IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1108 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ======================================================== 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO --------------------------------------------------------- CHANDRAKANT MULJIBHAI PARIKH Versus STATE OF GUJARAT --------------------------------------------------------- Appearance: MR HARIN P RAVAL for Petitioner Mr. A.D. Oza, Government Pleader for Respondent. ---------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 27/02/2001 JUDGEMENT Against the inaction of the Government of Gujarat in framing the Rules qua the pension for the Members of the Gujarat Legislative Assembly, petitioner the Ex-MLA by filing this petition under Article 226 of the Constitution of India, seeks appropriate writ directing the Government to frame the Rules, publish the same and decide his application in that regard passing appropriate order etc. 2. The matrix of the facts first be stated. The petitioner was elected as the Member of the Gujarat Legislative Assembly from Baroda City Constituency in the year 1967 and served as Member of the Assembly for the full term of 5 years. He was again elected when elections were held in 1972 and served as a Member of the Assembly for the full term of 5 years. The Gujarat Legislative Assembly passed an Act known as "The Gujarat Legislative Assembly Members Pension Act, 1984 (for short, "the Act"). It was to come into force on such day the Government of Gujarat might by notification in official gazette appoint. The State Government then decided to bring the Act into force in 1989. The assent of His Excellency, the Governor of Gujarat was obtained on 20th February 1986. The Government then decided to bring the Act into force from 15th August 1989. The Act was then published in the Government Extra-ordinary Gazette dated 8th August 1989, and the same has been brought into force from 15th August, 1989. As per Section 3 of the Act, the petitioner was entitled to the pension at the rate of Rs. 300/- per month and also the additional pension as per the Proviso to Section 3 of the Act. The petitioner then applied for the pension but his application is yet kept pending and no final order awarding the pension is passed on the ground that Rules which are required to be framed under Section 5 of the Act are not framed. The petitioner was disgustedly shocked knowing such fact that though the Act was passed in 1984 and was brought into force from August 15, 1989, the Rules under Section 5 were even not framed till 1992. By a letter dated 17th November 1990 he was informed that the question of payment of pension to the ex-MLAs was under active consideration. He could see that it was a trite-letter. Because of the inaction on the part of the Executive in framing the Rules the petitioner could see that the legal right to have the pension which he acquired under the Act was being impaired and denied. It was the bounden duty of the Executive to carry out the mandate of the Legislature and frame the Rules within reasonable time. It cannot put off the work of framing of the Rules to unreasonable length of time at its pleasure and sweet will or under any pretext. At present the petitioner is aged 65 years and if the Government is not framing the Rules and goes on delaying in the gruesome manner or shrewdly, at present it has been doing, he fears that he would not be able to get the pension during his lifetime. His legitimate right cannot be denied by the Government on the ground that the Rules are not framed. The Gujarat Ex-MLA Council has been formed by the former MLAs and several members of that Council have also sending the applications prayed for the pension. The Government has no right to defeat the right the ex-MLAs have acquired under the Act to get the pension. Regardless of the framing of the Rules, he is entitled to pension as the requirements of Section 3 of the Act are satisfied in his case. The State Government has therefore no justifiable reason to deny the payment of pension on any ground or on the ground that the Rules are not framed. Despite considerable attempts when the Government has denied to make the payment of the pension, the petitioner is constrained to file this application for a direction to the Government of Gujarat to frame the Rules and publish the same under Section 5 of the Act, take just decision on his application for pension pending at present within the time granted and make the payment of the pension etc. 3. The learned advocate representing the petitioner submits that it is the right of the petitioner and several other MLAs to have the pension which they have acquired under Section 3 of the Act. That right to have the pension cannot be denied or jeopardised by the Government by avoiding to frame the Rules. It is the bounden duty of the Government to carry out the mandate of the Legislature and frame the Rules within reasonable time. If within reasonable time the Rules are not framed, this Court can issue the direction to the Government to frame the Rules within specified time. The right to pension granted by the Legislature enacting the Act may not be palatable to some section of the society or some persons because of a particular political philosophy or ideology they may have bred, but that cannot be a ground to mar the right granted. It is not that some thing strange or unusual has been done by the Legislature. Even the Members of the Parliament and Members of the Legislative Assemblies of different States in India get the pension under the different Acts passed by other State Legislatures or the Parliament. He then submitted what amount of pen================================== as under; ============================================================================== =============================== NO. NAME PENSION PER ADDI- MAXIMUM OTHER FACILITY TIONAL YEAR ============================================================================== =============================== 1. Ex.Member Rs.500/-. Rs. 50/- ---- ---- of Legisla- tors. 2. Andhra Rs.50/- per year whose Rs. 500/-p.m. ---- Pradesh income is not more than 6000 and served not less than one year. 3. Arunachal Rs.300/- p.m. Rs. 50/- Rs. 500/-p.m. Pradesh who has served for five years. 