Holding

Section 3 of the Bombay Provincial Municipal Corporation Act is a legislative power not subject to natural‑justice requirements, and the High Court’s order directing a rehearing was erroneous.

Summary

The Government of Maharashtra issued a draft notification under Section 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 to create Kalyan Corporation by merging Kalyan, Ambarnath, Dombivali and Ulhasnagar. After receiving numerous objections, only the All India Sindhi Panchayat Federation was granted a personal hearing; the other objectors were not heard. The Government subsequently issued a final notification under Section 3(2) excluding Ulhasnagar from the corporation, prompting residents of Ambarnath to challenge the exclusion as a breach of natural‑justice principles, discriminatory under Article 14, and arbitrary. The Bombay High Court directed the State to reconsider the proposal, to issue a fresh draft notification and to give a hearing to all parties. The Supreme Court held that the power conferred by Section 3 is legislative in character, not subject to the rules of natural justice, and therefore the High Court’s direction to rehear the parties was erroneous. Consequently, the Supreme Court set aside the High Court order and allowed the appeals.

Issues considered

The exercise of power under Section 3 of the Bombay Provincial Municipal Corporation Act, 1949 is legislative and therefore not bound by the rules of natural justice.
Whether the exclusion of Ulhasnagar without hearing all objectors violates Article 14 of the Constitution.
Whether the High Court erred in directing the State to issue a fresh draft notification and to provide a hearing to parties not entitled to one.

Legislation cited

Bombay Provincial Municipal Corporation Act, 1949s. 3(2), s. 3(3), s. 3(4)

Subjects

natural justicelegislative powermunicipal corporationArticle 14procedural fairnessjudicial reviewBombay Provincial Municipal Corporation Act

Judgment

SUNDARJAS.KANYALAL BHATIJA & ORS. A
v.
COLLECTOR, THANE, MAHARASHTRA & ORS.

JULY 13, 1989
B
[G.L. OZA AND K. JAGANNATHA SHETTY, JJ.)
Constitution of lndia-1950.
Articles 32, 136, 226 and 141-Judicial Review-Part of the Con-
stitutional scheme-Law to be made clear, certain and consistent. Rules
of natural justice-Not applicable to legislative action plenary ·or
subordinate-Requirement of hearing not implied in exercise oflegisfa- C
tive powers.

Bombay Provincial Municipal Corporation Act 1949-Section
3-Draft notification-Merger of municipal areas into Corporation
issuance of-Government not entitled to hear the parties.
D
On June 19, 1962, the Government of Maharashtra issued
a drall notification under Section 3(3) of the Bombay Provincial
Municipal Corporation Act, 1949 and thereby proposed the formation
of "Kalyan Corporation", by merging of municipal areas of Kalyan,
Ambarnath, Domoivali and Ulhasnagar. The proposal was resented to
by the residents of the said areas and many objections and representa- E
tions by persons, companies and authorities including the municipal
bodies of Ambarnath, and Ulhasnagar were made. So far as Ulhasnagar
was concerned it was stated that Sindhi Community after partition has
settled at Ulbasnagar and to keep the identity of' Sindhies distinct, they
had formed All India Sindhi Panchayat Federation. The said Federa- .
tion challenged the draft notification by a Writ Petition before the High F
Court. On an assurance being given by the Government before the High
Court that the representation made by the Federation would be duly
considered, the Writ Petition was allowed to be withdrawn. As per the
assurance, the Federation was given personal hearing on their re-
presentation. Only the Federation was heard, none of the other
representationistS was afforded any hearing though their objections were G
duly considered. After considering the matter in the manner aforesaid,
the Government decided to exclude Ulhasnagar from the proposed
Corporation and accordingly a notification under section 3(2) of the Act
was issued. The Corporation was th:is Constituted excluding Ulhas-
nagar. Save as aforesaid no other alteration was made in the noti-
fication. H

405
406 SUPREME COURT REPORTS [1989] 3 S.C.R.

A The Residents of Ambarnath municipal area were not satisfied.
They moved the High Court challenging the validity of the notification
issued under section 3(2) of the Act. Their main contention was that
there has been hostile discrimination in the matter as only the Federa-
tion was heard and none else. They also asserted that the establish-
ment of a Corporation without Ulhasnagar, keeping in view the
B geographical contiguity was- unintelligibe and incomprehensible.
According to them it was arbitrary and opposed to the object of the Act.

Federation and others interested in the proceedings were allowed
to intervene and they supported the stand taken by the Government
which was the main respondent.
c The State pleaded that the formation of Corporation was an ex-
tension of the legislative process and as such section 3 was a piece of
conditional legislation, and the notification issued in exercise of that
power cannot be said to have been vitiated by non-compliance with the
principles of natural justice. According to the State it was not obligatory
D for the State to issue a preliminary notification over again before the
final notification excluding Ulhasnagar was issued.

