Full Judgment Text
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PETITIONER:
SUNDARJAS KANYALAL BHATIJA & ORS.
Vs.
RESPONDENT:
COLLECTOR, THANE, MAHARASHTRA & ORS.
DATE OF JUDGMENT13/07/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)
CITATION:
1990 AIR 261 1989 SCR (3) 405
1989 SCC (3) 396 JT 1989 (3) 57
1989 SCALE (2)7
CITATOR INFO :
R 1990 SC 322 (8)
ACT:
Constitution of India----1950.
Articles 32, 136, 226 and 141--Judicial Review--Part of
the Constitutional scheme--Law to be made clear, certain and
consistent. Rules of natural justice--Not applicable to
legislative action plenary or subordinate--Requirement of
hearing not implied in exercise of legislative powers.
Bombay Provincial Municipal Corporation Act 1949--Sec-
tion 3--Draft notification--Merger of municipal areas into
Corporation issuance of--Government not entitled to hear the
parties.
HEADNOTE:
On June 19, 1962, the Government of Maharashtra issued a
draft notification under Section 3(3) of the Bombay Provin-
cial Municipal Corporation Act, 1949 and thereby proposed
the formation of "Kalyan Corporation", by merging of munici-
pal areas of Kalyan, Ambarnath, Domoivali and Ulhasnagar.
The proposal was resented to by the residents of the said
areas and many objections and representations by persons,
companies and authorities including the municipal bodies of
Ambarnath, and Ulhasnagar were made. So far as Ulhasnagar
was concerned it was stated that Sindhi Community after
partition has settled at Ulhasnagar and to keep the identity
of Sindhies distinct, they had formed All India Sindhi
Panchayat Federation. The said Federation challenged the
draft notification by a Writ Petition before the High Court.
On an assurance being given by the Government before the
High Court that the representation made by the Federation
would be duly considered, the Writ Petition was allowed to
be withdrawn. As per the assurance, the Federation was given
personal hearing on their representation. Only the Federa-
tion was heard, none of the other representationists was
afforded any hearing though their objections were duly
considered. After considering the matter in the manner
aforesaid, the Government decided to exclude Ulhasnagar from
the proposed Corporation and accordingly a notification
under section 3(2) of the Act was issued. The Corporation
was thus Constituted excluding Ulhasnagar. Save as aforesaid
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no other alteration was made in the notification.
406
The Residents of Ambarnath municipal area were not
satisfied. They moved the High Court challenging the validi-
ty of the notification issued under section 3(2) of the Act.
Their main contention was that there has been hostile dis-
crimination in the matter as only the Federation was heard
and none else. They also asserted that the establishment of
a Corporation without Ulhasnagar, keeping in view the geo-
graphical contiguity was unintelligibe and incomprehensible.
According to them it was arbitrary and opposed to the object
of the Act.
Federation and others interested in the proceedings were
allowed to intervene and they supported the stand taken by
the Government which was the main respondent.
The State pleaded that the formation of Corporation was
an extension of the legislative process and as such section
3 was a piece of conditional legislation, and the notifica-
tion issued in exercise of that power cannot be said to have
been vitiated by non-compliance with the principles of
natural justice. According to the State it was not obligato-
ry for the State to issue a preliminary notification over
again before the final notification excluding Ulhasnagar was
issued.
The High Court took the view that the decision to ex-
clude Ulhasnagar was taken by the State abruptly and in an
irrational manner and that the decision was against the
object of the Act. On the legality of the procedure followed
by the Government, the High Court held that once a decision
was taken, it was obligatory on the part of the Government
to reconsider the proposal as a whole so for as the rest of
the areas were concerned.
The High Court without quashing the impugned notifica-
tion directed the State Government to reconsider the propos-
al under subsection (3) of the Act either to exclude or
include any area and accordingly make amends in the notifi-
cation. It was also directed that the Petitioners and the
Federation be given a reasonable opportunity of being heard
before any final decision in the matter is taken. Against
the aforesaid decision of the High Court only interveners
have preferred these appeals. The State and Kelyan City
Corporation have not appealed.
