{"id":31144,"date":"2007-12-06T00:00:00","date_gmt":"2007-12-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/divisional-manager-aravali-golf-vs-chander-hass-anr-on-6-december-2007"},"modified":"2017-10-07T23:47:34","modified_gmt":"2017-10-07T18:17:34","slug":"divisional-manager-aravali-golf-vs-chander-hass-anr-on-6-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/divisional-manager-aravali-golf-vs-chander-hass-anr-on-6-december-2007","title":{"rendered":"Divisional Manager, Aravali Golf … vs Chander Hass & Anr on 6 December, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Divisional Manager, Aravali Golf … vs Chander Hass & Anr on 6 December, 2007<\/div>\n
Bench: A. K. Mathur, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  5732 of 2007\n\nPETITIONER:\nDivisional Manager, Aravali Golf Club & Anr.\n\nRESPONDENT:\nChander Hass & Anr.\n\nDATE OF JUDGMENT: 06\/12\/2007\n\nBENCH:\nA. K. Mathur & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
O R D E R
\n[Arising out of S.L.P(C) No.3358 of 2007]<\/p>\n
1.\tHeard learned counsel for the parties.\n<\/p>\n
2.\tLeave granted.\n<\/p>\n
3.\tThis appeal by special leave is directed against the judgment and
\norder dated 17th February, 2006 passed by a learned Single Judge of the
\nHigh Court of Punjab and Haryana in R.S.A. No.666\/2006 whereby the
\nlearned Single Judge has affirmed the judgment and decree passed by the
\nFirst Appellate Court.\n<\/p>\n
4.\tThe brief facts which are necessary for the disposal of the present
\nappeal are that the plaintiffs (respondents in this appeal) were appointed as
\nMali (gardener) in the service of the defendant-appellant, which is a golf
\nclub run by the Haryana Tourism Corporation in the year 1989 and 1988
\nrespectively on daily wages.  Subsequently in the year 1989 they were told
\nto perform the duties of Tractor Drivers, though there was no post of tractor
\ndriver in the employers establishment.  However for a number of years they
\ncontinued to be paid wages for the post of Mali.\n<\/p>\n
5.\tThereafter on a recommendation made by the Head Office, the
\nappellants started paying them wages of tractor driver on daily wage basis,
\nas per rates recommended by the Deputy Commissioner.  Though they
\ncontinued to work for about a decade as tractor drivers, their services were
\nregularized against the post of Mali in the year 1999 and not as tractor
\ndriver.  When despite representations their grievance was not redressed, the
\nrespondents herein filed civil suit in the month of April, 2001 claiming
\nregularization against the posts of tractor driver.  Their claim was rejected by
\nthe Trial Court which observed that there was no post of tractor driver in the
\nestablishment, and the suit was dismissed.  The Trial Court held that plying a
\ntractor is part and parcel of the job of Mali in a Golf Club, since the Golf
\nField of the Club is vast and needs to be maintained with mechanical
\ngadgets.\n<\/p>\n
6.\tAggrieved against the said order of dismissal of the suit, the
\nrespondents herein preferred an appeal before the Additional District Judge,
\nFaridabad.  Their appeal was accepted and the judgment and decree of the
\nTrial Court was set aside.  The First Appellate Court observed that the
\ndefendants were taking the work of tractor driver from the plaintiffs since
\n13.8.1999, and hence it directed the defendants to get the post of tractor
\ndriver sanctioned, and to regularize the plaintiffs on that post.\n<\/p>\n
7.\tThereafter the Divisional Manager, Aravali Golf Club filed a second
\nappeal before the High Court of Punjab and Haryana.  The learned Single
\nJudge held that the post of tractor driver should be created as there is no
\nhitch in not creating the posts of drivers especially when tractors were
\navailable and there existed need to use those tractors.  It was also observed
\nby the learned Single Judge that simply by relying upon technicalities the
\nState authorities cannot be allowed to suppress the individuals and to deny
\ntheir lawful rights.   The learned Single Judge also held that no substantial
\nquestion of law arose in the matter.  Hence, the second appeal was dismissed
\nand the judgment of the First Appellate Court was upheld.  Aggrieved
\nagainst the said judgment of the learned Single Judge, the appellants are in
\nappeal before us.\n<\/p>\n
8.\tThe plaintiff-respondents admitted in the plaint that they were
\nappointed as Mali.  In the suit the plaintiff-respondents stated that they were
\nworking as tractor driver at Aravali Golf Club.  Initially they were engaged
\non daily wages.  Thereafter their services were regularized on the post of
\nMali (gardener) instead of tractor driver.  The respondents filed a
\nrepresentation before the concerned authorities for regularizing them on the
