SUNDARJAS.KANYALAL BHATIJA & ORS. v. COLLECTOR, THANE, MAHARASHTRA & ORS. JULY 13, 1989 [G.L. OZA AND K. JAGANNATHA SHETTY, JJ.) Constitution of lndia-1950. Articles 32, 136, 226 and 141-Judicial Review-Part of the Con- stitutional scheme-Law to be made clear, certain and consistent. Rules A B of natural justice-Not applicable to legislative action plenary ·or subordinate-Requirement of hearing not implied in exercise oflegisfa- C tive powers.
Bombay Provincial Municipal Corporation Act 1949-Section 3-Draft notification-Merger of municipal areas into Corporation issuance of-Government not entitled to hear the parties. On June 19, 1962, the Government of Maharashtra issued a drall notification under Section 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 and thereby proposed the formation of "Kalyan Corporation", by merging of municipal areas of Kalyan, Ambarnath, Domoivali and Ulhasnagar.
The proposal was resented to by the residents of the said areas and many objections and representa- tions by persons, companies and authorities including the municipal bodies of Ambarnath, and Ulhasnagar were made. So far as Ulhasnagar was concerned it was stated that Sindhi Community after partition has settled at Ulbasnagar and to keep the identity of' Sindhies distinct, they D E had formed All India Sindhi Panchayat Federation.
The said Federa- . tion challenged the draft notification by a Writ Petition before the High F Court. On an assurance being given by the Government before the High Court that the representation made by the Federation would be duly considered, the Writ Petition was allowed to be withdrawn. As per the assurance, the Federation was given personal hearing on their re- presentation. Only the Federation was heard, none of the other representationistS was afforded any hearing though their objections were duly considered.
After considering the matter in the manner aforesaid, G the Government decided to exclude Ulhasnagar from the proposed Corporation and accordingly a notification under section 3(2) of the Act was issued. The Corporation was th:is Constituted excluding Ulhas- nagar. Save as aforesaid no other alteration was made in the noti- fication. 405 H 406 SUPREME COURT REPORTS [1989] 3 S.C.R. A The Residents of Ambarnath municipal area were not satisfied.
They moved the High Court challenging the validity of the notification issued under section 3(2) of the Act. Their main contention was that there has been hostile discrimination in the matter as only the Federa- tion was heard and none else. They also asserted that the establish- ment of a Corporation without Ulhasnagar, keeping in view the B geographical contiguity was- unintelligibe and incomprehensible. c According to them it was arbitrary and opposed to the object of the Act.
Federation and others interested in the proceedings were allowed to intervene and they supported the stand taken by the Government which was the main respondent. The State pleaded that the formation of Corporation was an ex- tension of the legislative process and as such section 3 was a piece of conditional legislation, and the notification issued in exercise of that power cannot be said to have been vitiated by non-compliance with the principles of natural justice.
According to the State it was not obligatory D for the State to issue a preliminary notification over again before the final notification excluding Ulhasnagar was issued. The High Court took the view that the decision to exclude Ulhasnagar was taken by the State abruptly and in an irrational manner and that the decision was against the object of the Act. On the legality of E the procedure followed by the Government, the High Court held that once a decision was taken, it was obligatory on the part of the Govern- ment to reconsider the proposal as a whole so for as the rest of the areas were concerned.
The High Court without quashing the impugned notification F directed the State Government to reconsider the proposal under sub- section (3) of the Act either to exclude or include any area and accord- ingly make amends in the notification. It was also directed that the Petitioners and the Federation be given a reasonable opportunity of being heard before any final decision in the matter is taken. Against the aforesaid decision of the High Court only interveners have preferred O these appeals.
The State and Kelyan City Corporation have not appealed. Counsel for the appellants reiterated the stand taken by the Government before the High Court ~nd urged that the State had a wide discretion in the selection of areas for constituting the Corporation and H the Court cannot interfore with such discretion. State's power to consti- .. ;"li,- S.K. BHATIJA v. COLLECTOR, THANE ~07 tute a corporation is legislative in character and rules of natural justice have no application.
It was urged that the state had complied with all the statury requirements and it was not necessary for the state to go through that exercise again. It was further urged that the decision of this Court has been disregarded and a binding decision of a co-ordinate bench of the same Court in Village Panchayat Chikalthane & Anr. v. State of Maharashtra has been ignored. Allowing the appeals, Ibis Court, HELD: In our system of judicial review which is a part of our constitutional scheme, Ibis Court holds 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 apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convic- tions within the Courts, professions and public otherwise the 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 the conflicting opinions.