Counsel for the appellants reiterated the stand taken by
the Government before the High Court and urged that the
State had a wide discretion in the selection of areas for
constituting the Corporation and the Court cannot interfere
with such discretion. State’s power to consti-
407
tute a corporation is legislative in character and rules of
natural justice have no application. It was urged that the
state had complied with all the statutory requirements and
it was not necessary for the state to go through that exer-
cise again. It was further urged that the decision of this
Court has been disregarded and a binding decision of a co-
ordinate bench of the same Court in Village Panchayat Chi-
kalthane & Anr. v. State of Maharashtra has been ignored.
Allowing the appeals, this Court,
HELD: In our system of judicial review which is a part
of our constitutional scheme, this Court holds it to be the
duty of Judges of superior Courts and tribunals to make the
law more predictable. The question of law directly arising
in the case should not be dealt with apologetic approaches.
The law must be made more effective as a guide to behaviour.
It must be determined with reasons which carry convictions
within the Courts, professions and public otherwise the
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lawyers would be in a predicament and would not know how to
advise their clients. Subordinate Courts would find them-
selves in an embarrassing position to choose between the
conflicting opinions. The general public will be in a dilem-
ma to obey or not to obey such law and it ultimately fails
into disrepute. [417D-F]
It is needless to state that the judgment of superior
Courts and Tribunals must be written only after deep travail
and positive vein. One should never let a decision go unless
he is absolutely sure it is right. The law must be made
clear, certain and consistent. But ceritude is not the test
of certainty and consistency does not mean that there should
be no word of new content. The principle of law may develop
side by side with new content but not in consistencies.
There could be waxing and waning the principle depending
upon the pragmatic needs and moral yearings. Such develop-
ment of law particularly is inevitable in our developing
country. [417G-H; 418A-B]
The rules of natural justice are not applicable to
legislative activity plenary or subordinate. The procedural
requirement of hearing is not implied in the exercise of
legislative powers unless hearing was expressly prescribed.
[419F]
The High Court, therefore, was in error in directing the
Government to hear the parties who are not entitled to be
heard in law; section 3 of the Bombay Provincial Municipal
Corporation Act 1949. [419F-G]
The Government in the exercise of its powers under section 3
is
408
not subject to the Rules of natural justice any more than is
legislature itself. [419F]
Mahadeolal Kanodia v. The Administrator General of West
Bengal, A.I.R. (1960) S.C.p. 926; Sri Bhagwan and Anr. v.
Ram Chand and Anr., A.I.R. (1965) S.C. 1767 at 1773; Union
of India v. Raghbir Singh, [1989] 2 S.C.C. 754; The Nature
of Judicial Process by Benjamin N. Cardozo; Bates v. Lord
Heilsham of St. Marylebone and Others, 1, W.L.R. 1373;
Tulsipur Sugar Co. Ltd. v. The Notified Area Committee,
Tulsipur, [1980] 2 S.C.R. 1111 and Baldev Singh v. State of
Himachal Pradesh, [1987] 2 S.C.C. 510, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5736 of
1985 & C.A. No. 508/1986.
From the Judgment and Order dated 14.8.1985 of the
Bombay High Court in Civil Writ Petition No. 3420 of 1983.
N.N. Keswani and R.N. Keswani for the Appellants.
G. Ramaswamy Additional Solicitor General, S.K. Dhola-
kia, Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi
for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. The case involved in these two
appeals, with leave, seems indeed straight forward enough,
but the High Court of Bombay made it, as we venture to
think, unsatisfactory and in a sense against judicial pro-
priety and decorum.
The facts which are of central importance may be stated
as follows.
On June 19, 1982, the Government of Maharashtra issued a
draft notification under sec. 3(3) of the Bombay Provincial
Municipal Corporation Act, 1949 (the "Act"). The draft
notification proposed the formation of what is termed as
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"Kalyan Corporation" (the "Corporation"). It suggested the
merging of Municipal areas of Kalyan, Ambarnath, Domoivali
and Ulhasnagar. Against this proposal, there were many
objections and representations from persons, companies and
the authorities. Ambarnath and Ulhasnagar Municipal bodies
and also some of the residents therein submitted their
represen-
409
tations. They objected to the merger of their municipal
areas into the Corporation. It is said that in Ulhasnagar
Municipal area, Sindhies are predominant. In 1947, they were
the victims of partition of the country. Being uprooted from
their home land, they have since settled down at Ulhasnagar.
