STATE OF HIMACHAL PRADESH AND OTHERS versus SATPAL SAINI
[2017] 1 S.C.R. 658, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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[2017] l S.C.R. 658 
STATE OF HIMACHAL PRADESH AND OTHERS 
v. 
SATPAL SAINI 
(Civil Appeal No.1654 of2017) 
FEBRUARY 08, 2017 
[ABHAY MANOHAR SAPRE AND 
DR. D. Y. CHANDRACHUD, JJ.) 
Constitution of India - Art. 226 - Power of judicial review -
Issuance of mandamus by High Court for amending the legislation 
- State Government to make suitable amendments to s.118 of the 
HP Tenancy and Land Reforms Act, 1972 read with HP Tenancy 
and Land Reforms Rules, 1975 to facilitate purchase of any land 
(agricultural and non-agricultural) in the State of Himachal Pradesh 
by the non-agriculturist Himacha/is residing in the State for decades 
together prior to the date of commencement of the 1972 Act, within 
a period of ninety days - Sustainability of - Held: Lm1• enacting 
body is entrusted with the power to enact such legislation as it 
considers necessary to deal with the problems faced by society and 
to resolve issues of concern - Courts do not sit in judgment over 
legislative expediency or upon legislative policy - Judiciary is 
assigned with the fimction of ensuring that executive actions accord 
with the law and that laws and executive decisions accord with the 
Constitution - Court does not have the power or function to direct 
the executive to adopt a particular policy or the legislature to convert 
it into enacted law - High Court transgressed the limitations imposed 
upon the power of judicial review u!Art. 226 by issuing the directions 
to State
legislature to amend the law - Directions issued by High 
Court for amending the provisions of the 1972 Act and the Rules 
were unsustainable and set aside - HP Tenancy and Land Reforms 
Act, 1972 - HP Tenancy and Land Reforms Rules, 1975 -
Legislation. 
Mallikarjuna Rao v. State of Andhra Pradesh 
1990 AIR 1251:1990 (2) SCR 418; K. Sood v. 
Secretary, Civil Aviation 1993 AIR 2285: 1993 (3) SCR 
772; State of Himachal Pradesh v. A Parent of a Student 
of Medical College, Shim/a 1985 AIR 910 : 1985 (3) 
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STATE OF HIMACHAL PRADESH AND OTHERS v. SATPAL 
SAINI 
SCR 676; Asif Hameed & Ors v. State of Jammu & 
Kashmir 19S9 Am 1S99 : 19S9 (3) SCR 19; Union of 
India v. Association for Democratic Reforms 2002 Am 
2112 : 2002 (3) SCR 696; Supreme Court Employees' 
Welfare Association v. Union of India 19S9 (3) SCR 
4SS : (19S9) 4 SCC 1S7; State of Jammu & Kashmir v. 
A.R. Zakki & Ors.1992 AIR 1546 : 1991 (3) Suppl. 
SCR 216; V.K. Naswa 1( Union of India 2012 (2) SCR 
912 : 2012 (2) SCC 542; Gainda Ram v. MCD 2010 
(12) SCR 996 : 2010 (10) SCC 715; Manoj Narula v. 
Union of India 2014 (9) SCR 965 : 2014 (9) SCC 1 -
referred to. 
Case Law Reference 
199() (2) SCR 41S 
referred to 
Para 7 
19?3 (3) SCR 772 
referred to 
Para 7 
19~5 (3) SCR 676 
referred to 
Paras 
· 19S9 (3) SCR 19 
referred to 
Paras 
2092 (3) SCR 696 
referred to 
Paras 
19~9 (3) SCR 4SS 
referred to 
Paras 
1991 (3) Suppl. SCR 216 
referred to 
Paras 
20P (2) SCR 912 
referred to 
Paras 
2010 (12) SCR 996 
referred to 
Paras 
2014 (9) SCR 965 
referred to 
Paras 
· CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1654 of 
2017. 
From the Judgment and Order dated 23.09.2016 of the High Court 
ofHimachal Pradesh at Shimla in Civil Writ Petition No. 3572 of2014. 
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J. S. Attri, Sr. Adv. Varinder Kumar Sharma, Chandra Nand Jha, 
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Shahid Hussain, Advs. for the Appellant. 
The Order of the Court was delivered by 
DR. D. Y. CHANDRACHUD, J. l. Delay condoned. 
2. Leave granted. 
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SUPREME COURT REPORTS 
[2017] 1 S.C.R. 
3. The State ofHimachal Pradesh has called into question certain 
directions that were issued by a Division Bench of the High Court on 23 
September 2016. The High Court called upon the State Government to 
amend the provisions of Section 118 of the H.P. Tenancy and Land 
Reforms Act, 1972 within a period ofninety days. These directions were 
issued by the Division Bench while allowing a writ petition which 
challenged an order dated 23 April 2014 of the revenue authorities. The 
judgment of the High Court by which it set aside the order dated 23 April 
2014, and directed the state to attest the mutation by treating the 
respondent as an agriculturist is not called into question to that extent. 
