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Chakravarti Etc. Vs. Union of India - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 119 of 1972
Reported in1976RLR11
ActsConstitution of India - Article 226
AppellantChakravarti Etc.
RespondentUnion of India
Advocates: P.N. Talwar,; D.R. Dhamija,; Anoop Singh,;
Cases Referred(Vidyodaya University Council v. Silva
.....could invoke jurisdiction of court under article 226 - they cannot be put off on ground that offer of property was made by government - held, petitioners interested in property and have locus standi to challenge impugned order. - - that apart, in exceptional cases, as the expresssion 'ordinarily' indicates, a person who has been prejudicailly affected by an act or omission of an authority can file a writ petition even though he has no proprietory or even fiduciary interest in the subject matter thereof, in that case the petitioner was a representative of a village; certiorari had the special advantage, unique before the rise of the declaration, that it would effectively quash an illegal decision or order which by itself inflicted no actionable wrong on the applicant, and..........not authorised but that sh. moga had not found that objector had suffered any substantial injury. sale offer made in court was followed by letter dt. 9/11-12-70 offering transfer for rs 1,10,000.00. it was accepted on 17-12-70. price was raised to rs. 1,20,000.00 on 3.5.71. it was also accepted. in revision order dt. 17.11.71, sh. pathak, joint secretary to govt. did not advert to the facts of offer and acceptance. petitioners filed writ against this order of 17.11.71. after giving these facts in detail, judgment para 12 onwards is : (2) points that arise are ;- (1)whether the petitioners have locus standi to challenge the impugned order passed by the government (2) whether the impugned order could have been passed contrary to the express stand taken by the government before this court,.....

S. Rangarajan, J.

(1) Petitioners, Respdt 5 & 6 were displaced persons from Pakistan. They were occupying property which was evacuee (Saleable). Petitioners asked for allotment of the same but the department ordered its sale by auction. Respondent 6 filed Writ against order of sale. It was dismissed on 27.4.65. In sale notice property was wrongly described as at 'Faizganj instead of at Faiz Road. Auction took place on 12.9.66. Bid of Respdt. 6 was highest. On 22.8.67, Asst. Settlement Commissioner, Mr. S.P. Sud, accepted objections that there was material irregularity in sale and substantial injury took place and ordered re-auction to begin from the bid of objector who should deposit 20% of the bid as security. The security was not deposited and sale did not take place. Petitioner 1 & 2 Respdt 5 filed writag ainst auction. In reply affidavit. Chief Settlement Commissioner had stated that Mr. S.P. Sud had set aside the sale on 22.8.67. Respdt. 6 also stated this claiming that the Writ had become infructuous. During Court proceedings, Government had offered to transfer property jointly to petitioners and Respdt 5 & 6. On 16-3-70, petition was dismissed as having become infructuous. Sh. S.P. Sud then on 4.6.70 gave final shape to his order of 22-8-67 and rejected bid of respdt. 6 made in 1966. Respdt. 6 appealed against this claiming that, amongst other grounds. Sh. S.P. Sud was not authorised to accept or reject the bids. Appeal was rejected by Sh. Moga, Settlement Commissioner on 7-6-71. Respdt. 6 then filed revision to Government U/S 33 of Displaced Persons (C & R) Act 1954 which was accepted on 17-11-71, not on the ground that Sh. S.P. Sud was not authorised but that Sh. Moga had not found that objector had suffered any substantial injury. Sale offer made in Court was followed by letter dt. 9/11-12-70 offering transfer for Rs 1,10,000.00. It was accepted on 17-12-70. Price was raised to Rs. 1,20,000.00 on 3.5.71. It was also accepted. In revision order dt. 17.11.71, Sh. Pathak, Joint Secretary to Govt. did not advert to the facts of offer and acceptance. Petitioners filed writ against this order of 17.11.71. After giving these facts in detail, judgment para 12 onwards is :