They have formed union or federation called the All India
Sindhi Panchayat Federation. It is interested in having a
separate identity for Ulhasnagar. The Federation challenged
the said draft notification by a writ petition before the
Bombay High Court. The writ petition was not disposed of on
merits. It was permitted to be withdrawn on an assurance
given by the Government. The Government gave the assurance
that the representatives of the Federation would be given an
opportunity of being heard before taking a final decision.
As per the assurance, they were given personal hearing on
their representations. The others who have filed similar
representations were not heard. But their objections or
representations were duly considered. Thereupon, the Govern-
ment decided to exclude Ulhasnagar from the proposed Corpo-
ration. Accordingly, a notification under sec. 3(2) of the
Act was issued. The Corporation was thus constituted without
Ulhasnagar. That was the only alteration made in the propos-
al earlier notified. All other areas indicated in the draft
notification were merged in the Corporation.
The residents of Ambarnath Municipal areas were not
satisfied. They were, perhaps, more worried by the exclusion
of Ulhasnagar than the inclusion of their own area. They
moved the High Court under Article 226 of the Constitution
challenging the notification issued under sec. 3(2) of the
Act. They inter-alia, contended that the action of the
Government affording an opportunity of being heard only to
the Federation and not to other objectors was contrary to
Article 14. It was a hostile discrimination to hear only one
of the objectors. They asserted that the establishment of
the Corporation without Ulhasnagar Municipal area, having
regard to the geographical contiguity was unintelligible and
incomprehensible. It was arbitrary and opposed to the object
of the Act. They also contended that there ought to have
been a fresh draft notification after taking a decision to
exclude Ulhasnagar from the proposal. With similar conten-
tions and for the same relief, there was another writ peti-
tion before the High Court. It was filed by the National
Rayon Corporation Limited which is a company located within
the Municipal limits of Ambarnath.
The Sindhi Panchayat Federation was not a party to the
writ petitions. It was, however, allowed as an intervener.
Some other persons who were interested in the outcome of the
writ petitions were
410
also permitted to intervene in the proceedings. They sup-
ported the stand taken by the Government which was the main
respondent in the writ petitions.
The State in its counter affidavit resisted the peti-
tioners’ claim raising several grounds. The first point to
be noted in this context is this:
"That the formation of Municipal Corporation
under sec. 3 of the Act is an extension of the
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legislative process and, therefore, sec. 3 is
nothing but a piece of conditional legisla-
tion. The principles of natural justice will
not apply to such legislative function nor it
could be imparted into it even by necessary
implication. The petitioners have not chal-
lenged the validity of the sub-section (2) of
sec. 8 of the Act and even otherwise the said
validity has been upheld by a Division Bench
of this Court (Shah and Deshpande, J J) in
writ petition No. 706-A of 1982 (The Village
Panchayat Chikalthane and Anr. v. The State of
Maharashtra and Anr. decided on 23/24 Decem-
ber, 1982. Therefore, it cannot be said that
the notification issued in exercise of the
said legislative power is vitiated by non-
complaince with the principles of natural
justice. The conditions laid down by sec. 3
are fully complied with; a preliminary notifi-
cation was issued as contemplated by sub-
section (4) of sec. 3 of the Act; the objec-
tions and suggestions made by the various
citizens and persons were duly considered by
the State Government and thereafter the final
notification was issued. In the very nature of
things there is bound to be difference and
variance between the preliminary notification
and the final notification. Only because the
Ulhasnagar Municipal Council is excluded from
the final notification, it cannot be said that
there was any major departure from the prelim-
inary notification or it was necessary to
issue a preliminary notification over again
before the final notification was issued in
that behalf."
The second factual point to be noted is this:
"Due to partition of India in 1947, the Sindhi
people have been uprooted from their homeland
and with hard labour they have settled them-
selves in different parts of the country. One
can appreciate their feelings about their
anxi-
411
ety to maintain their separate entity. If such
a large part is forcibly included in the
Corporation ignoring their sentiments and
wishes, it may not result in smooth working of
the proposed Corporation which is necessary
for proper development. It is, therefore,
desirable to constitute the new Kalyan Corpo-
ration without including Ulhasnagar for the
time being."