The High Court took the view that the decision to exclude
Ulhasnagar was taken by the State abruptly and in an irrational manner
and that the decision was against the object of the Act. On the legality of
E the procedure followed by the Government, the High Court held that
once a decision was taken, it was obligatory on the part of the Govern-
ment to reconsider the proposal as a whole so for as the rest of the areas
were concerned.

The High Court without quashing the impugned notification
F directed the State Government to reconsider the proposal under sub-
section (3) of the Act either to exclude or include any area and accord-
ingly make amends in the notification. It was also directed that the
Petitioners and the Federation be given a reasonable opportunity of
being heard before any final decision in the matter is taken. Against the
aforesaid decision of the High Court only interveners have preferred
O these appeals. The State and Kelyan City Corporation have not
appealed.

Counsel for the appellants reiterated the stand taken by the
Government before the High Court ~nd urged that the State had a wide
discretion in the selection of areas for constituting the Corporation and
H the Court cannot interfore with such discretion. State's power to consti-
;"li,- •-.•c -

S.K. BHATIJA v. COLLECTOR, THANE ~07

tute a corporation is legislative in character and rules of natural justice
A
have no application. It was urged that the state had complied with all
the statury requirements and it was not necessary for the state to go
through that exercise again. It was further urged that the decision of
this Court has been disregarded and a binding decision of a co-ordinate
bench of the same Court in Village Panchayat Chikalthane & Anr. v.
State of Maharashtra has been ignored. B

Allowing the appeals, Ibis Court,

HELD: In our system of judicial review which is a part of our
constitutional scheme, Ibis Court holds it to be the duty of Judges of
superior Courts and tribunals to make the law more predictable. The
question of law directly arising in the case should not be dealt with
c
apologetic approaches. The law must be made more effective as a guide
to behaviour. It must be determined with reasons which carry convic-
tions within the Courts, professions and public otherwise the lawyers
would be in a predicament and would not know how to advise their
clients. Subordinate Courts would find themselves in an embarrassing D
position to choose between the conflicting opinions. The general public
will be in a dilemma to obey or not to obey such law and it ultimately
falls into disrepute. [4J7D-Fl

It is needless to state that the judgment of superior Courts and
Tribunals must be written only after deep travail and positive vein. E
One should never let a decision go unless he is absolutely sure it is right.
.. The law must be made clear, certain and consistent. But ceritude is not
the test ofcertainty and consistency does not mean that there should be
no word of new content. The principle of law may develop side by side
with itew content but not in consistencies. There could be waxing and
waning the principle depending upon the pragmatic needs and moral F
yearings. Such development of law particularly is inevitable in our
developing country. [4J7G-H; 418A-BJ
The rules of natural justice are not applicable to legislative activity
plenary or subordinate. The procedural requirement of hearing is not
implied in the exercise of legislative powers unless hearing was
expressly prescribed. [419F] G

The High Court, therefore, was in error in directing the Govern-
ment to hear the parties who are not entitled to be heard in law; section
3 of the Bombay Provincial Municipal Corporation Act 1949. [419F-G]

The Government in the exercise of its powers under section 3 is H
408 SUPREME"COURT REPORTS [1989) 3 S.C.R.

A not subject to the Rules of natural justice any more than is legislature 'T ...
itself. [419F)

Mahadeolal Kanodia v. The Administrator General of West Ben-
gal, A.I.R. (1960) S.C. p. 926; Sri Bhagwan and Anr. v. Ram Chand
and Anr., A.I.R. (1965) S.C. 1767 at 1773; Union of India v. Raghbir
B Singh, [1989] 2 S.C.C. 754; The Nature of Judicial Process by Benjamin
N. Cardozo; Bates v. Lord Heilsham of St. Marylebone and Others, l,
W.L.R. 1373; Tulsipur Sugar Co. Ltd. v. The Notified Area Commit-
tee, Tulsipur; [ 1980] 2 S.C.R. l lll and Baldev Singh v. State of Himac·
ha! Pradesh, [1987] 2 S.C.C. 510, referred to.

C CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5736
of 1985 & C.A. No. 508/1986.

From the Judgment and Order dated 14.8.1985 of the Bombay
High Court in Civil Writ Petition No. 3420 of 1983.

D N.N. Keswani and R.N. Keswani for the Appellants.

G. Ramaswamy Additional Solicitor General, S.K. Dholakia,
Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi for the
Respondents.

E The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. The case involved in these two
appeals, with leave, seems indeed straight forward enough, but the •
High Court of Bombay made it, as we venture to think, unsatisfactory
and in a sense against judicial propriety and decorum.
F
The facts which are of central importance may be stated as
follows.

