TaxTMI 
TaxTMI 
2007 (5) TMI 619
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....he writ petition, approached the District Consumer Forum, Chamoli but the same was not decided because the term of two members of the District Consumer Forum had expired and till the filing of the petition new members were not appointed and hence the District Consumer Forum, Chamoli was not working. 5. In the counter affidavit to the writ petition it was stated by the Special Secretary, Department of Food and Civil Supplies, U.P. Government, that appropriate steps were being taken to fill up the vacancies of the District Consumer Forum, Chamoli vide paragraphs 4 to 12 of the counter affidavit. In the said counter affidavit mention was also made about the grants given by the State Government for the State Consumer Forum and also mentioned the statistics about the number of cases filed and disposed off. 6. By the impugned judgment dated 8.1.1998 the High Court apart from making observations on the merits of the controversy issued the following directions : "We direct the State Government to constitute at least five State Consumer Forums at State level as used under Section 16 of Consumer Protection Act by making necessary amendment. The State Government can also make l....
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....or the infrastructure without which the State and District Consumer Fora cannot operate. By the order dated 8.1.2001 this Court requested the Solicitor General of India to assist the Court and seek instructions. Thereafter, on 16.4.2001 the learned Solicitor General submitted that he had discussed the matter with the Chairman of the National Consumer Forum with a view to find out the difficulties being faced by the various Fora created at the National level, State level and District level so that effective steps can be taken to make these Fora functional and the object of the Act achieved. 9. Thereafter by an interim order dated 26.11.2001 this Court observed: "After hearing learned counsel for the parties we direct the Union of India to file, within two weeks from today, a comprehensive scheme with regard to the structuring of Consumer Forums at all the three levels. The emphasis has to be with regard to service conditions, not only of the members of the District, State and the National Consumer Forums but also with regard to the staff in each of the said Forums. In formulating the scheme, the report of the Bagla Commission may be taken into consideration. On ....
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.... of the members of the State and District Fora, this Court cannot override the clear language of the statute and substitute the words "the Supreme Court" for the words "the State Government" under section 10(3) and section 16(2). It is a well settled principle of interpretation that the Court cannot add or substitute words in a statute. 14. No doubt the Court can make a recommendation to the State Governments that the salaries and allowances of the members of the State and District Fora are inadequate and should be increased, but that is about as far as the Court can go. It can only make recommendations but it cannot give binding directions in this connection. By a judicial verdict the court cannot amend the law made by Parliament or the State Legislature. 15. Learned Additional Solicitor General submitted that such a direction can be given, and for this proposition he relied on the decision of this Court in All India Judges' Association & Ors. Vs. Union of India & Ors. 1993(4) SCC 288. 16. We have carefully gone through the above decision. We fully agree with the observations in this judgment that Judges should get adequate salaries and allowances to enable them to fu....
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....io by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed." 19. The principle of sub silentio has been thereafter followed by this Court in State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar (2000) 5 SCC 488, A-One Granites Vs. State of U.P. & Ors. (2001) 3 SCC 537, Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. (2003) 7 SCC 197 and State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (2004) 11 SCC 26. 20. The direction to increase the age of superannuation is really the function of the legislature or executive. It has been held in several decisions of this Court that the Court cannot fix the age of superannuation e.g. T.P. George Vs. State of Kerala, 1992 Supp. (3) SCC 191 (vide para 6).....
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....not an authority under Article 141. 24. In the present case there are clear statutory provisions in Sections 10(3) and 16(2) of the Consumer Protection Act which prescribe that it is the State Government which alone can fix the salaries and allowances and conditions of service of the members of the State and District Consumer Fora. How then can the court fix them? 25. If this Court itself fixes such salaries and allowances, it will be really amending the law, and it is well settled that the Court cannot amend the law vide Union of India Vs. Association for Democratic Reforms & Anr. AIR 2002 SC 2112 and Supreme Court Employees Welfare Association Vs. Union of India & Ors. AIR 1990 SC 334. 26. This Court cannot direct legislation vide Union of India Vs. Prakash P. Hinduja AIR 2003 SC 2612 (vide para 29) and it cannot legislate vide Sanjay Kumar vs. State of U.P. 2004 ALJ 239, JT 2006(2) SC 361, Suresh Seth vs. Indore Municipal Corporation AIR 2006 SC 767 (vide para 5) and Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992 SC 96. 27. The Court should not encroach into the sphere of the other organs of the State vide N.K. Prasada vs. Government of India & Ors. JT 2004....