The High Court was not impressed with the above reason-
ings. The High Court said that the decision to exclude
Ulhasnagar was taken by the Government abruptly and in an
irrational manner. The decision was arbitrary and against
the purpose of the Act. On the legality of the procedure
followed by the Government, the High Court said:
"Once that decision was taken, it was obliga-
tory on the part of the Government to recon-
sider the proposal as a whole so far as the
rest of the areas are concerned."
Reference was also made to the report of the "Sathe
Commission" to fortify the conclusion that Ulhasnagar could
not have been isolated. The "Sathe Commission" was a one man
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Commission appointed by the State Government to enquire and
report on the establishment of new Municipal Corporations.
The Commission in its report among others, seems to have
indicated that Kalyan, Ulhasnagar and Ambarnath are one
contiguous stretch of territory with a length of about 8
kms. from North-West to South-East.
The High Court then made some general observations as to
the purpose for which Municipal Corporations should be
constituted went on:
"It was the avowed policy after independence
to change the socio-economic map of the vil-
lage and town. A corporate life can only be
ensured if there is a corporate conscience and
an attitude to live together. City is an
epitome of the social world where all belts of
civilization interest along its avenues. A
Municipal Corporation is ....... in nature,
where people belonging to different castes,
creeds, religious and language want to live
with each other. Town planning cannot be
denominational or fractional. It is not a
museum of human beings otherwise Harijan
Bastis, Mominpures and such other Mohallas
will have to be preserved to maintain its
separate identity and the socio
412
economic map of the village or city will never
change. It cannot be forgotten that we are
heading towards a global village. By saying
this, we do not want to belittle the achieve-
ments of sacrifice of the Sindhi Community.
However, that is not very relevant for decid-
ing the question of the establishment of a
Municipal Corporation. Its main object is to
ensure better municipal government of the
city. It appears that Government was also
aware of this and this seems to be the reason
why the decision "for the time being is perti-
nent and clearly indicates that the Government
wanted to reconsider the issue at a later
stage. However, unfortunately till today
Government has not taken any decision in that
behalf."
The High Court, however, felt that it was not necessary
to quash the notification establishing the Corporation. This
is how the conclusion was reached:
"It will not be fair to quash the notification
as a whole and unsettle the Municipal Adminis-
tration. In our view, that is also not neces-
sary since from the affidavit of the Govern-
ment, it is clear that the decision taken in
that behalf was tentative, i.e., for the time
being and it is not all-time permanent deci-
sion. Under sub-section (3) of sec. 3 of the
act, the State Government has power to exclude
or include any area specified in the notifica-
tion issued so far as Ambarnath Town is con-
cerned, reconsideration of the present case of
the whole matter was absolutely necessary when
the decision to exclude the Ulhasnagar Munici-
pal Council from the proposed Municipal Corpo-
ration, ,though tentative in nature, was
taken."
Finally, the operative portion of the Order was put in
the following terms:
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"Therefore, without setting aside the final
notification, we direct the State Government
to reconsider the proposal under sub-sec. (3)
of sec. 3 of the Bombay Provincial Municipal
Corporations Act either to exclude or include
any area, within a period of six months from
today. The writ of mandamus to be issued
accordingly. It is needless to say that after
the necessary steps are taken under sec. 3(3)
of the Act, the State Government shall make
the necessary
413
amends in the notification issued.
XXX XXX XXX XXX
XXX XXX XXX XXX
"In the result, therefore, the rule is made
partly absolute and the State Government is
directed to exercise its power under sec. 3
sub-sec. (3) of the Act in accordance with law
within a period of six months. It is needless
to say that the petitioners will be entitled
to raise objections and make their suggestions
in that behalf after a notification under
sub-sec (3) read with sub-sec (4) of sec. 3 of
the Act is issued. Since the popular local
self-Government is not in existence in any of
the Municipal Councils or even in the newly
established municipal corporation and having
regard to the peculiar facts and circumstances
of the case, in our view, this is a fit case
where the petitioners of these two petitions
and All India Sindhi Panchayat Federation
should be given a reasonable opportunity of
being heard before any final decision in the
matter is taken."
Against the judgment of the High Court, the State Gov-
ernment has not preferred any appeal. The Kalyan City Corpo-
ration though vitally concerned with the matter, has also
not appealed to this Court. The present appeals are only by
those who were impleaded as interveners in the writ peti-
tions.
