1. Second respondent in W.P. No. 1192 of 1984 being the Government of Tamil Nadu is the appellant herein. Writ petitioner is the first respondent herein. Respondents 2 to 6 herein were respondents 3 to 7 in the writ petition.
2. The writ petition was filed by Arcot N. Veeraswami/first respondent herein to issue a Writ of declaration that Tamil Nadu Ordinance No. 17 of 1983, dated 21.12.1983is null and void. This Ordinance was passed to amend Section 3 of Pachaiyappa's Trust (Takingover of Management) Act, 1981 (Tamil Nadu Act 11 of 1981)(hereinafter referred to as the Act) substituting the words "four years" in the place of "three years".
3. The writ petition in essence was filed to challenge the constitutionality of Tamil Nadu Act 11 of 1981, and the learned Judge by Judgment dated 6.11.1987, had allowed the writ petition by holding that the Act suffers from the want of legislative competence, and therefore it is ultra vires and void. It is against the said judgment, this writ appeal has been preferred.
4. In the writ petition, the Chief Minister of Tamil Nadu was impleaded as first respondent, but when the appeal was admitted, he had been deleted by order dated 11.11.1987.
5. In the affidavit filed in support of the writ petition, it is claimed as follows:
Petitioner had been a member of Pachaiyappa's Trust Board, and the Headquarters Secretary of the leading opposition party of the state viz., D.M.K. Pachaiyappa's charities is a trust formed by pooling the legacies bequeathed by benevolent individuals like Pachaiyappa Mudaliar, P.T. lee Cheangalvaroya Naicker, C. Kandaswami Naidu, Rajathiammal and many others. It owns valuable immovable properties both agriculture and urban properties, worth nearly Rs. 150 crores. The above mentioned benevolent persons have left behind last will and testament for performing many charitable activities and for proper maintenance of educational institutions orphanages, dispensaries, etc. There was a scramble for power among the trustees. Some of the members relinquished their honorary posts. It was then thought by many individuals, who care for public interest that Government ought to intervene and remedy the situation. It was then the Act was passed and the maintenance and administration of the Pachayappa's Trust Board was taken over with effect from 3.3.1981. Even before the passing of the Act, the properties were taken over by State, on 22.12.1980. Under Section 3, the period of taking over was only for a period of two years. Under Section 8,before two monthsprior to the expiry of period fixed under the Act', Government ought to have taken necessary steps to hold election so that newly elected Board of Trustees could take charge of the Trust. The act was to expire on 21.12.1982. During the three years' tenure by the committee appointed by the Government, it had performed the duties appallingly in a bad manner. Corruption took deep roots in the administration of the Trust. None of the wishes of the benevolent creators had been performed. The only reason for the Government's intervention was, because the elected members of the Trust had indulged in quarrelling with each other. To the dismay of public, the first two years of Management by Committee was totally unsatisfactory compared with performances of earlier Board of Trustees. In spite of it, Government had chosen to extend the tenure of the committee by another year. Even then the performance by the committee had not improved and the poor performance and the mal-administration continued. Yet the Government by the impugned Ordinance had chosen to extend the tenure to four years by amending the Act; the reasons given are not adequate and do not warrant extension of time. Committee had failed to perform the essential requirements of the scheme framed by High Court in 1909. Due compliance with the provisions of the scheme is a mandatory requirement. Prior to the Act, the previous Board members have complied with necessary requirements of the scheme. Clause 4 of the scheme provides for conducting the commemoration Day of Pachaippa annually, but it is not carried out Until 1977 awards had been granted to students to encourage them in studies. It is not being done now. Under Clause 8 of the scheme, auditing has to be done every year and certified by auditor. Committee had not done it. As per Clause 9 of the scheme, Annual Budget had to be prepared, and here again, the committee had committed default. After referring to certain other omissions it is stated that committee is indulging in mismanagement and misappropriation of trust properties, but is still enjoying the protection and patronage of the Chief Minister, hence, he has filed the writ petition on the ground that Tamil Nadu Act 11 of 1981 had been passed without any material whatsoever on hand, and it is arbitrary and violative of Article 14 of, the Constitution and hence, the consequential impugned Ordinance is vitiated.
6. Second respondent/appellant herein in the counter-affidavit, would state that the allegations made against the Committee of Management are hypothetical imaginary and invented for the purpose of prejudicing the mind of the Court. They have been countenanced by the Committee of Management in its counter affidavit. The main ground of attack is that, the Act is violative of Arts. 14 and 19 and it is not in accordance with Article 31-A of the Constitution. Article 31-A empowers State Government for taking over of the management of any property for a limited period in public interest. Hence, the question offending Article 14 is beyond consideration. It is not the claim of the petitioner that the State is incompetent to pass the legislation, when he admitted that the Act could be passed under Article 31-A. Having stated that many individuals required the Government to take over the management, the take over for a temporary period cannot be described as an arbitrary action. Lot of complaints were received regarding mal-administration and mismanagement of trust properties at the hands of the erstwhile Board. Trust had got 6 Colleges, 10 Schools and 1 Polytechnic apart from religious charities. Prior to passing of the Act, for about 7 years, there was no audit, and accounts were not properly maintained. The properties were not also properly maintained. More than Rs. 1,00,000 received from University Grants Commission, had not been properly utilised for Pachaiyappa's College, Madras, and it had been diverted to some other purposes. The erstwhile Board did not care to purchase lands for accommodating the College building because of which University took steps to withdraw the affiliation. It was unable to pay salary to teachers and staff in C. Kandasami Naidu College. A number of appointments have been made without any sanction from the Government or Educational Authorities. After considering the work done by the present committee, and as further time is required to set right the mismanagement, the period has to be extended. Every step is being taken by the present Committee to augment the resources of the Trust by removing the evils which crept into the Trust. The words "limited period" cannot be interpreted in a sense with a restricted meaning. After setting right the mismanagement in the proper perspective, certainly the management of the trust would be entrusted to the elected body. This has been made clear on the floor of the legislature. It is not made cleat as to how any fundamental right is infringed by the impugned Ordinance. The sanction is in tune and touch with Article 254(2) and Article 31-A of the Constitution.
7. On behalf of the Committee of Management, a lengthy counter-affidavit of 102 pages had been filed to justify the continuance of the Act because of the Magnititude of the problems faced by the committee. Petitioner had filed a reply affidavit countering each one of the achievements claimed by the committee.
8. The Learned Judge held that:
...The impugned legislation not only offends the principles of separation of powers, but also interferes with the functioning of the Judiciary and it amounts to usurpation of Judicial power and therefore unconstitutional and avoid.
Therefore, the disturbing aspects existing in the procedure adopted for extension of the period of vesting under Section 3 of the Act from time to time had been taken into account, and the learned Judge had observed as follows:
I am referring to this aspect not with a view to objectively assess the reason for such extension in respect of which Government's decision is final and could not be questioned in a court of law, but for expressing a surprise of the Government that Government does not have faith in democratic process of electing the Board of Trustees and allowing such elected body to function as such trustees. If there was any need for changing the scheme of the election of the trustees, that could have been easily done by filing an application for amendment of scheme which as stated already, they did file, but could not pursue to get an order as early as possible.
yet another aspect touched upon is about the period for which the take over had been done, and how it had been done, and how it had been extended from time to time by different Ordinances and acts and it is then observed:
...Though the power to issue an Ordinance with retrospective effect could not be questioned, I am pointing out this aspect of the procedure adopted as only abnormal and could not be justified.
Therefore, when the main attack is on the constitutionality of the Act, except for the 7th respondent, who had touched upon several acts of mismanagement by the present committee nominated by Government, arguments have been confined to the Constitutionality of the Act.