The /is between the respondent and the state has come to a conclusion 
with the following direction of the High Court:-
"Accordingly, impugned annexure P-9 dated 23 .4.2014 is quashed 
and set aside. Respondents are directed to attest the mutation 
within a period of eight weeks from today by treating the petitioner 
to be an agriculturist". 
The state is, however, aggrieved by the mandamus which was issued by 
the Division Bench for amending the legislation, in the following terms:-
"However, before parting with the judgment, this Court deems it 
fit and proper to direct the State Government to make suitable 
amendments to Section 118 of the HP Tenancy and Land Reforms 
Act, 1972 read with HP Tenancy and Land
Reforms Rules, 1975 
in order to facilitate to purchase any land (agricultural and non-
agricultural) in the State of Himachal Pradesh by the non-
agriculturist Himachalis residing in the State for decades together 
prior to the date of commencement of the HP Tenancy and Land 
Reforms Act, 1972,within a period of ninety days from today". 
The appeal is confined to a challenge to the above direction to _amend 
the legiolation. In the present proceedings, the appellants have not 
questioned the correctness of the order passed in favour of the respondent 
setting aside the order passed by the revenue authorities on 23 April 
2014 or the direction to attest the mutation within eight weeks. Since 
the purpose of the respondent in filing the writ.petition was served (and 
the relief granted to him has not been questioned) it has not been necessary 
to issue notice to the respondent having regard to the nature of the 
challenge preferred in these proceedings. 
4. While issuing the above directions, the High Court appears to
STATE OF HlMACHAL PRADESH AND OTHERS v. SATPAL 
SAINI [DR. D. Y. CHANDRACHUD, J.] 
have been moved by what it described as the plight of"a large population 
ofnon- agriculturistHimachalis". The High Court indicated the rationale 
underlying its direction in the following extract which is taken from the 
judgment impugned :-
"There is perpetual litigation under Section 118 of the HP Tenancy 
and Land Reforms Act, 1972. A large population of non-agriculturist 
Himachalis has been deprived of their right to purchase property 
in the State without the permission of the State Government though 
they are residing in the State of Himachal Pradesh for decades 
together. There is a sense of alienation amongst the non-
agriculturist Himachalis. They are integral part of the State of 
Himachal Pradesh and have a sense of belonging to the State". 
5. The State Government is aggrieved by the mandamus which has 
been issued by the High Court to amend the provisions of law. The 
submission of the State is that the above directions trench upon the 
sovereign legislative power of the state legislature. 
6. The grievance, in our view, has a sound constitutional foundation. 
The High Court has while issuing the above directions acted in a manner 
contrary to settled limitations on the powerof judicial review under Article 
226 of the Constitution. A direction, it is well settled, cannot be issued to 
the legislature to enact a law. The power to enact legislation is a plenary 
constitutional
power which is vested in Parliament and the state 
legislatures under Articles 245 and 246 of the Constitution. The legislature 
as the repository of:the sovereign legislative power is vested with the 
authority to determine whether a law should be enacted. l;'he doctrine of 
separation of powers entrusts to the court the constitutional function of 
deciding upon the validity of a law enacted by the legislature, where a 
challenge is brought before the High Court under Article 226 (or this 
Court under Article 32) on the ground that the law lacks in legislative 
competence or has been enacted in violation of a constitutional provision. 
But judicial review cannot encroach upon the.basic;.constitutional function 
which is entrustedto the legislature to determine whether a law should 
be enacted. Whether a provision of law as enacted subserves the object 
of the law or should be amended is a matter of legislative policy. The 
court cannot direct the legislature either to enact a law or to amenda law 
which it has enacted forthe simplereason that this constitutional function 
lies in the exclusive domain of the legislature. For the Court to mandate 
an amendment of a law- as did the Himachal Pradesh High Court- is 
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SUPREME COURT REPORTS 
[2017] 1 S.C.R. 
a plain usurpation of a power entrusted to another arm of the state. 
There can be no manner of doubt that the High Court has transgressed 
the limitations imposed upon the power of judicial review under Article 
226 by issuing the above directions to the state legislature to am.end the 
law. The government owes a collective responsibility to the state 
legislature.The state legislature is comprised of elected representatives. 
The law enacting body is entrusted with the power to enact such legislation 
as it considers necessary to deal with the problems faced by society and 
to resolve issues of concern. The courts do not sit in judgment over 
legislative expediency or upon legislative policy. This position is well 
settled. Since the High Court has failed to notice it, we will briefly 
recapitulate the principles which emerge from the precedent on the 
subject. 