(2) Points that arise are ;-

(1)Whether the petitioners have locus standi to challenge the impugned order passed by the Government (2) Whether the impugned order could have been passed contrary to the express stand taken by the Government before this Court, namely, that the sale had been set aside (3) Whether the impugned order could in any case have been passed to the prejudice of those to whom the property had been offered subsequent to the dismissal of the Writ Petition (C.W. 743-D of 1966) without notice to them and/or without hearing them-whether it was even passed in ignorance of the said offer-and is vitiated for this reason also (4) Whether on a proper construction of the order passed by Shri S P. Sud he had only set aside the sale in favor of respondent No. 6 subject to the condition of the objectors depositing the amount needed for a fresh starting bid, and giving undertaking, security etc., as co tended by respondent No. 6 (5) Whether the above contention (No. 4) of respondent No. 6 is open to him in this proceeding in view of the impugned order itself not proceeding on that ground (6) Whether Shri S.P. Sud. was empowered to set aside the auction sale conditionally, if he was not, what is the legal effect of the direction given by him concerning the manner in which the re-auction should take place (7) Whether the impugned order proceeds on patently erroneous view of the order passed by Shri S.P. Sud (Assistant Settlement Commissioner) on 22-8-1967, or at least ignoring a material portion of his order and is vitiated for this reason alone ?

(3) Point 1. The question concerning the petitioners' locus standi to challenge the impugned order passed by the (Government under Section 33 of the Act is one which falls for decision even at the outset. If the petitioners do not have locus standi there will hardly be any necessity to enter into the merits of the writ petition. Article 226 of the Constitution confers power on the High Courts, notwithstanding power given to the Supreme Court under Article 32, to issue directions, orders or writs in the nature of habeas corpus, mandamus' prohibition, quo warrants and certiorari or any other order or direction for enforcement of any of rights conferred by Part Iii or for any other purpose.

(4) The question is relatively simpler when the petitioner has a personal or individual right in the subject matter of the petition. The Supreme Court had observed in Calcutta C. Co. (Proprietary) Ltd. V. State of West Bengal : AIR1962SC1044 that 'ordinarily' a petitioner under Article 226 should be one who has such a personal or individual right in the subject matter of the petition. This was explained by Subba Rao J., (as he then was), witing for the Supreme Court, in Gadde Venkateswara Rao v. Government of A.P. A.I.R. 1966 S C. 829. A person's right, it was pointed out, need not be in respect of a proprietary interest : it can also relate to the interest of a trustee. That apart, in exceptional cases, as the expresssion 'ordinarily' indicates, a person who has been prejudicailly affected by an act or omission of an authority can file a writ petition even though he has no proprietory or even fiduciary interest in the subject matter thereof, In that case the petitioner was a representative of a village; he was the President of the Panchayat Samithi of that village. The villages had formed a committee, with the petitioner as President, for the purpose of collecting contributions from the villagers for setting up a primary health centre in that village. The collections amounting to Rs. 10,000.00 were deposited with the Block Development Officer but not in time. Despite the formal inauguration of the health centre at this village the centre was resolved to be located permanently at another village according to the resolution of the Panchayat Samithi of a later date. The petitioner only represented the villagers for a public purpose but had no personal or proprietory right; it was not possible to regard the appellant as anything more than the representative of the committee, which were trustees in law for the amounts collected from the villagers for a public purpose. When his locus standi to file a petition under Article 226 was questioned the above observations were made upholding his right to file the writ petition.

(5) Even in England modern cases show that the Courts will intervene in a wider manner than in the past. The following observations of all the three Judges of the Court of Appeal might be read with profit. Lord Denning, M.R. in Re Liverppol Taxi owners Association (1972 (2) All ER 589) observed.