On June 19, 1982, the Government of Maharashtra issued a draft
notification under sec. 3(3) of the Bombay Provincial Municipal
G Corporation Act, 1949 (the "Act"). The draft notification proposed
the formation of what is termed as "Kalyan Corporation" {the
"Corporation"). It suggested the merging of Municipal areas of y~
Kalyan, Ambarnath, Domoivali and Ulhasnagar. Against this pro-
posal, there were many objections and representations from persons,
companies and the authorities. Ambarnath and Ulhasnagar Municipal
H bodies and also some of the residents therein submitted their represen-
S.K. BHATJJA v. COLLECTOR, THANE [SHETTY, J.[ 409

.
:::; "'1•
tations. They objected to the merger of their municipal areas into the
Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are
A
~f ' predominant. In 1947, they were the victims of partition of the
country. Being uprooted from their home land, they have since settled
down at Ulhasnagar. They have formed union or federation called the
~ All India Sindhi Panchayat Federation. It is interested in having a
separate indentity for Ulhasnagar. The Federation challenged the said B
-.+ draft notification by a writ petition before the Bombay High Court.
The writ petition was not disposed of on merits. It was permitted to be
withdrawn on an assurance given by the Government. The Govern-
ment gave the assurance that the representatives of the Federation
f would be given an opportunity of being heard before taking a final
decision. As per the assurance, they were given personal hearing on
their representations. The others who have filed similar representa- c
~ tions were not heard. But their objections or representations were
duly considered. Thereupon, the Government decided to exclude
Ulhasnagar from the proposed Corporation. Accordingly, a notifica-
lion under sec. 3(2) of the Act was issued. The Corporation was thus
constituted without Ulhasnagar. That was the only alteration made in D
i the proposal earlier notified. All other areas indicated in the draft
notification were merged in the Corporation.

The residents of Ambarnath Municipal areas were not satisfied.
) They were, perhaps, more worried by the exclusion of Ulhasnagar
than the inclusion of their own area. They moved the High Court E
under Article 226 of the Constitution challenging the notification
issued under sec. 3(2) of the Act. They inter-alia, contended that the
action of the Government affording an opportunity of being heard
only to the Federation and not to other-objectors was contrary to
._. Article 14. It was a hostile discrimination to hear only one of the
objectors. They asserted that the establishment of the Corporation
without Ulhasnagar Municipal area, having regard to the geographical
F

contiguity was unintelligible and incomprehensible. It was arbitrary
and opposed to the object of the Act. They also contended that there
ought to have been a fresh draft notification after taking a decision to
exclude Ulhasnagar from the proposal. With similar contentions and
for the same relief, there was another writ petition before the High G
Court. It was filed by the National Rayon Corporation Limited which
.,'-( is a company locaied within the Municipal limits of Ambarnath .

The Sindhi Panchayat Federation was not a party to the writ
petitions. It was, however, allowed as an intervener. Some other
persons who were interested in the outcome .of the writ petitions were H
410 SUPREME COURT REPORTS [1989] 3 S.C.R.

A also permitted to intervene in the proceedings. They supported the .,., ...
.
stand taken by the Government which was the main respondent in the
writ petitions.

The State in its counter affidavit resisted the petitioners' claim
raising several grounds. The first point to be noted in this ~ontext is
B this:

"That the formation of Municipal Corporation under sec. 3
of the Act is an extension of the legislative process and,
therefore, sec. 3 is nothing but a piece of conditional legis-
lation. The principles of natural justice will not apply to
such legislative function nor it could be imparted into it
c even by necessary implication. The petitioners have not
challenged the validity of the sub-section (2) of sec. 8 of the
Act and even otherwise the said validity has been upheld by
a Division Bench of this Court (Shah and Deshpande, JJ)
in writ petition No. 706-A of 1982 (The Village Panchayat
D Chikalthane and Anr. v. The State of Maharashtra and Anr.
decided on 23/24 December, 1982. Therefore, it cannot be
said that the notification issued in exercise of the said
legislative power is vitiated by non-complaince with the
principles of natural justice. The conditions laid down by
a
sec. 3 are fully complied with; preliminary notification
E was issued as contemplated by sub-section (4) of sec. 3 of
the Act; the objections and suggestions made by the vari-
ous citizens and persons were duly considered by the State
Government and thereafter the final notification was •
issued. In the very nature of things there is bound to be
difference and variance between the preliminary noti-
F fication and the final notification. Only because the
Ulhasnagar Municipal Council is excluded from the final
notification, it cannot be said that there was any major
departure from the preliminary notification or it was neces-
sary to issue a preliminary notification over again before
the final notification was issued in that behalf."
G
The second factual point to be noted is this:

"Due to partition of India in 1947, the Sindhi people have
been uprooted from their homeland and with hard labour
they have settled themselves in different parts of the
H country. One can appreciate their feelings about their anxi-
·\::

S.K .. BHATIJA v. COLLECTOR, THANE [SHETfY, J.] 411

-. ety to maintain their separate entity. If such a large part is
1 forcibly included in the Corporation ignoring their senti-
ments and wishes, it may not result in smooth working of
the proposed Corporation which is necessary for proper
development. It is, therefore, desirable to constitute the
new Kalyan Corporation without including Ulhasnagar for
the time being."