The general public will be in a dilemma to obey or not to obey such law and it ultimately falls into disrepute. [4J7D-Fl A B c D It is needless to state that the judgment of superior Courts and Tribunals must be written only after deep travail and positive vein. E One should never let a decision go unless he is absolutely sure it is right. The law must be made clear, certain and consistent. But ceritude is not the test ofcertainty and consistency does not mean that there should be no word of new content.
The principle of law may develop side by side with itew content but not in consistencies. There could be waxing and waning the principle depending upon the pragmatic needs and moral F yearings. Such development of law particularly is inevitable in our developing country. [4J7G-H; 418A-BJ The rules of natural justice are not applicable to legislative activity plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. [419F] The High Court, therefore, was in error in directing the Govern- ment to hear the parties who are not entitled to be heard in law; section 3 of the Bombay Provincial Municipal Corporation Act 1949. [419F-G] G The Government in the exercise of its powers under section 3 is H •-.•c 408 SUPREME"COURT REPORTS [1989) 3 S.C.R.
A not subject to the Rules of natural justice any more than is legislature itself. [419F) Mahadeolal Kanodia v. The Administrator General of West Ben- gal, A.I.R. (1960) S.C. p. 926; Sri Bhagwan and Anr. v. Ram Chand and Anr., A.I.R. (1965) S.C. 1767 at 1773; Union of India v. Raghbir B Singh, [1989] 2 S.C.C. 754; The Nature of Judicial Process by Benjamin N. Cardozo; Bates v. Lord Heilsham of St. Marylebone and Others, l, W.L.R. 1373; Tulsipur Sugar Co.
Ltd. v. The Notified Area Commit- tee, Tulsipur; [ 1980] 2 S.C.R. l lll and Baldev Singh v. State of Himac· ha! Pradesh, [1987] 2 S.C.C. 510, referred to. C CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5736 of 1985 & C.A. No. 508/1986. From the Judgment and Order dated 14.8.1985 of the Bombay High Court in Civil Writ Petition No. 3420 of 1983. D N.N. Keswani and R.N. Keswani for the Appellants.
G. Ramaswamy Additional Solicitor General, S.K. Dholakia, Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi for the Respondents. E The Judgment of the Court was delivered by F K. JAGANNATHA SHETTY, J. The case involved in these two appeals, with leave, seems indeed straight forward enough, but the High Court of Bombay made it, as we venture to think, unsatisfactory and in a sense against judicial propriety and decorum.
The facts which are of central importance may be stated as follows. On June 19, 1982, the Government of Maharashtra issued a draft notification under sec. 3(3) of the Bombay Provincial Municipal G Corporation Act, 1949 (the "Act"). The draft notification proposed 'T ... • the formation of what is termed as "Kalyan Corporation" {the "Corporation"). It suggested the merging of Municipal areas of y~ Kalyan, Ambarnath, Domoivali and Ulhasnagar.
Against this pro- posal, there were many objections and representations from persons, companies and the authorities. Ambarnath and Ulhasnagar Municipal H bodies and also some of the residents therein submitted their represen- S.K. BHATJJA v. COLLECTOR, THANE [SHETTY, J.[ 409 .. "'1• tations. They objected to the merger of their municipal areas into the A:::; ' Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are ~f predominant.
In 1947, they were the victims of partition of the country. Being uprooted from their home land, they have since settled down at Ulhasnagar. They have formed union or federation called the ~ All India Sindhi Panchayat Federation. It is interested in having a -.+ separate indentity for Ulhasnagar. The Federation challenged the said B draft notification by a writ petition before the Bombay High Court.
The writ petition was not disposed of on merits. It was permitted to be withdrawn on an assurance given by the Government. The Govern- f ment gave the assurance that the representatives of the Federation would be given an opportunity of being heard before taking a final decision. As per the assurance, they were given personal hearing on ctheir representations. The others who have filed similar representa- ~ tions were not heard.