4. Assam Rs. 4000/- p.m. Rs. 50/- p.m. Rs. 650/- p.m. ---- 5. Bihar Rs. 1000/- p.m. Rs. 100/- p.m. Rs.2000/- p.m. family pension:- upt Rs.1000/= less than five years 75%, more than Rs.1000/- 50% Rs. 300/- p.m. Rs. 50/-. minimum 750/- entitled travel upto 15000 k.m.and 10000 k.m. per year by the first class railway coupon within and outside the state respectively. 6. Goa Rs. 750/- p.m. Rs. 100/- Rs. 1500/- family pension :- same pension. 7. Gujarat Nil. Nil Nil Nil. 8. Haryana Rs.500/- p.m. Rs. 50/- ---- minimum of Rs. 600/- and and his family. free mpm-transferable pass travel any public service vehicle inclu- ding delux coach. 9. Himachal Rs.500/- Rs.100/- ---- family pension :- Pradesh. 1. not exceeding Rs. 750/- 60% of pension subject to a minimum of Rs. 375/-. 2. exceeding Rs. 750/- but not exceeding Rs.1500/- 40% of pension subject to a minimum of Rs. 450/- p.m. 3. exceeding Rs. 1500/- 30% of pension subject to a or maximum of Rs. 1250/-. 10. Jammu & Rs. 1000/- Rs. 100/- Rs.1200/- ---- Kashmir. 11. Karnataka Rs. 300/-(One Year) ---- ---- family pension Rs.200/-. Rs. 500/-(Two Year) Rs. 750/-(maximum for three and above) 12. Kerala Rs. 300/- (for two years) Rs. 50/- ---- medical facility to himse f. 13. Madhya (not available) Pradesh 14. Manipur Rs. 750/- Rs. 50/- Rs.1500/- family pension Rs. 200/-. 15. Meghalaya Rs. 400/- Rs. 50/- Rs. 500/- 16. Mizoram Rs. 500/- Rs. 50/- Rs. 1000/- family pension :- same amount for i i i remaining periods. remaining periods. remaining periods. re aining periods. remaining periods. remaining periods. remaining periods. remaining periods r maining periods. remaining periods. remaining periods. for Rajasthan bus any time and 17. Nagaland Rs. 300/- Rs. 100/- Rs. 500/- ---- 18. Orissa Rs. 500/- Rs. 40/- ---- family pension upto death for w ole life. 19. Punjab Rs. 500/- Rs. 100/- Rs.1000/- ---- 20. Rajasthan Rs.500/- Rs. 100/- Rs.200/- family pension: same amount upto and after ten death for whole life. years Rs.50/-. Other facility :- Medical t eatment Rs. 1000/- per annum. One free non-transferable pass f r Rajasthan b government hospital for himself 21. Sikkim Rs. 300/- Rs. 50/- Rs. 500/- ---- 22. Tamil Nadu Rs. 300/- Rs. 50/- Rs. 600/- family allowance Rs. 250 p.m. facility former member :- 1. medical help Rs. 500/- 2. Legislators hostel rate Rs.5period of 5 days. 23. Tripura Rs.1000/- Rs. 50/- Rs.1200/- family pension Rs.500/-. (for four years) 24. Uttar Rs.1250/- Rs. 100/- Rs.2050/- other facility :- Pradesh free non-transferable bus pass f ee medical treatment in ================================= and dependent. 25. West Bengal Rs. 400/- Rs. 50/- Rs. 500/- ---- 26. Delhi Rs. 200/- Rs. 50/- Rs. 500/- ---- 27. Pondicherry Rs. 200/- Rs. 50/- Rs. 500/- ---- ============================================================================== ============================== It is further contended that large numbers of the ex-MLAs belong to middle class or the poor class and their right to have the pension when denied or marred by the Government on one or the another pretext, it is now the most ripe time for the Court to play the effective role exercising the powers under Article 226 of the Constitution. The Executive cannot be allowed to defy the legislative mandate by not framing the Rules and thereby frustrating the Act and right the MLAs have acquired. 4. Mr. A.D. Oza, the learned Government Pleader opposing the petition submits that the petitioner or other ex-MLAs have not acquired unfettered right to get the pension. The same is subject to framing of the Rules under Section 5 of the Act. The Legislature has not given the mandate to frame the Rules. By using the word "may" in Section 5, a discretion is given to the Executive to frame the Rules so as to carry out the object of the Act. When the word "may" is used, it is for the Executive to decide whether it is expedient to frame the Rules, and if so when and what type of Rules should be framed. The Court cannot direct the Executive to frame the Rules. He also draws my attention to the three decisions of the Supreme Court. In the case of M/s. Narinder Chand Hem Raj and others Vs. Lt. Governor, Administrator, Union Territory, H.P. & Others AIR 1971 SC 2399, what is made clear is that the power to impose the tax is a legislative power and the same can be exercised by the Legislature directly or by its delegate. No Court can issue a mandate to the Legislature or a subordinate legislative body to enact or not to enact a law which it was competent to enact. It was a case regarding levy of sales-tax under East Punjab General Sales Tax. Touching the issue raised, it is held that there is no provision in the Act empowering the Government to exempt any assessee from payment of tax and therefore a right or direction cannot be issued under Article 226 to the appropriate authority to delete the entry of Indian Made Foreign Liquor and power from Schedule A and to include it in Schedule B to the Act. In short, what is made clear is that the Court cannot direct the Legislature or subordinate legislative body to enact a particular law or not to enact a particular law or delete a particular entry from a particular Act or Schedule to the Act because it is exclusively the legislative power and that