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TMI Blog1989 (7) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed 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 Corporation 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. - Civil Appeal No. 5736 of 1985, and 508 of 1986 - - - Dated:- 13-7-1989 - Judge(s) : G. L. OZA., K. JAGANNATHA SHETTY JJ. N.N. Keswani and R.N. Keswani, Advocates, for the appellants. G. Ramaswamy, Additional Solicitor-General, S.K. Dholakia, Senior Advocate (Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi, Advocates, with them), for the respondents. JUDGMENT The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area 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 section 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 the 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 contentions and for the same relief, there was another writ petition 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, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation ignoring their sentiments and wishes, it may not result in the smooth working of the proposed Corporation which is necessary for proper development. It is, therefore, desirable to constitute the new Kalyan Corporation without including Ulhasnagar for the time being. " The High Court was not impressed with the above reasoning. 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 obligatory on the part of the Government to reconsider 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 an one-man 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 stretc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision to exclude the Ulhasnagar Municipal Council from the proposed municipal corporation, though tentative in nature, was taken. " Finally, the operative portion of the order was put in the following terms : " Therefore, without setting aside the final notification, we direct the State Government to reconsider the proposal under sub-section (3) of section 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 section 3(3) of the Act, the State Government shall make the necessary amends in the notification issued . . . In the result, therefore, the rule is made partly absolute and the State Government is directed to exercise its power under section 3, sub-section (3), of the Act in accordance with the 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-section (3) read with sub-section (4) of section 3 of the Act is issued. Since a popular local s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature and scope of the power conferred on the Government under section 3 of the Act. A Division Bench of the High Court has taken the view that that power is in the nature of a legislative process. That judgment was rendered on December 23, 24, 1982, by a Bench consisting of Shah and Deshpande JJ. It was in Writ Petition No. 706-A of 1982 (Village Panchayat Chikalthana v. State of Maharasthra). In that case, the challenge was to the validity of section 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 section 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 section 3(2) is conditioned by only two requirements, viz., (1) previous publication as contemplated by sub-section (4) of section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. All these directions were issued after recording a positive finding that the exclusion of Ulhasnagar from the Corporation 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 limitations 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. Judicial decorum and legal propriety demand that, where a learned single judge or a Division 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 subversion of judicial process not to follow this procedure. Deprecating this kind of tendency of some judges, Das Gupta J. in Mahadeolal Kanodia v. Administrator-General of West Bengal, AIR 1960 SC 936, said : " We have noticed with some regret that when the earlier decision of two judges of the same High Court in De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be 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, page 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 predictable. The question of law directly arising in the case should not be dealt with by apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry conviction within the courts, the profession and the public. Otherwise, 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 conflicting opinions. The general public would be in a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that matter with the same perception. A different vantage-point or a different quality of perception often reveals the need for choice-making where formerly no alternatives, and no problems at all, were perceived. " Holmes tells us : " The truth is, that the law is always approaching, 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 sloughed off. It will become entirely consistent only when it ceases to grow. " [Holmes, The Common Law, page 35 (1881)]. Apart from that, the judges with profound responsibility could ill-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delegated. Many of those affected by 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 representative bodies by the legislative authority is a commonplace ; but although a few statutes have specifically provided for a general process of publishing draft delegated legislation and considering objections (see, for example, the Factories Act, 1961, Schedule 4), I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative 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 legislative. " There are equally clear authorities on this point from this court. The case in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, [1980] 2 SCR 1111 ; AIR 1980 SC 882 was indeed a hard case. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention, but clarified (at page 515 of [1987] 2 SCC 510 and at page 1242 of AIR 1987 SC) : " 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 considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the rule of law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing of them in a fair way. " The principles and precedents thus enjoin us not to support the 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 good administration. It is they, and no one else, who must pass judgment on this matter. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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