'THEwrits of prohibition and certiorari lie on behalf of any person who is a person aggrieved, and that includes any person 'whose interests may prejudicially be affected by what is taking place. It does not include a mere busy body who is interfering in things which do not concern him but it includes any person who has a genuine grievance because something has been done or may be done which affects him : see Attorney-General of Gambia v. N' Jie (1961 All Er 504. 1961 Ac 617) and Maurice v. London County Council (1964 I All Er 779. 1964 2 Ob 362, per Lord Denning M.R. The taxi cab owner's association here have certainly a locus standi to apply for relief.'

(6) Roskill, L.J. observed (on p. 596) : 'The power of the courts to intervene is not limited, as ones was thought, to those. cases where the function in question is judicial or quasi-judicial. The modern cases show that this court will intervene more widely than in the past. Even where the function is said to be administrative, the court will not hesitate to intervene in a suitable case if it is necessary in order to secure fairness. It has been said by counsel for the corporation that there is no precedent for this court to intervene and enforce an undertaking which he claims to be of no legal effect and thus prevent the council giving effect to delegated legislation of the validity of which there is no doubt. For my part. I am not prepared to be deterred by the absence of precedent if in principle the case is one in which the court should interfere.'

(7) Sir Gordon Willmer observed (on p. 598)

'ITseems to me that in these very special circumstances, having regard to the history of how this matter hid been dealt with m the past and having reeard especially to the giving of the undertaking, the applicants are justified in regarding themselves as aggrieved by what I can only describe as unfair treatment on the oart of Liverpool Co-opention. Accordingly, it seems to me that this is indeed a proper case in which this court can and shouH interfere- in order to ensure that a decision should be arrive' at only after discussion and after hearing all proper representations of the parties interested.'

(8) The facts of the said case would also be material for the present case for they have a bearing also on the second question formulated abive. Sine' 1948 the number of licenses for tixi cabs in the city of Liverpool had been limited to 300 by the licensing authority which derived its licensing powers from an Act of 1847. The taxi cab owners wanted the license to remain at 300 The taxi cab drivers, however, wanted the number to be increased to meet competition from unlicensed private hire cars. When the taxi cab owners association took up this matter with the Corporation after learning about a proposal to increase the number of licenses the town clerk wrote to the solicitors on 24-7-1970. The sub committee of the Corporation before whom the association was represented made a proposal to increase the licenses by 50 in 1972 and by 100 in 1973 and without limit later. The city council considered the sub committee's proposal and resolved to approve the proposal subject to further consideration of a proposal which had been made by the sub-committee for issuing unlimited licenses after 1.1.74. The chairman of the sub committee gave an undertaking at the city council meeting on the 4th that no additional licenses would be issued until the proposed legislation to control private cars had come into force. On being informed that the chairman's undertaking was unlawful the sub- comcommittee met again on 16-11-1971 and without informing the association put forward new proposals for increase of licenses from 11.1.72 by 50 and that after 1.4.1973 there will be no limit on issue of licenses. The association which had not been officially told of the proposals but came to know indirectly a ked for a further hearing. The town clerk replied to the association to state 'new facts' by return post, which was actually impossible for the association because of the shortness of time. In these circumstances the parent committee confirmed the sub committee's proposals. On 22-12-1971 the city council met and resolved to increase the licenses in accordance with the proposals of the sub committee and the earlier resolution of 4th August passed by the city council was rescinded This resolution of 22nd December, 1971. of the council was contrary to the undertaking given by the chairman of the sub-committee The association applied to the Divisional Court for prohihition. mandamous and certiorari which was refused. On appeal Lord Denning, M.R. held that the Corporation was wrongly advised that the undertaking given by the chiirman of the sub committee was not binding on them whereas it was certainly binding unless overridden by law in public interest and issued a writ of prohibition to prevent the Corporation Committee from acting on those resolutions. Since according to English Practice certiorari could not issue-a kind of technical disability which has not been felt by the Courts in India.

(9) After studying numerous English decisions on this question, none of which was cited to me at the bar, it seemed to me to be useful to refer to Re Liverpool Taxi-owners Association which is the closest to the present case not only on the question of locus standi but also on the second point, set out above, to which I shall revert again.

