judgement:
ivil Appeal No. 3382 of 1991.
From the Judgment and Order dated 19.5.
1989/24.5.
1989 of Delhi High Court in W.P. No. 2915 of 1988.
D.D. Thakur, V.C. Mahajan, N.S. Das Bahl, D.N. Puri, Mukul Mudgal, Ms. A. Subhashini, K. Vasudev, section Mathur, Syed Ali Ahmad, Syed Tanweer Ahmed, section Balakrishnan, M.K.D. Nambodiri, P.P. Tripathi and Ms. Sangita Garg for the ap pearing parties.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
This Civil appeal by special leave is directed against the order of the Delhi High Court dated 19th May, 1989 as clarified by order dated 24th May, 1989 in Writ Petition No. 29 15 of 1988.
The facts in brief necessary for the decision of this appeal are that some land was proposed by the Central Government to be allotted for the resettlement of displaced persons.
In October 1959 the Rehabilitation Ministry Employ ees ' Cooperative House Building Society Ltd., New Delhi, Respondent No. 1 (hereinafter referred to as the Society) was formed and incorporated.
After completing necessary formalities an allotment of 60 acres of land was made by the Central Government in favour of the Society which, however, was subsequently cancelled on 7th May, 1979.
The Society challenged the aforesaid order of cancellation before the Delhi High Court in Writ Petition No. 654 of 1979 which was allowed by a Single Judge of that Court on 1st September, 1980.
This judgment Was challenged by the Delhi Development Authority before the High Court in Letters Patent Appeal No. 254 of 1980 which was dismissed by a Division Bench of the High Court on 5th January, 1981.
Aggrieved by these orders the Delhi Development Authority filed Special Leave Petition (Civil) No. 3762 of 1981 before this Court in which the parties entered into a compromise inter alia providing that an area of 45 acres of land in 842 place of 60 was to be allotted to the Society and that membership of the society was to be 'restricted to persons who were members as on 1st September, 1980 in accordance with the bye laws of the SoCiety as then prevailing.
1st September, 1980 was the date on which Writ Petition No. 654 of 1979 giving rise to Special Leave Petition (Civil) No. 3762 of 1981 had been allowed by the High Court.
In pursu ance of the compromise learned counsel for the Delhi Devel opment Authority prayed for and was granted leave on 6th May, 1982 to withdraw the said special leave petition.
In consequence, the order of the High Court stood modified in the light of the compromise entered into between the par ties.
The Society thereafter proceeded to make allotment of land to its members and draw of lots was held by the Society on 14th December, 1988.
This draw of lots was challenged by the appellants before the Delhi High Court in Writ Petition No. 29 15 of 1988 in which the orders appealed against were passed.
In order to appreciate the nature of dispute which was raised in this writ petition with reference to the draw of lots it is necessary to advert to some more facts.
Appellants 1 and 2 even though employees of Rehabilita tion Ministry stood posted in its subordinate offices out side Delhi.
It appears that even though only such persons who were employed and posted in the Rehabilitation Ministry in Delhi itself were intended to be eligible for membership of the Society, appellants 1 and 2 were enrolled as members of the Society on 22nd November, 1972 and 11th January, 1974 respectively.
Likewise, certain other persons who were not employees of Rehabilitation Ministry but were employees of departments which were under the charge of the Minister/Minister of State of the Rehabilitation Ministry, were also enrolled as its members by the Society.
With regard to such members who even though employees of the Rehabilitation Ministry, Were posted outside Delhi, the ' Union Cabinet in 1977 accepted a suggestion to enable Cen tral Government employees serving outside Delhi to become members of cooperative housing societies in Delhi.
In pursu ance thereof the Lt. Governor of Delhi passed a consequen tial general order on 9th June, 1977 directing that the condition with regard to bona fide residents of Delhi will stand relaxed to the extent that in case the Government servant during the term of employment and with a view to settle in Delhi after retirement has become a member of a Cooperative House Building Society, he will not be debarred from the membership of the Society simply on the 843 ground that he was not a resident of Delhi at the time of enrolment.
In pursuance of this general order the appellants and some other similar persons who had been ,enrolled as members by the Society became eligible to be members of the Society and subsequently their membership was approved.
As regards those persons who were employed in other departments under the charge of Minister/Minister of State of the Reha bilitation Ministry the Society by its Resolution dated 14th December, 1980 proposed an amendment of the bye laws so as to enable such persons also to become eligible for member ship of the Society.
The proposed amendment which was to be inserted as bye law 5(1)(a) (iii) was sent by the Society to the Registrar for approval.
The Registrar, however, refused to approve and register the proposed amendment.
Aggrieved, the Society preferred an appeal before the Lt. Governor of Delhi Which was allowed on 19th August, 1985.
The Lt. Governor directed the bye laWs to be so amended as to pro vide for eligibility of employees of a Ministry of which Department of Rehabilitation had been a part.
In pursuance of the aforesaid direction the amended bye law 5(1)(a)(iii) was registered and incorporated into the bye laws by the Registrar on 10th March, 1986.
At this place Section 12 of the Delhi Cooperative Socie ties Act, 1972 (hereinafter referred to as the Act) may be referred to which provides that an amendment of the bye laws of a cooperative society shall, unless it is expressed to come into operation on a particular day, come into force on the day on which it is registered.
Nothing to the contrary having been provided in this behalf the amended bye law 5(1)(a)(iii) was, in view of section 12 of the Act, to come into operation from both March, 1986 on which date the said amended bye Law was registered as stated above.
It appears that realising this difficulty, the Society wrote to the Registrar on 3rd February, 1987 to move the Lt. Governor for relaxing the provisions of Section 12 of the Act.
A reminder was sent by the Society on 26th March, 1987 to approve the aforesaid amended bye law with retrospective effect.
The Registrar seems to have moved the Government accordingly and necessary order in this behalf appears to have been passed by the Lt. Governor, the terms whereof are to be found in a Notification dated 27th October, 1987 issued by ' the Office of the Registrar, Cooperative Societies which reads as hereunder: "OFFICE OF THE REGISTRAR COOPERATIVE SOCIETIES New Delhi the 27th October, 1987 844 NOTIFICATION No. F. 46/2007/115/85/Bye laws/Coop/5398: In exercise of the powers conferred under Section 88 of the Delhi Coop erative Societies Act, 1972, the Lt. Governor Delhi has been pleased to exempt the Rehabili tation Min.
House Building Society Ltd. New Delhi from the provision of Section 12 of the said Act in respect of the amended bye laws No: 5(1)(a) (iii) of ' the said socie ty as registered on 10.3.86 will have retro spective effect from 10.1.1968, instead of 10.2.1986.
By Order on behalf of L.G., Delhi.
G.P. Sewallia, Spl.
(Coop)" The effect of the order of the Lt. Governor indicated in the aforesaid Notification was that employees of other departments under the charge of Minister/Minister of State of Rehabilitation Ministry became eligible to the membership of the Society with effect from 10th January, 1968.
There was a third category of members which too 'had given rise to the disputes raised in Writ Petition No. 29 15 of 1988.
One of the conditions for being eligible to be a member of the Society was that the person sought to be enrolled as a member of the Society had to file an affidavit that he or she did not own a residential house or plot either in his or her name or in the name of his or her spouse, parents or dependent relations.
15 persons had not, in their affidavits filed along with their applications for membership, given full particulars in this behalf.
It appears that subsequent ly this lacuna having come to its notice the Society kept their membership in abeyance and gave them an opportunity to file fresh affidavits giving full particulars which they did and on that basis their membership was regularised.
In the writ petition giving rise to this appeal Shri S.C. Saxena, Secretary of the Society had filed an affidavit which contained three lists.
List 'A ' contained the names of 572 persons whose membership had been cleared both by the Registrar of Cooperative Societies and the Ministry of Home Affairs (Department of Rehabilitation) in accordance with the dates of their enrolment.
List 'B ' contained the names of 26 members who were employees of the Ministries in Delhi/ New Delhi which were under the charge of the Minister/Minis ter of State of Rehabilitation Ministry.
List 'C ' on the other hand contained the names of such persons who were employees in the subordinate 845 offices of the Ministry/Department of Rehabilitation and were posted outside Delhi but wanted to settle in Delhi/New Delhi after retirement.
The appellants as noticed earlier fell in the category of members shown in List 'C '.