But their objections or representations were duly considered. Thereupon, the Government decided to exclude Ulhasnagar from the proposed Corporation. Accordingly, a notifica- lion under sec. 3(2) of the Act was issued. The Corporation was thus i constituted without Ulhasnagar. That was the only alteration made in D the proposal earlier notified. All other areas indicated in the draft notification were merged in the Corporation. ) The residents of Ambarnath Municipal areas 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 E under Article 226 of the Constitution challenging the notification issued under sec. 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 F without 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 G Court. It was filed by the National Rayon Corporation Limited which .,'-( is a company locaied within the Municipal limits of Ambarnath . The Sindhi Panchayat Federation was not a party to the writ petitions. It was, however, allowed as an intervener. Some other persons who were interested in the outcome .of the writ petitions were H 410 SUPREME COURT REPORTS [1989] 3 S.C.R.
A also permitted to intervene in the proceedings. They supported the stand taken by the Government which was the main respondent in the writ petitions. The State in its counter affidavit resisted the petitioners' claim raising several grounds. The first point to be noted in this ~ontext is B this: c D E F G H "That the formation of Municipal Corporation under sec. 3 of the Act is an extension of the legislative process and, therefore, sec. 3 is nothing but a piece of conditional legis- lation.
The principles of natural justice will not apply to such legislative function nor it could be imparted into it even by necessary implication. The petitioners have not challenged the validity of the sub-section (2) of sec. 8 of the Act and even otherwise the said validity has been upheld by a Division Bench of this Court (Shah and Deshpande, JJ) in writ petition No. 706-A of 1982 (The Village Panchayat Chikalthane and Anr. v.
The State of Maharashtra and Anr. decided on 23/24 December, 1982. Therefore, it cannot be said that the notification issued in exercise of the said legislative power is vitiated by non-complaince with the principles of natural justice. The conditions laid down by sec. 3 are fully complied with; a preliminary notification was issued as contemplated by sub-section ( 4) of sec. 3 of the Act; the objections and suggestions made by the vari- ous citizens and persons were duly considered by the State Government and thereafter the final notification was issued.
In the very nature of things there is bound to be difference and variance between the preliminary noti- fication and the final notification. Only because the Ulhasnagar Municipal Council is excluded from the final notification, it cannot be said that there was any major departure from the preliminary notification or it was neces- sary to issue a preliminary notification over again before the final notification was issued in that behalf." The second factual point to be noted is this: "Due to partition of India in 1947, the Sindhi people have been uprooted from their homeland and with hard labour they have settled themselves in different parts of the country.
One can appreciate their feelings about their anxi- ..,., ... • -. 1 ·\:: S.K .. BHATIJA v. COLLECTOR, THANE [SHETfY, J.] 411 ety to maintain their separate entity. If such a large part is forcibly included in the Corporation ignoring their senti- ments and wishes, it may not result in 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 reasonings.
Ti)e High Court said that the decision to exclude Ulhasnagar was taken by the Government abrupily and in an irrational manner. The deci- sion 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 obligat<iiry 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 Commis- sion" to fortify the conclusion that Ulhasnagar could not have been isolated.
The "Sathe Comgiission" was a 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 stretch of territory with a length of about 8 kms. from North-West to South-East. The High Court then made some general observations as to the purpose for which Municipal Corporations should be constituted and went on: "It was the avowed policy after independence to change the socio-economic map of the village and town.
A corpo- rate life can only be ensured if there is a corporate con- science and an attitude to live together. City is an epitome of the social world where all belts of civilization interest along its avenues. A Municipal Corporation is ... , ... in nature, where people belonging to different castes, cceeds, religious and language want to live with each other. Town planning cannot be denominational or fractional.
It is not a museum of human beings otherwise Harijan Bastis, Mominpures and such other Mohallas will have to be pre- served to maintain its separate identity and the socio B c D E F G H 412 SUPREME COURT REPORTS [1989] 3 S.C.R. economic map of the village or city will never change. It cannot be forgotten that we are heading towards a global village. By saying this, we do not want to belittle the achievements of sacrifice of the Sindhi Community.
How- ever, that is not very relevant for deciding the question of the establishment of a Municipal Corporation. Its main object is to ensure better municipal government of the city. It appears that Government was also aware of this and this seems to be the reason why the decision "for the time be- ing" is pertinent and clearly indicates that the Government wanted to reconsider the issue at a later stage.