The High Court was not impressed with the above reasonings.
Ti)e High Court said that the decision to exclude Ulhasnagar was taken
by the Government abrupily and in an irrational manner. The deci-
sion was arbitrary and against the purpose of the Act. On the legality
of the procedure followed by the Government, the High Court said:

"Once that decision was taken, it was obligat<iiry on the
part of the Government to reconsider the proposal as a
whole so far as the rest of the areas are concerned."

Reference was also made to the report of the "Sathe Commis-
sion" to fortify the conclusion that Ulhasnagar could not have been
isolated. The "Sathe Comgiission" was a one man Commission
appointed by the State Government to enquire and report on the
establishment of new Municipal Corporations. The Commission in its
report among others, seems to have indicated that Kalyan, Ulhasnagar
and Ambarnath are one contiguous stretch of territory with a length of
about 8 kms. from North-West to South-East.

The High Court then made some general observations as to the
purpose for which Municipal Corporations should be constituted and
went on:

"It was the avowed policy after independence to change
the socio-economic map of the village and town. A corpo-
rate life can only be ensured if there is a corporate con-
science and an attitude to live together. City is an epitome
of the social world where all belts of civilization interest
along its avenues. A Municipal Corporation is ... , ... in
nature, where people belonging to different castes, cceeds,
religious and language want to live with each other. Town
planning cannot be denominational or fractional. It is not
a museum of human beings otherwise Harijan Bastis,
Mominpures and such other Mohallas will have to be pre-
served to maintain its separate identity and the socio
412 SUPREME COURT REPORTS [1989] 3 S.C.R.

economic map of the village or city will never change. It
cannot be forgotten that we are heading towards a global
village. By saying this, we do not want to belittle the
achievements of sacrifice of the Sindhi Community. How-
ever, that is not very relevant for deciding the question of
the establishment of a Municipal Corporation. Its main
B object is to ensure better municipal government of the city.
It appears that Government was also aware of this and this
seems to be the reason why the decision "for the time be-
ing" is pertinent and clearly indicates that the Government
wanted to reconsider the issue at a later stage. However,
unfortunately till today Government has not taken any
decision in that behalf."
c
The High Court, however, felt that it was not necessary to quash
the notification establishing the Corporation. This is how the condu-
sion was reached:

D "It will not be fair to quash the notification as a whole and
unsettle the Municipal Administration. In our view, that is
also not necessary since from the affidavit of the Govern-
ment, it is clear that the decision taken in that behalf was
tentative, i.e., for the time being and it is not all-time
permanent decision. Under sub-section (3) of sec. 3 of the
E
, act, the State Government has power to exclude or include
any area specified in the notification issued so far as
Amharnath Town is concerned, reconsideration of the
present case of the whole matter was absolutely necessary ....
when the decision to exclude the Ulhasnagar Municipal
Council from the proposed Municipal Corporation, though
F tentative in nature, was taken."

Finally, the operative portion of the Order was put in the follow-
ing terms:

"Therefore, without setting aside the final notification, we
G direct the State Government to reconsider the proposal
under sub-sec. (3) of sec. 3 of the Bombay Provincial
Municipal Corporations Act either to exclude or include
any area, within a period of six months from today. The
writ of mandamus to be issued accordingly. It is needless to
say that after the necessary steps are taken under sec. 3(3)
H of the Act, the State Government shall make the necessary
S.K. BHATIJA v. COLLECTOR, THANE {SHETi"Y, J.l 413

amends in the notification issued.
A
xxx xxx xxx xxx

xxx xxx xxx xxx

"In the result, therefore, the n,ile is made partly absolute B
and the State Government is directed to exercise its power
under sec. 3 sub-sec. (3) of the Act in accordance with law
within a period of six months. It is needless to say that the

- ' petitioners will be entitled to raise objections and make
their suggestions in that behalf after a notification under
sub-sec (3) read with sub-sec (4) of sec. 3 of the Act is
issued. Since the popular local self-Government is nbt in C
existence in any of the Municipal Councils or even in the
newly established municipal corporation and having regard
to the peculiar facts and circumstances of the case, in our
view, this is a fit case where the petitioners of these two
petitions and All India Sindhi Panchayat Federation should D
be given a reasonable opportunity of being heard before
any final decision in the matter is taken."