9. Late Pachaiyappa Mudaliar, a phillanthropist of yester years by his last will and testament, had directed for several educational institutions to be run and for other enabling charities to be performed by Board of Trustees, constituted from time to time. Under the said will dated 23.3.1824, he had bequeathed an amount of 1,00,000 pagodas for the support of several charitable and religious purposes, and the object of the Trust having not been properly managed, and the money so bequeathed and interest accuring thereon not having been duly accounted for by the Executors and their representatives, the then Advocate-General filed a suit in the Supreme Court of Madras for recovering and securing the money due to the said Charity with a view to perform the charities, and the said suit was decreed on 3.2.1826. The charities, both educational and religious, were to be performed in different places like Chidambaram, Tiruvallur, Madurai, Peria Kancheepu-ram, Madras etc.
10. Three other decrees were passed on 23.10.1832, 30.10.1832 and 6.8.1941, and they came to be passed at the instance of the then Advocates General,Madras.It was on 12.2.1909,this Court framed a new scheme for the management of the Pachaiyappa Charities providing for constitution of a Board of Trustees in whom the properties shall vest. The Learned Judge has extracted the relevant portions of the scheme in extenso, and therefore, it need not be repeated as part of this judgment. This scheme came into force with effect from 1.4.1909. This was amended by this Court on 18.7.1920,14.2.1920 and again on 16.7.1963.
11. Pachaiyappa's Trust (Takingover of Management) Ordinance, 1980 (Tamil Nadu Ordinance No. 14 of 1980) dated 22.12.1980 was passed relating to the management of the Trust insofar as it is vested in the Board of Trustees under the Pachaiyappa's Trust Scheme as framed by the court; and it was taken over and vested in the Government for a period of two years. It was further declared that the existing members of the Trust shall cease to hold office on the date of commencement of Ordinance. It also provided that no election under the scheme decree shall be held to fill up any vacancy in the Board of Trustees. This Ordinance was replaced by T.N. Act 11 of 1981 with effect from 31.3.1981. As per Section 1 (2) of the Act, it is deemed to have come into force on 22.12.1980. Under Section 3, the period of take over was fixed as two years. On 19.12.1982, Tamil Nadu Ordinance No. 16 of 1982 was promulgated by which the words "two years" in Sections 3 and 8 of the Act were amended as 3. This was replaced by Tamil Nadu Act 7 of 1983. On 21.12.1983, Pachaiyappa's Trust (Takbgover).2nd Amendment Ordinance, 1983 was promulgated extending the period from three years to four years, and it was at that stage, the writ petition was filed. This Ordinance was replaced by Tamil Nadu Act 16 of 1984. Tamil Nadu Ordinance No. 36 of 1984 dated 21.12.1984 was passed for extending the period of one year from 22.12.1984. This was replaced by Tamil Nadu Act 22 of 1985 on 18.4.1985. Then Tamil Nadu Ordinance No. 14 of 1985 dated 21.12.85 was passed extending the period by one year, and it was replaced by Tamil Nadu Act 14 of 1986 on 18.2.1986. On 8.1.1987, Tamil Nadu Ordinance No. 1 of 1987 was promulgated giving retrospective operation from 22.12.1986, so that the period could be further extended by one year from that date. This was replaced by Tamil Nadu Act 9 of 1981 on 9.4.1987. Suitably, the prayer in the writ petition was also amended for a declaration that the Act and all subsequent amending Acts, are ultra vires and null and void.,
12. The provisions of Tamil Nadu Act 11 of 1981 called as Pachaiyappa's Trust (Takingover of Management) Act, 1981 are as follows:
Object in passing the enactment is stated to be that not only the present Board of Trustees, but even during the past few years, the Board of Trustees had committed irregularities in the management of charities and institution including educational institutions, and that representations haying been received that continuance of it will not be in public interest, after careful consideration, State Government had taken a policy decision to take over the management of the Trust for a limited period in public interest so as to secure its proper management, and for this purpose, the powers, duties and functions exercised and performed by the Board of Trustees should be Governed directly or by a Committee of Management appointed by it.
13. Section 1(2) states that the Act shall be deemed to have come into force on 22nd December, 1980. It was published in the Tamil Nadu Government Gazette on 24.2.1981. Section 2(2) defines "Board of Trustees" as meaning the trustees mentioned in the scheme for the Pachaiyappa's Trust settled and approved by the High Court on 12th February, 1909 as subsequently modified by the High Court. "Pachaiyappa's Trust" is defined in Section 2(c) as the trust relating to Pachaiyappa's Charities governed by the scheme settled and approved by the High Court, Madras on 12.2.1909, and as subsequently modified by it. "Pachaiyappa's Trust Scheme" refers to the scheme approved by the High Court on 12.2.1909 and as subsequently modified by it. By an amendment made in Tamil Nadu Act 56 of 1987, the words that and includes the schedule public trusts and endowments have been added, it is under Section 3, on and from the date of commencement of the Act, the management of the Trust in so far as it vests in the Board of Trustees under the Pachaiyappa's Trust Scherne, shall vest in Government for a period of two years, and which shall exercise all the powers and functions performed by Board of Trustees either directly or through a Committee of management appointed under Sub-section (2). A committee of management under Section 3(2) is composed of five officials of the Government. One of the members of the Committee shall be the Chairman. Under. Section 4, the then elected members of the Board of Trustees lost their right to hold office. Section 4(2) bars holding election. Under the Pachaiyappa's Trust Scheme to fill up any vacancy in the Board of Trustees during the period for which the committee of management constituted under Section 3(2) performs the duties and functions. Under Section 5, the Government or the Committee management, formed by it takes over the custody and control of all the properties, effects and actionable claims to which Pachaiyappa's Trust is entitled to Section 7 deals with the overriding effect of the Act Section 7(1) states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in Section 92, C.P.C. or any other law for the time being in force or the Pachaiyappa's Trust Scheme or any other Scheme settled under any law for the time being in force. If any provision in the scheme is repugnant to any of the Provisions of the Act, then the provisions of the Act alone would prevail as per Section 7(2). In Section 7(3), It is stated:
For the removal of doubts, it is hereby declared that the provision of the Pachaiyappa's Trust Scheme including the by-laws made thereunder except in so far as they relate to the matters dealt with by this Act, shall continue in force". Section 8 ordains the Government that within two months before the expiry of the period of two years specified in Section 3(1), it shall take all steps to hold the election to Board of Trustees in accord with the Pachaiyappa's Trust Scheme, so that the newly elected members may assume office immediately after the expiry of the said two years. Section 9 bars the jurisdiction of any Civil Court in respect of actions taken under the Act. Section 11 states that any application of the Trust Scheme and any reference to the Board of Trustees shall be understood, unless the context otherwise requires, as a reference to the Government or the committee of management as the case may be. Section 12 deals with relinquishment of management of the Trust by the Government with effect from such date as may be specified in the order to be published in the Gazette. Before doing so, the Government shall take all steps to hold election to the Board of Trustees in accordance with the scheme as framed by the court. Section 15, authorises the Government to make rules to enforce the provisions of the Act. It was under Section 16, Tamil Nadu Ordinance No. 14 of 1980 was repealed.)
14. Before the passing of the Act, Tamil Nadu Ordinance No. 14 of 1980 was promulgated on 22.12.1980. Thereafter, by Ordinance Nos. 16 of 1982,17 of 1983,30 of 1984,14 of 1985 and 1 of 1987, the life of the Act had been extended, and the said Ordinances had been replaced by Acts 7 of 1983,16 of 1984,22 of 1985,14 of 1986 and 9 of 1987 respectively. Thereafter, Tamil Nadu Act 57 of 1987 was enacted amending the words "7years" as '8 years' in Section 3 and 8 of the Act, and thereby the life of the Act has been extended upto 21.12.1988.