However, unfortunately till today Government has not taken any decision in that behalf." The High Court, however, felt that it was not necessary to quash the notification establishing the Corporation. This is how the condu- sion was reached: , "It will not be fair to quash the notification as a whole and unsettle the Municipal Administration. In our view, that is also not necessary since from the affidavit of the Govern- ment, it is clear that the decision taken in that behalf was tentative, i.e., for the time being and it is not all-time permanent decision.
Under sub-section (3) of sec. 3 of the act, the State Government has power to exclude or include any area specified in the notification issued so far as Amharnath Town is concerned, reconsideration of the present case of the whole matter was absolutely necessary when the decision 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 follow- ing terms: "Therefore, without setting aside the final notification, we direct the State Government to reconsider the proposal under sub-sec. (3) of sec. 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 sec. 3(3) of the Act, the State Government shall make the necessary .... - ' S.K. BHATIJA v. COLLECTOR, THANE {SHETi"Y, J.l 413 amends in the notification issued. A xxx xxx xxx xxx xxx xxx xxx xxx "In the result, therefore, the n,ile is made partly absolute B and the State Government is directed to exercise its power under sec. 3 sub-sec. (3) of the Act in accordance with 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-sec (3) read with sub-sec (4) of sec. 3 of the Act is issued. Since the popular local self-Government is nbt in C existence in any of the Municipal Councils or even in the newly established municipal corporation and having regard to the peculiar facts and circumstances of the case, in our view, this is a fit case where the petitioners of these two petitions and All India Sindhi Panchayat Federation should D be given a reasonable opportunity of being heard before any final decision in the matter is taken." Against the judgment of the High Court, the State Government has riot preferred any appeal.
The Kalyan City Corporation though vitally concerned with the matter, has also not appealed to this Court. E The present appeals are only by those who were imp1eaded as in- terveners in the writ petitions. We have heard co·unsel for aU parties and gave our best attention to the questions raised by the appeflnrtts. Counsel for the appeffams reiterated the stand taken by the Government before the High Court.
F He urged that the State has a wide discretion in the seieetion of areas for constituting the Corporation and the Court cannot in:tel'fere with such discretion. The Court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to coflstitute Muni"c-ipal Corporatio11s under sec. 3 or the Act is legislative in character. rt is an extension of legislative process for G which rules of rratuwl justice have no application.
He said that the Government in the instant case has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary according to the counsel to go through tha:t exercise aga;n as the High Court has suggested. H ·. 414 -·SUPREME COURT REPORTS ! -[1989] 3 S.C.R. A The other limb of the argument of counsel for the appellants ,relates to the manner in which the High Court disposed of the matter.
B c D E F it was said that a decision of this Court has been disregarded and a )( binding decision of a co-ordinate Bench of the same Court has been ignored. The grievance of the appellants' counsel, in our opinion, is not wholly unjustified..•.t the. beginning of the judgment, we have said that the High Court rendered the judgment in a sense. against the judicial ·propriety and decorum. We were not haPJlY co make that observation, but-constrained to say so in the premise and background of the case: It may be noted that the result of the writ petitions before the High Court turns on the nature and scope of the power conferred on the Government under sec. 3 of the Act.
A Division Bench of the High Court has taken the view that that power is in the nature of legislative process. That judgment was rendered on 23/24 December, 1982, by a Bench consisting of Shah and Deshpande, JJ. It was in writ petition No. 706-A of 1982-The Village Panchayat Chikalthana and Another v. Tlie State of Maharashtra and Another, In that case, the/ - ,_ challengt: was to the validity of sec. 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 sec. 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 ur.der sec. 3(2) is con- ditioned by only two requirements, viz., (1) previous publication as contemplated by sub-sec. (4) of sec. 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 attracted to the Corporation so constituted. This was the view taken by the High Court in Chikalthane case. To reach that conclusion, the learned judges relied upon the decision of this Court in Tulsipur Sugar Company, case 1980 2 SCR 1111. · The attention of the High Court in the present case was drawn to G the decision in Chikalthane, case.
Counsel for the State and interven- ers seemed to have argued that the present case really fell fairly and squarely within what was said there. They were indeed on terra firma since the decision in Chikalthane case was a clear authority against every contention raised by the petitioners. Faced with this predica- ment, counsel for the petitioners urged before the Higlj Court that H their case should be referred to a larger Bench to reconsider the deci- ' • ;.·-{ \ S.K.