Against the judgment of the High Court, the State Government
has riot preferred any appeal. The Kalyan City Corporation though
vitally concerned with the matter, has also not appealed to this Court. E
The present appeals are only by those who were imp1eaded as in-

- terveners in the writ petitions.

We have heard co·unsel for aU parties and gave our best attention
to the questions raised by the appeflnrtts. Counsel for the appeffams
reiterated the stand taken by the Government before the High Court. F
He urged that the State has a wide discretion in the seieetion of areas
for constituting the Corporation and the Court cannot in:tel'fere with
such discretion. The Court has no jurisdiction to examine the validity
of the reason that goes into the decision of the Government. The
power to coflstitute Muni"c-ipal Corporatio11s under sec. 3 or the Act is
legislative in character. rt is an extension of legislative process for G
which rules of rratuwl justice have no application. He said that the
Government in the instant case has complied with the statutory
requirements and it was not expected to do anything more in the
premises. And, at any rate, it is wholly unnecessary according to the
counsel to go through tha:t exercise aga;n as the High Court has
suggested. H
·. 414 -·SUPREME COURT REPORTS -[1989] 3 S.C.R.
!

A The other limb of the argument of counsel for the appellants
,relates to the manner in which the High Court disposed of the matter.
it was said that a decision of this Court has been disregarded and a )(
binding decision of a co-ordinate Bench of the same Court has been
ignored.

B The grievance of the appellants' counsel, in our opinion, is not
wholly unjustified..•.t the. beginning of the judgment, we have said
that the High Court rendered the judgment in a sense. against the
judicial ·propriety and decorum. We were not haPJlY co make that
observation, but-constrained to say so in the premise and background
of the case: It may be noted that the result of the writ petitions before
the High Court turns on the nature and scope of the power conferred
c on the Government under sec. 3 of the Act. A Division Bench of the
High Court has taken the view that that power is in the nature of
legislative process. That judgment was rendered on 23/24 December,
1982, by a Bench consisting of Shah and Deshpande, JJ. It was in writ
petition No. 706-A of 1982-The Village Panchayat Chikalthana and
D Another v./ Tlie State of Maharashtra and Another, In- that ,_
case, the
challengt: was to the validity of sec. 3(2) of the Act on the ground that
it suffers from the vice of excessive delegation for want of guidelines
for the exercise of power. Repelling the contention, it was held that
sec. 3 is in the nature of a conditional legislation and, therefore, laying
down the policy or guidelines to exercise the power was unnecessary.
E It was emphasized that the exercise of power ur.der sec. 3(2) is con-
ditioned by only two requirements, viz., (1) previous publication as
contemplated by sub-sec. (4) of sec. 3 of the Act, (2) issuance of a
notification by the Government after such previous publication. Once
the Government publishes such a notification, the legislation becomes
complete and the other provisions of the Act are ipso facto attracted to
F the Corporation so constituted. This was the view taken by the High
Court in Chikalthane case. To reach that conclusion, the learned
judges relied upon the decision of this Court in Tulsipur Sugar
Company, case 1980 2 SCR 1111.

· The attention of the High Court in the present case was drawn to
G the decision in Chikalthane, case. Counsel for the State and interven-
ers seemed to have argued that the present case really fell fairly and
squarely within what was said there. They were indeed on terra firma
since the decision in Chikalthane case was a clear authority against
every contention raised by the petitioners. Faced with this predica-
ment, counsel for the petitioners urged before the Higlj Court that
H their case should be referred to a larger Bench to reconsider the deci-
'

S.K. BHATIJA v. COLLECTOR, THANE [SHETIY, J.] 415

sion m Chikalthane, case. But learned Judges, (Dharmadhikari and
A
Kantharia, JJ). did not heed to that submission. They neither referred
the case to a larger Bench nor followed· the view taken in the
Chikalthane, case. It was not as if they did not comprehend the issue to
be determined and the principle to be applied. They were very much
aware of it when they remarked:
B
"In our opinion, once it is accepted that this is a piece of
conditional legislation, then 1t will have to be held that the
principle of natural justice would not .apply to such a case
as held by the Division Bench of this Court in village
Panchayat Chikalthane's case nor it could be said tmat
because under a mistaken notice the Federation was heal":!,
the denial of such a right to the petitioners will amount to c
hostile discrimination within the contemplation of Article
14 of the Constitution of India."

