Court. The fact that the vires of the amending Act was in question before the Supreme Court in Mohd. Saeed Siddiqui (supra) cannot be disputed. In that case besides seeking a writ of quo-warranto restraining the earlier holder of the office from continuing as Lokayukta after 15 March 2012, the constitutional validity of the amendment was also challenged. This is evident from the following observation contained in the judgment of the Supreme Court: "...The petitioner is also challenging the constitutional validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 (for short "the Amendment Act") to the extent being ultra vires to the provisions of the Constitution of India." 6. After adverting to the Statement of Objects and Reasons accompanying to the introduction of the Bill, the Supreme Court noted the ambit of the challenge in the following observations: "...we are primarily concerned about the validity of the Amendment Act and continuance of Respondent No. 2 as Lokayukta even after expiry of his term." 7. Among the submissions that was urged before the Supreme Court was that the amending Act had wrongly been enacted as a Money Bill. The Supreme Court held that in terms of Article 199 (3) of the Constitution, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill was final and cannot be disputed nor can the procedure of the State Legislature be questioned in light of Article 212. The Supreme Court also noted in the following observations that the Legislature was competent to enact the amending Act in question: "...The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta and Up-Lokayukta, whether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta and Up-Lokayukta from six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No.2." 8. In conclusion, the amending Act of 2012 was upheld and the writ petition which was filed under Article 32 of the Constitution was dismissed. 9. In conclusion, the amending Act of 2012 was upheld and the writ petition which was filed under Article 32 of the Constitution was dismissed. 9. Once this is the position which emerges, it would not be permissible for another petitioner to urge before the High Court under Article 226 that a particular submission or ground was not urged before the Supreme Court. 10. The decision of the Supreme Court on the constitutional validity of the amending Act has attained finality in the judgment in Mohd. Saeed Siddiqui (supra). 11. But reliance was placed by the learned counsel appearing on behalf of the petitioner on the decisions of the Supreme Court in State of U.P. vs. Synthetics and Chemicals Ltd. and A-One Granites vs. State of UP. In the first of the decisions, the Supreme Court noted that the earlier decision was “…founded on a mistake of fact and, therefore, it could not be held to be law declared…”8. This was the distinguishing feature. In any event, it would not be open for the High Court under Article 226 to go behind the judgment of the Supreme Court in a manner which is suggested by the learned counsel appearing for the petitioner. The decision in A-One Granites (supra) was in a situation where, as held by the Supreme Court, the applicability of Rule 72 of the U.P. Minor Minerals (Concession) Rules, 1963 had not been canvassed before the Court in the earlier decision and all that was considered, was whether there was a violation of the Rules. This is evident from the following observations in the judgment: “…From a bare perusal of the said judgment of this Court it would be clear that the question as to whether Rule 72 was applicable or not was never canvassed before this Court and the only question which was considered was whether there was violation of the said Rules.” 12. These decisions are hence with respect not attracted to the present case. On this aspect of the matter, we therefore conclude by holding that once the constitutional validity of the provisions of amending Act were in challenge before the Supreme Court and have been upheld by the dismissal of the writ petition under Article 32 of the Constitution, a writ petition under Article 226 of the Constitution would not be maintainable in the High Court. Moreover, it is a well settled principle of law that a mere possibility of abuse cannot be a ground for holding a statutory provision to be unconstitutional. An abuse of power can be corrected by judicial review, if and when the need arises. 13. The second relief which has been sought in terms of prayer (ii) is for completing the process of selecting the new incumbent for the post of Up-Lokayukta. In this regard, proviso (b) of Section 3 of the Act stipulates that the Up-Lokayukta shall be appointed by the Governor after consultation with the Lokayukta. The Lokayukta has taken charge of office only recently on 31 January 2016. There is nothing before the Court at this stage to warrant the exercise of jurisdiction under Article 226 . A reasonable period of time would be required for the newly appointed Lokayukta to take charge of the office in a substantive sense. Hence, it would not be appropriate for the Court to interfere at this stage. 14. The petition is, accordingly, dismissed. There shall be no order as to costs.