IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08/10/2003
Coram
The Honourable Mr. Justice P.K. MISRA
Writ Petition No.14909 of 1998
Aiswarya Freight Carrier
Rep. by its Prox.
E. Thiruthuva Mary .. Petitioner
-Vs-
1. Union of India,
Rep. by Secretary
to Government,
Ministry of Law,
New Delhi.
2. Escorts Finance Ltd.,
54, Montieth Road,
Egmore, Madras - 8. .. Respondents
Writ Petition filed under Article 226 of the Constitution of
India for the issue of a Writ of Mandamus as stated therein.
For petitioner: Mr. S. N. Amarnath
For respondents: No appearance
:O R D E R
Heard the learned counsel appearing for the petitioner.
2. In this writ petition, prayer has been made for issuing a
Writ of Mandamus to direct the first respondent to enforce the Hire Purchase
Act, 1972. It is the case of the petitioner that the Hire Purchase Act, 1972
(Act 26 of 1972) received the assent of the President more than 30 years back
but the Act has not been enforced. Section 1(3 ) of the Act says that the Act
will come into force on such date as the Central Government may by
notification in the Official Gazette appoint. It is the contention of the
petitioner that the object of the Act is to define and regulate the rights and
duties of the parties to hire purchase agreement on the matter connected
therewith or incidental therewith and the provisions have been made with the
aforesaid object in mind but the Central Government has not issued any
notification for enforcing the Act. Learned counsel appearing for the
petitioner has submitted that a Writ of Mandamus should be issued to the
appropriate Government directing it to enforce the Act from a particular date.
3. Learned counsel appearing for the petitioner has placed
reliance upon the decision reported in AIR 1969 SC 1306 (Praga Tools Corpn.
v. C.V. Imanual and others). The aforesaid decision is an authority for the
proposition that a Writ of Mandamus lies to seek enforcement of a statutory or
public duty imposed on the Government by a statue. However, this decision is
not the authority for the proposition that the Court has got power to issue
such a positive direction to the Government to issue notification to the
effect that a particular statute should come into force from a particular
date.
4. The next decision relied upon by the learned counsel for
the petitioner is reported in AIR 1971 SC 2399 (Narinder Chand vs. U.T.
Himachala Pradesh) wherein it was observed:
“The power to impose a tax is undoubtedly a legislative power. That
power can be exercised by the legislature directly or subject to certain
conditions, the legislature may delegate that power to some other authority.
But the exercise of that power, whether by the legislature or by its delegate
is an exercise of a legislative power. The fact that the power was delegated
to the executive does not convert that power into an executive or
administrative power. No Court can issue a mandate to a legislature to enact
a particular law. Similarly no Court can direct a subordinate legislative
body to enact or not to enact a law which it may be competent to enact a law
which it may be competent to enact. The relief as framed by the appellant in
his writ petition does not bring out the real issues calling for
determination. In reality he wants this Court to direct the Government to
delete the entry in question from Schedule A and include the same in Schedule
B. Article 265 of the Constitution lays down that no tax can be levied and
collected except by authority of law. Hence the levy of a tax can only be
done by the authority of law and not by any executive order. Unless the
executive is specifically empowered by law to give any exemption, it cannot
say that it will not enforce the law as against a particular person. No Court
can give a direction to a Government refrain from enforcing a provision of
law. Under these circumstances, we must hold that the relief asked for by the
appellant cannot be granted”.
5. This decision does not lay down High Court can give a
positive direction to the Government for bringing into effect any particular
Act.
6. Learned counsel for the petitioner, thereafter placed
reliance upon a decision reported in AIR 1982 SC 710 (A.K. Roy vs. Union of
India). The opinion expressed by the majority of the Honourable Judges has
been reflected succinctly in paragraph 52. Even though the minority opinion
expressed by JUSTICE GUPTA reflects a different line of thinking on this
aspect, in view of the majority decision, there is no escape from the question
that the Courts do not have any power to issue any specific Writ of Mandamus
directing the Central Government to bring a particular Act into force with
effect from a particular date.
7. Even though the decisions relied upon by the learned
counsel for the petitioner did not support the proposition put forth by the
petitioner, a subsequent decision of the Supreme Court in the case of
Aeltemesh Rein v. Union of India reported in AIR 1988 SC 1768, even though
not cited by the Bar, has some relevance. In the aforesaid Supreme Court’s
decision after considering the Constitution Bench’s decision reported in AIR
1982 SC 710 (A.K. Roy vs. Union of India), it was observed that;
“6. The effect of the above observations of the Constitution
Bench is that it is not open to this Court to issue a writ in the nature of
mandamus to the Central Government to bring a statute or a statutory provision
into force when according to the said statute the date on which it should be
brought into force is left to the discretion of the Central Government. As
long as the majority view expressed in the above decision holds the field it
is not open to this Court to issue a writ in the nature of mandamus directing
the Central Government to bring Section 30 of the Act into force. But we are
of the view that this decision does not come in the way of the Supreme Court
issuing a writ in the nature of mandamus to the Central Government to consider
whether the time for bringing section 30 of the Act into force has arrived or
not. Every discretionary power vested in the Executive should be exercised in
a just, reasonable and fairway. That is the essence of the rule of law. The
Act was passed in 1961 and nearly 27 years have elapsed since it received the
assent of the President of India. In several conferences and meetings of the
lawyers resolutions have been passed in the past requesting the Central
Government to bring into force section 30 of the Act. It is not clear whether
the Central Government has applied its mind at all to the question whether
section 30 of the Act should be brought into force. In these circumstances,
we are of the view that the Central Government should be directed to consider
within a reasonable time the question whether it should bring section 30 of
the Act into force or not. If on such consideration the Central Government
feels that the prevailing circumstances are such that section 30 of the Act
should not be brought into force immediately it is a different matter. But it
cannot be allowed to leave the matter to lie over without applying its mind to
the said question. Even though the power under Section 30 of the Act is
discretionary, the Central Government should be called upon in this case to
consider the question whether it should exercise the discretion one way or the
other having regard to the fact that more than a quarter of century has
elapsed from the date on which the Act received the assent of the President of
India. The learned Attorney General of India did not seriously dispute the
jurisdiction of this Court to issue the writ in the manner indicated above”.
8. More than 30 years have elapsed since the Hire Purchase
act was enacted. The Central Government was vested with the power to issue
notification to bring into effect such Act. Even though 3 decades have
passed, no notification has been issued by the Central Government. As
observed in the Constitution Bench’s decision, it is for the Parliament to see
that the laws passed by it are enforced. That is the matter left for the
legislature and a Writ of Mandamus cannot be issued directing the executive to
issue notification for bringing the Act into force. However, having regard to
the facts and circumstances of the case and keeping in view of the decision
AIR 1988 SC 1768 Aeltmesh Rein v. Union of India, I feel it is a fit and
proper case where the Writ of Mandamus should be issued to the Central
Government to consider as to whether a notification should be issued to bring
into effect the Hire Purchase Act. This may be considered by the Central
Government within a period of six months from the date of receipt of copy of
this order. The petition is accordingly disposed of. No costs.
Index: Yes
Internet: Yes
asvm
To
Secretary
to Government,
Union of India,
Ministry of Law,
New Delhi.