7. In Mallikar.iuna Rao v. State of Andhra Pradesh' and in V.K. 
Soodv. Secretary, Civil Aviation', this Court held that the court under 
Article 226, has no power to direct the executive to exercise its law-
making power. 
8. In State of Himachal Pradesh v. A Parent of a Student of 
Medical College, Shimla', this Court deprecated the practice of issuing 
directions to the legislature to enact a law: 
" ... The direction given by the Division Bench was really nothing 
short of an indirect attempt to compel the State Government to 
initiate
legislation with a view to curbing the evil ofragging ... " 
The same principle was followed in Asif Hameed &Ors v. State of 
Jammu & Kashmir, where this Court observed that: 
" ... The Constitution does not permit the Court to direct or advice 
the Executive in matter of policy or to sermonize qua any matter 
which under the Constitution lies within the sphere of Legislature 
or Executive." 
In Union oflndia v. Association for Democratic Reforms'. this Court 
observed that :-
.... it is not possible forth is Court to give any direction for amending 
'AIR 1990 SC 1251 
'AIR 1993 SC 2285 
'AIR 1985 SC 910 
•AIR 1989 SC 1899 
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'AIR 2002 SC 2112
STATE OF HIMACHAL PRADESH AND OTHERS v. SATPAL 
SAINI [DR. D. Y. CHANDRACHUD, J.] 
the Act or the statutory rules. It is for the parliament to amend the 
Act and the Rules." 
Similarly, in Supreme Court Employees' Welfare Association v. 
Union oflndia', this Court held that a court cannot direct the legislature 
to enact a particular law. This is because under the constitutional scheme, 
Parliament exercises a sovereign power to enact law and no other 
authority can issue directions to frame a particular piece oflegislation.This 
principle was reiterated.inState of Jammu & Kashmir v. A.R. Zakki 
& Ors. 7, where this Court observed that: 
" ... A writ of mandamus cannot be issued to the legislature to 
enact a particular legislation. Same is true as regards the executive 
when it exercises the power to make rules, which are in the nature 
of subordinate legislation. Section 110 of the J & K Constitution, 
which is on the same lines as Article 234 of the Constitution of 
India, vests in the Governor, the power to make rules for 
appointment of persons other than the District Judges to the Judicial 
Service of the State of J & K and for framing of such rules, the 
Governor is required to consult the Commission and the High Court. 
This power to frame rules is legislative in nature. A writ of 
mandamus cannot, therefore, be issued directing the State 
Government to make the rules in accordance with the proposal 
made by the High Court." 
In V. K. Naswa v. Union oflndia', this
Court referred to a large number 
of decisions and held that: 
"18. Thus, it is crystal clear that the court has a very limited role 
and in exercise of that, it is not open to have judicial legislation. 
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Neither the court can legislate, nor has it any competence to issue 
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directions to the legislature to enact the law in a particular manner." 
A discordant note had been struck by a Bench of two judges in Gainda 
Ram v. MCD'. A direction was issued to the legislature to amend 
legislation before a particular date. The Constitution Bench in Manoj 
Narulav. Union oflndia10,held that this direction by a Bench of two 
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judges was contrary to the law laid down earlier by three judges. In that 
'(l989)4SCC 187 
7 AlR l992SC 1546 
• (2012) 2 sec 542 
'(2010) lOSCC715 
"(2014) 9 sec 1 
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[2017] I S.C.R. 
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context, the Constitution Bench has conclusively enunciated the legal 
position thus: 
"127. The law having been laid down by a larger Bench than 
in Gainda Ram it is quite clear that the decision, whether or not 
Section 8 of the Representation of the People Act, 1951 is to be 
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amended, rests solely with Parliament." 
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Having regard to the settled position, the impugned directions are 
unsustainable. 
9. The judiciary is one amongst three branches of the State; the 
other two being the executive and the legislature. Each of the three 
branches isco-equal.Each has specified and enumerated constitutional 
powers. The judiciary is assigned with the function of ensuring that 
executive actions accord with the law and that laws and executive 
decisions accord with the Constitution. The courts do not frame policy 
or mandate that a particular policy should be followed. The duty to 
formulate policies is entrusted to the executive whose accountability is 
to the legislature and, through it, to the people. The peril of adopting an 
incorrect policylies indemocratic accountability to the people. This is the 
basis and rationale for holding that the court does not have the power or 
function to direct the executive to adopt a particular policy or the legislature 
to convert it into enacted law. It is wise to remind us of these limits and 
wi~er still to-enforce them without exception. 
IO. For these reasons,· we hold that
the directions issued by the 
High Court for amending the provisions of the Himachal Pradesh Tenancy 
and Land Reforms Act, 1972 and the Rules were manifestly unsustainable. 
The directions are accordingly set aside. The appeal filed by the State 
-shall stand allowed in these terms. 
11. There shall be no order as to costs. • 
Nidhi Jain 
Appeill allowed. 
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