2023 (5) TMI 1460 - SC - Indian Laws

Order directing State to implement PESA rotations set aside; Rule 4(2) proviso repealed, 2008 writ dismissed

Dhanraj Versus Vikram Singh & Ors.

SC set aside the High Court's order directing the State to implement PESA rotations and to ignore certain provisions of the 1961 Act and 1996 Rules. The ... Seeking directions to respondents to follow rotation policy for the general elections to Panchayats in the State of Maharashtra to be held in the year 2007, in compliance with the Maharashtra Zilla Parishad and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996 - High Court proceeded to issue a Writ of Mandamus directing the State to implement the provisions of PESA for the elections of Panchayats at all levels in the districts of Dhule and Nandurbar - HELD THAT:- The law is well settled. There is always a presumption of constitutionality in favour of a statutory instrument. Secondly, in the writ petition, there are no pleadings to show in what manner there is a repugnancy between the relevant provisions of the 1961 Act and Section 4(g) of PESA. Thirdly, there is no challenge to the provisions of the 1961 Act and the rules framed thereunder in the writ petition. Therefore, obviously, the State had no notice of the contentions which were raised at a time of hearing of the writ petition regarding the validity of the 1961 Act. Even a notice was not issued to the Advocate General of the State. In absence of any specific challenge to the validity of the statutory provisions, the High Court ought not to have undertaken the exercise of going into the question of repugnancy. It is failed to understand the propriety of the observation that the law departments of the State and the Union should have a dialogue to remove the discrepancy. Moreover, the High Court has not proceeded to strike down the relevant provisions which were held to be repugnant to PESA. It only directs that till the discrepancy is removed by the legislature, certain provisions of the 1961 Act and the rules framed thereunder shall be ignored. Such approach by the writ Court is not at all called for. Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory provisions - the Proviso to Rule 4(2) of the 1996 Rules framed under the 1961 Act has already been repealed. The Writ Petition is of the year 2008 and looking to the pleadings in the writ petition, it was filed only to take care of the elections which were round the corner. Moreover, considering the prayer made in the writ petition, now the writ petitioners cannot be permitted to enlarge the scope of the writ petition. The impugned judgment and order dated 31.10.2008 is set aside and writ petition No.4860/2008 filed by 6th and 7th respondents is accordingly dismissed - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether a writ court may adjudicate the constitutional validity or repugnancy of provisions of a State enactment and rules framed thereunder when no specific challenge to those statutory provisions is pleaded and the State has not been put on notice. 2. Whether a writ court may direct non-implementation or 'ignoring' of statutory provisions held to be repugnant to a central enactment without formally declaring them unconstitutional or issuing a declaration/striking down of those provisions. 3. Whether the writ court may issue a writ of mandamus directing executive authorities (including the State Election Commission) to implement provisions of a central Act in local elections in circumstances where the High Court has not adjudicated on legislative competence or validity with appropriate pleadings and notice. 4. Whether, in the facts of the petition, it was open to the High Court to recommend a dialogue between Law Departments or to make directions to legislatures in the absence of a statutory challenge and while constitutional questions were not pleaded. 5. Whether the matter ought to be remanded to permit amendment of pleadings to raise a direct challenge to the State enactment and rules after the lapse of long intervening time since filing. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Jurisdiction to adjudicate validity/repugnancy absent specific pleading and notice Legal framework: A writ court exercises constitutional jurisdiction to entertain challenges to statutes and subordinate legislation, subject to principles of notice, pleading and opportunity to the State to defend legislative validity. There is a presumption of constitutionality in favour of statutory instruments. Precedent Treatment: The Court recalled established principles that validity challenges require proper pleading and notice; reliance placed on precedents emphasising procedural fairness (learned counsel relied on decisions including the landmark administrative/constitutional jurisprudence), but the Court distinguished the present facts from those authorities because no challenge was pleaded and no notice to the State/Advocate General was given. Interpretation and reasoning: The Court reasoned that because the writ petition contained no specific averments challenging the 1961 Act or the 1996 Rules, the State was not put on notice to meet contentions of repugnancy or lack of legislative competence. The High Court's undertaking of a repugnancy analysis at the hearing therefore circumvented procedural safeguards: it ventured into issues beyond the scope of pleadings, without giving the State an opportunity to be heard on the validity/contention of legislative competence. The presumption of constitutionality and requirement of pleadings/notice made the High Court's exercise impermissible. Ratio vs. Obiter: Ratio - A writ court should not adjudicate the constitutional validity or repugnancy of statutory provisions in the absence of specific pleadings and notice to the State; procedural fairness