Their membership had, in pursuance of the order of the Lt. Gover nor dated 9th June, 1977 referred to above, been approved by the Society in the meeting of its Managing Committee held on 17th November, 1979.
In the same meeting by another Resolu tion the membership of the 15 persons referred to above as persons falling in the third category was also regularised on the basis of the fresh affidavits filed by them.
As regards those members whose names were mentioned in List 'B ' aforesaid it has been pointed out by the High Court in the judgment appealed against that "there is no dispute that the membership of these 26 persons mentioned in List 'B ' was either approved by the General Body in the meeting held on 8th July, 1970 or approved by the Managing Committee on 22nd March, 1974 or by the Administrator on or before 9th June, 1976.
" As regards members mentioned in List 'B ' the grievance of the appellants before the High Court was that the order of the Lt. Governor expressed in the Notification dated 27th October, 1987 was ultra vires his powers in so far as it made the amended bye law 5(1)(a)(iii) effective retrospec tively from 10th January, 1968.
As regards 15 persons of the third category referred to above the grievance of the appel lants before the High Court on the other hand was that they having filed fresh affidavits after the appellants had been enrolled as members could not be given seniority over the appellants in the matter of drawing of lots.
These conten tions having been repelled by the High Court by the orders appealed against the appellants have preferred this civil appeal in which subsequently various interlocutory applica tions for impleadment and other directions were made which too are being considered hereinafter along with the appeal.
In the appeal the real question which arises for consid eration is about the seniority of the members of the Society which constitutes the basis for allotment of plots at the time of drawing of lots.
As regards the seniority of the 15 members who have been referred to above as members falling in third category namely those who had been accepted as members of the society but subsequently whose membership was kept in abeyance on some defects being notices in their affidavits and who on an opportunity being given in this behalf filed fresh affidavits giving full particulars and were on the basis of such affidavits treated as regular members, the appellants ' grievance has been, as noticed earlier, that they having filed fresh affidavits after the appellants had 846 been enrolled as members could not be given seniority over the appellants.
The High Court in the orders appealed against has pointed out that the cases of these 15 persons were scrutinised by the screening committee Who recommended that they should be treated as regular member of the society and share certificates be issued to them.
It has, further, been found by the High Court that these 15 persons were admitted as members of the society either by the Managing Committee or the General Body or the Administrator prior to 17th November, 1979 and that the record indicated that their membership was kept in abeyance because of full information not being furnished in their affidavits.
It has held that since the membership of 26 persons falling in category 'C ' including the appellants was for the first time approved by the Managing Committee in its meeting held on 17th NOvember 1979 and the 15 persons referred to above had been admitted as members prior to 17th November 1979 and in the meeting held on 17th November, 1979 their membership was only regu larised, the 26 persons of Category 'C ' including the appel lants would obviously be junior tO the 15 members referred to above.
In our opinion, the view taken by the High Court in this behalf does not suffer from any such error which may justify interference under Article 136 of the Constitution.
Indeed no serious argument was addressed on this point on behalf of the appellants.
Now, we advert to the main submission made on behalf of the appellants with regard to the validity of the Order of the Lt. Governor indicated in the notification dated 27th October, 1987 giving the amended Bye law No. 5(1)(a)(iii) retrospective effect from 10th January 1968.
Before dealing with this plea, however, it is necessary to point out that during the pendency of the special leave petition giving rise to this appeal, the Lt. Governor issued another notifi cation dated 29th August, 1990, the relevant portion of which reads as hereunder: DELHI ADMINISTRATION, DELHI (COOPERATIVE DEPARTMENT) OLD COURT 'S BUILDING PARLIAMENT STREET: NEW DELHI Dated the 29th August, 1990 NOTIFICATION No. F. 46/2007/115/85/Bye laws/Coop./The Lt. Governor of the Union Territory of Delhi is pleased to rescind his notifica tion No. 27th October, 1987, issued under Section 88 of the Delhi Cooperative Societies Act, 1972 by which the Rehabilitation Ministry Employees Cooperative House Building Society Ltd. was exempted from the provisions of Section 12 of the said Act in respect of the amended bye law No. 5(1)(a)(iii) of the said Society.
with retrospective effect from 10.1.1968 instead of 18.2.1986.
By order and in the name of the Lt. Governor of the Union Territory of Delhi.
(A.C. KHER) Spl.
(Cooperation) Delhi Administration, Delhi.
" By Order dated 30th August, 1990 and a subsequent Order dated 7th April, 1991 passed by this Court, the parties were permitted to challenge the validity of this notification and IA No. 13/1991 has been filed by Shri B.R. Puri and six others in this behalf.
It has been urged by learned counsel for the appellants that if the subsequent notification dated 29th August, 1990 is held to be valid the orders appealed against passed by the High Court deserve to be set aside on that ground alone inasmuch as they are based on the earlier notification dated 27th October, 1987 which has been rescinded.
In the alterna tive, it has been urged that if the notification dated 29th August, 1990 is held to be invalid, the orders appealed against yet deserve to be set aside inasmuch as the earlier notification dated 27th October, 1987 which forms the basis of these orders is ultra vires.
Since the validity of the notification dated 29th Au gust, 1990 would to a large extent depend upon the true nature and import of the earlier notification dated 27th October, 1987 we propose to consider the question of the validity of the notification dated 27th October, 1987 first.
As noticed earlier, it was in pursuance of the order passed by the Lt. Governor on 19th August, 1985 that the amended bye law 5(1)(a)(iii), was registered and incorporated in the Bye laws by the Registrar on 10th March 1986.
This order had been passed by Lt. Governor in an appeal filed by the Socie ty against the order of the Registrar refusing to register the aforesaid amendment and rejecting the proposal made in this behalf by the Society.
This appeal had obviously been filed under Section 76(1)(b) of the Act and was entertained 848 and decided by the Lt. Governor in view of the provision contained in this behalf in Section 76(2)(c) of the Act.
It cannot be disputed that the jurisdiction which the Lt. Governor exercised in entertaining and deciding the appeal was of a quasi judicial character.
For allowing the appeal the Lt. Governor in his order dated 19th August, 1985 gave the following reasons: "The rest of the proposed amendments, which are based on model bye laws, with certain modifications, are designed to regularise such of the members, as were not the employees of the Department of Rehabilitation, but were employees of the Ministries, of which the Department of Rehabilitation had been a part, from time to time, under one Minister/Minister of State.
As these persons, whose number is stated to be not large, became members of the society many years ago, and their names also figured, as has been stated by the counsel for the appellant, in the list of members which was supplied by the society to the Department of Rehabilitation, and which formed the basis for the allotment of land to the society by the Ministry of Rehabilitation, it would be neither fair nor just to leave them in the lurch now, by depriving them of their member ship, when they cannot become members of any other society.
" It would, thus, appear that what weighed with the Lt. Governor apart from the other considerations stated in his order was that the proposed amendment to the bye laws was "designed to regularise such of the members" . . "whose number is stated to be not ' large" and who "became members of the Society many years ago" and that "it would neither be fair nor just to leave them in the lurch now, by depriving them of their membership, when they cannot become members, of any other society".
If these were the considra tions which ' weighed with the Lt. Governor in allowing the proposed amendment it can hardly be denied that the purpose of the order was not to give effect to the amended bye law from the date on which it was registered as contemplated by Section 12 of the Act, which date in the instant case came to be 10th March; 1986 but from the date on which the first person under this category was enrolled as a member, for otherwise the purpose of the order Was bound to be frustrat ed and the order would in that event be hit by the doctrine of brutum fulmen.
This quasi judicial order passed by the Lt. Governor has become final and 849 it was really to give effect to this order that the order of the Lt. Governor referred to in the notification dated 27th October, 1987 was passed.
In the normal course, it would not be just and proper to interfere with such an order under Article 136 of the Constitution.
Learned counsel for the appellants has, however, strenu ously urged that the notification dated 27th October, 1987 is ultra vires the powers of the Lt. Governor.
He pointed out that Section 88 of the Act under Which the said notifi cation was issued does not authorise the issue of a notifi cation such as the notification dated 27th October, 1987.
Having given our anxious consideration to the submissions made by learned counsel in this behalf, we find it difficult to agree with them.
Section 88 of the Act may usefully be reproduced here.
It reads: "88.
Power to extempt cooperative societies from provisions of the Act.
The Lt. Governor may, by general order, to be published in the.
Delhi Gazette, exempt any cooperative society or any class of cooperative societies from any of the provisions of this Act, or may direct that such provisions shall apply to such societies or class of societies with such modifications as may be specified in the order.