\npost of Tractor Driver, but that was not done since there was no post of
\ntractor driver.  Therefore, the respondents filed a suit.\n<\/p>\n
9.\tThe suit was contested by the defendants-appellants.  The appellants
\nin their written statement submitted that the plaintiffs were appointed as
\nMali on a daily wage basis on 9.10.1989.  The respondent No.1 had earlier
\nfiled Writ Petition No.6216\/1991 for regularizing his services.  The Honble
\nHigh Court disposed of the said writ petition by passing the order directing
\nthe respondent No.1 to make a representation against the termination of his
\nservices and the appellants herein were restrained from terminating the
\nservices of the respondent No.1 till his representation was decided.  The writ
\npetition was accordingly disposed of.\n<\/p>\n
10.\tIn pursuance of the said order the respondent No.1 made
\nrepresentation for regularization of his service on 2.5.1991.  The plaintiff-
\nrespondent was informed vide order dated 14.5.1991 that there was no post
\nof tractor driver and his case for regularization would be considered as and
\nwhen sanctioned post of the tractor deriver will be available.\n<\/p>\n
11.\tThe plaintiff-respondent was paid wages of tractor deriver from
\nAugust 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked
\nto work as a tractor driver.  He was also informed that whenever a post of
\ntractor driver was created, his case for appointment of tractor deriver will be
\nconsidered.  In the meanwhile services of plaintiff No.1 was regularized as
\nMali vide order dated 11.5.1999 which was duly accepted by him without
\nany protest.  Similar is the case of respondent No.2 herein.  He was engaged
\nas Mali on daily wage basis w.e.f. 1.9.1988 and his services were also
\nregularized as Mali vide order dated 11.5.1999.\n<\/p>\n
12.\tIn the written statement in the suit the appellants took preliminary
\nobjection that as there is no sanctioned post of tractor driver and hence there
\nis no question of their being appointed on the post of tractor driver.  It was
\nalso asserted in the written statement that as and when the post of tractor
\ndriver will be available their cases will be considered in accordance with
\nlaw.  On the basis of these pleadings, several issues were framed and a
\nfinding was recorded by the Trial Court that as there is no sanctioned post of
\ntractor driver, the plaintiffs cannot be regularized in the said post.  This is a
\nfinding of fact recorded by the Trial Court and it was never disputed at any
\nstage.  Aggrieved against the said judgment the respondents herein filed an
\nappeal and the learned First Appellate Court without going into the merit of
\nthe matter set aside the judgment and decree of the Trial Court and directed
\ncreation of the post of tractor driver, and regularization of the respondents on
\nthe said post.  Against the said order of the First Appellate Court, the
\nappellants herein preferred a second appeal before the High Court of Punjab
\nand Haryana.  The learned Single Judge has affirmed the judgment and order
\nof the First Appellate Court.\n<\/p>\n
13.\tLearned counsel for the appellants submitted that there is no post of
\ntractor driver, and therefore, there is no question of regularizing the
\nrespondents in the said post.  It is not disputed that there is no sanctioned
\npost of tractor driver in the appellants establishment.  Learned counsel for
\nthe respondents has also not been able to show that there are any sanctioned
\nposts of tractor driver.\n<\/p>\n
14.\tSince there is no sanctioned post of tractor driver against which the
\nrespondents could be regularized as tractor driver, the direction of the First
\nAppellate Court and the learned Single Judge to create the post of tractor
\ndriver and regularizing the services of the respondents against the said newly
\ncreated posts was in our opinion completely beyond their jurisdiction.\n<\/p>\n
15.\tThe Court cannot direct the creation of posts.  Creation and sanction
\nof posts is a prerogative of the executive or legislative authorities and the
\nCourt cannot arrogate to itself this purely executive or legislative function,
\nand direct creation of posts in any organization.  This Court has time and
\nagain pointed out that the creation of a post is an executive or legislative
\nfunction and it involves economic factors.  Hence the Courts cannot take
\nupon themselves the power of creation of a post.  Therefore, the directions
\ngiven by the High Court and First Appellate Court to create the posts of
\ntractor driver and regularize the services of the respondents against the said
\nposts cannot be sustained and are hereby set aside.\n<\/p>\n
16.\tConsequently, this appeal is allowed and the judgment and order of