15. Tamil Nadu Act 11 of 1981 was passed to provide for the taking over of the management of the Pachayappa's Trust and all matters connected therewith. Before it was enacted, the assent of the President had been obtained in pursuance of the provision to Cl. 1 of Article 254 of the Constitution. As defined in Section 2(c), it relates to "Pachaiyappa's Charities" including educational institution and properties under its control and governed by the scheme settled and approved by the High Court of Judicature at Madras on 122.1909 and subsequently modified by the High Court. While passing the Act, the Tamil Nadui Legislature was quite aware that in respect of this charity, a scheme had been settled and approved by the High Court, Madras on 12.2.1909 and subsequently modified by the High Court. The antecedent proceedings in the then Supreme Court of Madras and High Court of Madras have been already referred to. The scheme was later on modified by orders dated 19.7.1920, 14.12.1920 and 16.7.1926. Clause 11 of the scheme deals with Board of Trustees, and constitution of the Board is in Cl. 11(b), which shall consist of 9 members of which one to be nominated and the others to be elected by different bodies. The other provisions in the said clause deal with the procedures for election, tenure of office, quorum, etc., This scheme was framed under Section 92, Civil Procedure Code. Therefore, when the Scheme relating to Pachaiyappa's Trust had been framed by High Court, and is under the control of the High Court, which may be modified for ever so many purposes Which are mentioned in Section 92(1), C.P.C. so that if a need arises, even a different method of constituting the Board of Trustees could be arrived at: still this Act was passed vesting the management of the Trust for a period of two years in the Government, and the powers, duties and functions performed by the Board of Trustees are to be exercised by the Government either directly or through a Committee of Management appointed under Section 3(2) of the Act. So the resultant effect is, the Board of Trustees which according to the scheme as existing on 22.12.1980 had been replaced by a different set of Board of Trustees, because under Section 4, the members of the Board as on that date ceased to hold office. Even though under Section 7(3) of the Act it is declared that the provisions of the scheme as framed by the High Court including the by-laws made thereunder except in so far as they relate to the matters dealt with by this Act, shall continue in force, under Section 5 Government was armed with powers to take over the properties of the Trust. Under Section 9, the jurisdiction of a Civil Court in respect of matters covered by the Act, had been barred. Section 7(1) is important, and therefore, it is extracted as follows:
The Provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in Section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908) or any other law for the time being in force or the Pachaiyappa Trust Scheme or any other Scheme settled under any law for the time being in force". Section 7(2) states that if any provision in the scheme is repugnant to the provisions of the Act, then, to the extent of repugnancy, the provisions of the Act will prevail. This Act having been passed inspite of the affairs of the Pachaiyappa's Charities under the control of the High Court, and in respect of the constitution of the Board of Trustees, the vesting having taken place; it is contended by respondents 1 and 7 that it interferes with the functioning of the Judiciary, and it has resulted in usurpation of Judicial power by the Legislature of Tamil Nadu, and hence,the Act is unconstitutional and void.
16. The first point is, whether framing of the scheme under Section 92, C.P.C. is a Judicial power or not? Learned Advocate-General for the appellant, would submit that the scheme framed by the High Court is not a judgment, and it is a compendium of certain conditions in the nature of rule making power for the administration of the charities, and therefore, neither of the attacks made by respondents 1 and 7 would have any relevance, in so far as this Act is concerned. The legislative competence cannot be questioned because of the plenary power conferred upon it under Arts.245 and 246 read with Entries 10,13 and 28 in List III to 7th Schedule to the Constitution. Entry10 deals with Trust and Trustees. Entry 13 deals with Civil Procedure Code. Entry 28 deals with charities and charitable institutions, charitable and religious endowments and religious institutions. He submits that, when the impugned Act deals with charities and trusts, these Entries would have to receive the widest amplitude as held in Pathumma and Ors. v. Kerala , wherein in construing Entry 30 of List II in the
said decision, reliance was placed on the following passage in Navichandra Mafatlal v. The Commissioner of Income Tax Bombay City which' is as follows:
In construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.
Approving this rule, it was held that "this has to be so lest a legislative measure may be lost for a mere technicality". The fact that the Tamil Nadu Legislature has plenary powers to legislate relating to these Entries under Arts.245 and 246 is not disputed either by Krishnan or by Mr. Mohan Parasaran, appearing for respondents 1 and 7. It is stated by appellant that the requirements of" Article 254(2) have also been complied with, because Section 92, C.P.C. is involved. In Section 7(1) which deals with the overriding effect of the Act in relation to Section 92, C.P.C. Respective Counsel appearing for respondents 1 and 7 having more or less advanced identical arguments, hereinafter while referring to the submissions made on their behalf, they are referred to as contentions and submissions of respondents.
17. On behalf of respondents, it is strenuously pleaded that, when a scheme is framed under Section 92, C.P.C. it results in the court passing a decree even in a case where a scheme is settled as under Section 92(1)(g). The decree so passed is a valuable decree and appealable Section 2(2), C.P.C. defines a "decree" as the formal expression of adjudication, which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question under Section 144. Section 2(9) defines "Judgment as meaning the statement given by the Judge on the grounds of a decree or order. When Section 92(g) says that in settling a scheme a court can pass a decree, and it, being a formal expression of adjudication by it (Section 2(2), and when that decree is appealable under Section 96; it is rather surprising that the learned Advocate-General could have put forth such a proposition.
18, On behalf of respondents, by relying upon the under-mentioned decisions, it is submitted that, if a scheme is framed, it is the outcome of exercise of judicial power by the High Court under Section 92, C.P.C. In Jagmohands v. Jamntadas , in dealing
with the contention put forth therein that the power to appoint or remove trustees by its very nature is an administrative power and not a judicial power, it was held in para 11 by relying upon Balarishna Udayar v. Vasudave Aiyar A.I.R. 1977 P.C. 71 as follows:
...But apart altogether from this answer, there is another answer which is equally fatal to the contention of Mr. I.M. Nanavati and that answer is provided by the very terms of Section 92 of the Code of Civil Procedure. That section provides that, in the circumstances specified there, a suit can be filed in the Principal Civil Court of Original jurisdiction to obtain a decree removing any trustee or appointing and removing trustees is thus a judicial function properly exercisable by a Court of law. It is, therefore, futile on the part of Mr. J.M. Nanavati to contend that, because the power to appoint or remove trustees is an administrative power and not a judicial power.
19. In Ranganatha v. V. Krishnaswami A.I.R. 1924 Mad. 369 : 75 I.C. 109, a Division Bench of this Court held that, when a scheme is settled for administration of a temple, and a decree is passed embodying a scheme and providing for appointment of/of trustees and for filing up future vacancies, it is not one passed in execution, and is therefore not appealable, though the order passed by the Judge is a Judicial one, it is not One passed by him as "persona designate".
20. In Kasi v. Ramanathan Chettiar . A Division Bench of this Court held that whether an adjudication is a decree or not, must be determined with reference to Section 2(2), C.P.C. and not by reference to implications, true or supposed, arising from the general provisions relating to judgments and decrees or to disposal of suits.