" The notification dated 27th October, 1987 has already been quoted above.
Its perusal indicates that by its earlier part the Lt. Governor has exempted the society from the provision of Section 12 of the Act.
This was clearly permis sible on a plain reading of Section 88.
By its later part the notification provides that the amended bye law 5(1)(a)(iii) "will have retrospective effect with effect from 10.1.
" The word "Which" seems to have been omit ted after "as registered on 10.3.86" and before "will have retrospective effect".
It is clear not only from the context of the notification but also from its Hindi version a photo stat copy whereof has been produced before us.
Transliterat ed in Roman Script, it reads: "Dilli ke up Rajyapal, Dilli Sahkari Samitiyan Adhiniyam 1972 ki dhara 88 ke Antargat pradatt Shaktiyon ka prayog karte hue the Rehabilita tion Ministry Employees Cooperative Society Ltd. naee Dilli ko ukta Adhiniyam ki dhara 12 me diye gaye pravidhan.
ke anusar ukta Samiti ko bye laws me dhara 5(1)(a) tatha (iii) me sanshodhan dinank 10.3.86 ki apeksha 10.1.68 se lagu hone ki chhut dete hain." According to the Hindi version, the Society has been permit ted 850 to enforce the amended bye law 5(1)(a)(iii) with effect from 10.1.68.
Section 12 contemplates "unless it is expressed to come into operation on a particular day".
The notification really permits to express 10.1.68 as the particular day on which the amended bye law aforesaid is to come into opera tion.
Suppose the notification dated 27th October, 1987 had said "At the end of Section 12 of the Act add provided that the amendement of the bye law made by the Rehabilitation Ministry.
Employees Cooperative House Building Society Ltd. , New Delhi, shall come into force on 10.1.68".
Could it be said that this would be beyond the power con ferred by Section 88 of the Act? The answer would have to be in the negative on a plain reading of Section 88.
Except for the unhappy language used therein the notification dated 27th October, 1987, does not seem to have been issued by the Lt. Governor in excess of the powers conferred on him by Section 88 of the Act.
In such matters, substance has to prevail over the form.
We have been informed by learned counsel for the appplicants in IA No. 13 of 1991 that 10th January, 1968 mentioned in the notification dated 27th October, 1987 is the date on which the first member failing in category 'B ' referred to above had applied for enrolment.
As indicated above this was really the purpose of the quasi judicial order dated 19th August, 1985 passed by the Lt. Governor in the appeal filed by the Society and the notification has obviously been issued to subserve that purpose.
In so far as we have taken the view that the word "which" seems to have been omitted in the Notification dated 27th October, 1987 and it has to be read there, we may point out that in Surjit Singh vs Kalra, ; it has been held in paragraph 19 of the Report: "True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construc tion which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th edn., p. 109).
Similar are the observations in Hameedia Hardware Stores vs
B. Mohan Lal Sowcar; , where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful.
An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the 851 statute.
(See: Sirajul Haq Khan vs Sunni Central Board of Waqf, Learned counsel for.the appellants then urged that a delegated legislation could not be given retrospective effect unless it was specifically provided for.
He relied on the following passages from Wade on Administrative Law (Fifth Edition): "It follows likewise that the courts must determine the validity of delegated legisla tion by applying the test of ultra vires, just as they do in other contexts.
Delegated legis lation in no way partakes of the immunity which Acts of Parliament enjoy from challenge in the courts, for there is a fundamental difference between a sovereign and a subordi nate law making power.
Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it con forms exactly to the power granted." (page 748).
"Whether delegated legislation can have retrospective operation without express Parliamentary sanction is a question upon which there is scant authority.
It is natural to presume that Parliament is unlikely to confer a power which it uses only most spar ingly itself." (page 751).
"Just as with other kinds of admin istrative action, the courts must sometimes condemn rules or regulations for unreasonable ness.
In interpreting statutes it is natural to make the assumption that Parliament could not have intended powers of delegated legisla tion to be exercised unreasonably, so that the legality of the regulations becomes dependent upon their content." (page 752).
Reference was made to similar passages even from Maxwell on the Interpretation of Statutes and Vepa P. Sarthi 's Interpretation of Statutes.
Certain decisions of this Court were.
also cited in support of the above propositions Relying on Partap Singh vs State of Punjab, ; it was further urged that mala fides vitiates an order.
Even though there can be no dispute with the legal propositions enunciated above we find it difficult to apply them in the instant Case to nullify the notification dated 27th October, 1987.
Firstly, the power exercised by the Lt. Governor as indicated earlier was within the ambit 852 of and permissible under Section 88 of the Act, Secondly, keeping in view the facts of the instant case and the pur pose of amending bye law 5(1)(a)(iii) we find that the notification is neither unreasonable nor can any mala fide be attributed in issuing the same.
In Kruse vs Johnson, , it was held that in determining the validity of bye laws made by public representative bodies, such as county councils, the Court ought to be slow to hold that a bye law is void for unrea sonableness.
A bye law so made ought to be supported unless it is manifestly partial and unequal in its operation be tween different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it.
In view of this legal posi tion the notification dated 27th October, 1987 deserves to be upheld as, in our opinion, it does not fall within any of the exceptions referred to in the case of Kurse vs Johnson (supra).
Learned counsel for the appellants further submitted that the notification dated 27th October, 1987 had the effect of defeating the purpose of the Act and was conse quently bad.
Reliance was placed on Registrar of Cooperative Societies, Trivandrum and Anr.
vs K. Kunhambu & Ors.
, [ ; at p. 267 where with reference to Section 60 of the Madras Cooperative Societies Act, 1932, it was held: "Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications.
The power given to the Government under Section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.
" We are of the view that the said Notification cannot be held to be bad on this score as well for the simple reason that the bye law 5(1)(a)(iii) introduced by amendment consequent upon the quasijudicial order of the Lt. Governor passed in appeal on 19th August, 1985 has not been challenged on the ground that it was beyond the power conferred by the Act.
What has been challenged is the retrospective operation thereof.
As seen above, if the amended bye law was not made retrospective its very purpose was to stand defeated.
So far as the Notification dated 27th October, 1987 is concerned, it really subserves the purpose of the amended bye law made under the Act 853 and does not defeat it.
Lastly, it was urged by learned counsel for the appel lants that at worst the effect of the Notification is that the amended bye law 5(1)(a)(iii) would be deemed to be there with effect from 10.1.68 but from that fact alone the re spondents could not become members unless their membership was approved as contemplated by Rule 24 of the Delhi Co operative Societies Rules, 1973.
Suffice it to point out so far as this submission is concerned that with regard to members whose names were mentioned in List 'B ' of the affi davit.filed by Shri S.C. Saxena before it, the High Court, as already noticed earlier, has held in the judgment ap pealed against that "there is no dispute that the membership of these 26 persons mentioned in List 'B ' was either ap proved by the General Body in the meeting held on 8th July, 1970 or approved by the Managing Committee on 22nd March, 1974 or by the Administrator on or before 9th June, 1976.
" If the Notification dated 27th October, 1987 is valid it had by legal fiction the effect of making persons mentioned in List 'B ' aforesaid eligible for membership of the Society with effect from 10th January, 1968 and the approval of the membership of these persons on various dates as pointed out by the High Court could not be held to be invalid simply because those dates happened to be prior to the date on which bye law 5(1)(a)(iii) was actually incorporated in the bye laws of the Society.
As pointed out by Lord Asquith in East End Dwellings Co. Ltd. vs Finisbury Borough Council, [1952] Appeal Cases 109 at p. 132, if you are bidden to treat an imaginary state of affairs as real, you must sure ly, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have fol lowed from or accompanied it and that when the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corol laries of that state of affairs.
Learned counsel for the appellants, however, urged that the aforesaid principle of legal faction cannot be invoked to put life in a still born action and relied on the deci sion of this Court in B. Shama Rao vs The Union Territory of Pondicherry, ; Having gone through the decision we are of the view that it is clearly distinugisha ble.
The facts of that case were that the legislative assem bly for the Union Territory of Pondicherry passed the Pondi cherry General Sales Tax Act (10 of 1965) which was pub lished on June 30, 854 1965.
Section 1 (2) of the Act provided, that it would come into force on such date as the Pondicherry Government may, by notification, appoint and section 2(1) provided that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Pondi cherry Act, shall be extended to Pondicherry subject to certain modifications, one of which related to the constitu tion of the Appellate Tribunal.
