Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1654 OF 2017
[Arising out of SLP(C)No.4472/2017@CC No.1978 of 2017]
STATE OF HIMACHAL PRADESH AND OTHERS .....APPELLANTS
Versus
SATPAL SAINI .....RESPONDENT
O R D E R
Dr. D. Y. CHANDRACHUD, J.
1 Delay condoned
2 Leave granted.
3 The State of Himachal Pradesh has called into question certain
directions that were issued by a Division Bench of the High Court on 23
September 2016. The High Court called upon the State Government to
amend the provisions of Section 118 of the H.P. Tenancy and Land
Reforms Act, 1972 within a period of ninety days. These directions were
issued by the Division Bench while allowing a writ petition which
challenged an order dated 23 April 2014 of the revenue authorities.
The judgment of the High Court by which it set aside the order dated 23
April 2014, and directed the state to attest the mutation by treating the
Signature Not Verified
Digitally signed by
SARITA PUROHIT
Date: 2017.02.08
17:45:29 IST
Reason:
respondent as an agriculturist is not called into question to that extent.
1
The lis between the respondent and the state has come to a conclusion
with the following direction of the High Court :-
“Accordingly, impugned annexure P-9 dated
23.4.2014 is quashed and set aside. Respondents
are directed to attest the mutation within a period of
eight weeks from today by treating the petitioner to be
an agriculturist”.
The state is, however, aggrieved by the mandamus which was issued by
the Division Bench for amending the legislation, in the following terms :-
“However, before parting with the judgment, this
Court deems it fit and proper to direct the State
Government to make suitable amendments to
Section 118 of the HP Tenancy and Land Reforms
Act, 1972 read with HP Tenancy and Land Reforms
Rules, 1975 in order to facilitate to purchase any land
(agricultural and non-agricultural) in the State of
Himachal Pradesh by the non-agriculturist Himachalis
residing in the State for decades together prior to the
date of commencement of the HP Tenancy and Land
Reforms Act, 1972, within a period of ninety days
from today”.
The appeal is confined to a challenge to the above direction to amend the
legislation. In the present proceedings, the appellants have not
questioned the correctness of the order passed in favour of the
respondent setting aside the order passed by the revenue authorities on
23 April 2014 or the direction to attest the mutation within eight weeks.
Since the purpose of the respondent in filing the writ petition was served
(and the relief granted to him has not been questioned) it has not been
necessary to issue notice to the respondent having regard to the nature of
the challenge preferred in these proceedings.
4 While issuing the above directions, the High Court appears to have
2
been moved by what it described as the plight of “a large population of
non- agriculturist Himachalis”. The High Court indicated the rationale
underlying its direction in the following extract which is taken from the
judgment impugned :-
“There is perpetual litigation under Section 118 of the
HP Tenancy and Land Reforms Act, 1972. A large
population of non-agriculturist Himachalis has been
deprived of their right to purchase property in the
State without the permission of the State Government
though they are residing in the State of Himachal
Pradesh for decades together. There is a sense of
alienation amongst the non-agriculturist Himachalis.
They are integral part of the State of Himachal
Pradesh and have a sense of belonging to the State”.
5 The State Government is aggrieved by the mandamus which has
been issued by the High Court to amend the provisions of law. The
submission of the State is that the above directions trench upon the
sovereign legislative power of the state legislature.
6 The grievance, in our view, has a sound constitutional foundation.
The High Court has while issuing the above directions acted in a manner
contrary to settled limitations on the power of judicial review under Article
226 of the Constitution. A direction, it is well settled, cannot be issued to
the legislature to enact a law. The power to enact legislation is a plenary
constitutional power which is vested in Parliament and the state
legislatures under Articles 245 and 246 of the Constitution. The
legislature as the repository of the sovereign legislative power is vested
with the authority to determine whether a law should be enacted. The
doctrine of separation of powers entrusts to the court the constitutional
3
function of deciding upon the validity of a law enacted by the legislature,
where a challenge is brought before the High Court under Article 226 (or
this Court under Article 32) on the ground that the law lacks in legislative
competence or has been enacted in violation of a constitutional provision.
But judicial review cannot encroach upon the basic constitutional function
which is entrusted to the legislature to determine whether a law should be
enacted. Whether a provision of law as enacted subserves the object of
the law or should be amended is a matter of legislative policy. The court
cannot direct the legislature either to enact a law or to amend a law which
it has enacted for the simple reason that this constitutional function lies in
the exclusive domain of the legislature. For the Court to mandate an
amendment of a law – as did the Himachal Pradesh High Court – is a
plain usurpation of a power entrusted to another arm of the state. There
can be no manner of doubt that the High Court has transgressed the
limitations imposed upon the power of judicial review under Article 226 by
issuing the above directions to the state legislature to amend the law. The
government owes a collective responsibility to the state legislature. The
state legislature is comprised of elected representatives. The law
enacting body is entrusted with the power to enact such legislation as it
considers necessary to deal with the problems faced by society and to
resolve issues of concern. The courts do not sit in judgment over
legislative expediency or upon legislative policy. This position is well
4
settled. Since the High Court has failed to notice it, we will briefly
recapitulate the principles which emerge from the precedent on the
subject.
1
7 In Mallikarjuna Rao v. State of Andhra Pradesh and in V.K. Sood v.
2
Secretary, Civil Aviation , this Court held that the court under Article 226, has
no power to direct the executive to exercise its law-making power.