BHATIJA v. COLLECTOR, THANE [SHETIY, J.] 415 sion m Chikalthane, case. But learned Judges, (Dharmadhikari and Kantharia, JJ). did not heed to that submission. They neither referred the case to a larger Bench nor followed· the view taken in the Chikalthane, case. It was not as if they did not comprehend the issue to be determined and the principle to be applied. They were very much aware of it when they remarked: "In our opinion, once it is accepted that this is a piece of conditional legislation, then 1t will have to be held that the principle of natural justice would not .apply to such a case as held by the Division Bench of this Court in village Panchayat Chikalthane's case nor it could be said tmat because under a mistaken notice the Federation was heal":!, the denial of such a right to the petitioners will amount to hostile discrimination within the contemplation of Article 14 of the Constitution of India." A B c After referring to these simple legal principles, it is unfortunate that tile issue at stake was little explored.
The key question raised in D the case was side-tracked and. a new strategy to interfere with the decision of the Government was devised. The learned Judges directed the Government to publish again a draft notification for reconsidera- tion 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 E being heard." They did not quash the impugned notification, but told the Government to make necessary changes in the light of fresh con- sideration.
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 F Corporation. It would be difficult for us to appreciate the judgment of ti)e High Court. One must remember .that pursuit of the law, however glamorous it is, has its own limitation on the Bench.
In a multi-judge court, the Judges are bound by precedents and procedure. They ccmld G use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single judge ot a Diyision 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 a subversion of judicial process not to follow this procedure. H 416 SUPREME COURT REPORTS [1989] 3 S.C.R. A Deprecating this kind of tendency of some judges, Das Gupta, y J., in Mahadeolal Kanodia v. The Administrlltor General of West Bengal, AIR 1960 SC 926 said (at 941): "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deora- B jin's case, 58 Cal WN 64 (AIR 1954 Cal 119) was cited \ before the learned Judges who heard the present appeal _,,.,' they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of refer- \ring no less than legal propriety form the basis of judicial c procedure.
If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one a'c'other's decision." The attitude of Chief Justice, Gajendragadkar, in Lala Shri D Bhagwan and Anr. v. Ram Chand and Anr., AIR 1965 SC 1767 was not quite different (at 1773): "It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single, Judge, need to be recon- sidered, he should not embark upon that enquiry sitting as a single judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers be- fore the Chief Justice to enable him to constitute a larger ->-/Bench to examine the question.
That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Judges departed from this traditional way in the present case and choose to examine the question himself." 'G The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions y of a Court.
Speaking for the Constitution Bench Union of India v. Raghubir Singh, [1989] 2 SCC 754 learned Chief Justice said (at 766): H "The doctrine of binding precedent has the merit of pro- l .• ., . S.K. BHATIJA v. .COLLECTOR, THANE [SHETTY, J.] 417 . mating a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing ass.urance to the individual as to the consequence of transactimis forming part of bis daily affairs.
And, there- fore, the t1eed for a clear and consistent enunciation of legal principle in the decisions of a Court." Cardozo propounded a similar thought with more emphasis: "I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artifi- cal exceptions unless for some sufficient reason, which will commonly by 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 p. 33\ A B c D 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 questjon of ]aw directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to E behaviour. It must be determined with reasons which carry convictions within the Courts, profession ·and public. Otherwise, the 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 the conflicting opinions.
The general pul;\lic would be in dilemma to obey or not to obey such law and it p ultimately falls into disrepute. Judge learned Hand has referred to lhe tendency of some judges "who win the game by sweeping all the chessmen off the table". (The Spirit of Liberty by Alfred A. Knopf, New York (1953) p. 131). This is indeed to be deprecated. It is needless to state that the judgment of G superior courts and Tribunals must be written only after deep travail and positive vein.
One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side'.with new content but not H .} 418 SUPREME COURT REPORTS [1989] 3 S.C.R. .,,, A with inconsistencies. There could be waxing and wanning the principle y depending upon the pragmatic needs and moral yearnings.
Such development of law particularly, is inevitable in our developing country. In Raghubir Singh, case, learned Chief Justice Pathak had this to say ( 1989) 2 sec 754 at 767: B "Legal compulsions cannot be limited by ex1stmg legal +-·Ipropositions, because, there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma.
The search for solu- 'tions responsive to a changed social era involves a search c not only among competing propositions of law, or compel- ing versions of a legal proposition, or the modalities of an '1indeterminacy such as "fairness" or "reasonableness" but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing D of justice within the new parameters.