The Act also enacted a Schedule, giving the description of goods, the point of levy and the rates of tax.
The Pondicherry Government issued a notification on March 1, 1966, appointing April 1,.
1966 as the date of commencement.
Prior to the issue of the notifi cation, the Madras legislature had amended the Madras Act and consequently it was the Madras Act as amended up to April 1, 1966 which was brought into force in Pondicherry.
When the Act had come into force, the petitioner was served with a notice to register himself as a dealer and he thereupon filed a writ petition challenging the validity of the Act.
After the petition was filed, the Pondicherry Legisla ture passed the Pondicherry General Sales Tax (Amendment) Act ', 13 of 1966, whereby section 1(2) of the principal Act was amended to read that the latter Act "shall come into force on the 1st day of April 1980", it was also provided that all taxes levied or collected and all proceedings taken and things done were to be deemed valid as if the principal Act as amended had been in force in all material times.
On these facts it was held that the Act of 1965 was void and still born and could not be revived by the amendment Act of 1966.
In this connection it was pointed out at page 660: "In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry government would issue its notification it would be the amended Act which would apply.
The legislature at that stage could not antic ipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry.
In point of fact the Madras Act was amended and by reason of section 2(1) read with sec tion 1(2) of the Principal Act it was the 855 amended Act which was brought into operation in Pondicherry.
The result was that the Pondi cherry legislature accepted the amended Act though it was not and could not be aware what the provisions of the amended Act would be.
There was in these circumstances a total surrender in the matter of sales tax legisla tion by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said 'still born '.
" Such is obviously not the position in the instant case.
In view of what has been discussed above no exception can be taken to the view of the High Court holding the said Notifi cation to be valid.
The question of validity of the subsequent Notification dated 29th August, 1990 whereby the earlier Notification dated 27th October, 1987 was rescinded may now be consid ered.
As noticed earlier, the Lt. Governor had passed the quasi judicial order on 19th August 1985 in an appeal flied by the society against the order of the Registrar declining amendment of the bye law concerned.
Relevant findings of the Lt. Governor along with the reasons there for have already been extracted above.
We have already pointed out that what weighed with the Lt. Governor in passing that order was that persons for whose benefit the bye law was sought to be amended had become members of the society many years ago, that their names figured even in the list of members which was supplied by the society to the Department of Rehabilita tion and which formed the basis for allotment of land to the society and that it would be neither fair nor just to leave them in the lurch now by depriving them of their membership when they cannot become members of any other society.
It was pointed out by the Lt. Governor that the proposed amendment in the bye law was "designed to regularise such of the members".
From the tenor of this order there can be no manner of doubt that the order was passed with a view to ensure that the persons who had become members of the socie ty many years ago should get the benefit of the amended bye law by having their membership regularised.
Such members could obviously get the benefit of the bye law only if it was made retrospectively effective.
The order of the Lt. Governor did not contemplate fresh enrolment of those per sons as members after the passing of that order and the bye law being amended in consequence thereof but it contem plated regularisation of their membership.
This clearly indicated that those persons were sought to be treated as members as from the dates on which they had factually become members 856 of the society.
We have also pointed out above that in our opinion in having the notification dated 27th October, 1987 issued, the Lt Governor only took steps to give effect to the quasi judicial order could be achieved.
This being the true nature of the notification dated 27th October, 1987, the Lt. Governor cannot be said to have in any manner re viewed the quasi judicial order dated 19th August, 1985.
On the other hand, the subsequent notification dated 29th August, 1990 even though purported to rescind that earlier notification dated 27th October, 1987 only it had keeping in view the nature and purpose of the notification dated 27th October, 1987 really the effect of reviewing and nullifying the quasi judicial order passed by the Lt. Governor on 19th August, 1985.
In a matter such as this, it is the substance and the consequence of the notification dated 29th August, 1990 which has to be kept in mind while considering the true import of that notification.
It is settled law that a quasi judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred.
The qausijudical order dated 19th August, 1985, as seen above, had been passed by the Lt. Governor under Section 76 of the Act.
No power to review such an order has been conferred by the Act.
In G.V. Rao vs Govt.
of Andhra Pradesh and Ors.
, [1966] 2 SCR, p. 172, an order had been passed by the Gov ernment under Section 62 of the Andhra Pradesh Panchayat Samithies and Zila Parishads Act.
1959, it was subsequently reviewed.
The validity of this order of review was in ques tion in that case.
No power of review had been conferred for review of an order passed under Section 62.
What was, howev er, argued was that the Government was competent to review that order in exercise of power conferred by Section 13 of the Madras General Clauses Act, 1891.
Repelling this argu ment, it was held: "The learned counsel for the State then con tended that the order dated April 18, 1963, could itself be sustained under section 62 of the Act.
Reliance is placed upon section 13 of the Madras General Clauses Act, 1891, whereunder if any power is conferred on the Government, that power may be exercised from time to time as occasion requires.
But that section cannot apply to an order made in exercise of a quasi judicial power.
Section 62 of the Act confers a power on the Government to cancel or suspend the resolution of a Panchayat Samithi, in the circumstances mentioned therein, after giving an opportunity for explanation to the Panchay at Samithi.
If the Government in exercise of that power cancels or confirms a resolution to the Panchayat 857 Samithi, qua that order it becomes functus officio.
Section 62, unlike section 72 of the Act does not confer a power on the Government to review its orders.
Therefore, there are no merits in this contention.
" We are aware that the notification dated 29th August, 1990 purports to rescind the earlier notification dated 27th October, 1987 only and does not speak in clear terms that the quasi judicial order dated 19th August, 1985 was also being rescinded.
On the facts and circumstances of this case, as emphasised above, we are of the opinion that this circumstance hardly makes any difference inasmuch as even though the quasi judicial order dated 19th August, 1985 has not been expressly nullified, it has certainly for all practical purposes been nullified by necessary implication.
This, in our opinion, could not be done and the notification dated 29th August, 1990 is ultra vires on this ground alone.
The matter can be looked at from another angle also.
It cannot be disputed that as a consequence of the quasi judi cial order of the Lt. Governor dated 19th August, 1985 and the notification dated 27th October, 1987, a substantive right was created in favour of the 26 persons whose names had been mentioned in list 'B ' of the affidavit by Shri S.C. Saxena filed in the High Court.
The challenge to that noti fication had already failed before the High Court and the matter was subjudice before this Court in special leave petition giving rise to this civil appeal when the notifica tion dated 29th August, 1990 was issued.
The notification dated 27th October, 1987 had specifically been issued under section 88 of the Act.
Even though the subsequent notification dated 29th August, 1990 does not disclose the source of the power under which it had been issued, learned counsel for the appellants traced its source to section 88 itself read with the powers to add, to amend, vary or rescind notifications, orders, rules or bye laws contained in section 21 of the .
In State of Kerala and Ors.
vs K.G. Madhavan Pillai and Ors., [1988] 4 SCR p. 669, it was held by the High Court that if in pursuance of an earlier order passed by the Government some person acquires a right en forceable in law, the said right cannot be taken away by a subsequent order under general power of rescindment avail able to the Government under the and that the said power of rescindment had to be determined in the light of the subject matter, context and the effect of the relevant provisions of the statute.
The view taken by the High Court was upheld by this Court in paragraph 27 of the report.
The notification dated 29th August, 1990, would, therefore, be invalid on this ground also.
In view of the foregoing discussion, the civil appeal deserves to be dis missed.
858 At this place we consider it proper to make a note that learned counsel for the applicants in IA 13 of 1991 had attacked the Notification dated 29th August, 1990 on two other grounds also.
One was that the said Notification was vitiated for breach of principles of natural justice, it having taken away vested rights of the applicants created by the quasi judicial order of the Lt. Governor dated 19th August, 1985 and the Notification dated 27th October, 1987, and the other that the effect of dismissal of an earlier Special Leave Petition by this Court on 19th March, 1990 could not be nullified by the Notification dated 29th Au gust, 1990, In the view we have taken we have not found it necessary to go into these questions.
We now take up Interlocutory Applications made in the appeal.
Some of these applications have already been dis posed of by various orders passed from time to time.
The only applications which are surviving are IA No. 1/89, IA Nos. 4 and 5/89, IA Nos.
6 and 8/89 and IA No. 13/91.