After referring to these simple legal principles, it is unfortunate
that tile issue at stake was little explored. The key question raised in D
the case was side-tracked and. a new strategy to interfere with the
decision of the Government was devised. The learned Judges directed
the Government to publish again a draft notification for reconsidera-
tion of the matter. They gave liberty to the writ petitioners and the
interveners to submit their representations. They observed that "this is
a fit case where the parties should be given a reasonable opportunity of E
being heard." They did not quash the impugned notification, but told
the Government to make necessary changes in the light of fresh con-
• sideration. All these directions were issued after recording a positive
finding that the exclusion of Ulhasnagar from the Corporation was
arbitrary and irrational. The net result of it is that there is now no
discretion with the Government to keep Ulhasnagar away from the F
Corporation.

It would be difficult for us to appreciate the judgment of ti)e
High Court. One must remember .that pursuit of the law, however
glamorous it is, has its own limitation on the Bench. In a multi-judge
court, the Judges are bound by precedents and procedure. They ccmld G
use their discretion only when there is no declared principle to be
;.·-{ found, no rule and no authority. The judicial decorum and legal
\ propriety demand that where a learned single judge ot a Diyision
Bench does not agree with the decision of a Bench of co-ordinate
jurisdiction, the matter shall be referred to a larger Bench. It is a
subversion of judicial process not to follow this procedure. H
416 SUPREME COURT REPORTS [1989] 3 S.C.R.

A
Deprecating this kind of tendency of some judges, Das Gupta, y
J., in Mahadeolal Kanodia v. The Administrlltor General of West
Bengal, AIR 1960 SC 926 said (at 941):

"We have noticed with some regret that when the earlier
decision of two Judges of the same High Court in Deora-
B jin's case, 58 Cal WN 64 (AIR 1954 Cal 119) was cited \
before the learned Judges who heard the present appeal _,,.,'
they took on themselves to say that the previous decision
was wrong, instead of following the usual procedure in case
of difference of opinion with an earlier decision, of refer-
ring no less than legal propriety form the basis of judicial \
procedure. If one thing is more necessary in law than any
c other thing, it is the quality of certainty. That quality would
totally disappear if Judges of co-ordinate jurisdiction in a
High Court start overruling one a'c'other's decision."

The attitude of Chief Justice, Gajendragadkar, in Lala Shri
D Bhagwan and Anr. v. Ram Chand and Anr., AIR 1965 SC 1767 was
not quite different (at 1773):

"It is hardly necessary to emphasize that considerations of
judicial propriety and decorum require that if a learned
single judge hearing a matter is inclined to take the view
that the earlier decisions of the High Court, whether of a
Division Bench or of a single, Judge, need to be recon-
sidered, he should not embark upon that enquiry sitting as
a single judge, but should refer the matter to a Division
Bench or, in a proper case, place the relevant papers be-
fore the Chief Justice to enable him to constitute a larger
Bench to examine the question. That is the proper and ->-/
traditional way to deal with such matters and it is founded
on healthy principles of judicial decorum and propriety. It
is to be regretted that the learned Judges departed from
this traditional way in the present case and choose to
examine the question himself."
G '
The Chief Justice Pathak, in a recent decision stressed the need
for a clear and consistent enunciation of legal principle in the decisions y
of a Court. Speaking for the Constitution Bench Union of India v.
Raghubir Singh, [1989] 2 SCC 754 learned Chief Justice said (at 766):

H "The doctrine of binding precedent has the merit of pro-
. S.K. BHATIJA v. .COLLECTOR, THANE [SHETTY, J.] 417 .
.,
mating a certainty and consistency in judicial decisions,
A
and enables an organic development of the law, besides
providing ass.urance to the individual as to the consequence
of transactimis forming part of bis daily affairs. And, there-
fore, the t1eed for a clear and consistent enunciation of
legal principle in the decisions of a Court."
B
Cardozo propounded a similar thought with more emphasis:

"I am not to mar the symmetry of the legal structure by the
introduction of inconsistencies and irrelevancies and artifi-
l cal exceptions unless for some sufficient reason, which will
commonly by some consideration of history or custom or
c
policy or justice. Lacking such a reason, I must be logical
just as I must be impartial, and upon like grounds. It will
not do to decide the same question one way between one
set of litigants and the opposite way between another"
(The Nature of the Judicial Process by Benjamin N.
Cardozo p. 33\ D

In our system of judicial review ·which is a part of our Constitutional
scheme, we hold it to be the duty of judges of superior courts and
tribunals to make the law more predictable. The questjon of ]aw
directly arising in the case should not be dealt with apologetic
approaches. The law must be made more effective as a guide to E
behaviour. It must be determined with reasons which carry convictions
.• within the Courts, profession ·and public. Otherwise, the lawyers
would be in a predicament and would not know how to advise their
clients. Subordinate courts would find themselves in an embarrassing
position to choose between the conflicting opinions. The general
pul;\lic would be in dilemma to obey or not to obey such law and it p
ultimately falls into disrepute.