\nthe High Court as well as that of the First Appellate Court are set aside and
\nthe judgment of the Trial Court is upheld.  The suit is dismissed.  No costs.\n<\/p>\n
17.\tBefore parting with this case we would like to make some
\nobservations about the limits of the powers of the judiciary.  We are
\ncompelled to make these observations because we are repeatedly coming
\nacross cases where Judges are unjustifiably trying to perform executive or
\nlegislative functions.  In our opinion this is clearly unconstitutional.  In the
\nname of judicial activism Judges cannot cross their limits and try to take
\nover functions which belong to another organ of the State.\n<\/p>\n
18.\tJudges must exercise judicial restraint and must not encroach into the
\nexecutive or legislative domain vide Indian Drugs & Pharmaceuticals
\nLtd.  vs.  The Workman of Indian Drugs & Pharmaceuticals Ltd.<\/a> (2007)
\n1 SCC 408 and S.C. Chandra and Ors.  vs.  State of Jharkhand and Ors.
\nJT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.).\n<\/p>\n
19.\tUnder our Constitution, the Legislature, Executive and Judiciary all
\nhave their own broad spheres of operation.  Ordinarily it is not proper for
\nany of these three organs of the State to encroach upon the domain of
\nanother, otherwise the delicate balance in the Constitution will be upset, and
\nthere will be a reaction.\n<\/p>\n
20.\tJudges must know their limits and must not try to run the
\nGovernment.  They must have modesty and humility, and not behave like
\nEmperors.  There is broad separation of powers under the Constitution and
\neach organ of the State  the legislature, the executive and the judiciary
\nmust have respect for the others and must not encroach into each others
\ndomains.\n<\/p>\n
21.\tThe theory of separation of powers first propounded by the French
\nthinker Montesquieu (in his book `The Spirit of Laws) broadly holds the
\nfield in India too.  In chapter XI of his book `The Spirit of Laws
\nMontesquieu writes :\n<\/p>\n
\tWhen the legislative and executive powers are
\nunited in the same person, or in the same body of
\nmagistrates, there can be no liberty; because
\napprehensions may arise, lest the same monarch or senate
\nshould enact tyrannical laws, to execute them in a
\ntyrannical manner.\n<\/p>\n
     Again, there is no liberty, if the judicial power be
\nnot separated from the legislative and executive.  Were it
\njoined with the legislative, the life and liberty of the
\nsubject would be exposed to arbitrary control; for the
\njudge would be then the legislator.  Were it joined to the
\nexecutive power, the judge might behave with violence
\nand oppression.\n<\/p>\n
\tThere would be an end of everything, were the
\nsame man or the same body, whether of the nobles or of
\nthe people, to exercise those three powers, that of
\nenacting laws, that of executing the public resolutions,
\nand of trying the causes of individuals. <\/p>\n
\t\t\t\t\t(emphasis supplied)<\/p>\n
We fully agree with the view expressed above.  Montesquieus warning in
\nthe passage above quoted is particularly apt and timely for the Indian
\nJudiciary today, since very often it is rightly criticized for `over-reach and
\nencroachment into the domain of the other two organs.\n<\/p>\n
22.\tIn Tata Cellular  vs.  Union of India AIR<\/a> 1996 SC 11 (vide
\nparagraph 113) this Court observed that the modern trend points to judicial
\nrestraint in administrative action.  The same view has been taken in a large
\nnumber of other decisions also, but it is unfortunate that many courts are not
\nfollowing these decisions and are trying to perform legislative or executive
\nfunctions.    In our opinion adjudication must be done within the system of
\nhistorically validated restraints and conscious minimization of the Judges
\npreferences.  The Court must not embarrass the administrative authorities
\nand must realize that administrative authorities have expertise in the field of
\nadministration while the Court does not.  In the word of Chief Justice Neely:\n<\/p>\n
\tI have very few illusions about my own
\nlimitations as a judge.  I am not an accountant, electrical
\nengineer, financier, banker, stockbroker or system
\nmanagement analyst.  It is the height of folly to expect
\nJudges intelligently to review a 5000 page record
\naddressing the intricacies of a public utility operation.  It
\nis not the function of a Judge to act as a super board, or
\nwith the zeal of a pedantic school master substituting its
\njudgment for that of the administrator.\n<\/p>\n
23.\tIn Ram Jawaya  vs. State of Punjab AIR 1955 SC 549 (vide
\nparagraph 12),  a Constitution Bench of this Court observed:\n<\/p>\n
     The Indian Constitution has not indeed
\nrecognized the doctrine of separation of powers in its