The nature and purpose of IA No. 13/91 has already been indicat ed above: Since the notification dated 29th August, 1990 has been, found by us to be ultra vires and the civil appeal is being dismissed, this application deserves to be allowed.
So does IA No. 1/89 also which has been made by the same cate gory of members Who have made IA No. 13/91.
The applicants in IA Nos. 6 and 8/89 have taken the same stand as the appellants and their learned counsel has before us also adopted the arguments made by learned counsel for the appel lants.
Since the appeal is being dismissed, no further order on IA Nos. 6 and 8/89 is necessary.
The appellant in IA Nos. 4 and 5/89 was really aggrieved by the interim order passed by this Court in the special leave petition on 19th July, 1989 and since with the dismissal of the appeal the said interim order will automatically stand vacated, no further order in these applications also is necessary.
In the result, the appeal fails and is dismissed.
Orders on the interim applications aforementioned shall be as already indicated hereinabove.
They are disposed of accord ingly.
In the circumstances of the case, however, the par ties shall bear their own costs.
, Y.Lal.
Appeal dismissed.

summary/full:
Respondent No. 1 is a Cooperative House Building Society registered under the Delhi Cooperative Societies Act, 1972.
It was formed in October 1959, with a view to procure land, which the Central Government proposed to allot for the resettlement of displaced persons.
The members of the Socie ty fail in three categories viz., (i) employees of the Ministry of Rehabilitation, New Delhi (ii) employees of the MiniStries in Delhi/New Delhi which were under the charge of the Minister/Minister Of State of Rehabilitation Ministry and (iii) employees working in the subordinate offices of the Ministry/Department of Rehabilitation who were posted outside Delhi/New Delhi and wanted to settle in Delhi after their superannuation.
It may be mentioned that the members in the third category were enrolled as members pursuant to the amended bye law 5(1)(a) (iii), at the Society 's Managing Committee 's meeting held on 17.11.1979.
At the said meeting the cases of 15 other members were also regularised, as the affidavits furnished by them earlier were on scrutiny found defective, which they had replaced by filing fresh affida vits.
The Society proceeded to make allotment of land to its members and draw of lots was held on 14.12.1988.
The draw of lots was challenged by the appellants before the Delhi High Court on the ground that they are senior to 15 persons aforementioned and others.
The appellants also challenged ,the validity of the Notification dated 27th October 1987 insofar as it made the amended bye law 5(1)(a)(iii) effec tive retrospectively.
The High Court having dismissed the petition, the appellants have filed this appeal after ob taining special leave, and the question involved for deter mination in the appeal inter alia relates to the seniority of the members of the society which constitutes the basis for allot 840 ment of plots at the time of drawing of lots.
DiSmissing the appeal, this Court, HELD: The notification dated 27th October, 1987, indi cates that by its earlier part the Lt. Governor has exempted the society from the provision of Section 12 of the Act.
This was clearly permissible on a plain reading of Section 88.
By its later part the notification provides that the amended bye law 5(1)(a) i(iii) "will have retrospective effect with effect from 10.1.1968.
" The word "which" seems to have been omitted after "as registered on 10.3.86" and before "will have retrospective effect".
It is clear not only from the context of the notification but also from its Hindi version.
[849E F] What weighed with the Lt. Governor in passing the order dated 10.8.1985 was that persons for whose benefit the bye law was sought to be amended had become members of the society many years ago, that their names figured even in the list of members which was supplied by the Society to the Department of Rehabilitation and which formed the basis for allotment of land to the society and that it would be neither fair nor just to leave them in the lurch now by depriving them of their membership when they cannot become members of any other society.
It was pointed out by the Lt. Governor that the proposed amendment in the bye law was "designed to regularise such of the members." [855E F] The notification dated 29.8.1990 purports to rescind the earlier notification dated 27th October 1987 only and does not speak in clear terms that the quasi judicial order dated 19.8.1985 was also being rescinded.
On the facts and circum stances this hardly makes any difference inasmuch as even though the quasi judicial order dated 19th August 1985 has not been expressly nullified, it has certainly for all practical purposes been nullified by necessary implication.
This could not be done and the notification dated 29th August 1990 is ultra vires on this ground alone.
[857B C] A quasi judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred.
[856C] The quasi judical order dated 19th August, 1985 had been passed by the Lt. Governor under Section 76 of the Act.
No power to review such an order has been conferred by the Act.
[856D] 841 Partap Singh vs State of Punjab, ; ; Kruse vs Johnson, ; Registrar of Cooperative Societies, Trivandrum & Anr.
K. Kunhambu & Ors., ; at p. 267 and State of Kerala & Ors.
K.G. Madhhvan Pillai & Ors., , referred to.


judgement:
Criminal Appeal No. 304 of 1991.
From the Order dated 17.12.
1990 of the Delhi High Court in Criminal Misc.
No. 2656 of 1990.
Anand Dev Giri, Solicitor General, Ram Jethmalani, K.G. Bhagat, P.S. Pottv, Prashant Bhushan, Jayant Bhushan, Ms. Deepa Bhushan, P.K. Dey, Ms. Lata Krishnamurti, M.N. Shroff, A.K. Khare, Ms. Kamini Jaiswal, P.K. Monohar, R. Sasiprabhu, Ms. A. Subhashini, A. Subba Rao, Ashok Bhan, Ms. Anil Kati yar, P.N. Bhan, R.K. Dixit and A.M. Khanwilkar for the appearing parties.
Nalla Thampy Thera petitioner in person.
The following Order of the Court was delivered: section RATNAVEL PANDIAN, J. A brief resume of the facts which has given rise to the above appeals and Writ Petition would be necesSary to appreciate the unsavorous controver sies created by way of public interest litigations, though 0we have decided to give only our conclusions now and the detailed reasons later in order to avoid any delay in this matter for the reasons,, namely, (1) in the application for direction filed by the Union of India through C.B.I. on 12.7.91 it is submitted that "the Swiss authorities would remove the blocking order on 31.8.91 and the account holders would withdraw the large funds, running into millions of dollars (equivalent to crores of rupees)" and 757 prayed that the judgment may be pronounced by the end of August 1991 lest miscarriage of justice would be caused, and (2) that the learned 'Additional SoliCitor General, Mr. Altar Ahmed appearing on behalf of the Union of India and CBI on 10.8.91 reaffirmed the above statement of the Union of India and requested that the C.B.I. should be allowed to proceed with the investigation without any interruption or ' hin drance so that the investigation may be speeded up thereby meaning that the wheels of investigation already started moving on, should be permitted to be proceeded with unfet tered and untrammelled so that the valuable evidence may be obtained from the Swiss Bank through their authorities without further loss of time, otherwise the account.
in the Swiss Bank now frozen may be defrozen.
The Central Bureau of Investigation/Delhi police Estab lishment/Anti Corruption Unit IV; New Delhi registered the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV under Section 120 B read with Sections 161, 162, 163, 164 and 165A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the Preven tion of Corruption Act 1947 (herein referred to as P.C. Act) read with sections 409,420,468 and 471 of the Indian Penal Code against 14 accused of whom 3 are named, they being (1) Shri Martin Ardbo, former President of M/s A.B. Bofors, SWeden (Accused No. 1); (2) Shri Chadha alias Win Chadha, s/o Shri Assa Nand, President of M/s Anatronic General Corporation/ Anatronic General Companies Ltd., C/4, Main Market, Vasant Vihar, New Delhi (Accused No. 3) and Shri G.P. Hinduja, New Zealand House, Hay market, London SW 1 (Accused No. 7).
The rest of the 11 accused are stated in general as Directors/employees/holders/beneficiaries of account code and public servants of the Government of India.
The core of the allegations is that these accused, named and unnamed, entered into a criminal conspiracy, obtained ille gal gratification in the form of money from BOFORS, a Swed ish company through the agent firms/companies/persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their.
official position as public servants caused pecuniary advan tage to themselves, BOFORS, the agents and others in award ing contracts to BOFORS for the supply of guns to the Gov ernment of India and in the transaction also committed the offences of criminal breach of trust, cheating of Union of India, ' forgery and using of forged documents etc.
It ap pears that the C.B.I. has commenced its investigation during the course of which it has recorded statements of witnesses and took into their custody various documents and files relating to this Bofors deal.