We have heard counsel for all parties and gave our best
attention to the questions raised by the appellants. Counsel
for the appellants reiterated the stand taken by the Govern-
ment before the High Court. He urged that the State has a
wide discretion in the selection of areas for constituting
the Corporation and the Court cannot interfere with such
discretion. The Court has no jurisdiction to examine the
validity of the reason that goes into the decision of the
Government. The power to constitute Municipal Corporations
under sec. 3 of the Act is legislative in character. It is
an extension of legislative process for which rules of
natural justice have no application. He said that the Gov-
ernment in the instant case has complied with the statutory
requirements and it was not expected to do anything more in
the premises. And, at any rate, it is wholly unnecessary
according to the counsel to go through that exercise again
as the High Court has suggested.
414
The other limb of the argument of counsel for the appel-
lants relates to the manner in which the High Court disposed
of the matter. it was said that a decision of this Court has
been disregarded and a binding decision of a co-ordinate
Bench of the same Court has been ignored.
The grievance of the appellants’ counsel, in our opin-
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ion, is not wholly unjustified.At the beginning of the
judgment, we have said that the High Court rendered the
judgment in a sense against the judicial propriety and
decorum. We were not happy to make that observation, but
constrained to say so in the premise and background of the
case. It may be noted that the result of the writ petitions
before the High Court turns on the nature and scope of the
power conferred on the Government under sec. 3 of the Act. A
Division Bench of the High Court has taken the view that
that power is in the nature of legislative process. That
judgment was rendered on 23/24 December, 1982, by a Bench
consisting of Shah and Deshpande, JJ. It was in writ peti-
tion No. 706-A of 1982--The Village Panchayat Chikalthana
and Another v. The State of Maharashtra and Another, In that
case, the challenge was to the validity of sec. 3(2) of the
Act on the ground that it suffers from the vice of excessive
delegation for want of guidelines for the exercise of power.
Repelling the contention, it was held that sec. 3 is in the
nature of a conditional legislation and, therefore, laying
down the policy or guidelines to exercise the power was
unnecessary. It was emphasized that the exercise of power
under sec. 3(2) is conditioned by only two requirements,
viz., (1) previous publication as contemplated by sub-sec.
(4) of sec. 3 of the Act, (2) issuance of a notification by
the Government after such previous publication. Once the
Government publishes such a notification, the legislation
becomes complete and the other provisions of the Act are
ipso facto attracted to the Corporation so constituted. This
was the view taken by the High Court in Chikalthane case. To
reach that conclusion, the learned judges relied upon the
decision of this Court in Tulsipur Sugar Company, case 1980
2 SCR 1111.
The attention of the High Court in the present case was
drawn to the decision in Chikalthane, case. Counsel for the
State and interveners seemed to have argued that the present
case really fell fairly and squarely within what was said
there. They were indeed on terra firma since the decision in
Chikalthane case was a clear authority against every conten-
tion raised by the petitioners. Faced with this predicament,
counsel for the petitioners urged before the High Court that
their case should be referred to a larger Bench to reconsid-
er the deci-
415
sion m Chikalthane, case. But learned Judges, (Dharmadhikari
and Kantharia, J J) did not heed to that submission. They
neither referred the case to a larger Bench nor followed the
view taken in the Chikalthane, case. It was not as if they
did not comprehend the issue to be determined and the prin-
ciple to be applied. They were very much aware of it when
they remarked:
"In our opinion, once it is accepted that this
is a piece of conditional legislation, then it
will have to be held that the principle of
natural justice would not apply to such a case
as held by the Division Bench of this Court in
village Panchayat Chikalthane’s case nor it
could be said that because under a mistaken
notice the Federation was heard, the denial of
such a right to the petitioners will amount to
hostile discrimination within the contempla-
tion of Article 14 of the Constitution of
India."
After referring to these simple legal principles, it is
unfortunate that the issue at stake was little explored. The
key question raised in the case was side-tracked and a new
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strategy to interfere with the decision of the Government
was devised. The learned Judges directed the Government to
publish again a draft notification for reconsideration of
the matter. They gave liberty to the writ petitioners and
the interveners to submit their representations. They ob-
served that "this is a fit case where the parties should be
given a reasonable opportunity of being heard." They did not
quash the impugned notification, but told the Government to
make necessary changes in the light of fresh consideration.
