Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5075 OF 2005
Amrik Singh Lyallpuri ..Appellant(s)
- Versus -
Union of India & Others ..Respondent(s)
J U D G M E N T
GANGULY, J.
1.The principal question raised in this appeal is
the constitutional validity of Section 347D of
Delhi Municipal Corporation Act, 1957
(hereinafter referred to as, ‘the said Act’).
Similar provisions are also there in Section 256
of New Delhi Municipal Council Act, 1994
(hereinafter referred to as, ‘the NDMC Act’).
1
2.
The question was raised in a writ petition filed
by the appellant who is a journalist by
profession and the editor of Urdu Weekly called
‘Lalkar’. In the petition it has been urged that
one Shri B.S. Mathur, Additional District and
Sessions Judge was appointed the Presiding
Officer of the MCD/NDMC Appellate Tribunal in
terms of sub-sections (1) and (2) of Section 347
of the said Act. His appointment was made for
deciding appeals preferred under Section 343 or
Section 347B of the said Act. Shri B.S. Mathur
was appointed in Appellate Tribunal to hear and
dispose of all appeals from the order passed by
the Zonal Engineer (Buildings) of the respective
zones of Municipal Corporation of Delhi and that
of New Delhi Municipal Council. However, the
grievance of the appellant is that orders of the
Appellate Tribunal are appealable before the
Administrator of Delhi i.e. Lt. Governor under
Section 347D of the said Act. The main grievance
in the public interest litigation is when an
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appeal is decided by an Appellate Authority which
is manned by a Judge of the Civil Court, appeal
from the decision of such authority cannot be
heard and by an executive authority, however high
such executive authority may be.
3.
In order to appreciate this controversy it is
necessary to consider the relevant statutory
provisions. The provision for constitution of an
Appellate Tribunal under Section 347A of the said
Act are as follows:-
“ 347A. Appellate Tribunal . - (1) The
Central Government shall, by notification
in the Official Gazette, constitute one
or more Appellate Tribunals with
headquarters at Delhi, for deciding
appeals preferred under section 343 or
section 347B.
(2) An Appellate Tribunal shall consist
of one person to be appointed by the
Central Government on such terms and
conditions of service as may be
prescribed by rules.
(3) A person shall not be qualified for
appointment as the presiding officer of
an Appellate Tribunal unless he is, or
has been, a district judge or an
additional district judge or has, for at
least ten years, held a judicial office
in India.
(4) The Central Government may, if it so
thinks fit, appoint one or more persons
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having special knowledge of, or
experience in, the matters involved in
such appeals, to act as assessors to
advise the Appellate Tribunal in the
proceedings before it, but no advice of
the assessors shall be binding on the
Appellate Tribunal.
(5) The Central Government shall, by
notification in the Official Gazette,
define the territorial limits within
which an Appellate Tribunal shall
exercise its jurisdiction, and where
different Appellate Tribunals have
jurisdiction over the same territorial
limits, the Central Government shall also
provide for the distribution and
allocation of work to be performed by
such Tribunals.
(6) For the purpose of enabling it to
discharge its functions under this Act,
every Appellate Tribunal shall have a
Registrar and such other staff on such
terms and conditions of service as may be
prescribed by rules :
Provided that the Registrar and staff may
be employed jointly for all or any number
of such Tribunals in accordance with the
rules.”
4.For the purpose of deciding the controversy of
this case, the provisions of Sections 343 and
347B are not relevant, but Section 347C which
provides for the procedure before such Appellate
Tribunal is relevant. Particularly, the
provision of 347C sub-section (7) which is
4
relevant for the purpose of deciding the
controversy is set out below:-
“ Section 347C - Procedure of the
Appellate Tribunal -
xxx xxx xxx
(7) Every Appellate Tribunal, shall, in
addition to the powers conferred on it
under this Act, have the same powers as
are vested in a Civil Court while trying
a suit under the Code of Civil Procedure,
1908 (5 of 1908), in respect of the
following matters, namely:--
(a) summoning and enforcing the
attendance of persons and examining them
on oath;
(b) requiring the discovery and
inspection of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or
copies thereof from any court or office;
(e) issuing commisisons for the
examination of witnesses or documents;
and
(f) any other matter which may be
prescribed by rules, and every proceeding
of an Appellate Tribunal in hearing or
deciding an appeal or in connection with
execution of its order, shall be deemed to
be a judicial proceeding within the
meaning of sections 193 and 228 and for
the purpose of section 196, of the Indian
Penal Code (45 of 1860), and every
Appellate Tribunal shall be deemed to be a
5
Civil Court for the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973, (2 of 1974).”