While it is so, the C.B.I. moved an application before the Special 758 Judge, namely, Shri R.C. Jain stating inter alia that the investigation of the case is to be conducted not only in India, but also in Switzerland, Sweden and other countries, that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and oral evidence relating to all aspects of the accounts in banks in Switzerland to which remittances were made by M/s A.B. Bofors from Sweden, that in particular, the authorised signatories and the beneficiaries of the said accounts have to be traced by such investigation as they are, in fact, the ultimate beneficiaries of the payments '1 made by M/s A.B. Bofors and that under the procedure followed by banks in Switzerland, an authorised signatory can operate an account for the benefit of certain other persons regarding whom the authorised signatory has to submit certain declarations to the concerned bank and, therefore, it is very essential for the investigation of this case that the documentary and oral evidence should be collected regarding this ' as well as the other aspects of the bank accounts in Switzerland.
In the said application after referring to the exchange of letters dated 20.2.89 between the Government of India and Switzer land for mutual assistance agreeing that the Authorities of both the countries shall provide to each other the widest measure for assistance in the investigation of criminal matters, it has been stated that the competent authority to ask for assistance in India and abroad is the Court/Tribu nal/Judge or Magistrate exercising jurisdiction.
The Direc tor of the C.B.I. sent a request dated 23.1.1990 and supple mented by another request dated 26.1.1990 to the concerned authorities in Switzerland for freezing/blocking certain bank accounts relevant to this case and the Federal Depart ment of Justice and Police, Switzerland moved Shri Parrau din, Judge of Geneva and the concerned Judge 'of Zurich who, on being prima facie convinced of dual criminality and the need for investigation in Switzerland, froze the relevant bank accounts in this regard on 26.1.
1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland and that as per this infor mation, the relevant accounts in the bank have been blocked upto 28.2.1990 and that request for judicial assistance from Switzerland in this matter, therefore, should be made by 28.2.1990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts and that .the Federal Department of Justice and Police at Berne which corresponds to the Ministries of Law and Home, Government of India, have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20.2.1989 only on receipt of a Letter Rogatory from the competent judicial authorities in India.
On the above pleadings, the C.B.I. requested the Special Judge 759 to send a Letter Rogatory/request.
to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated.
The Special Judge after hearing Shri Arun Jaitley, the then Additional Solicitor General of India and Shri K.N. Sharma, Deputy Legal Adviser, CBI andShri Baljit Singh, Senior Public Prosecutor by its considered order dated 5.2.1990 allowed the application of the C.B.I., the relevant portion of which reads thus: "In the result, the application of the CBI is allowed to the extent that a request to con duct the necessary investigation and to col lect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, 'Government of India subject to the filing of the requisite/proper undertaking required by the Swiss Law and assurance for reciprocity.
" The Special Judge also directed certain documents to be sent ' along with his letter of request, such as the copy of the FIR dated 22.1.90, mutual assistance agreement dated 20.2.89 etc.
The Court finally made a note reading thus: "Needless to mention that no observation made in this order shall tantamount to expression of opinion at any subsequent stage of enquiry or trial.
" When the matter stood thus, Shri V.S. Aggarwal on the strength of the notification issued by the Administrator of the Union Territory of Delhi assumed charge as a Special Judge inplaCe of Shri R.C. Jain.
Before Shri Aggarwal, the Special Judge, Shri Harinder Singh Chowdhary, an Advocate filed a Public Interest Litigation by filing Criminal Mis cellaneous Case No. 12/90 under Article 51 A of the Consti tution of India seeking the following prayers which we are reproducing hereunder: "In the premises your petitioners humbly request that in order to maintain the dignity, prestige and the fair name of the country and the ideals enshrined in the Constitution that no rogatory letter be issued on the formal request of the CBI unless the allegations against named persons are 760 established to the satisfaction of this Hon ' ble Court: ' It is further requested that no request for Rogatory or freezing bank account be made to Swiss Govt.
unless the concerned persons are noticed and heard on the subject: It is further requested that the petitioner may be permitted to join during inquiry before this Hon 'ble Court in the capacity of public interest litigant.
It is further requested that inquiry u/s 340 Cr.
P.C. be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped.", The Special Judge, namely, Shri V.S. Aggarwal by his considered judgment dated 18.8.1990 dismissed the petition holding "this request of the learned counsel cannot be accepted.
" Finally, the learned Judge made the following note: "Put up on 30.9. 1990 for arguments on the question as to whether any action under Sec tion 340 of the Code of Criminal Procedure is to be initiated or not.
No opinion on the merits of the main case is being expressed.
" The Special Judge then issued ( '1) Note of Compliance and (2) Amended letter rogatory on 22.8.90.
Shri Harinder Singh Chowdhary, the public interest litigant on being aggrieved by the order dated 18.8.90 of the Special Judge filed a criminal revision before the High Court of Delhi under Sections 397/ 482 of the Code of Crimi nal Procedure and raised several questions of law challeng ing the legality and validity of the impugned order and made the following prayers: (a) to quash the entire FIR No. RCI (A)90/ACU IV dated 22.1.90 and criminal pro ceedings covered by the same.
(b) or remand the case to the Special Judge permitting the petitioner to argue his case before the lower court and also direct the court below to decide the petition on merits.
761 (c) direct the court that no request for rogatory letters be.
made to Swiss Government, till the petitioner is heard on his applica tion.
(d)the petitioner may be permitted to join during the inquiry to determine the question of dual criminality before the learned Special Judge in the capacity of public interest litigant, and also direct the learned Special Judge to decide the question of dual criminal ity before issuing the letter rogatory.
(e) direct the learned Special Judge not to issue any ro.gatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence.
This revision ' petition has been registered as Criminal Miscellaneous (Main) NO.
1821 of 1990 on the file of the High Court of Delhi.
During the hearing of the above case before the High Court, several applications seeking implead ment/intervention were filed in the proceedings among which one was filed by Mr. Prashant Bhushan, another by Mr. N. Ram and some more by various political parties.
Mr. Justice M.K. Chawla who heard the Crl.
(M)No. 1821/90 passed an order dated 3.12.90 directing all the applications for intervention to be kept on record and observed.
"The interveners will be heard only if the Court feels the necessity of hearing further arguments after the conclusions of the arguments of ASG appearing for the GOI and the CBI".
Thereafter on 6th and 7th December 1990, Mr. Justice M.K. Chawla heard the arguments advanced on behalf of the CBI as well of the Union of India.
While it was so, the Janata Dal etc.
approached this Court by filing a Spe cial Leave Peti.tion (Criminal) No. 2320 of 1990 and this Court on 10.12.90 upon being mentioned and hearing the learned counsel for the parties, passed the following order: "We find on 3.12.90 the learned Judge indicat ed in his order that several applications had been filed by different people for implead ment/intervention in the proceedings and the learned Judge observed that these applications would be heard and if necessary arguments on 'behalf of the intervener could be permitted after other counsel are heard.
Grievance has been made that these applications 762 have not been formally disposed of by the Court.
We are of the view that the learned Judge should dispose of these applications by a judicial order before the matter is reserved for judgment and in case the applications are not accepted, judgment should not be delivered for at least 2 days after such an order on these writ ,petitions is made to enable them to move this Court.
" It appears that in compliance of the above directions of this Court, Mr. Justice Chawla heard Mr. Ram Jethmalani who appeared on behalf of Janata Dal and Mr. Prashant Bhushan on 11.12.90.
The learned counsel, Mr. Jethmalani orally re quested Justice Chawla to recuse himself from the case which request was rejected by the learned Judge.
Thereafter, a petition for recusation was filed which was also dismissed on 17.12.90.
After hearing the learned counsel for Mr. H.S. Chowdhary as well for the interveners, the final order was passed by Mr. Justice Chawla on 19.12.90, the relevant portion of which reads thus: "In my opinion, the case of the petitioner does not fail within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha (supra).
So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf.
The same is hereby dismissed.
As a consequent of the dismissal of the present petition, holding that the petitioner has no locus standi, the applicants have no right to be impleaded and their impleadment/ intervention applications are also rejected.
So, I suo moto take cognizance while exercis ing my powers under Sections 397 and 401 read with Section 482 of the Code, and direct the office to register the case under the title, Court on its own motion vs State and CBI.
Consequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No. RCI (A)/90/ACU IV dated 22.1.90 pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi be not quashed.