All these directions were issued after recording a positive
finding that the exclusion of Ulhasnagar from the Corpora-
tion was arbitrary and irrational. The net result of it is
that there is now no discretion with the Government to keep
Ulhasnagar away from the Corporation.
It would be difficult for us to appreciate the judgment
of the High Court. One must remember that pursuit of the
law, however glamorous it is, has its own limitation on the
Bench. In a multi-judge court, the Judges are bound by
precedents and procedure. They could use their discretion
only when there is no declared principle to be found, no
rule and no authority. The judicial decorum and legal pro-
priety demand that where a learned single judge or a Divi-
sion Bench does not agree with the decision of a Bench of
co-ordinate jurisdiction, the matter shall be referred to a
larger Bench. It is a subversion of judicial process not to
follow this procedure.
416
Deprecating this kind of tendency of some judges, Das
Gupta, J., in Mahadeolal Kanodia v. The Administrator Gener-
al of West Bengal, AIR 1960 SC 926 said (at 941):
"We have noticed with some regret that when
the earlier decision of two Judges of the same
High Court in Deorajin’s case, 58 Cal WN 64
(AIR 1954 Cal 119) was cited before the
learned Judges who heard the present appeal
they took on themselves to say that the previ-
ous decision was wrong, instead of following
the usual procedure in case of difference of
opinion with an earlier decision, of referring
no less than legal propriety form the basis of
judicial procedure. If one thing is more
necessary in law than any other thing, it is
the quality of certainty. That quality would
totally disappear if Judges of co-ordinate
jurisdiction in a High Court start overruling
one another’s decision."
The attitude of Chief Justice, Gajendragadkar, in Lala
Shri Bhagwan and Anr. v. Ram Chand and Anr., AIR 1965 SC
1767 was not quite different (at 1773):
"It is hardly necessary to emphasize that
considerations of judicial propriety and
decorum require that if a learned single judge
hearing a matter is inclined to take the view
that the earlier decisions of the High Court,
whether of a Division Bench or of a single,
Judge, need to be reconsidered, he should not
embark upon that enquiry sitting as a single
judge, but should refer the matter to a Divi-
sion Bench or, in a proper case, place the
relevant papers before the Chief Justice to
enable him to constitute a larger Bench to
examine the question. That is the proper and
traditional way to deal with such matters and
it is rounded on healthy principles of judi-
cial decorum and propriety. It is to be re-
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gretted that the learned Judges departed from
this traditional way in the present case and
choose to examine the question himself."
The Chief Justice Pathak, in a recent decision stressed
the need for a clear and consistent enunciation of legal
principle in the decisions of a Court. Speaking for the
Constitution Bench Union of India v. Raghubir Singh, [1989]
2 SCC 754 learned Chief Justice said (at 766):
"The doctrine of binding precedent has the
merit of pro-
417
moting a certainty and consistency in judicial
decisions, and enables an organic development
of the law, besides providing assurance to the
individual as to the consequence of transac-
tions forming part of his daily affairs. And,
therefore, the need for a clear and consistent
enunciation of legal principle in the deci-
sions of a Court."
Cardozo propounded a similar thought with more
emphasis:
"1 am not to mar the symmetry of the legal
structure by the introduction of inconsisten-
cies and irrelevancies and artifical excep-
tions unless for some sufficient reason, which
will commonly by some consideration of history
or custom or .policy or justice. Lacking such
a reason, I must be logical just as I must be
impartial, and upon like grounds. It will not
do to decide the same question one way between
one set of litigants and the opposite way
between another" (The Nature of the Judicial
Process by Benjamin N. Cardozo p.33)
In our system of judicial review which is a part of our
Constitutional scheme, we hold it to be the duty of judges
of superior courts and tribunals to make the law more pre-
dictable. The question of law directly arising in the case
should not be dealt with apologetic approaches. The law must
be made more effective as a guide to behaviour. It must be
determined with reasons which carry convictions within the
Courts, profession and public. Otherwise, the lawyers would
be in a predicament and would not know how to advise their
clients. Subordinate courts would find themselves in an
embarrassing position to choose between the conflicting
opinions. The general public would be in dilemma to obey or
not to obey such law and it ultimately falls into disrepute.