21. When the Court dismisses an application filed in a suit under Section 19 of Tamil Nadu Act IV of 1938, even though it was filed as an interlocutory application, it being an order which had not been made in execution proceedings but in the suit, it amounted to a decree within the meaning of Section 2(2), C.P.C. and hence, an appeal would lie against it under Section 96, C.P.C. though the Act did not confer a right of appeal from such an order. Yet, by referring to para 9 in Jagmohandas.v. Jamnadas , Advocate-General would state that the procedure adopted in settling a scheme is to call upon parties and respective advocates to prepare a draft scheme and as far as possible, have it settled by Pleaders representing several litigants, and therefore, there is no adjudicative act discharged by the Judge, while passing the decree. In the said decision itself, the controversy was, as to what meaning should be given to the expression "District Judge" as appearing in the section, but as originally framed it was the "District Court". The High Court while sanctioning the scheme, had deleted reference to District Judge and entrusted certain powers to the District Court. This has led to controversy between par ties. It was held that, it was not as if the court simply incorporated the draft scheme placed before it, but applied its judicial mind as defined as Section 2(2), C.P.C. and passed a decree, which is a formal expression of adjudication by it. Where court exercises power under Section 92, C.P.C. in a matter where more than one factor is involved as found in the said section like removal of a trustee, or appointment of a trustee, or declaring as to what proportion of the trust property shall be attached to a particular object or whether the whole or any part of the trust property to be sold, mortgaged, exchanged or by setting a scheme or granting any other relief as the nature of the case may require; it would certainly apply its mind and take a decision one way or other before passing any of these orders. It is not functioning like a Post Office, to receive a draft scheme and stamp upon it. It is not functioning like a Sub-Registrar, who simply puts his seal and registers the documents. As pointed out above, when Section 92(1) itself states that in settling a scheme a court passes a decree and when it could be the decree as defined in Section 2(2), which means that it is a formal expression of an adjudication made by it, and when such a decree is an appealable decree, the statement made by respondents that when the scheme was framed for Pachaiyappa's Charities by the High Court, Madras on 12.2.1909 and later on amended from time to time,it was the outcome of the judicial function by the court, has to be accepted.
22. This leads on to the consideration of the vital point relating to separation of powers, and whether by passing the enactment, the Tamil Nadu Legislature had interfered with the Judicial power of this Court; The learned Advocate-General, to show how and when a legislation could override the effect of a judicial decision relies upon the Division Bench decision in Mohanlal Hargovindas v. State of M.P. . What had happened was that, when certain dealers who were engaged in selling beedies, questioned the applicability of Section 4(6) of the Central Provinces and Bearer Sales Tax Act, the Supreme Court restrained the applicability of the said Act and prevented imposition of tax in respect of transactions in question. Thereafter, Sales Tax Laws Validation Act, 1956 came into force, and once again proceedings were taken against the said dealers for recovery of tax. The point arose as to whether in view of the principles of separation of powers implicit in the Constitution, and when the Legislature could not exercise judicial power so as to annul a judgment; the said Act can take away the decree issued by the Supreme Court. After referring to the decisions referred to in United Provinces v. Atiqa Begum A.I.R. 1941 F.C. 16 : (1941) 1 M.LJ. 746 : 193 I.C. 220 : 68 I.A. 1; Piare Dusadh v. Emperor A.I.R. 1944 F.C. 1 : (1944) 1 M.LJ. 40 : 211 I.C. 141, Biharilal v. Ramchandran , etc., it was held that the legislature within the field of their enumerated powers is supreme, and it has the power to do things validly, which English Parliament in exercise of its plenary powers can do. It was then held:
...But the enactment of a retrospective law of the passing of a Validation Act, which incidentally puts an end to the finality of a decision of a court or re-opens a past controversy cannot be regarded as an exercise of judicial power.
It was further held that the legislature has the power to give retrospective operation to an Act, and that a Validating Act could be passed affecting the finality of a decision of Court.
23. He then refers to State of Orissa v. Bhupendra Kumar . It was a case in which election of a candidate was set aside by the High Court, and thereafter, an Ordinance was promulgated declaring that the elections to the Cuttack Municipality stood vali dated. On the successful party in the writ petition having found that the decisions obtained by him had been rendered illusory,he moved the High Court by way of another writ petition in which Sections 4 and 5(1) of the Ordinance, were struck down. It was held by the Supreme Court in para 15 as follows:
... what the ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them. Once that is done, there is hardly any occasion to say further that no prejudice shall be deemed to have been caused by the said infirmities of the electoral rolls.The basis of the judgment was the irregularities in the Electoral rolls and the procedure followed in holding the elections. Those irregularities have been validated and that inevitably must mean that the elections which were held to be invalid would have to be deemed to be valid as a result of the ordinance and so no question of material prejudice can arise.
In para 17, it was held:
...it is true that the judgment delivered by the High Court under Article 226 must be respected, but that is not to say that the legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of the High Court under Article 226 with Article 226 itself and confer upon it all the attributes of the said constitutional provision.
24. Then he relies upon I.N. Saksena v. State of M.P. A.I.R. 1976 S.C. 2250 which holds as follows:
21.The distinction between a Legislative" act and a "Judicial" act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law.
22. While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralizing effect the conditions on which such decision is based. As pointed out by Ray C .J.in lndira Nehru Gandhi Raj Narain 1975 S.C.C. (Supp) 1 : A.I.R. 1975 S.C. 2299 the rendering ineffective of judgments or orders of competent courts and tribunals by changing their basis by legislative enactment is a Well known pattern of all Validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power.
Bench of seven learned Judges of this Court laid down that the validity of a validating law is to be judged by two tests. Firstly, whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law. To these we may add a third whether it is consistent with the provisions of Part III of the Constitution.
25. He would then proceed to rely upon Utkal G. & J. (P.) Ltd. v. State of Orissa in which the Supreme Court declared that the Orissa Forest Produce (Control of Trade) Act and notification issued thereunder in relation to sal seeds, did not apply to sal seeds grown in Government forests. This Act was later on amended by validating Ordinance in 1987 by removing the cause of. ineffectiveness pointed out by the Supreme Court. The provisions now made covering specified forest produce, whether grown or found on land and owned by State Government or in Government forests and the contracts relating thereto. A point arose as to whether by passing the Ordinance, there had been any encroachment upon the judicial power. In para. 14 it was held as follows:
The next question to be considered is whether the State while purporting to amend the Act has encroached upon the judicial power and set aside the binding judgment of this Court. We do not think that Mr. Nariman was justified in contending so. The principles have been well established in a string of decisions of this Court, and we may briefly summarise as follows;-
The legislature may, at any time, in exercise of the plenary power conferred on it by Arts.245 and 246 of the Constitution render a judicial decision in effective by enacting a valid law. There is no prohibition against retrospective legislation. The power of the legislature to pass a law postulates the power, to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. The rendering ineffective" of judgments or orders of competent courts by changing their basis by legislative enactment is a well known pattern of all validating acts. Such validating legislation which removes the causes of in-effectiveness or invalidity of action or proceed ings cannot be considered as encroachment on judicial power. The legislature, however, cannot by a bare declaration, without more, directly overrule, reverse or set aside any judicial decision. Harin Singh v. Military Estate Officer , Government of Andhra Pradesh v. Hindustan Machine Tools Ltd. Saksena v. State of M.P.
and Misri Lal Jain v. State of Orissa (1977) 3
S.C.R. 714 : .
26. In the concluding stages, in reiterating the point as taken he has relied upon the following decisions:
the validity of Madras Marumkkathayam (Removal of Doubts)Act, 1955. The passage relied upon is in para 70, which refers to a contention raised that the Act is bad because it is an exercise by the Legislature of Judicial power which it does not possess. Sarkar, J. holds that such a contention cannot be accepted. In analysing the contention taken, the learned Judge would state that, the first contention is that, the Act has been given retrospective operation. On that contention, it was held that by itself it would not make the Act as anything done in exercise of. judicial power because the legislature has the power to give retrospective operation to an Act. That does not mean it is adjudicating between parties affected by the Act. By giving retrospective effect, the law is altered, as from a past date. The other contention put forth is that, the Act provides that it is to have effect notwithstanding any decision of the court contrary to its provisions. In dealing with this, reference is made to Piare Dusadh's case A.I.R. 1944 F.C. 1 and it was held that the observation contained therein would apply with equal force to the position obtaining under the constitution, because the American concept of "due process of law" would not be applicable. As for the impugned Act, it was held that it lays down a law to be applied by courts in future in the adjudication of disputes between the parties, and that the courts shall apply the law, notwithstanding that there is an earlier decision on the rights of the parties, which are being litigated upon in a subsequent proceeding, and that, it does not in any sense adjudicate between parties, and hence, the contention that the impugned Act is really an exercise of judicial power, is ill -founded. To counter this Mr. Mohan Parasaran would point that this is a minority view expressed therein and has no binding effect because,;three learned judges out of the five constituted in, the Bench, have expressed their view in Para 49. to the following effect:
With this background let us look at the terms of the Act to see what is purports to do. What is the effect of the impugned Act, it is not the form that matters but the substance of it in its operation on the vested rights of citizens. The Act destroys the finality of decrees of courts establishing the title of.