763 The sum and substance of the above order is that in the opinion of Mr. Justice Chawla, the petitioner Sh.
Harindcr Singh Chowdhary has no locus standi to maintain the petition and consequently interveners also have no right to seek for impleadment or intervention and that the learned Judge having held so, took suo rnoto cognizance of the matter for the reasons assigned in his order and directed issue of show cause notice to the CBI and the State (Union of India) as to why the proceedings initiated on the strenth of the FIR dated 22.1.90 pending before the Special Judge be not quashed.
It was at this stage, all these criminal appeals and the writ petition have been filed in this Court.
This Court on 20.12.90 in Criminal Appeal No. 304/91 (arising out of SLP Crl.
No. 2476/90 filed by the Janata Dal) passed the following order granting interim stay: " .
In the meantime, the reasons leading to registra tion of the suo moto proceedings would not be operative.
There shall be interim stay of proceedings including hearing before the High Court.
" In order to understand the scope of each of the criminal appeals and the prayer made therein, we are presently giving a brief note of the appeals and the writ petition.
Criminal Appeal No. 304/91 This appeal.
is preferred by the Janata Dal against the order dated 17.12.90 passed by the High Court rejecting its application Crl.
(M) No. 2656/90 in Crl.
(M) No. 182 1/90 filed before the High Court requesting the learned Judge to recuse himself from the proceedings.
Criminal Appeal No. 305/91 This appeal is filed by the Janata Dal against the order of the High Court dated"19.12.90 rejecting the application for impleadment of the appellant and other intervences and also issuing suo moto notice to the State and the CBI.
Criminal Appeal No. 306/91 This appeal is directed by Mr. Harinder Singh Chowdhary (the original petitioner who filed the public interest litigation before the Special Judge) challenging the first part of the order of the High Court 764 dated 19.12.90 dismissing his petition on the ground that he has no locus standi to file the petition.
Criminal Appeal No. 307/91 This appeal is preferred by the Janata Dal questioning the correctness of the earlier order dated 3.12.90 passed by the High Court refusing ' to allow the appellant 's applica tion for impleadment/ intervention.
Criminal Appeal No. 308/91 The Communist Party of India (Marxist) has directed this appeal against the order of the High Court dated 3.12.90 refusing to allow its application for impleadment/interven tion.
Criminal Appeal No. 309/91 This appeal is preferred by Indian Congress (Socialist) against the main order of the High Court dated 19.12.90 dismissing his application for impleadment and taking up suo moto cognizance for quaShing the FIR.
,Criminal Appeal No. 310/91 This appeal is filed by the Union of India canvassing the legality and correctness of the order dated 5.9.90 passed by the High Court and praying for a direction direct ing the High Court to decide the maintainability of the public interest litigation as a preliminary question.
In that appeal, the learned Solicitor General requested for the deletion of the second respondent, Mortin ' Ardbo, former President, M/O A.B. Bofors, Sweden (who is only a proforma respondent) from the array of parties and accordingly the permission was granted by this Court 's order dated 13.3.
Criminal Appeal No. 311/91 This appeal 'is filed by the Union of India and the CBI questioning the said second part of the order dated 19.12.90, namely taking suo ' moro cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the FIR be not quashed.
It may be noted that the appellants in this appeal have impleaded the High Court through its Registrar as a respondent.
765 Writ Petition No. 114/91.
This petition is filed by one Dr. P. Nalla Thampy Thera seeking certain directions relating to Bofors matter and for quashing the later part of the order dated 19.12.90 of the High Court.
Mr. Anand Dev Giri, the learned Solicitor General as sisted by M/s Anil Katyar and Ashok Bhan and thereafter the present Additional Solicitor General Mr. Altar Ahmed, Mr. A. Subba Rao and Mr. A.M. Khanwilkar, Advs.
appearing on behalf of the Union of India as well as the CBI; Mr. Ram Jethmalani and Mr. Shanti Bhushan, both learned senior counsel assisted by Mr. Prashant Bhushan appearing in Criminal Appeal Nos. 304,305 and 307 of 1991 and Mr. K.G. Bhaghat, the learned senior counsel appearing in Criminal Appeal Nos. 306 and 305 of 1991 on behalf of Mr. H.S. Chowdhary assisted by Mr. M.N. Shroff, besides a battery of lawyers advanced their respec tive arguments raising manifold questions of law with refer ence to the various provisions of the Constitution of India, Indian Penal Code, Code of Criminal Procedure and.other Acts and the Memorandum of Under standing etc.
for a very considerable length of time totally running for 34 full days and laid stress upon a host of decisions in sup port of their respective cases.
The introverted and extro verted rhetorical submis sions made by all the learned counsel were punctuated sometimes with inflammatory re marks, occasionally with discordant and embittered notes as well as esoteric statements, intermittently with political, over tones, but at the same time with admirable ability exhibiting their profound knowledge in criminal law.
In fact, each one of them was trying to outwit and score a march over the other.
In this connection, it may be pointed out that the present Additional Solicitor General.
Mr. A|tar Ahmed has declared unambiguously and p, erspicuously that he is in full agreement with the argument of the former Solici tor General Mr. A.D. Giri and that his present articulation serves only as supplement to that of the former Solicitor General.
Though the entire submissions made by the former Solicitor General are not being extracted in this short order, we feel that it would be appropriate to briefly refer to the core of the submissions of the learned Solicitor General, Mr. A.D. Giri.
The learned Solicitor General stren uously urged that Mr. H.S. Chowdhary claiming to be a public interest litigant has filed the original petition before the Special Judge as a proxy of the accused who are all behind the curtain and who by this perilous proceeding are trying to evade the dragnet of the investigation and of whom even the named accused are maintaining stoic silence all through unmindful of all the proceedings till date and that the CBI though subjected to 766 increasing uncharitable and unwarranted criticism and vili fication and also scurrilous attack, with remarkable resil ience is relentlessly attempting to collect all available materials by unearthing the wider conspiracy and well knitted illegal transaction within its legally permis sible limits.
It is pertinent to mention that Mr. Altar Ahmed the learned Additional Solicitor General appearing on behalf of the Union of India and CBI after Mr. A.D. Giri (the former Solicitor General) has relinquished his office, reinforced the same arguments and further pleaded that the matter should be disposed of before the end of August 199 1 for the reasons stated supra so that the CBI may effectively carry on with the investigation.
However, we are not at present giving the details of the points urged except observing that the ques tion as to whether the laws are so petrified as to unable to respond to the challenges made will be dealt with in detail in our main judgment.
As mentioned albeit we, in order to avoid further delay in these matters, are inclined to give only our conclusions, the reasons in support of which will follow in our detailed judgment at a later stage.
It is most relevant to note that none of the appellants before this Court save the Union of India and CBI is con nected in any way with the present criminal proceeding initiated on the strength of the First Information Report which is now sought to be quashed by Mr. H.S. Chowdhary.
Although in the F.I.R., the names of three accused are specifically mentioned none of them has been impleaded as a respondent to these proceedings by anyone of the appellants.
Even Mr. Martin Ardbo, former President of M/s A.B. Bofors, who was impleaded as a proforma respondent in Criminal Appeal No. 310/91 has been given up by the Solicitor Gener al.
Therefore, under these circumstances, one should not lose sight of the significant fact that in case this Court pronounces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public interest litigants, without hearing the really af fected person/persons such opinion or conclusions may, in future, in case the investigation culminates in filing a final report become detrimental and prejudical to the in dicted accused persons who would be totally deprived of challenging such opinion or conclusions of this 'apex Court, even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants.
Even if there are million questions of law to be deeply gone into 767 and examined in a criminal.
case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceed ings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. ' We, in the above background of the case, after bestow ing our anxious and painstaking consideration and careful thought to all aspects of the case and deeply examining the rival contentions of the parties both collectively and individually give our conclusions as follows: 1.
Mr. H.S. Chowdhary has no locus standi (a) to file the petition under Article 51 A as a public interest litigant praying that no letter rogatory/request be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on 5.2.90 directed issuance of letter rogatory/request to the Competent Judicial Author ities of the .Confederation of Switzerland; (b) to invoke the revisional jurisdiction of the High Court under Sections 0397 read with 401 of the Code of Criminal Procedure chal lenging the correctness, legality or propriety of the order dated 18.8.90 of the Special Judge and (c) to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report .dated 22.1.90 and all other proceedings arising therefrom on the plea of preventing the abuse of the process of the Court.
In our considered opinion, the initiation of the present proceedings by Mr. H.S. Chowdhary under Article 51 A of the Constitution of India cannot come within the true meaning and scope of public interest litigation.