Judge learned Hand has referred to lhe tendency of some judges
"who win the game by sweeping all the chessmen off the table". (The
Spirit of Liberty by Alfred A. Knopf, New York (1953) p. 131). This is
indeed to be deprecated. It is needless to state that the judgment of G
superior courts and Tribunals must be written only after deep travail
and positive vein. One should never let a decision go until he is
absolutely sure it is right. The law must be made clear, certain and
consistent. But certitude is not the test of certainty and consistency
does not mean that there should be no word of new content. The
principle of law may develop side by side'.with new content but not H
.}
418 SUPREME COURT REPORTS [1989] 3 S.C.R.
,,
.,

A
with inconsistencies. There could be waxing and wanning the principle y
depending upon the pragmatic needs and moral yearnings. Such
development of law particularly, is inevitable in our developing
country. In Raghubir Singh, case, learned Chief Justice Pathak had
this to say ( 1989) 2 sec 754 at 767:

B "Legal compulsions cannot be limited by ex1stmg legal
propositions, because, there will always be, beyond the +-·I
frontiers of the existing law, new areas inviting judicial
scrutiny and judicial choice-making which could well affect
the validity of existing legal dogma. The search for solu-

c
tions responsive to a changed social era involves a search
not only among competing propositions of law, or compel-
ing versions of a legal proposition, or the modalities of an
indeterminacy such as "fairness" or "reasonableness" but
also among propositions from outside the ruling law,
'
'1
corresponding to the empirical knowledge or accepted
values of present time and place, relevant to the dispensing
D of justice within the new parameters.

And he continued:
I
The universe of problems presented for judicial choice-
making at the growing points of the law is an expanding \
E universe. The areas brought under control by the accumu-
lation of past judicial choice may be large. Yet the areas
newly presented for still further choice, because of chang-
ing social, ecoµomic and technological conditions are far
from inconsiderable. It has also to be remembered, that
many occasions for new options arise by the mere fact that
F no generation looks out on the world from quite the same ~
vantage-point as its predecessor, nor for that matter with
the same perception. A different vantage point or a diffe-
rent quality of perception often reveals the need for choice-
making where formerly no alternatives, and no problems at
all, were p~rceived."
G
Holmes tells us:
'y·-,
"The truth is, that the law is always approaching, and never
reaching, consistency. It is forever adopting new principles
from life at the end, and it always retains old ones from
H history at the other, which have not yet been absorbed or
n
~

.
,, •
S.K. BHATJJA v. COLLECTOR, THANE (SHETIY, J.]
,
. sloughed off. It will become entirely consistent only when it
ceases to grow." (Holmes the Common Law, p. 36 (1881) .
419

A

Apart from that the judges with profound responsibility could
ill-afford to take stolid satisfaction of a single postulate past or present
in any case. We think, it was Cicero who said about someone "He sa\I
life clearly and he saw it whole". The judges have to have a little bit of that B
in every case while construing and applying the law.

Reverting to the case, we find that the conclusion of the High
. Court as to the need to reconsider the proposal to form the Corpora-
f tion has neither the attraction of logic nor the support of law. It must
be noted that the function of the Government in establishing a Corpo-
ration under the Act is neither executive nor administrative. Counsel
c
~ for the appellants was right in his submission that it is legislative pro-
cess indeed. No judicial duty is laid on the Government in discharge of
the statutory duties. The only question to be examined is whether the
statutory provisions have been complied with. If they are complied
with,, then, the Court cp'uld say no more. In the present case the D
Government did publish the proposal by a draft notification and also
considered the representations received. It was only thereafter, a deci-
sion was taken to exclude Ulhasnagar for the time being. That decision
became final when it was notified under Section 3(2). The Court can-
) not sit in judgment over such decision. It cannot lay down norms for
the exercise of that power. It cannot substitute even "its juster will for E
theirs."

• Equally, the rule issued by the High Court to hear the parties is
untenable. The Government in the exercise of its powers under Sec-
lion 3 is not subject to the rules of natural justice any more than is
legislature itself. The rules of natural justice are not applicable to F
legislative action plenary or subordinate. The procedural requiren\ent
of hearing is not implied in the exercise of legislative powers unless
hearing was expressly prescribed. The High Court, therefore, was in
error in directing the Government to hear the parties who are not
entitled to be heard under law.
G
Megarry, J., in Bates v. Lord Hai/sham of St. Marylebone and
1 Ors., [1972] 1 WLR 1373 while dealing with the legislative process
under Section 56 of the Solicitors Act, 1957 said (at 1378):

"In the present case, the committee in question has an
entirely different function: it is legislative rather than H
420 SUPREME COURT REPORTS [1989) 3 S.C.R.