\nabsolute rigidity but the functions of the different parts or
\nbranches of the Government have been sufficiently
\ndifferentiated and consequently it can very well be said
\nthat our Constitution does not contemplate assumption by
\none organ or part of the State, of functions that
\nessentially belong to another<\/p>\n
\t\t\t\t\t\t\t(emphasis supplied)<\/p>\n
24.\tSimilarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR<\/a>
\n1989 SC 1899 a three Judge bench of this Court observed (vide paragraphs
\n17 to 19) :\n<\/p>\n
17.\tBefore adverting to the controversy directly
\ninvolved in these appeals we may have a fresh look on
\nthe inter se functioning of the three organs of democracy
\nunder our Constitution.  Although the doctrine of
\nseparation of powers has not been recognized under the
\nConstitution in its absolute rigidity but the constitution
\nmakers have meticulously defined the functions of
\nvarious organs of the State.  Legislature, executive and
\njudiciary have to function within their own spheres
\ndemarcated under the Constitution.  No organ can usurp
\nthe functions assigned to another.  The Constitution trusts
\nto the judgment of these organs to function and exercise
\ntheir discretion by strictly following the procedure
\nprescribed therein.  The functioning of democracy
\ndepends upon the strength and independence of each of
\nits organs.  Legislature and executive, the two facets of
\npeoples will, they have all the powers including that of
\nfinance.  Judiciary has no power over sword or the purse
\nnonetheless it has power to ensure that the aforesaid two
\nmain organs of State function within the constitutional
\nlimits.  It is the sentinel of democracy.  Judicial review is
\na powerful weapon to restrain unconstitutional exercise
\nof power by the legislature and executive. The expanding
\nhorizon of judicial review has taken in its fold the
\nconcept of social and economic justice.  While exercise
\nof powers by the legislature and executive is subject to
\njudicial restraint, the only check on our own exercise of
\npower is the self imposed discipline of judicial restraint.\n<\/p>\n
18.\tFrankfurter, J. of the U.S. Supreme Court
\ndissenting in the controversial expatriation case of Trop
\nv. Dulles (1958) 356 US 86 observed as under :\n<\/p>\n
All power is, in Madisons phrase, of an
\nencroaching nature.  Judicial powers is not
\nimmune against this human weakness.  It
\nalso must be on guard against encroaching
\nbeyond its proper bounds, and not the less so
\nsince the only restraint upon it is self
\nrestraint.\n<\/p>\n
\tRigorous observance of the difference
\nbetween limits of power and wise exercise
\nof powerbetween questions of authority
\nand questions of prudencerequires the most
\nalert appreciation of this decisive but subtle
\nrelationship of two concepts that too easily
\ncoalesce. No less does it require a
\ndisciplined will to adhere to the difference.\n<\/p>\n
It is not easy to stand aloof and allow want
\nof wisdom to prevail to disregard ones own
\nstrongly held view of what is wise in the
\nconduct of affairs.  But it is not the business
\nof this Court to pronounce policy.  It must
\nobserve a fastidious regard for limitations on
\nits own power, and this precludes the
\nCourts giving effect to its own notions of
\nwhat is wise or politic.  That self-restraint is
\nof the essence in the observance of the
\njudicial oath, for the Constitution has not
\nauthorized the judges to sit in judgment on
\nthe wisdom of what Congress and the
\nExecutive Branch do.               <\/p>\n
19.\tWhen a State action is challenged, the function of
\nthe court is to examine the action in accordance with law
\nand to determine whether the legislature or the executive
\nhas acted within the powers and functions assigned under
\nthe constitution and if not, the court must strike down the
\naction.  While doing so the court must remain within its
\nself-imposed limits.  The court sits in judgment on the
\naction of a coordinate branch of the Government.  While
\nexercising power of judicial review of administrative
\naction, the court is not an appellate authority.  The
\nconstitution does not permit the court to direct or advise
\nthe executive in matters of policy or to sermonize qua
\nany matter which under the constitution lies within the
\nsphere of legislature or executive, provided these
\nauthorities do not transgress their constitutional limits or
\nstatutory powers.   <\/p>\n
25.\tUnfortunately, despite these observations in the above mentioned
\ndecisions of this Court, some courts are still violating the high constitutional
\nprinciple of separation of powers as laid down by Montesquieu.  As pointed
\nout by Honble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L.