can be exercised by the Legislature or as the case may be the subordinate legislative body. In another decision of Supreme Court Employees Welfare Association Vs.Union of India& Others AIR 1990 SC 334, it is made clear that the authority exercising the legislative function cannot be directed to do a particular act. Similarly, the President cannot be directed by the Court to grant approval to the proposals made by the Registrar General of the Supreme Court presumably on the direction of the Chief Justice of India. The third decision shown is in A.K. Rai Vs. Union of India AIR 1982 SC 710, wherein it is laid down that a mandamus cannot be issued to the Central Government compelling it to bring the provisions of Section 3 of the 44th Amendment Act into force. It is further held that the President of India cannot be compelled to grant the approval to the proposal of the Registrar General of the Supreme Court. It is also made clear that there cannot be a doubt that the authority exercising legislative function cannot be directed to do a particular act. This authority also therefore lays down that Court cannot direct the Legislature to show that the authority who has to legislate under delegation cannot be compelled to frame the rules or enact a particular legislation. The Court cannot embark upon the realm of the legislative function of the Legislature. The Legislature is free what law is to be enacted when and how and when the same should be brought into force and to what extent and relating to what area. The last decision shown to me is rendered in the case of State of Jammu & Kashmir Vs. A.R. Zakki and others - AIR 1992 S.C. 1546, which makes it clear that the writ of mandamus cannot be issued to the Legislature to enact a particular legislation. Same is also the case as regards the Executive when it exercises the power to make rules which are in the nature of subordinate legislation. Mr. Oza, the learned Government Pleader referring these three authorities emphatically submits that it would be beyond the competence of this Court to issue a writ of mandamus and direct the Government to frame the rules under Section 5 of the Act because framing of the rules is in the nature of subordinate legislation, the task of which is assigned to the Executive. In other words, even if the Executive is assigned with framing of the rules, it is the legislative function under delegation and Court cannot direct the Executive when it cannot to the Legislature, to frame the rules. 5. Mr. Raval, the learned counsel for the petitioner at this stage in reply submits that legislations are of two types; one Conditional Legislation, and another Delegated Legislation. There is no restriction on the Legislature to delegate legislative power to the body or any person found fit in the matter. The delegate need not be one established by the Act. The power to make Delegated Legislation may either be mandatory or discretionary. If it is discretionary, the person or body to whom the power is delegated is nevertheless under a duty to exercise the discretion properly and promptly. In case of Conditional Legislation, no element of delegation of legislative power is there and therefore not open to attack on the ground of excessive delegation and the Court cannot issue any direction in that regard, while in Delegated Legislation, the Legislature does not confer legislative power on some outside authority and is therefore open to attack on the ground of excessive legislation and the Court is free to issue necessary direction. When the Legislature enacts the Act and authorises the Executive to bring the same into force in such area or at such time as it may decide, the same being Conditional Legislation and not the Delegated Legislation, it would be beyond the ken of the powers of the Court to direct the authority to bring the Act into force or decide the date for bringing the Act into force or apply the same to a particular area or not to a particular area, while in case of Delegated Legislation, if the delegate fails to carry out the duty and frustrate the object or improperly exercises the discretion conferred,the remedy by way of judicial review is certainly available, and the Court in that case can direct the delegate, may be the Executive, to frame the rules and esteem the mandate of the Legislature. In this case,the power to frame the rule is no doubt given to the Executive vide Section 5, but it is a Delegated Legislation and not a Conditional Legislation and therefore it would be open to the Court to issue the writ of mandamus directing the Government (Executive) to frame the rules. 6. Whether the Court can direct the Government, i.e. Executive to frame the Rules if the said function is assigned by the Legislature to it (Executive) passing a particular Act is the point that arises for consideration. Under the Constitution, three organs of the Government, namely (1) Executive, (2) Legislature, and (3) Judiciary are formed vide Parts V & VI for the Union and the State respectively,wherein their working spheres are well defined. All the three organs of the Government have to function harmoniously without embarking upon the jurisdiction of the other organ. The elected representatives of the people forming the Legislature have to enact the laws for satisfying the will of the people and also for the well-being of the people. The Legislature is the sole Judge to decide which law or Act is necessary, and containing what provisions the Acts should be enacted, and whether a particular Act should in fact be framed or not, or whether the Act already framed and in force should be amended or deleted, or whether whole of the Act or part thereof should be made applicable to whole of the State or some areas because the same