27. In Para 50, it is held:
...It appears to us that the word "otherwise" in the context only means "whatever maybe the origin of the receipt of maintenance". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty. It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sathanam which ex facie is expropriator and unreasonable.
Then the said Act was declared as void and ultra vires of the Constitution. He is correct in pointing out this aspect. Therefore, it is the substance of the enactment which will have to be looked into, and if the object of the legislation is to by-pass the decrees of courts, and if it is a device to take the property of one and vesting it in another without any compensation, then it is expropriatory in character and hit byArt. 19(1)(f) of the Constitution.
28. The next decision which he refers to is Fatechand v. State of Maharashtra which deals with how far Entries in the Lists will have to be understood and applied, in support of his contention that the Entry in the List should be seen in a widest amplitude, and when the subject-matter of impugned legislation is traceable, even if it entrenches incidentally upon any other Entry in another List; even then by applying a liberal meaning, the law made on that basis should be applied. In dealing with the provisions of Maharashtra Debt Relief Act where gold loans could also be dealt with; it was held:
...It is common place to state that legislative heads must receive large and liberal meaning and the sweep of the sense of the rubrics must embrace the widest range. Even incidental and cognate matters come within their purview. The whole gamut of money lending and debt-liquidation is thus within the State's legislative competence.
By referring-to the law made by Parliament under Entry 52 of List I, and having framed incidental provisions affecting gold loan and money-lending loans, it was held that the State by making a law on a different topic but covering in part the same area of gold loans, must not go into the irreconcilable conflicts. After referring to;Art.254 which could be invoked, it was held:
...The doctrine of occupied field" does not totally deprive the State Legislature from making any law incidentally referable to gold.
29, By referring to Para 23 of the decision reported in L.N. Saksena v. State of M.P. A.I.R. 1976 S.C. 2250, he points out that the validity of a law could be challenged on four grounds viz., (1) whether the legislature possesses competence over the subject, matter; (2) whether by validation the legislature has removed the defect which the courts had found in the previous law; (3) whether it is consistent with the provisions of. Part III of the Constitution? and (4) whether it offends the basic structure of the Constitution;
30, In the decision reported in Nand Lal v. State of Haryana , it was held as follows:
... A statute enacted by a Legislature falling with-in its competence which did not offend any fundamental rights guaranteed by Part III of the Constitution and which did not contravene any other provision of the Constitution could not be declared ultra vires, either on the ground that its provisions were vague, or uncertain or nambiguous or mutuallyt inconsistent. The Court pointed out that unlike the American Constitution, there Was no "due process'' clause in our Constitution and, therefore, Indian Courts could not declare a statute invalid on the ground that it contained vague, uncertain, ambiguous or mutually inconsistent provisions, and that it was the duty and function of the Indian Court, in relation to each forensic situation to examine the language of the law, the context in which it was made, to discover the intention of the Legislature and to interpret the law to make effective and not to frustrate the legislative intent and in that behalf it could always call in aid well-known cannons of interpretation and even where the provisions of a statute appeared to be mutually inconsistent there were several well known rules of interpretation to guide the court in giving a proper meaning to the provisions of a statute, such as, the rule of harmonious construction, the rule that special shall prevail over the general, etc.
31. The following passage is relied upon in Ram Jawaya v.State of Punjab .
12...The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our, Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another....
His plea is that, it is the pith and substance of the legislation that must be looked into, and framing of the scheme being essentially legislative in nature, it is nothing but a formulation of rules to be followed, and which could be modified or verified from time to time and hence a scheme decree is not a pronouncement of the judicial verdict of the court.
32. He then relies upon more than one portion of the decision in Smt. Indira Nehru Gandhi v. Raj Narain . It is the decision which is equally relied upon by respondents as well, in support of their claims.
33. The next decision relied upon is Sajjan Singh v. State of Rajasthan (1965) 1 M.LJ. (S.C.) 57 : (1965) 1 S.C.J. 377 : (1965) 1 An. W.R. (S.C.) 77 : A.I.R. 1965 S.C. at 854, 845 in which the validity of Constitution (17th Amendment)Act 1964 was questioned. It was held therein.
...On several occasions, legislatures think it necessary to validate laws which have been declared to be invalid by courts of competent jurisdiction and in so doing, they have necessarily to provide for the intended validation to take effect notwithstanding any judgment decree or order passed by a court of competent jurisdiction to the contrary. Therefore, it would be idle to contend that by making the amendment retrospective the impugned Act has become constitutionally invalid.
34. In Udai Ram v. Union of India A.I.R. 1968 S.C. 1138 : at 1152 (1968) 2 S.C.A. 277 after referring to several decisions, it was held as follows:
All these decisions lay down that the power of legislature for validating actions taken under statute which were not sufficiently comprehensive for the purpose is only ancillary or subsidiary to legislate on any subject within the competence of the legislature and such Validating Acts cannot be struck down merely because courts of law have declared actions taken earlier to be invalid for want of jurisdiction. Nor is there any reason to hold that in order to validate action without legislative support the Validating Act must enact provisions to cure the defect for the future and alsoprovide that all actions taken or notifications issued must be deemed to have been taken or issued under the new provisions so as to give them full retrospective effect. No doubt legislatures often resort to such practice but it is not absolutely necessary that they should do so, as to give full scope and effect to the Validating Acts.
35. Fatechdnd v. State of Maharashtra is relied upon to contend that to render even judgments and decrees of court imperative, by granting different reliefs, legislation could be made. While dealing with the competence of the State Legislature in this regard, it was held in Para 54 as follows:
...Entry 30 in List II is money-lending and money-lenders, relief of Agricultural indebtedness. If commonsense and common English are components of constitutional construction, relief against loans by scaling down, discharging, reducing interest and principal, and staying the realisation of debts will, among other things, fall squarely within the topic. And that in a country of hereditary indebtedness on a colossal scale. It is common place to state that legislative heads must receive large and liberal meanings and the sweep of the sense of the rubrics must embrace the widest range. Even incidental and cognate matters come within their purview. The whole gamut of money-lending and debt-liquidation is thus within the State's legislative competence. The reference to the Rajamhundry Electricity Case, 1954 S.C.R.779: A.I.R.1954 S.C.251 is of no relevance. Nor is the absence of the expression "relief in Entry 30, List II, of any moment when relief from money-lenders is eloquently implicit in the topic....
36. To counter these submissions, Mr. Mohan Parasaran, learned Counsel for the seventh respondent, has placed before court a plethora of decisions and put forth impressive submissions point wise. Mr. Krishnan, learned Counsel for the writ petitioner relies upon Ram Prasad v. State of Bihar . Jagmohandas v. Jamnadas
and Tirath Ram v. State of U.P.
submits that the basis of the scheme decree is the will of late Pachaiyappa Mudaliar, and the scheme which has been framed by the High Court.
37. It is allowed to continue including the by-laws, under Section 7(3), on aspects not covered by the Act. The scheme cannot be altered by passing the Act, because if it was a question of replacement of Board of Trustees, Section 2(1)(a) could have been invoked, and under Section 92(1)(b), new trustees could have been appointed. If need be the court ought to have been moved by learned Advocate-General to modify the scheme for a different method of bringing in to existence the board of trustees. In spite of such an enablement as provided in the existing laws, it is only with an intention to entrench upon judicial powers, this Act had been enacted, and therefore, it is unconstitutional.