5.
From a perusal of the provisions of Section 347A
and 347C, sub-clause (7), it is clear that the
said tribunal shall be manned by a person who is
or has been a District Judge or an Additional
District Judge or has, for at least ten years,
held a judicial office in India [Section 347A,
sub-clause (3)]. Insofar as Section 347C is
concerned, it is very clear that such tribunal
shall have in certain matters, the trappings of a
Civil Court trying a suit under the Civil
Procedure Code. Clause (f) of sub-section (7) of
Section 347 further provides that proceedings
before such tribunal shall be judicial
proceedings within the meaning of Section 193 and
Section 228 for the purpose of Section 196 of the
Indian Penal Code and every Appellate Tribunal
shall be deemed to be a Civil Court for the
purpose of Section 195 and Chapter XXVI of the
Code of Criminal Procedure.
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6.
The provisions of Section 253 of the NDMC Act are
virtually on the same lines. Under sub-section
(3) of Section 347A and sub-section (3) of
Section 253 of the NDMC Act, a person shall not
be qualified for appointment as a presiding
officer of an Appellate Tribunal unless he is, or
has been, a District Judge or an Additional
District Judge or has, for at least ten years,
held a judicial office. Similarly, Section 355
of the NDMC Act virtually is pari materia with
sub-section (7) of Section 347C of the said Act.
Therefore, on a reading of the aforesaid two
provisions it is clear that the Appellate
Tribunals created under the aforesaid statutes
are quasi judicial bodies with the trappings of
the Civil Court and that they are manned by
judicial officers of considerable experience. In
discharging their functions, such bodies are
acting as a Civil Court in respect of some of its
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functions, and the proceedings before such bodies
are judicial proceedings.
7.However, an appeal is provided against the order
of such Appellate Tribunals under both the
statutes.
8.Under Section 347D of the said Act, such appeal
shall lie to the Administrator. The relevant
provision is set out below:-
“ Section 347D - Appeal against orders of
Appellate Tribunal - (1) An appeal shall
lie to the Administrator against an order
of the Appellate Tribunal, made in an
appeal under section 343 or section 347B,
confirming, modifying or annulling an
order made or notice issued under this
Act.
(2) The provisions of sub-sections (2)
and (3) of section 347B and section 347C
and the rules made thereunder, shall, so
far as may be, apply to the filing and
disposal of an appeal under this section
as they apply to the filing and disposal
of an appeal under those sections.
(3) An order of the Administrator on an
appeal under this section, and subject
only to such order, an order of the
Appellate Tribunal under section 347B,
and subject to such orders of the
Administrator or an Appellate Tribunal,
an order or notice referred to in sub-
section (1) of that section, shall be
final.”
8
9.
Similarly, under Section 256 of the NDMC Act,
appeal also lies to the Administrator. Both the
sections, namely, Section 347D of the said Act
and Section 256 of the NDMC Act are couched in
similar terms. Under both the Acts, the
jurisdiction of the Civil Court has been barred;
vide Section 347E of the said Act and Section 257
of the NDMC Act.
10.
The main question which was raised in the writ
petition moved before the High Court was whether
an appeal from an order of the Appellate Tribunal
constituted under the aforesaid two Acts can be
heard and decided by the Administrator. The term
“Administrator” has been defined under Section
2(1) of the said Act as follows:-
“Section 2 – Definitions.- In this Act,
unless the context otherwise requires,--
(1) "Administrator" means the Lieutenant
Governor of the National Capital
Territory of Delhi;”
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11.
