revribhav (Hindi) 15 November 2013

Apesx court ruling : competent authority

***...It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide: The Purtabpur Co., Ltd. v. Cane Commissioner of Bihar & Ors., AIR 1970 SC 1896; Chandrika Jha v. State of Bihar & Ors., AIR 1984 SC 322; Tarlochan Dev Sharma v. State of Punjab & Ors., AIR 2001 SC 2524; and Manohar Lal (D) by L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).

27.Similar view has been re-iterated by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors. v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the Constitutional scheme.

In the matter of:

Civil Appeal No.3844 of 2011 (Arising out of SLP(C) No.27814 of 2008)

The Joint Action Committee of Airlines

Pilots Associations of India & Ors. ...Appellants

Versus

The Director General of

Civil Aviation & Ors. ...Respondents

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revribhav (Hindi) 15 November 2013

Other important rulings in the above judgement of Apex Court of India:-

***Exercise of the power is always referable to the source of power and must be considered in conjunction with it.

***An order which is not under challenge, could not be quashed.

***Thus, it is evident from the above that executive instructions which are issued for guidance and to implement the scheme of the Act and do not have the force of law, can be issued by the competent authority and altered, replaced and substituted at any time. The law merely prohibits the issuance of a direction, which is not in consonance with the Act or the statutory rules applicable therein.

*** It is a question of challenging the public policy and it is well settled that public authorities must be given a very long rope, full freedom and full liberty in framing policies, though the discretion of the authorities cannot be absolute and unqualified, unfettered or uncanalised. The same can be the subject matter of judicial scrutiny only in exceptional circumstances where it can be shown to be arbitrary, unreasonable or violative of the statutory provisions. More so, the courts are not well equipped to deal with technical matters, particularly, where the decisions are based on purely hyper-technical issues. The court may not be able to consider competing claims and conflicting interests and conclude on which way the balance tilts.

***Thus, in exceptional circumstances, it may be permissible for the statutory authority to put subordinate legislation in abeyance. However, such an order being legislative in character, is not warranted to be interfered by the Court/Tribunal.

***... merely because the second document is in continuation of the first document, it cannot be said that the challenge to the first document would ipso facto include challenge to the second document.

The text of aforesaid decision of Supreme Court of India is attached herewith

Attached File : 554284509 sc2781408 competent authority.pdf downloaded: 115 times