\nDubey  Lecture:\n<\/p>\n
.Judiciary has intervened to question a mysterious
\ncar racing down the Tughlaq Road in Delhi, allotment of
\na particular bungalow to a Judge, specific bungalows for
\nthe Judges pool, monkeys capering in colonies, stray
\ncattle on the streets, clearing public conveniences,
\nlevying congestion charges at peak hours at airports with
\nheavy traffic, etc. under the threat of use of contempt
\npower to enforce compliance of its orders.  Misuse of the
\ncontempt power to force railway authorities to give
\nreservation in a train is an extreme instance.\n<\/p>\n
26.\tRecently, the Courts have apparently, if not clearly, strayed into the
\nexecutive domain or in matters of policy.  For instance, the orders passed by
\nthe High Court of Delhi in recent times dealt with subjects ranging from age
\nand other criteria for nursery admissions, unauthorized schools, criteria for
\nfree seats in schools, supply of drinking water in schools, number of free
\nbeds in hospitals on public land, use and misuse of ambulances,
\nrequirements for establishing a world class burns ward in the hospital, the
\nkind of air Delhities breathe, begging in public, the use of sub-ways, the
\nnature of buses we board, the legality of constructions in Delhi, identifying
\nthe buildings to be demolished, the size of speed-breakers on Delhi roads,
\nauto-rickshaw over-charging, growing frequency of road accidents and
\nenhancing of road fines etc.   In our opinion these were matters pertaining
\nexclusively to the executive or legislative domain.  If there is a law, Judges
\ncan certainly enforce it, but Judges cannot create a law and seek to enforce
\nit.\n<\/p>\n
27.\tFor instance, the Delhi High Court directed that there can be no
\ninterview of children for admissions in nursery schools.  There is no statute
\nor statutory rule which prohibits such interviews.  Hence the Delhi High
\nCourt has by a judicial order first created a law (which was wholly beyond
\nits jurisdiction) and has then sought to enforce it.  This is clearly illegal, for
\nJudges cannot legislate vide Union of India  vs.  Deoki Nandan Agarwal,
\nAIR<\/a> 1992 SC 96.  In V.K. Reddy  vs.  State of Andhra Pradesh J.T.
\n2006(2) SC 361 (vide para 17) this Court observed The Judges should not
\nproclaim that they are playing the role of law maker merely for an exhibition
\nof judicial valour.  Similarly, the Court cannot direct the legislature to make
\na particular law vide Suresh Seth  vs.  Commissioner, Indore Municipal
\nCorporation & Ors. AIR<\/a> 2006 SC 767, Bal Ram Bali  vs.  Union of India
\nJT<\/a> 2007 (10) SC 509, but this settled principle is also often breached by
\nCourts.\n<\/p>\n
28.\tThe Jagadambika Pals case of 1998, involving the U.P. Legislative
\nAssembly, and the Jharkhand Assembly case of 2005, are two glaring
\nexamples of deviations from the clearly provided constitutional scheme of
\nseparation of powers.  The interim orders of this Court, as is widely
\naccepted, upset the delicate constitutional balance among the Judiciary,
\nLegislature and the Executive, and was described Hon. Mr. J.S. Verma, the
\nformer CJI, as judicial aberrations, which he hoped that the Supreme Court
\nwill soon correct.\n<\/p>\n
29.\tHonble Justice A.S. Anand, former Chief Justice of India has
\nrecently observed : Courts have to function within the established
\nparameters and constitutional bounds.  Decisions should have a
\njurisprudential base with clearly discernible principles.\tCourts have to be
\ncareful to see that they do not overstep their limits because to them is
\nassigned the sacred duty of guarding the Constitution.  Policy matters, fiscal,
\neducational or otherwise, are thus best left to the judgment of the executive.