38. As to what extent in the Indian Constitution, separation of powers exist among the three wings being the judiciary,. Legislature and Executive, and how far by enacting validation law, the judicial verdict already given declaring a law as invalid, could be validated, and in doing, so what principles will have to be followed, Mr. Mohan Par-asaran, learned Counsel for the seventh respondent, would first submit that, a scheme decree is the outcome of judicial adjudication as held in Jagmohan Das v. Jamnadas , and though the
legislative competive competence, to make a law relating to trusts, charities, etc., exists in respect of Pachaiyappa's Trust and when a scheme decree is in force, and when Section 92, C.P.C. is available for bringing about the change which is contemplated in the impugned Act, such a legislation cannot be passed resulting in entrenching upon the judicial power of High Court, competence to enact legislation relating to Entries 10,13 and28 of List III cannot go to the extent of entrenching upon the judicial power exercisable by the judiciary alone under the Constitution. As already pointed out, the one and the only purpose for which the Act was passed, was to vest the management of Pachaiyappa's trust in so far as it vests in the Board of Trustees under the Pachaiyappa's Trust Scheme by the Madras High Court on 12.2.1909 and subsequently modified by it. By Section 4, on 22.12.1980 the existing Board of Trustees ceased to hold office and it was replaced by a Committee of Management constituted by Government under Section 3(2). Under Section 5, it has the power to take over the properties of the Trust. Under Section 7(3), it was bound to Carry out the scheme as framed by the High Court. Under Section 9, the jurisdiction of the civil court had been barred in so far as its implementation of the Act is concerned. The resultant effect of the legislation is replacement of the Board of Trustees in the manner constituted under the scheme as framed by court, by adopting a different method. This is essentially an adjudicatory function and could not be legislative in character. Section 92, C.P.C. enables the court to Settle a scheme, to remove trustees, to appoint, new trustees, to decide on vesting of property in alrustee, etc. for the proper administration of the trust. At this juncture, it is relevant to refer to the decision of Mr Justice P.N. Bhagwati as he then was in Jagmohandas v. Jamandas A.I.R. 1965 S.C. 181. In Para 11 of the said decisions, it is stated that the function of appointing and removing trustees is a judicial function properly exercisable by a court of law. Section 92 says that when the proceedings on which a Civil Court takes a decision, it shall partake the character of a decree and under Section 2(2), it as a formal expression of an adjudication by it. It is in this prospective, Mr. Mohan Parasaran, in a commendable manner, had fathomed into the under mentioned decisions to strengthen his plea that this Act is unconstitutional and invalid as it had entrenched upon the judicial power.
39. In Basanta Chandra v. Emperor A.I.R. 1944 F.C. 86, at page 90.,) it was held as foll ows:
The distinction between a Legislative "act and a "Judicial" act is well known, though in particular instance it might not be easy to say whether an act should be held to fall in one category or in the other. The Legislature is only authorised to enact laws. Some of the pending proceedings hit at by Cl. (2) of Section 10 may raise questions of fact and their determination may wholly depend upon questions of fact and not upon any rule of law, as for instance, when it is alleged that an order of detention was not really the act of the authority, by whom it purports to have been made or that it was a mala fide order or one made by a person who had not been authorised to make it. A direction that such a proceeding is discharged is clearly a judicial act and not the enactment of law....But here there has been no investigation or decision by any Tribunal which the legislating authority can be deemed to have given effect to. It is a direct disposal of cases by the Legislature itself.
40. ln Ahmedabad Corpn. v. New S.S. & WVG.CO. at page 1296, it has been held as follows:
...The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively; By exercise of those powers, the legislature can remove the basis of a decision ren-'deredby a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the state to disobey or disregard the decisions given by courts. The limits of the power of legislatures to interfere with the directions issued by courts were considered by several decisions of this court.
41. By referring to State of Orissa v. Bhupendra Kumar which has been relied upon by Advocate-General, he
submits that the decision rather strengthens the plea of the respondents because it was held therein.
...The basis of the judgment was the irregularities in the Electoral rolls and the procedure followed in holding the elections. Those irregularities have been validated and that inevitably must mean that the elections which were held to be invalid would have to be deemed to be valid as a result of the Ordinance and so no question of material prejudice can arise. That being so, we do not think there is any substance in the alternative argument urged in support of the plea that Section 4 is ineffective even if it does not contravene Article 14.
Relying on this passage, he submits that the basis of the scheme framed by the High Court is the will of late Pachaiyappa Mudaliar. Under the Scheme, an elaborate procedure is formulated regarding the constitution of the Board of Trustees, and the manner in which elections are to be held and the continuance of members in the office of trusteeship, election of President, etc. Under Clause 11(9), the Trustees have power to frame bye-laws for giving effect to the scheme not inconsistent with the provisions hereof or the decrees and decretal order of the Supreme Court. If any necessity had arisen to change this manner of constituting the Board of Trustees, Section 92, C.P.C. is available, and the learned Advocate General could have been called upon to move the Court for adjudication to be made, as to what should be the manner in which the Board of Trustees has to be constituted. The then Advocates General Madras from time to time have moved the High Court, if the Board of Trustees is not functioning properly or had indulged in mismanagement, undoubtedly, any person interested in the Trust, or the Advocate-General could have moved the court and brought about necessary changes. It could have even gone to the extent of modifying the scheme regarding constitution of trustees Fur-thermore, even under the Act, a provision having been made for holding election after the expiry of the period only in accordance with the scheme framed by the High Court, knowing quite well that it is only in a democratic way, the affairs of the Trust could be managed, any interference with the scheme framed by the Court by this impugned legislation is nothing but an interference with the judicial powers of this Court. As pointed out in the decision under reference, this is not a case wherein this Court had pointed out in any decision that certain illegalities or invalidities exist in the scheme which had necessitated the legislature to step in, to bring about a measure, thereby bringing into existence a different conception of law and making it retrospectively applicable. High Court had never pointed out any infirmity in the manner of constituting a Board of Trustees, which had necessitated a legislation being made for changing the basis of the scheme, so that the defective law could be removed, and which would form the basis for the formation of the Board of Trustees in a different manner. Therefore, he submits that, by relying upon this decision and the decision in I.N. Saksena v. State of M.P. A.I.R. 1976 S.C. 2250 which will be referred to hereinafter, learned Advocate-General had thereby strengthened the plea of the respondents.
42. In Kesavananda v. State of Kerala at page 1535, the learned Chief Justice held as follows:
...The true position is that every provision of the constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The, basic structure may be said to consist of the following features:
1. Supremacy of the Constitution;
2. Republican and Democratic forms of Government.
3. Secular character of the Constitution.
4. Separation of Powers between the legislature, the executive and the judiciary;
5. Federal character of the constitution.
6. The above structure is built on the basic foundation i.e. the dignity- and freedom on the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
43. In Shri P.CMills v Broach 'Municipality A.I.R. 1970 S.C. 192 : (1970) 1 S.C.R. 388 which dealt with Gujarat imposition of Taxes by Municipalities (Validation) Act, 1963 it was held:
...Validation of a tax sq declared, illegal may be done only if the grounds of, illegality of invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was Collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow anyone method or all of them and while it does so it may neutralise the effect of the earlier decision of the court, which becomes ineffective after the change of the law. Which ever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject matter and competence to a valid law, it can at any time make such a valid law and make it retrospectively, so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter, and whether in making the-validation it re-, moves the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.
44. He then relies upon paragraphs 21and 22 in I.N. Sakesna v. State of M.P. A.I.R. 1976 S.C. 2250 which are to the following effect:
The distinction, between a "legislative" act and a "judicial" act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performances of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute, on the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law.
While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray C.J. In lndira Gandhi v. Raj Narain the rendering ineffective of
judgments or orders of competent courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes, the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power.
