Writ Court Cannot Stop Implementation Of A Statutory Provision Without Holding It Unconstitutional: Supreme Court

The Supreme Court of India recently said that in the absence of specific pleadings, a writ court can't get into the issues of repugnancy or lack of legislative competence. It added that unless the statutory provision is declared unconstitutional, its implementation cannot be stopped.

“We are of the view that in absence of any specific challenge to the validity of the statutory provisions, the High Court ought not to have undertaken the exercise of going into the question of repugnancy”, a Bench of Justices Abhay S Oka and Rajesh Bindal stated.

The Court was considering a plea filed in 2008 – the ask was to follow the rotation policy for the general elections to Panchayats in the State of Maharashtra to be held in the year 2007, complying with the Maharashtra Zilla Parishad and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996.

The plea was filed before the High Court based on the original petitioners’ concern that the provisions of the Panchayat (Extension of Scheduled Areas) Act, 1996 won’t be given effect by the State Election Commission in the then local body elections. Also before the High Court, the plea had vaguely stated that Sections 12(2) and Section 58(1b) of the Zilla Parishad and Panchayat Samiti Act, 1961 are not in accordance with Parts IX and X of the Constitution of India.

The High Court had recorded that the second proviso to each of Sections 12 (2) (b) and 58 (1-B) (b) of the ZPPS Act is in conflict with the first proviso to Section 4 (g) of PESA. It also added that it was “desirable for Law Departments of State and Union to have a dialogue” to remove the discrepancy.

Further, it directed that till the discrepancies are removed by the legislatures, the provisions of the 1961 Act and the 1996 Rules framed to the extent of repugnancy with PESA should be ignored “for practical application”. It proceeded to issue a Writ of Mandamus directing the State to implement the provisions of PESA for the elections of Panchayats at all levels in the districts of Dhule and Nandurbar.

This, the Supreme Court said, was “uncalled” for. “After having heard the learned counsel appearing for the parties, we are of the view that the entire exercise undertaken by the High Court of going into the issue of validity of the provisions of the 1961 Act and the rules framed thereunder was uncalled for. The reason is there was no challenge to the validity of the provisions of the 1961 Act in the writ petition”.

The Court explained its disagreement with the High Court’s view for three reasons:

• The law is well settled. There is always a presumption of constitutionality in favour of a statutory instrument.
• In the writ petition, there are no pleadings to show in what manner there is a repugnancy between the relevant provisions of the 1961 Act and Section 4(g) of PESA.
• There is no challenge to the provisions of the 1961 Act and the rules framed in the writ petition. Therefore, obviously, the State had no notice of the contentions which were raised at the time of hearing of the writ petition regarding the validity of the 1961 Act. Even a notice was not issued to the Advocate General of the State.

The Bench further added that it failed to understand the High Court’s observation regarding why law departments of the State and the Union should have a dialogue to remove the discrepancy.

The Top Court further observed that without holding that the statutory provisions are not constitutionally valid, the High Court couldn’t have directed to not implement the statutory provisions.

“Moreover, the High Court has not proceeded to strike down the relevant provisions which were held to be repugnant to PESA. It only directs that till the discrepancy is removed by the legislature, certain provisions of the 1961 Act and the rules framed thereunder shall be ignored. Such approach by the writ Court is not at all called for. Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory provisions.”

The original writ petitioners had argued that by setting aside the impugned judgment and order, an order of remand may be made so that the petitioners will be able to apply for amendment for incorporating a proper challenge. Denying the ask, the Court said that it won’t be possible at this stage as the petition was filed 15 years back.

“The Writ Petition is of the year 2008 and looking to the pleadings in the writ petition, it was filed only to take care of the elections which were round the corner. Moreover, considering the prayer made in the writ petition, now we cannot permit the writ petitioners to enlarge the scope of the writ petition.”

The Supreme Court, while setting aside the High Court’s judgement, also found fault with the latter’s act of going into various factual aspects such as the category of Panchayats, etc. “This exercise was not supported by the pleadings”, the Court said.

Case Title: Dhanraj Versus Vikram Singh & Ors. | Civil Appeal No. 3117/2009

Citation : 2023 LiveLaw (SC) 456

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