\nThe danger of the judiciary creating a multiplicity of rights without the
\npossibility of adequate enforcement will, in the ultimate analysis, be counter
\nproductive and undermine the credibility of the institution.  Courts cannot
\ncreate rights where none exists nor can they go on making orders which
\nare incapable of enforcement or violative of other laws or settled legal
\nprinciples.  With a view to see that judicial activism does not become
\njudicial adventurism, the courts must act with caution and proper restraint.
\nThey must remember that judicial activism is not an unguided missile
\nfailure to bear this in mind would lead to chaos.  Public adulation must not
\nsway the judges and personal aggrandizement must be eschewed.  It is
\nimperative to preserve the sanctity and credibility of judicial process.  It
\nneeds to be remembered that courts cannot run the government.  The
\njudiciary should act only as an alarm bell; it should ensure that the executive
\nhas become alive to perform its duties.\n<\/p>\n
30.\tThe justification often given for judicial encroachment into the
\ndomain of the executive or legislature is that the other two organs are not
\ndoing their jobs properly.  Even assuming this is so, the same allegation can
\nthen be made against the judiciary too because there are cases pending in
\nCourts for half-a-century as pointed out by this Court in Rajindera Singh
\nvs. Prem Mai & others (Civil Appeal No.<\/a> 1307\/2001) decided on 23
\nAugust, 2007.\n<\/p>\n
31.\tIf the legislature or the executive are not functioning properly it is for
\nthe people to correct the defects by exercising their franchise properly in the
\nnext elections and voting for candidates who will fulfill their expectations,
\nor by other lawful methods e.g. peaceful demonstrations.   The remedy is not
\nin the judiciary taking over the legislative or executive functions, because
\nthat will not only violate the delicate balance of power enshrined in the
\nConstitution, but also the judiciary has neither the expertise nor the
\nresources to perform these functions.\n<\/p>\n
32.\tOf the three organs of the State, the legislature, the executive, and the
\njudiciary, only the judiciary has the power to declare the limits of
\njurisdiction of all the three organs.  This is a great power and hence must
\nnever be abused or misused, but should be exercised by the judiciary with
\nthe utmost humility and self-restraint.\n<\/p>\n
33.\tJudicial restraint is consistent with and complementary to the balance
\nof power among the three independent branches of the State.  It
\naccomplishes this in two ways.  First, judicial restraint not only recognizes
\nthe equality of the other two branches with the judiciary, it also fosters that
\nequality by minimizing inter-branch interference by the judiciary.  In this
\nanalysis, judicial restraint may also be called judicial respect, that is, respect
\nby the judiciary for the other coequal branches.  In contrast, judicial
\nactivisms unpredictable results make the judiciary a moving target and thus
\ndecreases the ability to maintain equality with the co-branches.  Restraint
\nstabilizes the judiciary so that it may better function in a system of inter-
\nbranch equality.\n<\/p>\n
34.\tSecond, judicial restraint tends to protect the independence of  the
\njudiciary.  When courts encroach into the legislative or administrative fields
\nalmost inevitably voters, legislators, and other elected officials will conclude
\nthat the activities of judges should be closely monitored.  If judges act like
\nlegislators or administrators it follows that judges should be elected like
\nlegislators or selected and trained like administrators.  This would be
\ncounterproductive.  The touchstone of an independent judiciary has been its
\nremoval from the political or administrative process.  Even if this removal
\nhas sometimes been less than complete, it is an ideal worthy of support and
\none that has had valuable effects.\n<\/p>\n
35.\tThe constitutional trade  off for independence is that judges must
\nrestrain themselves from the areas reserved to the other separate branches.
\nThus, judicial restraint complements the twin, overarching values of the
\nindependence of the judiciary and the separation of powers.\n<\/p>\n
36.\tIn Lochner  vs.  New York 198 US 45(1905) Mr. Justice Holmes of
\nthe U.S. Supreme Court in his dissenting judgment criticized the majority of
\nthe Court for becoming a super legislature by inventing a `liberty of
\ncontract theory, thereby enforcing its particular laissez  faire economic
\nphilosophy.  Similarly, in his dissenting judgment in Griswold  vs.
\nCannecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded
\njudicial creativity would make this Court a day-to-day Constitutional
\nConvention.  In `The Nature of the Judicial Process Justice Cardozo
\nremarked : The Judge is not a Knight errant, roaming at will in pursuit of
\nhis own ideal of beauty and goodness.  Justice Frankfurter has pointed out
\nthat great judges have constantly admonished their brethren of the need for
\ndiscipline in observing their limitations (see Frankfurters `Some Reflections
\non the Reading of Statutes).\n<\/p>\n
37.\tIn this connection we may usefully refer to the well-known episode in
\nthe history of the U.S. Supreme Court when it dealt with the New Deal
\nLegislation of President Franklin Roosevelt.  When President Roosevelt took
\noffice in January 1933 the country was passing through a terrible economic
\ncrisis, the Great Depression.  To overcome this, President Roosevelt initiated
\na series of legislation called the New Deal, which were mainly economic
\nregulatory measures.  When these were challenged in the U.S. Supreme
\nCourt the Court began striking them down on the ground that they violated
\nthe due process clause in the U.S. Constitution.  As a reaction, President
\nRoosevelt proposed to reconstitute the Court with six more Judges to be
\nnominated by him.  This threat was enough and it was not necessary to carry
\nit out.  The Court in 1937 suddenly changed its approach and began
\nupholding the laws.  `Economic due process met with a sudden demise.\n<\/p>\n
38.\tThe moral of this story is that if the judiciary does not exercise
\nrestraint and over-stretches its limits there is bound to be a reaction from
\npoliticians and others.  The politicians will then step in and curtail the
\npowers, or even the independence, of the judiciary (in fact the mere threat
\nmay do, as the above example demonstrates).  The judiciary should,
\ntherefore, confine itself to its proper sphere, realizing that in a democracy
\nmany matters and controversies are best resolved in non-judicial setting.\n<\/p>\n
39.\tWe hasten to add that it is not our opinion that judges should never be
\n`activist.  Sometimes judicial activism is a useful adjunct to democracy
\nsuch as in the School Segregation and Human Rights decisions of the U.S.
\nSupreme Court vide Brown  vs.  Board of Education 347 U.S. 483 (1954),
\nMiranda  vs.  Arizona 384 U.S. 436, Roe  vs.  Wade 410 U.S. 113, etc. or
\nthe decisions of our own Supreme Court which expanded the scope of
\nArticles 14 and 21 of the Constitution.  This, however, should be resorted to
\nonly in exceptional circumstances when the situation forcefully demands it
\nin the interest of the nation or the poorer and weaker sections of society but
\nalways keeping in mind that ordinarily the task of legislation or
\nadministrative decisions is for the legislature and the executive and not the
\njudiciary.\n<\/p>\n
40.\tIn Dennis  vs.  United States (United States Supreme Court Reports
\n95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice Frankfurter observed:
\n\tCourts are not representative bodies.  They are not designed to be a
\ngood reflex of a democratic society.  Their judgment is best informed, and
\ntherefore, most dependable, within narrow limits.  Their essential quality is
\ndetachment, founded on independence.   History teaches that the
\nindependence of the judiciary is jeopardized when courts become embroiled
\nin the passions of the day and assume primary responsibility in choosing
\nbetween competing political, economic and social pressures. <\/p>\n
41.\tIn view of the above discussion we are clearly of the view that both
\nthe High Court and First Appellate Court acted beyond their jurisdiction in
\ndirecting creation of posts of tractor driver to accommodate the respondents.
\nAppeal Allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Divisional Manager, Aravali Golf … vs Chander Hass & Anr on 6 December, 2007 Bench: A. K. Mathur, Markandey Katju CASE NO.: Appeal (civil) 5732 of 2007 PETITIONER: Divisional Manager, Aravali Golf Club & Anr. RESPONDENT: Chander Hass & Anr. DATE OF JUDGMENT: 06\/12\/2007 BENCH: A. K. Mathur & Markandey Katju […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31144","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDivisional Manager, Aravali Golf ... vs Chander Hass & Anr on 6 December, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/divisional-manager-aravali-golf-vs-chander-hass-anr-on-6-december-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Divisional Manager, Aravali Golf ... vs Chander Hass & Anr on 6 December, 2007 - 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