Under Section 2(1) of the NDMC Act, the term
“Administrator” has been defined as follows:-
“Section 2 – Definitions.- In this Act,
unless the context otherwise requires,
(1)"Administrator" means the
Administrator of the National Capital
Territory of Delhi;”
12.On a comparison of the aforesaid definitions, it
is clear that there is not much difference in the
aforesaid two definitions and by Administrator is
meant “Lieutenant Governor of the National
Capital Territory of Delhi”.
13.
Mr. Harish Salve, learned senior counsel, who on
the request of the Court appeared as an Amicus
Curie in this matter, contended that the
aforesaid provision of hearing of the appeal by
the Administrator from an order of the Appellate
Tribunal is violative of the concept of judicial
review which is enshrined in our Constitution.
The learned counsel submitted that the order of
the Appellate Tribunal is certainly a quasi
judicial one being passed by Judicial Authority
10
which has the trappings of the Court and the
appeal from such an order cannot lie to any
authority except a judicial authority.
14.
Under our constitutional scheme it was contended,
an executive authority cannot entertain an appeal
from an order passed by the judicial authority
even though such judicial authority is acting in
a quasi-judicial capacity. In support of this
contention, reliance was placed on the judgment
of this Court in the case of P. Sambamurthy and
others v. State of Andhra Pradesh and another ,
(1987) 1 SCC 362, wherein a Constitution Bench of
this Court speaking through Chief Justice
Bhagwati examined the constitutional validity of
Article 371D (5) of the Constitution, inserted by
nd
32 Constitution Amendment Act, 1973. In P.
Sambamurthy (supra) , this Court was called upon
to decide an issue similar to the one at hand.
Clause (3) of Article 371-D provided for the
creation of an administrative tribunal for the
11
State of Andhra Pradesh so as to exercise
jurisdiction with respect to the matters
mentioned in sub clauses ( a ), ( b ) and ( c ). Clause
(5) however, subjected the decision of the said
administrative tribunal to the confirmation of
the State Government. The Court held it as
violative of the principle of ‘rule of law’,
insofar it placed the power of reviewing the
decision of a quasi judicial tribunal in the
hands of the executive which according to this
Court, contravened the principle of judicial
review. This Court said:
“…The State Government is given the power
to modify or annul any order of the
Administrative Tribunal before it becomes
effective either by confirmation by the
State Government or on the expiration of
the period of three months from the date
of the order….It will thus be seen that
the period of three months from the date
of the order is provided in clause (5) in
order to enable the State Government to
decide whether it would confirm the order
or modify or annul it. Now almost
invariably the State Government would be a
party in every service dispute brought
before the Administrative Tribunal and the
effect of the proviso to clause (5) is
that the State Government which is a party
12
to the proceeding before the
Administrative Tribunal and which contests
the claim of the public servant who comes
before the Administrative Tribunal seeking
redress of his grievance against the State
Government, would have the ultimate
authority to uphold or reject the
determination of the Administrative
Tribunal….Such a provision is, to say the
least, shocking and is clearly subversive
of the principles of justice.” (See page
368)
15.
This Court further explained that “…Now if the
exercise of the power of judicial review can be
set at naught by the State Government by
overriding the decision given against it, it
would sound the death knell of the rule of law.
The rule of law would cease to have any meaning,
because then it would be open to the State
Government to defy the law and yet to get away
with it. The proviso to clause (5) of Article
371-D is therefore clearly violative of the basic
structure doctrine.”
16.
In a subsequent Constitution Bench decision of
this Court in L. Chandra Kumar v. Union of India
13
and others , AIR 1997 SC 1125, Chief Justice
Ahmadi, after an analysis of different decisions
of this Court, affirmatively held that judicial
review is one of the basic features of our
Constitution. Such a finding of this Court,
obviously means that there cannot be an
administrative review of a decision taken by a
judicial or a quasi judicial authority which has
the trappings of a court. Since judicial review
has been considered an intrinsic part of
constitutionalism, any statutory provision which
provides for administrative review of a decision
taken by a judicial or a quasi judicial body is,
therefore, inconsistent with the aforesaid
postulate and is unconstitutional.