Judge learned Hand has referred to the tendency of some
judges "who win the game by sweeping all the chessmen off
the table". (The Spirit of Liberty by Alfred A. Knopf, New
York (1953) p. 131). This is indeed to be deprecated. It is
needless to state that the judgment of superior courts and
Tribunals must be written only after deep travail and posi-
tive vein. One should never let a decision go until he is
absolutely sure it is right. The law must be made clear,
certain and consistent. But certitude is not the test of
certainty and consistency does not mean that there should be
no word of new content. The principle of law may develop
side by side with new content but not
418
with inconsistencies. There could be waxing and wanning the
principle depending upon the pragmatic needs and moral
yearnings. Such development of law particularly, is inevita-
ble in our developing country. In Raghubir Singh, case,
learned Chief Justice Pathak had this to say (1989) 2 SCC
754 at 767:
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"Legal compulsions cannot be limited by exist-
ing legal propositions, because, there will
always be, beyond the frontiers of the exist-
ing law, new areas inviting judicial scrutiny
and judicial choice-making which could well
affect the validity of existing legal dogma.
The search for solutions responsive to a
changed social era involves a search not only
among competing propositions of law, or
competing versions of a legal proposition, or
the modalities of an indeterminacy such as
"fairness" or "reasonableness" but also among
propositions from outside the ruling law,
corresponding to the empirical knowledge or
accepted values of present time and place,
relevant to the dispensing of justice within
the new parameters.
And he continued:
The universe of problems presented for judi-
cial choicemaking at the growing points of the
law is an expanding universe. The areas
brought under control by the accumulation of
past judicial choice may be large. Yet the
areas newly presented for still further
choice, because of changing social, economic
and technological conditions are far from
inconsiderable. It has also to be remembered,
that many occasions for new options arise by
the mere fact that no generation looks out on
the world from quite the same vantage-point as
its predecessor, nor for that matter with the
same perception. A different vantage point or
a different quality of perception often re-
veals the need for choicemaking where formerly
no alternatives, and no problems at all, were
perceived."
Holmes tells us:
"The truth is, that the law is always ap-
proaching, and never reaching, consistency. It
is forever adopting new principles from life
at the end, and it always retains old ones
from history at the other, which have not yet
been absorbed or
419
sloughed off. It will become entirely consist-
ent only when it ceases to grow." (Holmes the
Common Law, p. 36 (1881).
Apart from that the judges with profound responsibility
could iII-afford to take stolid satisfaction of a single
postulate past or present in any case. We think, it was
Cicero who said about someone "He saw life clearly and he
saw it whole"; The judges have to have a little bit of that
in every case while construing and applying the law.
Reverting to the case, we find that the conclusion of
the High Court as to the need to reconsider the proposal to
form the Corporation has neither the attraction of logic nor
the support of law. It must be noted that the function of
the Government in establishing a Corporation under the Act
is neither executive nor administrative. Counsel for the
appellants was right in his submission that it is legisla-
tive process indeed. No judicial duty is laid on the Govern-
ment in discharge of the statutory duties. The only question
to be examined is whether the statutory provisions have been
complied with. If they are complied with,, then, the Court
could say no more. In the present case the Government did
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publish the proposal by a draft notification and also con-
sidered the representations received. It was only thereaf-
ter, a decision was taken to exclude Ulhasnagar for the time
being. That decision became final when it was notified under
Section 3(2). The Court cannot sit in judgment over such
decision. It cannot lay down norms for the exercise of that
power. It cannot substitute even "its juster will for
theirs."
Equally, the rule issued by the High Court to hear the
parties is untenable. The Government in the exercise of its
powers under Section 3 is not subject to the rules of natu-
ral justice any more than is legislature itself. The rules
of natural justice are not applicable to legislative action
plenary or subordinate. The procedural requirement of hear-
ing is not implied in the exercise of legislative powers
unless hearing was expressly prescribed. The High Court,
therefore, was in error in directing the Government to hear
the parties who are not entitled to be heard under law.
Megarry, J., in Bates v. Lord Hailsham of St. Marylebone
and Ors., [1972] 1 WLR 1373 while dealing with the legisla-
tive process under Section 56 of the Solicitors Act, 1957
said (at 1378):
"In the present case, the committee in ques-
tion has an entirely different function: it is
legislative rather than
420
administrative or executive. The function of
the committee is to make or refuse to make a
legislative instrument under delegated powers.