exclusively falls within its province. The Executive has to carry out the mandate of the Legislature expressed in the statutes or the Acts passed, and the Judiciary has to interprete the Act enacted by the Legislature and determine its virus and direct the Executive to do or not to do a particular act if it is not functioning in accordance with the Acts passed by the Legislature as well as examine the validity & legality of the orders passed by the Executive. The spheres of all the three organs of the Government are well defined and therefore as submitted by the learned Government Pleader, Mr. A.D. Oza, it would not be the function of the Judiciary to direct the Legislature what Act should be framed when & how or which Act in force should be deleted or amend the Act or bring the Act in force. If the Legislature has after framing the Act has assigned the rule-making function to the Executive, the Court cannot direct the Executive to frame the Rules because framing of the Rules is also a work of the Legislature. When that work of Legislation is entrusted to the Executive, the Executive becomes the agent of the Legislature or steps in the shoe of the Legislature. The Court cannot therefore ordinarily direct the agent to frame the Rules. The Supreme Court has, in the cases of M/s. Narinder Chand, Employees Welfare Association, and State of Jammu & Kashmir (Supra) also likewise made it clear that the Judiciary cannot direct the Legislature or the Executive if the Executive is assigned with the function to legislate to frame a particular Act or Rules but this is the general principle laid down. The Court cannot in all the cases sit on the fence cross-fingered and feeling helpless it cannot twiddle its thumbs, if the purpose and object of the Act already passed and brought into force is being defeated or frustrated by the inaction on the part of the Executive to carry out the mandate of the Legislature because the will of the people expressed through the Act or Statute cannot be pooh-poohed and thereby the whole democratic structure cannot be allowed to be shattered and battered. It may be stated that if the Act is not at all enacted, or not brought into force after enacting the same, the Court cannot direct to enact the Act or bring the Act into force. 7. However the interference of the Court in legislative functions when would be within the constitutional powers or justified has to be elucidated. The Legislature cannot in any case confer its essential functions which have been entrusted to it by the Constitution, namely what the law should be, power to repeal the law or make it inoperative or power to modify the Act in its essential particulars. It cannot confer unguided & uncanalised powers for the application of the Act. A Legislature cannot however foresee and provide for all the future contingencies owing to the challenges of the complex socio-economic problems. The function of the State is to secure to its citizens, social, economical and political justice, preserve & protect fundamental rights and the unity of the nation and boost the directive principle. The desire to attain such objects of the Constitution has resulted in intense legislative activity touching every aspect of the life of the citizens and the nation. By the march of science in every field the task of legislation has increased in direct geometric progression. The Legislature is not the body of experts or specialists. It can function best when it is concerned with general principle, broad objectives and fundamental issues instead of technical & situational intricacies which are better left to well equipped full-time executive body and specialist public servants. The Legislature has neither the time nor expertise to be involved in details and it cannot visualise and provide for new, strange, unforeseen and unpredictable situation arising from complexities of modern life and ingenuity of the men. That is the raison d'etre for Delegated Legislation. It makes assignment of legislative function to an extent inevitable and indispensable. The plenary power to legislate carries with it the power to assign the said function to an outside authority may be Executive or others. After laying down the policy & principle, it can assign. Such assignment is of two types, namely (1) Conditional Legislation and (2) Delegated Legislation. 8. It may be stated, because of the rival contentions, what "Conditional Legislation" is and what the "Delegated Legislation", and the same should be distinctly understood. In case of Conditional Legislation, the aim of the Legislature is to project its mind as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of law. It is not however possible to provide subject for all cases and therefore Legislation, from the earliest time and particularly in modern times, has taken the form of Conditional Legislation leaving it to some specified authority to determine the circumstances in which the law shall be applied or to which its operation shall be extended or the particular class of persons or goods to which it shall be applied. A provision is therefore made in the Act conferring the power on an outside authority to bring into force at such time as it might in its own discretion determine is "Conditional" and not "Delegated Legislation" and will be valid unless there is in the constitutional Act any limitation on its power to enact such a Legislation. The Legislation may be `Conditional' on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to an external authority may be the Executive. An incomplete legislation, living on an external authority to enlarge the area within which a law actually in operation is to apply, is a "Conditional Legislation". Such Legislation comes under a separate category being