and presumption of constitutionality preclude such adjudication. Conclusions: The High Court erred in addressing repugnancy and validity of State statutory provisions when no specific challenge was pleaded and the State had no notice to answer those contentions. Issue 2 - Power to direct non-implementation without striking down Legal framework: Constitutional courts may issue appropriate writs, but directions that effectively nullify statutory provisions ordinarily require a formal declaration of unconstitutionality or properly framed relief; the court's remedial powers must respect separation of powers and legislative processes. Precedent Treatment: The Court reinforced orthodox remedial principles - a court should not order non-implementation of statutory provisions absent a finding of invalidity properly made after hearing and notice. Interpretation and reasoning: The impugned order commanded that provisions of the State Act and rules be 'ignored for practical application' insofar as repugnancy with the central Act existed, yet the High Court did not formally strike down the provisions or hold them unconstitutional. The Court found such a direction untenable because it amounted to instructing non-application of statutory law without the legal process required to invalidate legislation. The High Court's approach intruded into legislative and executive domains by suspending statutory operation without the required judicial declaration. Ratio vs. Obiter: Ratio - A writ court cannot legitimately direct that statutory provisions be ignored in practice where it has not held them unconstitutional or otherwise invalid after appropriate notice and pleadings. Conclusions: The High Court's direction to ignore statutory provisions pending legislative reconciliation was impermissible; absent a formal judicial declaration of invalidity the court could not order non-implementation. Issue 3 - Directing implementation of central Act provisions by executive authorities (including State Election Commission) without adjudicating competence or validity Legal framework: Courts can issue mandamus to public authorities to perform statutory duties, but such directions must be grounded in law and the record; when competing statutory schemes exist, courts must be cautious before directing the executive to implement one scheme over another without legal adjudication. Precedent Treatment: The Court emphasized that mandamus cannot be used to effectuate a change in statutory regime in favour of one enactment over another without proper adjudication; prior decisions require clarity in pleadings and adversarial opportunity before issuing such commands. Interpretation and reasoning: The High Court issued a writ of mandamus directing implementation of the central Act's provisions for Panchayat elections at all levels in specified districts. The Supreme Court concluded that issuing such a mandamus, in the absence of adjudication on legislative competence or validity and without appropriate notice to the State, was beyond the High Court's jurisdiction on the pleadings before it. Ratio vs. Obiter: Ratio - A writ mandating implementation of a particular statutory scheme in preference to another cannot be issued where the necessary judicial determination of validity or repugnancy has not been made following proper pleadings and notice. Conclusions: The mandamus issued by the High Court to implement the central Act was unsustainable given the procedural and substantive deficiencies in the High Court's adjudication. Issue 4 - Appropriateness of recommending legislative dialogue or directions to legislatures in absence of statutory challenge Legal framework: Courts may, in appropriate cases, suggest legislative or executive reform, but formal directions to legislatures or administrative dialogue are unusual where courts have not adjudicated the legal questions or where parties have not sought such relief. Interpretation and reasoning: The Court found the High Court's recommendation that State and Union law departments should have a dialogue to remove discrepancy to be an impermissible intrusion and procedurally inappropriate given the absence of a statutory challenge and formal findings. Such observations went beyond adjudicatory function and fell short of judicial restraint. Ratio vs. Obiter: Obiter - The observation on dialogue and legislative reconciliation was inappropriate in the circumstances and is not a binding legal principle. Conclusions: The High Court should not have made such recommendations or directions without a proper adjudication; those remarks were beyond the scope of the writ proceedings. Issue 5 - Remand to permit amendment after long delay Legal framework: Courts may allow amendment to pleadings to enable adjudication on matters raised during hearing, subject to principles of fairness, delay and prejudice. Interpretation and reasoning: The Court refused a remand to permit amendment because the writ proceedings were old (filed many years earlier) and the original petition was time-specific (concerned with imminent elections at that time). Enlarging scope after long lapse and delay was not appropriate; applicants cannot be permitted to expand relief belatedly where initial pleadings did not put the State on notice. Ratio vs. Obiter: Ratio - Leave to amend to raise foundational constitutional challenges may be refused where delay is inordinate, the original pleadings were narrowly framed for time-bound relief, and fairness to the State is implicated. Conclusions: Remand for amendment was refused; the High Court judgment was set aside and the underlying writ petition dismissed on grounds that the High Court erred in exceeding the scope of pleaded issues and directing relief not supported by pleadings or proper adjudication. No costs were imposed.