45. Hence, he contends that, if the legislation changes the basis of the law regarding which a judicial decision is in force, then alone, in exercise of the plenary powers, a judicial decision should be made ineffective, because the invalidating law which formed the basis for that judgment, could be replaced by the validating enactment and not because the judicial decision was erroneous. At this juncture, correctly he hastens to point out that the impugned Act is not a validating Act at all, and therefore, the rationale in the decisions relied upon by learned Advocate-General could have no relevance.
46. He would then refer to the decision of the Division Bench of this Court in Krishnaraju Chetty v. Commr of H.R. & C.E. (1977) 2 M.LJ. 188 which dealt with the scope of Section 118 of Tamil Nadu Hindu Religious and Charitable Endowments Act, which provides that all the powers and duties imposed by a scheme on any court or judge, shall be discharged by the Commissioner or Deputy Commissioner as the case may be in accordance with the provisions of the Act. In the said decision, the validity of the Act had not come up for consideration, and therefore, it is certainly not a decision which could be relied upon to justify the validity of the Act.
47. He would then refer to the decisions in W.P:No.1363 of 1982, dated 11.4.1986 rendered by one of us. In the said decision, it has been held that Section 118 clearly shows that the Legislature was quite conscious that the scheme framed by the courts under Section 92, C.P.C. cannot be modified or altered by anyone of the constituted authorities. This view was arrived at on the point taken as to whether by virtue of Section 118(2)(b)(i), the Scheme framed by the High Court has been made ineffective, and that the provisions made relating to appointment of trustees under the Act would be applicable to the same temple or not.
48. By referring to the relevant passage in Smt. Indira Nehru Gandhi v. Rajnarain which has been already extracted in Para 35, it is pointed out that though there is no express mention in the Indian Constitution vesting the judicial power as found in American Constitution, yet the division of functions into three categories, had resulted in judicial power being vested in the judiciary, and the intention is that its power should not be passed to or shared by the Executive, or the Legislature.
49. As for reliance placed on Mohanlal Hargovindas v. State of M.P. , he refers to the decision in Biharilal v
Ramachandran and points out that this decision relied upon by appellant could have no relevance to the instant legislation because by passing it, it is not amending any existing law. Even Section 92, C.P.C. is not amended. It is by virtue of Section 92,the scheme having been framed, and no attempt having been made to change Section 92, an adjudication made by virtue of Section 92, C.P.C. cannot be taken away by Section 7(1) of the Act. This is certainly not an instance wherein the law based on which the scheme framed, had been altered by any amendment. Rather, the law continues to remain the same, but by the impugned enactment the judicial power prevailing over the scheme had been interfered with Section 7(1) cannot be relied upon to get over this.
50. In Madan Mohan Pathak v. Union dealing with the L.I.C. employees, when the impugned Act was passed to take away the effect and force of the judgment of the Calcutta High Court in recognising the settlement in favour of class III employees of the Corporation, it was held by the learned Chief Justice as follows:
I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all. Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their forces from Article 226 of the Constitution itself. These could not be touched by an ordinary act of Parliament. Even if Section 3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court, without mentioning it by enacting what may appear to be a law, yet, I think that where the rights of the citizen against the state are concerned. we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in this indirect fashion.
51. He would then refer to R. Sambamurthy v. State of A.P. A.I.R. 1987 S.C. 663 in which Article 371-D of the Constitution of India was struck down by holding as follows:
It is obvious from what we have stated above that this power of modifying or annulling an order of the Administrative Tribunal conferred on the State Government under the Proviso to Cl. (5) is violative of the rule of law which is clearly as basic and essential feature of the Constitution. It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the state is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decisions given against it, it would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet to get away with it. The proviso to Cl. (5) of Article 371-D is therefore clearly violative of the basic structure doctrine.
52. In Smt. Indira Nehru Gandhi v. Rajnarain at page 2435, it has been observed as follows:
...The Constitution undoubtedly specifically vests such power, that is to say, power which can properly be described as "Judicial Power" only in the Supreme Court and in the High Courts and not in any other bodies or authorities, whether executive or legislative, functioning under the constitution, could such a vesting of power in Parliament have been omitted if it was the intention of constitution makers to clothe it also with any similar judicial authority or functions in any capacity whatsoever?
The claim, therefore that an amalgamate or some undifferentiated residue of inherent power, incapable of precise definition and including judicial power, vests in Parliament in its role as a constituent authority, cannot be substantiated by a reference to any Article of the Constitution whatsoever, whether substantive of procedural. Attempts are made to infer such a power from mere theory and speculation as to the nature of the Constituent Power" itself. I do; not think that, because the constituent power necessarily carries with it the power to constitute judicial authorities, it must also, by implication, mean that the Parliament, acting in its constituent capacity, can exercise the judicial power itself directly without vesting it in, itself firsts by an amendment of the Constitution. The last mentioned objection may, appeal to be procedural only, but, as a matter of correct interpretation of the Constitution and even more so, from the point of View of correct theory and principle, from which no practice should depart without good reason, it is highly important.
53 He would then refer to the extracts which form part of the judgment of the learned Judge from 50 Corpus Juris Secundum page 559, Sir Ivor Jennings in the law and the Constitution" 5th Edition at page 286 and, the decision in Huddart Parker & Ca Proprietary Ltd. v. Moorehead, 8 Common, Wealth Law Reports 330) in support of the extensive submissions he had hitherto made. It is not necessary to repeat them as part of this order.
54. Mr. P.R. Krishnan, learned Counsel for the first respondent, laid considerable emphasis on three of the decisions referred to above. The first of them is a-decision in Tirath Ram v State of U.P. which he had read in full and persuasively pleaded
that the law had been clearly lald down to the following effect;
...This court has pointed out in several cases the distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively.The former is outside the competence of the legislature but the letter is within its permissible limits. In the instant case what the legislaturehas done is to amend the law retrospectively and thereby remove the basis of the decision rendered by the High Court, such a course cannot be considered as an encroachment on the Judicial Power.
55. The. next decision is State of Tamil Nadu v. M. Rayappa . It has dealt with the validity of Section 7 of
Madras Entertainments Tax (Amendment) Act, 1966. In holding that the said section is invalid, it was held;
...The effect of this provision is to overrule the decision of the Madras High Court and not to change the law retrospectively. What the provision says is that notwithstanding any judgment of the court, the reassessment invalidly made must be deemed to valid. The legislature has no power to enact such a provision. A question similar to the one before us came up for consideration before this Court in the Municipal Corporation of the City of Ahmedabad v. The New Shrock Spg. & Wvg. Co. Ltd. . Dealing with that question this is what this Court observed:
This is a strange provision prima facie that provision appears to command the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. The State of Gujarat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our constitution have within the prescribed limits, powers to make laws retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the state to disobey or disregard the decision given by courts. The limits of the power of legislatures to interfere with the directions issued by courts were considered by several decisions of this Court, In Shri Prithvi Cotton Mills Ltd. v. the Broach Borough Municipality . Our present Chief Justice speaking for the
Constitution Bench of the Court observed:
Before We examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition of course, is that the legislature must possess the power to impose the tax for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometime this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law.
56. The Third decision on which he laid considerable emphasis is Ram Prasad v. State of Bihar wherein the provisions of Bihar Sathi Lands (Restoration) Act, 1950 were made inapplicable because on the face of the statute, there is no classification at all, and no attempt had been made to select any individual or a group with reference to any differentiating attribute peculiar to that individual or group, and therefore, the Act comes within the mischief of Article 14 of the Constitution.
57. The Learned Judge while referring to this decision, and in extracting certain portions in Para. 7 therein, has considered the decision as having resulted in the Supreme Court holding that the impugned legislation amounts to usurpation of the powers of the judiciary, and therefore ultra vires. This is an obvious error regarding the purport of this decision. Patanjali Sastri, C.J. as he then was in characterising the legislation has stated as follows:
...Legislation such as we have now before us is calculated to drain the vitality from the Rule of Law which our Constitution so unmistakably proclaims, and it is hoped that the democratic process in this country will not function along these lines.