And he continued: I The universe of problems presented for judicial choice- \making at the growing points of the law is an expanding E universe. The areas brought under control by the accumu- lation of past judicial choice may be large. Yet the areas newly presented for still further choice, because of chang- ing social, ecoμomic and technological conditions are far from inconsiderable. It has also to be remembered, that many occasions for new options arise by the mere fact that ~F no generation looks out on the world from quite the same vantage-point as its predecessor, nor for that matter with the same perception.
A different vantage point or a diffe- rent quality of perception often reveals the need for choice- making where formerly no alternatives, and no problems at all, were p~rceived." G Holmes tells us: 'y·-, "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 H history at the other, which have not yet been absorbed or n ~ ..
S.K. BHATJJA v. COLLECTOR, THANE (SHETIY, J.] 419 , ,, . sloughed off. It will become entirely consistent only when it A • ceases to grow." (Holmes the Common Law, p. 36 (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 sa\I life clearly and he saw it whole".
The judges have to have a little bit of that B in every case while construing and applying the law. Reverting to the case, we find that the conclusion of the High f Court as to the need to reconsider the proposal to form the Corpora- ti on has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corpo- c ~ ration under the Act is neither executive nor administrative.
Counsel for the appellants was right in his submission that it is legislative pro- cess indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with,, then, the Court cp'uld say no more. In the present case the D Government did publish the proposal by a draft notification and also considered the representations received.
It was only thereafter, a deci- sion was taken to exclude Ulhasnagar for the time being. That decision ) became final when it was notified under Section 3(2). The Court can- not sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for E theirs." • Equally, the rule issued by the High Court to hear the parties is untenable.
The Government in the exercise of its powers under Sec- lion 3 is not subject to the rules of natural justice any more than is legislature itself. The rules of natural justice are not applicable to F legislative action plenary or subordinate. The procedural requiren\ent of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law.
G 1 Megarry, J., in Bates v. Lord Hai/sham of St. Marylebone and Ors., [ 1972] 1 WLR 1373 while dealing with the legislative process under Section 56 of the Solicitors Act, 1957 said (at 1378): "In the present case, the committee in question has an entirely different function: it is legislative rather than H A B c D E F G H 420 SUPREME COURT REPORTS [1989) 3 S.C.R. administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers.
The order, when made, will lay down the remuneration for solicitors generally and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or execu- tive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the pro- cess of legislation, whether primary or delegated.
Many of those affected delegated legislation, and affected very sub- stantially, 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 legislativ!' 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 con- sulted or make objections, or any principle upon which the courts may enjoin ihe legislative process at the suit of those wbo 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 Tvlsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur, [1980) 2 SCR 1111 was indeed a hard case.
But then, this Court did not make a bad Jaw. There a notification dated August 22, 1955 was issued under Section 3 of the U.P. Town Area covering the petitioner's factory. Consequently, the octroi was levied on goods brought by the factory management ·into the limits of Town Area Committee. The Company questioned the validity of that notification. The case pleaded was that the company had no opportunity to make representation regarding the advisability of extending the limits of the Town Area Committee.
Venkataramiah, J., as the present learned Chief Justice then was, while rejecting the contention observed (1119- 20); . )" ' ~-- .. .. '• S.K. BHA\IJA v. COLLECTOR, THANE [SHETTY, J.J 421 "The power of the State Government to make a declara- tion under Section 3 of the Act is legislative in character because the application of the rest of provisions of the Act to the geographical atea which is declarecl as a town area is clependent up011 such declaratio11.
Section 3 of the A,ct is in the nature of a conditional legislation. Dealing with the nature of fu11ctio11s of a non-judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (third edition) observ@s at page 163: "However, the analy- tical classificati911 of a function may be a conclusive factor in excluding the operation of the audi a(teram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides." In Baldev Singh v.
State of Himachal Pradesh, I1987] 2 SCC 510 a similar question arose for consideration. An attempt was made to constitute a notified area as providecl under Section 256 of the Hima- chal Pradesh M_unicipal Act, 1968, by including portions of the four villages for such purposes. The residents of the villages who were mostly agriculturists challenged the validity of the notification before the High Court on the ground that they had no opportunity to have their say against that notification.
The High Court summarily dismis- sed the writ petition. In the appeal before this Court, it was argued that the extension of notified ar