2009 (9) TMI 779 - HC - Indian Laws

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 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? Held 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 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.

Issues Involved:
1. Eligibility of the Director, STPI, Hyderabad, as an officer of the Central Government not below the rank of Deputy Secretary under Section 11(1) of the SEZ Act, 2005.
2. Scope and applicability of a writ of quo warranto.
3. Interpretation of the term "its officers" in Section 11(1) of the SEZ Act.
4. The relationship and control between the Central Government and STPI.
5. Legal status and powers of the Director of STPI.
6. Locus standi of the petitioner in filing the writ petition.

Issue-wise Detailed Analysis:

1. Eligibility of the Director, STPI, Hyderabad:
The primary question was whether the Director of STPI, Hyderabad, could be considered an officer of the Central Government not below the rank of Deputy Secretary, making him eligible for appointment as a Development Commissioner under Section 11(1) of the SEZ Act, 2005. The court concluded that the Director of STPI was an employee of the STPI society, a separate legal entity registered under the Societies Registration Act, 1860, and not an officer of the Central Government. Therefore, the Director did not meet the statutory qualifications for the role of Development Commissioner.

2. Scope and Applicability of a Writ of Quo Warranto:
The court examined the scope of a writ of quo warranto, which challenges the right of a person to hold a public office. It was noted that such a writ lies against a person who is alleged to be a usurper of an office of a public nature. The court emphasized that the writ confers jurisdiction on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions.

3. Interpretation of "Its Officers" in Section 11(1) of the SEZ Act:
The term "its officers" in Section 11(1) of the SEZ Act was interpreted to mean officers of the Central Government. The court held that to be eligible for appointment as a Development Commissioner, a person must be an officer of the Central Government not below the rank of Deputy Secretary. The Director of STPI, being an employee of a society, did not fulfill this criterion.

4. Relationship and Control Between the Central Government and STPI:
The court examined whether the pervasive control of the Central Government over STPI could make its directors officers of the Central Government. It was concluded that even if STPI was under the pervasive control of the Central Government, it did not make it a department of the Central Government, nor did it make its employees officers of the Central Government.

5. Legal Status and Powers of the Director of STPI:
The court analyzed the legal status of the Director of STPI and the powers conferred upon him under various statutes. It was noted that the Director of STPI was not an officer of the Central Government and that the powers conferred on him under the Foreign Trade (Development and Regulation) Act, 1992, did not alter his status as an employee of a society.

6. Locus Standi of the Petitioner:
The court addressed the issue of the petitioner's locus standi in filing the writ petition. It was held that in quo warranto proceedings, the petitioner does not need to have a personal interest in the matter. The legality of an appointment to a public office can be challenged by any citizen, and the motives of the petitioner are irrelevant. The court found that the petitioner had established the illegality of the fifth respondent's appointment, and thus, the writ petition was maintainable.

Conclusion:
The writ petition was allowed, and the appointment of the fifth respondent as Development Commissioner of thirty Special Economic Zones in Andhra Pradesh was set aside. The court directed that a person who fulfills the statutory qualifications prescribed under Section 11(1) of the SEZ Act, 2005, be appointed as the Development Commissioner. The operation of the order was stayed for three weeks to allow the respondents to approach the Supreme Court.

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