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....92 SC 1546." 33. In Union of India & Anr. Vs. Deoki Nandan Aggarwal AIR 1992 SC 96 (vide para 14) this Court observed : "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts should decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature, but it could not legislate itself. To invoke judicial activism to set at naught the legislative will is subversive of the constitutional harmony and comity of instrumentalities vide P.K. Unni v. Nirmala Industries, (1990) 1 SCR 482 at p.488: (AIR 1990 SCC 933 at p.936), Mangilal v. Sugamchand Rathi (1965) ....
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....e Act who can do the needful in this connection, and this Court cannot arrogate to itself the powers given by the Act to the said authorities. 36. For instance, the salaries and allowances of member of the State and District Fora can only be prescribed by the State Government. We have been informed that in some States these salaries and allowances are very low. Be that as it may, this Court cannot arrogate to itself the powers and functions of State Government in this connection. Different State Governments have different constraints and considerations e.g. financial constraints, the number of cases, etc. and it is entirely for the State Governments to exercise the powers prescribed to them by the Act. Similarly it is entirely for the Central Government to perform the functions given to it by the Act, and this Court cannot interfere with the Central or State Government in the exercise of their functions. At best this Court or the High Court can make recommendations for increase of salaries, allowances and betterment of working conditions, etc. but there its jurisdiction ends. It cannot give binding directions in this connection. 37. We regret to say that even the interim orde....
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....oper for one organ of the State to encroach into the domain of others. 43. In this connection, this Court in Asif Hameed & Ors. Vs. State of Jammu and Kashmir & Ors. AIR 1989 SC 1899 observed (vide para 17 to 19) : "Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. The Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The Legislature and executive, the two facets of the people's will, have all the powers including that of finance. The Judiciary has no power over t....
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....ranch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers." 44. Courts have to maintain judicial self-restraint and they should not try to take over the functions of the Executive or the Legislature. In the present case, we can understand the concern of the High Court that the District Consumer Forum, Chamoli and other Consumer Fora in U.P. were not functioning properly, but then it could not and should not have overstepped its limits and taken over the functions of the authorities prescribed in Section 9 and other provisions of the Act. 45. It is well settled that the High Court cannot takeover the function of the statutory authorities under an Act, vide G. Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar, Tanjore District, Madras vs. Raman and Raman Ltd. Kumbakonam, Tanjore District and oth....
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....ruck down, but otherwise it is not for the Court to sit in appeal over the wisdom of the legislature, nor can it amend the law. 49. The Court may feel that the law needs to be amended or the Forum created by an Act needs to be made more effective, but on this ground it cannot itself amend the law or take over the functions of the legislature or executive. The legislature and the executive authorities in their wisdom are free to choose different methods of solving a problem and the Court cannot say that this or that method should have been adopted. As Mr. Justice Cardozo of the U.S. Supreme Court observed in Anderson vs. Wilson 289 U.S. 20 : "We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take this statute as we find it". 50. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciar....
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....aker Airways Ltd. vs. Department of Trade (1977) QB 643(724). 55. In writing a biographical essay on the celebrated Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote : "It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic route of skepticism by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest." (See `Essays on Legal History in Honour of Felix Frankfurter' Edited by Morris D. Forkosch). 56. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges preferences. The Court must not embarrass the legislature or the administrative authorities and must realize that the legislature and authorities have to take into account various considerations, some of which the court may not even be aware of. In the words of Chief Justice Neely: ....