(10) I shall not discuss the other English (uses bearing, on this aspect It may, however be useful to refer to what two leading English authors have said on this question : Prof. H.W.R. Wade on Administrative Law (3rd Ed. 1971).

'CERTIORARIis used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed-that is to say, it Is declared completely invalid, so that no one need respect it. This is thereforee a remedy of public rather than of private law. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is usually a private complaint which sets the Crown in motion' (p. 128) Certiorari. thereforee is one of the various means by which an ultra virus act may be challenged. Certiorari would issue to call up the records of justices and commissioners for examination in the Court of King's Bench and for quashing if error appeared on their face or if there was an excess of jurisdiction. Certiorari had the special advantage, unique before the rise of the declaration, that it would effectively quash an illegal decision or order which by itself inflicted no actionable wrong on the applicant, and against which the remedies of private law were thereforee unless (p. 129). These remedies thus have a special 'public' aspect, which is one of their valuable features.

(11) It follows that an applicant for certiorari or prohibition does not have to show that some legal right of his is at stake. If the action is an excess or abuse of power, the court will quash it at the instance of a mere stranger, though it retains discretion to refuse to do so if it thinks that no good would be done to the public (R. v. Surrey J.J. (1870) L.R. 466) In other words, these remedies are not restricted by the notion of locus standi Every citizen has standing to invite the court to prevent some abuse of power, and in doing so he may claim to be regarded not as a meddlesome busybody but as a public benefactor. Lord Parker has said of certiorari:

'ANYBODYcm apply for it-a member of the public who his been inconvenienced, or a particular party or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a-person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex-debito justiciae' (p. 138). The wide scope of these remedies may be of crucial importance where the applicant is in fact genuinely aggrieved but has no grievance in the eye of the law. He may, for example, object strongly to a building for which his neighbour has been granted planning permission, although legally this is no concern of his. If he can show that the permission is void, for example because the principles of natural justice have been violated, he may have it quashed by certiorari (As in R. v. Hendon R.D.C. (1933) 2 K.B. 696) even though he could not have obtained a declaratory judgment because of his lack of personal legal right (as In Gregory v. Camden L.B.C (1966) 1 W.L.R. 899). This emphasis on public interest rather than private right is not confined to the prerogative remedies, but it is one reason why they play so vital a part in our public law. In private law they are quite out of place, so that they cannot be used, for instance, for enforcing a contract of employment (Vidyodaya University Council v. Silva (1965) 1 Wlr 77)'.

(P. 139)

(12) S.A. de Smith on Judicial Review of Administrative Action (Second Ed.), Says :

'UNTILrecently there was widespread impression that locus standi was confined to persons with a direct interest in the subject matter of the impugned order. But in only one English case had it expressly been held that a stranger could have no locus standi and there were numerous dicta supporting the contrary view (p. 429). A person aggrieved, i.e., one whose legal rights have been infringed or who has any other substantial interest in impugning an order, may be awarded a certiorari ex debito justiciae if he can establish any of the recognised grounds for quashing : but the court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief. Only in highly exceptional circumstances would the court exercise its discretion in favor of applicant who was not a person aggrieved' (pp 429-30),

(13) The following passages (paragraph 49, 52-53) in the Fourth Editition of Halsbury's Laws of England, Vol. I Administrative Law annotated by S.A. de Smith himself, may also be usefully read :