The order, when made, will lay down the remu-
neration for solicitors generally and the
terms of the order will have to be considered
and construed and applied in numberless cases
in the future. Let me accept that in the
sphere of the so-called quasi-judicial the
rules of natural justice run, and that in the
administrative or executive field there is a
general duty of fairness. Nevertheless, these
considerations do not seem to me to affect the
process of legislation, whether primary or
delegated. Many of those affected delegated
legislation, and affected very substantially,
are never consulted in the process of enacting
that legislation; and yet they have no remedy.
Of course, the informal consultation of repre-
sentative bodies by the legislative authority
is a commonplace; but although a few statutes
have specifically provided for a general
process of publishing draft delegated legisla-
tion and considering objections (see, for
example, the Factories Act 1961 Schedule 4), I
do not know of any implied right to be con-
sulted or make objections, or any principle
upon which the courts may enjoin the legisla-
tive process at the suit of those who contend
that insufficient time for consultation and
consideration has been given. I accept that
the fact that the order will take the form of
a statutory instrument does not per se make it
immune from attack, whether by injunction or
otherwise; but what is important is not its
form but its nature, which is plainly legisla-
tive."
There are equally clear authorities on this point from
this Court. The case in Tvlsipur Sugar Co. Ltd. v. The
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Notified Area Committee, Tulsipur, [1980] 2 SCR 1111 was
indeed a hard case. But then, this Court did not make a bad
law. There a notification dated August 22, 1955 was issued
under Section 3 of the U.P. Town Area covering the petition-
er’s factory. Consequently, the octroi was levied on goods
brought by the factory management into the limits of Town
Area Committee. The Company questioned the validity of that
notification. The case pleaded was that the company had no
opportunity to make representation regarding the advisabili-
ty of extending the limits of the Town Area Committee.
Venkataramiah, J., as the present learned Chief Justice then
was, while rejecting the contention observed (111920):
421
"The power of the State Government to make a
declaration under Section 3 of the Act is
legislative in character because the applica-
tion of the rest of provisions of the Act to
the geographical area which is declared as a
town area is dependent upon such declaration.
Section 3 of the Act is in the nature of a
conditional legislation. Dealing with the
nature of functions of a non-judicial authori-
ty, Prof. S.A. De Smith in Judicial Review of
Administrative Action (third edition) observes
at page 163: "However, the analytical classi-
fication of a function may be a conclusive
factor in excluding the operation of the audi
alteram partem rule. It is generally assumed
that in English law the making of a subordi-
nate legislative instrument need not be pre-
ceded by notice or hearing unless the parent
Act so provides."
In Baldev Singh v. State of Himachal Pradesh, [1987] 2
SCC 510 a similar question arose for consideration. An
attempt was made to constitute a notified area as provided
under Section 256 of the Himachal Pradesh Municipal Act,
1968, by including portions of the four villages for such
purposes. The residents of the villages who were mostly
agriculturists challenged the validity of the notification
before the High Court on the ground that they had no oppor-
tunity to have their say against that notification. The High
Court summarily dismissed the writ petition. In the appeal
before this Court, it was argued that the extension of
notified area over the Gram Panchayat limits would involve
civil consequences and therefore, it was necessary that
persons who would be affected thereby ought to be given an
opportunity of being heard. Ranganath Misra, J., did not
accept that contention, but clarified (at 515):
"We accept the submission on behalf of the
appellants that before the notified area was
constituted in terms of Section 256 of the
Act, the people of the locality should have
been afforded an opportunity of being heard
and the administrative decision by the State
Government should have been taken after con-
sidering the view of the residents. Denial of
such opportunity is not in consonance with the
scheme of the rule of law governing our socie-
ty. We must clarify that the hearing contem-
plated is not required to be oral and can be
by inviting objections and disposing them of
in a fair way."
The principles and precedents thus enjoin us not to support
the
422
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view taken by the High Court. We may only observe that the
Government is expected to act and must act in a way which
would make it consistent with the good administration. It is
they, and no one else--who must pass judgment on this mat-
ter. We must, therefore, leave it to the Government.
In the result and for the reasons stated, we allow the
appeals and set aside the judgment of the High Court. In the
circumstances of the case, we make no order as to costs.
Y. Lal Appeals allowed.
423