8 In State of Himachal Pradesh v. A Parent of a Student of Medical
3
College, Shimla , this Court deprecated the practice of issuing directions to
the legislature to enact a law :
“…The direction given by the Division Bench was really
nothing short of an indirect attempt to compel the State
Government to initiate legislation with a view to curbing the
evil of ragging…”
The same principle was followed in Asif Hameed & Ors v. State of Jammu &
4
Kashmir , where this Court observed that :
“…The Constitution does not permit the Court to direct or
advice the Executive in matter of policy or to sermonize
qua any matter which under the Constitution lies within the
sphere of Legislature or Executive.”
5
In Union of India v. Association for Democratic Reforms , this Court
observed that :-
1
AIR 1990 SC 1251
2
AIR 1993 SC 2285
3
AIR 1985 SC 910
4
AIR 1989 SC 1899
5
AIR 2002 SC 2112
5
“….it is not possible for this Court to give any direction for
amending the Act or the statutory rules. It is for the
parliament to amend the Act and the Rules.”
Similarly, in Supreme Court Employees’ Welfare Association v. Union of
6
India , this Court held that a court cannot direct the legislature to enact a
particular law. This is because under the constitutional scheme, Parliament
exercises a sovereign power to enact law and no other authority can issue
directions to frame a particular piece of legislation. This principle was
7
reiterated in State of Jammu & Kashmir v. A.R. Zakki & Ors . , where this
Court observed that :
“…A writ of mandamus cannot be issued to the legislature
to enact a particular legislation. Same is true as regards
the executive when it exercises the power to make rules,
which are in the nature of subordinate legislation. Section
110 of the J & K Constitution, which is on the same lines as
Article 234 of the Constitution of India, vests in the
Governor, the power to make rules for appointment of
persons other than the District Judges to the Judicial
Service of the State of J & K and for framing of such rules,
the Governor is required to consult the Commission and
the High Court. This power to frame rules is legislative in
nature. A writ of mandamus cannot, therefore, be issued
directing the State Government to make the rules in
accordance with the proposal made by the High Court.”
8
In V.K. Naswa v. Union of India , this Court referred to a large number of
decisions and held that :
“18. Thus, it is crystal clear that the court has a very
limited role and in exercise of that, it is not open to have
judicial legislation. Neither the court can legislate, nor has
6
(1989) 4 SCC 187
7
AIR 1992 SC 1546
8
(2012) 2 SCC 542
6
it any competence to issue directions to the legislature to
enact the law in a particular manner.”
A discordant note had been struck by a Bench of two judges in Gainda Ram v.
9
MCD . A direction was issued to the legislature to amend legislation before a
10
particular date. The Constitution Bench in Manoj Narula v. Union of India ,
held that this direction by a Bench of two judges was contrary to the law laid
down earlier by three judges. In that context, the Constitution Bench has
conclusively enunciated the legal position thus:
“127. The law having been laid down by a larger Bench
than in Gainda Ram it is quite clear that the decision,
whether or not Section 8 of the Representation of the
People Act, 1951 is to be amended, rests solely with
Parliament.”
Having regard to the settled position, the impugned directions are
unsustainable.
9 The judiciary is one amongst three branches of the State; the other
two being the executive and the legislature. Each of the three branches is
co-equal. Each has specified and enumerated constitutional powers. The
judiciary is assigned with the function of ensuring that executive actions
accord with the law and that laws and executive decisions accord with the
Constitution. The courts do not frame policy or mandate that a particular
policy should be followed. The duty to formulate policies is entrusted to
the executive whose accountability is to the legislature and, through it, to
9
(2010) 10 SCC 715
10
(2014) 9 SCC 1
7
the people. The peril of adopting an incorrect policy lies in democratic
accountability to the people. This is the basis and rationale for holding
that the court does not have the power or function to direct the executive
to adopt a particular policy or the legislature to convert it into enacted law.
It is wise to remind us of these limits and wiser still to enforce them
without exception.
10 For these reasons, we hold that the directions issued by the High
Court for amending the provisions of the Himachal Pradesh Tenancy and
Land Reforms Act, 1972 and the Rules were manifestly unsustainable.
The directions are accordingly set aside. The appeal filed by the State
shall stand allowed in these terms.
11 There shall be no order as to costs.
…..........................................J.
[ABHAY MANOHAR SAPRE]
..............................................J.
[Dr. D. Y. CHANDRACHUD]
New Delhi;
8 February 2017
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ITEM NO.1A COURT NO.1 SECTION XIV
(For orders)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.1654/2017 @
Petition(s) for Special Leave to Appeal (C)No.4472/2017 @
CC No(s).1978/2017
(Arising out of impugned final judgment and order dated 23/09/2016
in CWP No.3572/2014 passed by the High Court Of Himachal Pradesh At
Shimla)
STATE OF HIMACHAL PRADESH AND OTHERS Petitioner(s)
VERSUS
SATPAL SAINI Respondent(s)
Date : 08/02/2017 This appeal was called on for pronouncement
of order today.
For Petitioner(s) Mr. Varinder Kumar Sharma,Adv.
For Respondent(s)
Hon'ble Dr. Justice D.Y. Chandrachud pronounced the
Reportable order of the Bench comprising Hon'ble Mr.
Justice Abhay Manohar Sapre and His Lordship.
Delay condoned.
Leave granted.
The appeal is allowed in terms of the signed
Pending application, if any, stands
Reportable order.
disposed of.
(Sarita Purohit) (Renuka Sadana)
Court Master Assistant Registrar
(Signed Reportable order is placed on the file)
9