A administrative or executive. The function of the committee
is to make or refuse to make a legislative instrument under
)" '
delegated powers. The order, when made, will lay down
the remuneration for solicitors generally and the terms of
the order will have to be considered and construed and
B applied in numberless cases in the future. Let me accept
that in the sphere of the so-called quasi-judicial the rules of
natural justice run, and that in the administrative or execu-
tive field there is a general duty of fairness. Nevertheless,
these considerations do not seem to me to affect the pro-
cess of legislation, whether primary or delegated. Many of
those affected delegated legislation, and affected very sub-
c stantially, are never consulted in the process of enacting
that legislation; and yet they have no remedy. Of course,
the informal consultation of representative bodies by the
legislativ!' authority is a commonplace; but although a few
statutes have specifically provided for a general process of
publishing draft delegated legislation and considering
D
objections (see, for example, the Factories Act 1961
Schedule 4), I do not know of any implied right to be con-
sulted or make objections, or any principle upon which the
courts may enjoin ihe legislative process at the suit of those
wbo contend that insufficient time for consultation and
E
consideration has been given. I accept that the fact that the ~--
order will take the form of a statutory instrument does not
per se make it immune from attack, whether by injunction
or otherwise; but what is important is not its form but its
nature, which is plainly legislative." .
There are equally clear authorities on this point from this Court.
F
The case in Tvlsipur Sugar Co. Ltd. v. The Notified Area Committee,
Tulsipur, [1980) 2 SCR 1111 was indeed a hard case. But then, this
Court did not make a bad Jaw. There a notification dated August 22,
1955 was issued under Section 3 of the U.P. Town Area covering the
petitioner's factory. Consequently, the octroi was levied on goods
brought by the factory management ·into the limits of Town Area
G
Committee. The Company questioned the validity of that notification.
The case pleaded was that the company had no opportunity to make
representation regarding the advisability of extending the limits of the
Town Area Committee. Venkataramiah, J., as the present learned
Chief Justice then was, while rejecting the contention observed (1119-
20); .
H
S.K. BHA\IJA v. COLLECTOR, THANE [SHETTY, J.J 421

"The power of the State Government to make a declara-
A
tion under Section 3 of the Act is legislative in character
because the application of the rest of provisions of the Act
to the geographical atea which is declarecl as a town area is
clependent up011 such declaratio11. Section 3 of the A,ct is in
the nature of a conditional legislation. Dealing with the
nature of fu11ctio11s of a non-judicial authority, Prof. S.A. B
De Smith in Judicial Review of Administrative Action
(third edition) observ@s at page 163: "However, the analy-
tical classificati911 of a function may be a conclusive factor
in excluding the operation of the audi a(teram partem rule.
It is generally assumed that in English law the making of a
subordinate legislative instrument need not be preceded
by notice or hearing unless the parent Act so provides." c

In Baldev Singh v. State of Himachal Pradesh, I1987] 2 SCC 510 a
similar question arose for consideration. An attempt was made to
constitute a notified area as providecl under Section 256 of the Hima-
chal Pradesh M_unicipal Act, 1968, by including portions of the four D
villages for such purposes. The residents of the villages who were
mostly agriculturists challenged the validity of the notification before
the High Court on the ground that they had no opportunity to have
their say against that notification. The High Court summarily dismis-
sed the writ petition. In the appeal before this Court, it was argued
that the extension of notified area over the Gram Panchayat limits E
would involve civil co0 seq\iences l\llcl therefore, it was necessary that
. persons who would be affected thereby ought to be given an opportu-
nity of being heard. Ranganath Misra, J., did not accept that conten-
tion, b11t clarifiecl (at 515):

"We accept the submission on behalf of the appellants that F
before the notified area was constituted in terms of Section
256 of the Act, the people of the locality should have been
afforded an opprotunity of being heard 'and the adminis-
trative decision by the State Government should have been
•' taken after considering the view of the residents. Denial of
such opportunity is not in consonance with the scheme of G
the rule of law governing our society. We must clarify that
the hearing contemplated is not required to be oral and can
be by inviting objections and disposing them of in a fair
way." ·

The principles and precedents thus en join us not to support the H
422 SUPREME COURT REPORTS [1989] 3 S.C.R.

A view taken by the High Court. We may only·observe that the Govern-
ment is expected to act and must act in a way which would make it consis-
tent with the good administration. It is they, and no one else-who
must pass judgment on this matter. We must, therefore, leave it to the
Government.
B
In the result and for the reasons stated, we allow the appeals and
set aside the judgment of the High Court. In the circumstances of the +-· ',
case, we make no order as to costs.

Y. Lal Appeals allowed.

-~