17.
The learned senior counsel for the Union of India
in this case has sought to support the impugned
judgment by referring to the decision of this
Court in the case of Indo-China Steam Navigation
Company Limited v. Jasjit Singh, Additional
14
Collector of Customs, Calcutta, and Others (AIR
1964 SC 1140). The said decision deals with the
provisions of the Sea Customs Act, 1878, which is
a pre-Constitutional law. Apart from that, the
scheme of the Sea Customs Act would show that
when a dispute is raised by an aggrieved party
either by way of an appeal or revision, that
dispute has to be decided in the light of the
facts adduced in the proceedings. And this Court
held that the decision of such an authority
amounts to a decision which is given in
accordance with the principles of natural justice
and such proceedings are quasi judicial in
nature. This Court also accepted that even though
the status of the customs officer who adjudicates
under Section 167 (12A) and Section 183 of the
Act is not that of the tribunal, that does not
make a difference when the matter reaches the
stage of appeal and revision. On the basis of
such reasoning, this Court held that when such
disputes are decided by appellate or revisional
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authority, it becomes a tribunal within the
meaning of Article 136 of the Constitution and
such tribunals being invested with the judicial
power of the State are required to act judicially
and that they are tribunals within the meaning of
Article 136 of the Constitution.
18.
In the instant case, the issue is totally
different. Here the issue is whether an order
passed by a quasi judicial authority, which has
the trappings of a civil court, can be reviewed
by an administrative authority. Therefore, the
ratio in Indo-China Steam Navigation Company
(supra) does not support the case of the Union of
India.
19.
Mr. Nagendra Rai, learned senior counsel for the
third respondent also wanted to support the
impugned judgment by relying on the Constitution
Bench decision of this Court in the case of
Harinagar Sugar Mills Ltd., v. Shyam Sunder
16
Jhunjhunwala and others (AIR 1961 SC 1669). In
that case the issue raised was that of a
company’s power to refuse registration of
transfer of share. On the refusal to register the
transfer of shares, the aggrieved party has two
remedies for seeking relief under the Companies
Act. One was to apply to the Court for
rectification of register and the other was to
appeal to the Central Government under Section
111 of the Act against the resolution of the
company refusing to register the share. In such a
situation, this Court held that when Government,
in exercise of its power of appeal under Section
111 Clause (3) is acting it is invested with the
judicial power of the State to decide disputes
according to law. In such a case, the Central
Government is acting as a Tribunal and it is
amenable to the jurisdiction of this Court under
Article 136. (See paras 10 and 23 of the report).
17
20.
As noted above, the issue in this case is not
whether the administrator under the aforesaid
statutory provision is a tribunal under Article
136 of the Act. The issue is, as discussed above,
whether the administrative authority can sit in
appeal over the decisions of a judicial or quasi
judicial authority which has the trappings of the
Civil Court. Therefore, the decision in Harinagar
(supra) cannot sustain the impugned judgment.
21.
Even though the Administrator under the aforesaid
two Acts may be the Lieutenant Governor of the
National Capital Territory of Delhi which may be
a high constitutional authority, it cannot be
disputed that the said authority is an executive
authority.
22.
Learned senior counsel for Delhi Municipal
Corporation argued by referring to the provisions of
Article 239AA of the Constitution, where provisions
in respect to Delhi have been made. For a proper
18
appreciation of this question, Article 239AA,
sub-article (1) is set out below:-
“ 239AA. Special provisions with respect
to Delhi.- (1) As from the date of
commencement of the Constitution (Sixty-
ninth Amendment) Act, 1991, the Union
territory of Delhi shall be called the
National Capital Territory of Delhi
(hereafter in this Part referred to as
the National Capital Territory) and the
administrator thereof appointed under
Article 239 shall be designated as the
Lieutenant Governor.”