'INorder to maintain proceedings successfully. a plaintiff or applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter bebore the court. The Attorney General, acting on behalf of the public, may institute proceedings in situations where no individual would have title to sue ! In other contexts locus standi depends primarily on the nature of the remedy or relief sought, and is considered subsequently in relation to the particular remedy. Where, however, a right of appeal to the court against an administrative or judicial decision is conferred, the right is frequently confined to a 'parson aggrieved', or a person who claims to be or feels aggrieved. Locus Standi to impugn administrative orders otherwise than by way of appeal is often similarly restricted ; and the concept of a 'person aggrieved' has also influenced the law relating to entitlement to bring proceedings for non-statutory remedies. The meaning of a- 'person aggrieved' may vary according to the context......He is normally required to establish that he has been denied or deprived of something to which he is legally entitled...... In some contexts, however. the expression has been interpreted more broadly to include persons objecting to a licensing application that has been granted, and other persons who have a substantial grievance in respect of an order, proposal or decision prejudicially affecting their interests but not encroaching directly upon them. '

(14) The discussion in this case is limited to a private situation, as distinct from a public one. The kind of 'special interest' in the proceedings which the petitioner should possess when he claims to represent the public interest, a requirement suggested in some decisions, does not fall for decision in this case. But it is necessary to notice that a remedy under administrative law, of an individual aggrieved asking for a writ of certiorari or any other writ or direction to issue is a remedy of public rather than private law. The need for resorting to these remedies arises, even in a pri-'ate context, because the remedies of private law are either inadequate or useless for the pur pose. Articles 226 of the Constitution is not limited to the enforcement of any of the rights conferred by Part Iii ; it is so worded as to take in the issue of writs etc. 'for any other purpose' as well. It may be for the enforcement of any other right of the petitioner which does not fall under Part III. In exceptional circumstances, as Subba Rao, J. pointed out in Gadde Venkateswcra Rao, a person who has been 'prejudiced' by the impugned order can file a petition under Article 226. The question, thereforee, is not whether the petitioners in the present case can enforce the offer of the property to them and respondents 5 and 6 against the Government or not. They are entitled to say that but for the impugned order the Govt. would have been willing to proceed with the said offer, and may still proceed with the said offer. As would be noticed presently the said order was made, as the Government was entitled to make. under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 ; it was within the competence of the Government to do so Under Rule 87 of the Displaced Persons (Compensation & Rehabilitation) Rules. 1955 any property forming part of the compensation pool may be sold by public auction or by inviting tenders or in such other manner as the Chief Settlement Commissioner may by general or special order direct. There is no reason to think that the Government having made the offer to the persons concerned in this case about the property which was admitted by the Government to form part of the compensation pool will go back on the said offer. The petitioners, thereforee are really persons aggrieved by the impugned order and if there is any illegality in the said order or other circumstances vitiating the said order the petitioners could invoke the jurisdiction of this Court under Article 226 and they cannot be merely put off on the ground that the offer of the property by the Government to them and respondents 5 and 6 in this case is something which they could not legally enforce against the Government The officials of the Rehabilitation Department constituted under the Act have processed the offer to sell the property for Rs. 1,20,000.00 jointly to the petitioners and respondents 5 and 6. The concerned files were sent for and perusde. Even the 6th respondent who was agitating his rights as a purchaser of the property under the earlier auction sale and who had filed an appeal against the said decision, which was then pending had- said on 3.5. 1971 that he also was willing to purchase the property jointly with the others as per the offer made to them subject only to the result of the appeal. This offer was itself mide after not only the Government, but also the present sixth respondent had stated not only in the returns but also during the hearing of the writ petition before Rajinder Sachar, J. that the earlier auction sale in which the 6th respondent was the highest bidder had been set aside and after the writ petition was dismissed as having been unnecessary in view of this stand, the said offer to all the petiiioners and respondents 5 and 6 jointly was made in respect of this very property, on the footing that the prior auction sale in favor of 6th respondent had been set aside and that the property was part of the compensation pool.

(15) Quite contrary to the stand taken by the Government itself and by the 6th respondent the latter had moved the Government under section 33 of the Act to set aside the order rejecting the auction sale in his favor. The question whether the Government was justified in setting aside the impugned order under section 33 of the Act is one which will be discussed later when I discuss point (2). The petitioners are clearly interested in the property by reason of the same having been of.

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