Amrik Singh Lyallpuri vs Union Of India & Ors

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

2

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

3

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.

6 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

7

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;"

9

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

32nd 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

15

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

19

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

23