23.
In this connection, we can also refer to the
provision of Government of National Capital
Territory of Delhi Act, 1991, namely, Section 41
and particularly Section 41(3). Section 41 runs
as under:
“ 41. Matters in which Lieutenant Governor
to act in his discretion.
(1) The Lieutenant Governor shall act in
his discretion in a matter-
(i) which falls outside the purview of
the powers conferred on the
Legislative Assembly but in
respect of which powers or
functions are entrusted or
delegated to him by the President;
or
(ii) in which he is required by or
under any law to act in his
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discretion or to exercise any
judicial or quasi-judicial
functions.
(2) If any question arises as to whether
any matter is or is not a matter as
respects which the Lieutenant Governor is
by or under any law required to act in his
discretion, the decision of the Lieutenant
Governor thereon shall be final.
(3) If any question arises as to whether
any matter is or is not a matter as
respects which the Lieutenant Governor is
required by any law to exercise any
judicial or quasi-judicial functions, the
decision of the Lieutenant Governor
thereon shall be final.
24.
By referring to the aforesaid two provisions, the
learned counsel argued that the Administrator,
who is none other than the Lieutenant Governor,
has no connection with the State and is totally
independent. Therefore, when he hears the
appeal, he does it as an independent appellate
authority. This Court is unable to accept the
aforesaid contention. It is not suggested for a
moment that the Administrator, who is the
Lieutenant Governor in Delhi is not acting
independently. The question is: having regard
20
to the concept of rule of law and judicial
review, whether a review by an executive
authority of a decision taken by the judicial or
quasi-judicial authority which has the trappings
of the Court is permissible. In view of the
consistent opinion expressed by this Court in P.
Sambhamurty (supra) and L. Chandra Kumar (supra) ,
discussed above, we are unable to uphold the
constitutional validity of Section 347D of Delhi
Municipal Corporation Act, 1957 and Section 256
of the NDMC Act. Both the aforesaid provisions
are, therefore, declared unconstitutional being
violative of Article 14 of the Constitution. In
a recent Constitution Bench judgment of this
Court in Union of India v. R. Gandhi, President,
Madras Bar Association [(2010) 11 SCC 1], Justice
Raveendran, speaking for the unanimous Bench
held:-
“102. The fundamental right to equality
before law and equal protection of laws
guaranteed by Article 14 of the
Constitution, clearly includes a right to
21
have the person’s rights, adjudicated by a
forum which exercises judicial power in an
impartial and independent manner,
consistent with the recognised principles
of adjudication. Therefore wherever access
to courts to enforce such rights is sought
to be abridged, altered, modified or
substituted by directing him to approach
an alternative forum, such legislative Act
is open to challenge if it violates the
right to adjudication by an independent
forum. Therefore, though the challenge by
MBA is on the ground of violation of
principles forming part of the basic
structure, they are relatable to one or
more of the express provisions of the
Constitution which gave rise to such
principles. Though the validity of the
provisions of a legislative Act cannot be
challenged on the ground it violates the
basic structure of the Constitution, it
can be challenged as violative of
constitutional provisions which enshrine
the principles of the rule of law,
separation of powers and independence of
the judiciary.”
25.
In view of this decision by this Court, till a
proper judicial authority is set up under the
aforesaid Acts, the appeals to the Administrator
under Section 347D of the Delhi Municipal
Corporation Act, 1957 and also under Section 256
of the NDMC Act shall lie to the District Judge,
Delhi. All pending appeals filed under the
erstwhile provisions, as aforesaid, shall stand
22
transferred to the Court of District Judge,
Delhi. However, the decisions which have already
been arrived at by the Administrator under the
aforesaid two provisions will not be reopened in
view of the principles of prospective overruling.
26.
The judgment of the High Court is, therefore, set
aside and the appeal is allowed. There will be,
however, no orders as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
April 21, 2011
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