Consequent upon the above conclusions (1) and (2), the appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their implead ment/ intervention.
For the same reasons, Dr. P. Nalla Thampy Thera also has no right to file the Writ Petition (Crl.) No. 114 of 1991 as a public interest litigant.
Having regard to the facts and circumstances of the case, the suo moto action of Mr. Justice M.K. Chawla in taking cogni 768 zance in exercise of the powers under Sections 397 and 401 read with SeCtion 482 of the Code based on the convoluted and strained reasoning and directing the office of the High Court of Delhi to register a case under the title Court on its motion vs State and CBI cannot be sustained.
Consequent upon the above conclusion No. (.4), we hold that the directions of Mr. Justice M.K. Chawla calling upon the CBI and the State to show cause as to why the proceed ings initiated on the strength of the First Information Report dated 22.1.90 be not quashed, cannot be sustained.
In the result, we agree with ' the first part of the Order dated 19.12.90 of Mr. Justice M.K. Chawla holding that Mr. H.S. Chowdhary and other intervening parties have no locus standi.
We, however, set aside the second part of the impugned order whereby he has taken suo moto cognizance and issued show cause notice to the State and CBI and according ly the Show cause notice issued by him is quashed.
In view of the above conclusions, all the proceedings initiated in pursuance of the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV on the file of the Special Judge, Delhi including the issuance of the letter rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law.
In Summation: Criminal Appeal Nos. 304,305,306, 307,308 and 309 of 1991 are dismissed.
Criminal Appeal No. 310 of 1991 filed by the Union of India against .the order dated 5.9.90 of the High Court is dismissed in view of the fact that the said order does not survive for consideration on the passing of the final order dated 19.12.90.
The Writ Petition No. 14 of 1991 is also dismissed.
Criminal Appeal No. 311 of 1991 filed by Union of India and CBI is allowed for the reasons stated above.
V.P.R. Crl.
A. Nos.
304 310/1991 and W.P. No. 114/91 dismissed Crl.
A. No. 311/91 allowed.

dataset_name: IN-Abs

summary/full:
On 22.1.90 a First Information Report was registered under section 120 B read with sections 161, 162, 163, 164 and 165A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the PreventiOn of Corruption Act, 1947 read with sections 409, 420, 468 and 471 of the Indian Penal Code against 14 accused alleging that theyent ered into a criminal conspiracy, obtained illegal gratifica tion in the form of money from BOFORS, a Swedish company through the agent firms/companies/persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding con tracts to BOFORS for the supply of guns to the Government of India and in the transaction also committed the offences of criminal breach of trust, heating of Union of India, forgery and using of forged documents etc.
The C.B.I. commenced its,investigation during the course of which statements of.witnesses were recorded and took into their custody 753 various documents and files relating to this BOFORS deal.
The C.B.I. moved an application before the Special Judge stating that the investigation of the case was to be con ducted not only in India, but also in Switzerland, Sweden and other countries, that an important aspect of .the inves tigation which was to be conducted in Switzerland was to collect documentary and oral evidence relating to all as pects of the accounts in banks in Switzerland to which remittances were made by ' M/s. A.B. Bofors from Sweden; that the, Director of the C.B.I. requested the concerned authori ties in Switzerland for freezing/blocking certain bank accounts relevant to this case and the Federal Depart .
ment of Justice and Policy, Switzerland moved Judge of Geneva and the concerned Judge of Zurich; that the relevant accounts in the bank had been blocked upto 28.2.1990 and that request for judicial assistance from Switzerland in this ' matter, therefore, should be made by 28.2.1990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20.2.1989 only on receipt of a Letter Rogatory from the competent judicial authorities in India.
The C .B.I. requested the Special Judge to send a Letter Rogatory/ request to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frus trated.
The Special Judge allowed the application of the C.B.L Before the new Special Judge who assumed charge of the office from the previous Special Judge, the appellant in Crl.
A. No. 306/91 filed a Public Interest Litigation under Article 51 A of the Constitution of India praying that no Rogatory letter be issued on the formal request of the CBI unless the allegations against named persons were estab lished to the satisfaction of the Court; that no request for Rogatory or 'freezing bank account be made to Swiss Govt.
unless the concerned persons were noticed and heard on the subject; that the petitioner be permitted to join during inquiry in the capacity of public interest litigant; that inquiry section 340, Cr.
P.C. be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped.
The Special Judge dismissed the petition and issued Note of Compliance and amended Letter Rogatory.
754 The public interest litigant filed a criminal revision before the High Court.
During the hearing of the case before the High Court, several applications seeking impleadment/intervention were filed.
Dismissing the revision, the High Court held that the petitioner has no locus standi to maintain the petition and consequently the interveners also had no right to seek for impleadment or intervention and taking suo moto cognizance of the matter for the reasons assigned.
in his order the judge directed issue of show cause notice to the CBI and the State (Union of India) as to why the proceedings initiated on the strength of the FIR dated 22.1.90 pending before the Special Judge be not quashed; against which the criminal appeals and the writ petition were filed in this Court.
CrI.A. No. 304/91 is preferred by the Janata Dal against the order passed by the High Court rejecting its application filed before the High Court requesting the Judge to recuse himself from the proceedings.
CrI.A. No. 305/91 is filed by the Janata Dal against the order of the High Court rejecting the application for impleadment of the appellant and other interveners and also issuing suo moto notice to the State and the CBI.
A. No. 306/91 is directed by the original petition er who filed the public interest litigation before the Special Judge challenging the first part of the order of the High Court dated 19.12.90 .dismissing his petition on the ground that he had no locus standi to file the petition.
CrI.A. No. 307/91 is preferred by the Janata Dal ques tioning the correctness of the earlier order passed by the High Court refusing to allow the appellant 's application for impleaament/intervention.
A. No. 308/91 has been directed by the Communist Party of India (Marxist) against the order of the High Court refusing to allow its application for impleadment/interven tion.
CrI.A. No. 309/91 is preferred by india Congress (So cialist) against the main order of the High Court dated 19.12.1990 dismissing its application for impleadment and taking up suo moto cognizance for quashing the FIR.
CrI.A. No. 310/91 is filed by the 'Union of India can vassing the legality and correctness of the order dated 5.9.90 passed by the High Court and praying for a direction directing the High Court to decide the 755 maintainability of the public interest litigation as a preliminary question, and for the deletion of the second respondent.
The permission for deletion was granted.
CrI.A. No. 311/91 is filed by the Union of India and the CBI questioning the second part of the order of the High Court dated 19.12.90 namely taking suo moto cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings.
initiated on the strength of the FIR be no quashed.
The appellants in this appeal impleaded the High Court through its Registrar as a respondent.
W.P. No. 114/91 is filed seeking certain directions relating to Bofors matter and ' for quashing the later part of the order dated 19.12.90 of the High Court.
Dismissing CrI.A. Nos.
304 310/1991 and the Writ Peti tion No. 114/91 and allowing Crl.
A. No. 311/91, this Court, HELD: 1.
Even if there are million questions of law to be deeply gone into and examined in a criminal case regis tered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.
[766H 767A] 2.
The appellant in CrI.A. No. 306/91 has no locus standi to file the petition under Article 5 1 A as a public interest litigant, to invoke the revisional jurisdiction of the High Court under Sections 397 read with section 401 of the* Code of Criminal Procedure challenging the correctness, legality or propriety of the order of the Special Judge and to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report and all other proceed ings arising therefrom on the plea of preventing the abuse of the process of the Court.
[767C E] 3.
The initiation of the present proceedings by the public interest litigant under Article 51.A of the Constitu tion of India cannot come within the true meaning and scope of public interest litigation.
[767F] 4.
The appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) equally have no right of seek 756 ing their impleadment/intervention.
For the same reasons, the petitioner in W.P. (Crl.) No. 114/91, has no right to file the Writ Petition as a public interest litigant.
1767G] 5.
The suo moto action of the High Court in taking cognizance in exercise of the powers under Sections 397 and 401 read with Section 482 of the Code based on the convolut ed and strained reasoning and directing the office of the High Court to register a case under the title Court on its motion vs State and CBI cannot be sustained.
[767H 768A] 6.
The directions of the High Court calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the First Information Report dated 22.1.90 be not quashed, cannot be sustained.
[768B] 7.
All the proceedings initiated in pursuance of the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV on the file of the Special Judge including the issuance of the Letter Rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law.
[768D E]