58. In D.C. Wadhwa v. State of Bihar , it is held as follows:
The rule of law constitutes the core of our, Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations.
In the context of the analysis as made above. It is very clear that the basic structure of the Constitution would be lost, if the adjudicatory functions of the judiciary are taken over by Legislature, because adjudication is essentially a judicial power. The decisions relied upon by learned Advocate-General are reliable to validating enactments, and in the instant case, no amendment was brought to Section 92, C.P.C. so as to take away the foundation on which a scheme had been framed. Section 7(1) of the Act cannot take away what had been already done. The foundation of the scheme is the will of late Pachaiyappa Mudaliar, and occasions having arisen to pass decrees under Section 92, the judicial process had started. A decree having been passed by an adjudicatory process, if that decree is to be in any manner interfered with by a legislative process, it could be only by changing the basis of the law according to which the scheme has been already framed. If there had been any legislation in respect of trusts and charities, and based on which any scheme had been framed, and thereafter if the law gets amended, then the judgment based on the repealed law could become ineffective. In the event of an enactment having been passed under Entries 10 and 28 of List III of VII of the schedule, and having been struck; down or any of its provision having been held as invalid, and thereafter if an amending legislation had been introduced to validate the actions taken based on the invalid law; then the decision of the court which had found fault with the law could be made ineffective, in the sense that the decision is correct, and that the law has been changed. A decision rendered by court declaring an enactment as invalid, cannot be set aside by legislature. A legislature cannot override a judgment. It cannot adjudicate upon it. Finding that the law enacted by it has become invalid by a decision of the court, if the legislature passes an enactment realising as to how a law ought to have been validry made in the light of the decision of the court; then the resultant effect is that the decision rendered by the court is on the law as it then stood was valid and correct, and it is no longer effective because the concerned law had been discarded and removed from the statute book. A law on the concerned Entry in the List having been enacted, and held invalid, and the decision already rendered by Court on it not being incorrect; it does not stand in the way of legislature ushering in valid law relating to the concerned Entry or subject matter in the List. In such a circumstances, what is done by the legislature is purely legislative in character. It does not adjudicate upon the decision of court. In the light of the decision of court it chooses to enact a valid law strictly within the ambit of the Constitution. In doing so, it has power to make it retrospectively. The effect will be, the period during which invalid law was operative; would then be covered by a valid law made on a different basis, and with reference to which the decision rendered by the court would certainly be inapplicable. Hence, the decisions relied upon by learned Advocate-General on this aspect, are of no assistance to him in justifying the impugned Act, because certainly, it is not a validating Act. It had not altered or changed the basis of law in force. It is not an amending Act relating to any enactment in existence in respect of Entries 10 and 28 of List III of Seventh Schedule.
59. It is unfair that by passing this enactment the scheme decree in force is being modified, by entrusting the management of the trust properties to a differently constituted Board of Trustees. Instead of the method conceived in Clause 11 of the scheme being resorted to, the Act has devised a different method to constitute a Committee of Management which is against the scheme as framed by the court. Section 92, C.P.C. stands in the way of legislature to interfere with the scheme framed by court. Section 7(1) states that to the extent the provisions of the Act are repugnant to the provisions of Civil Procedure Code, the Act would prevail. It is stated that the requirements under Article 254(2) had been complied with. This is no answer, when the judicial power is thus transgressed by the legislature. Under Section 92, C.P.C., remedies are available for what is attempted under Section 3 of the Act. As to whether the existing trustees should continue or whether they have committed mistakes or mismanagements, or whether they have complied with the requirements of the scheme or not, or whether in its place, a new set of trustees should be appointed, are all aspects which are specifically mentioned in Section 92(1), and for which a Civil Court could be moved. On earlier occasions, Advocates-General, Madras had moved the court. It cann it be said that the present Advocate-General, Madras, cannot do it likewise. Any emergent or swift action required to control the Board of Trustees could easily be achieved and in fact is being done in respect of hundreds of trusts all over the country by resorting to Section 92, C.P.C It had never proved to be an ineffective provision necessitating either deletion or amendment. What ought to have been done by invoking Section 92, C.P.C. has been how carried out by passing this enactment.
60. It is stated that, several complaints have been received, and representations had been made by concerned individuals about mismanagement by Board of Trustees; and this impelled the Government to resort to this legislation. If a Board of Trustees is to be removed on the plea that the members have been negligent or mismanaged, etc., then a decision could be taken depending on assessment of correctness or otherwise of the complaints made. Hence, removal of trustees could be only by an adjudicatory process, and that is what the existing law enables to be done under Section 92, C.P.C. it is this adjudicatory function which the legislature has taken over and removed the trustees in office, who have been holding office under the scheme framed by court: The Act had bought into existence a different kind of scheme though claimed to be for a short period, but factually it is being continued for the past eight years by repeated extensions, and hence, the scheme as framed and approved by Court had been modified by the impugned Act by the legislature, without changing the basis of law.
61. What has happened is that, Legislature had entrenched upon the powers of judiciary. If the impugned Act is to be held valid; then under the partnership Act, on a court rendering a finding as to who are the partners of a particular firm; then as under Entry 7 to List III, a law could be made by Legislature on partnerships. It could then pass an enactment, in and by which, it could direct certain persons in whose party Government is interested, to be inducted into the partnership, apart from the partners already recognized by court in its judgment and decree. The Act so passed will be confined only to inducting certain persons in the partnership. It would result in modifying the judgment and decree of the court. In other respects it would not allow the verdict of the court to be implemented.
62. It is this kind of erroneous exercise of powers by the legislature which is likely to occasion and on which apprehension was expressed by Patanjalai Sastri, C.J. as he then was in Ram Prasad v. State of Bihar . That was why, in conclusion, the learned Judge
observed that "it is to be hoped that the democratic process in this country will not function along these lines". Yet, in this country, such sane expressions are neither read nor those in power are interested in following it.
63. Hence, the finding of the learned Judge that impugned legislation not only offends the principles of separation of powers, but also interferes with the functions of the Judiciary, and it amounts to usurpation of judicial power and it is unconstitutional and void; is hereby upheld.
64. Learned Judges have expressed displeasure about the manner in which ordinances are repeatedly being extended from time to time. The thoughtless manner in which ordinances have been passed in State of Bihar has been adversely looked upon in D.C. Wadhwa v. State of Bihar , Mr. Mohan Parasaran, learned Counsel for the 7th
respondent, relies upon Rattan Arya v. State of Tamil Nadu wherein by placing reliance upon Motor General
Traders v. State of Andhra Pradesh A.I.R.1984 S.C.121, it was held that a provision which was perfectly valid at the commencement of the Act could be challenged later on and struck down as unconstitutional, because what was once a perfectly valid legislation may in course of time, become discriminatory and liable to be challenged, as violative of Article 14. He submits that, the opinion formed by the Government to take over the management only for two years; could not have continued to exist whenever the five amending Acts were passed by Legislature relying upon the same reasons. A committee constituted under Section 3(2)(b) having been inducted into office, and when it had done wonders even within the first term, still after so many years, the same situation cannot be claimed to be prevailing. When the reason for the law goes, the law has to go. He has filed several statements to claim that the present Committee of Management is functioning much worse than the Board of Trustees, which was in office on 22.12.1980. He relies upon the balance-sheets where the Auditor had commented about non-availability of several particulars. The writ petitioner in his affidavit, had catalogued innumerable acts of commissions and omissions by the present Committee of Management, nominated by Government. It is, therefore, contended that, what was considered as a panacea has turned out to be a misfortune for the trust created by Pachaiyappa Mudaliar. Several of his ordains are not being carried out. Hence, it is contended that, when the reason or the ground on which the law was enacted does not exist for extension; the law cannot be continued to be in force, and therefore, threatened in Rattan Arya v. State of Tamil Nadu would apply to the impugned Act.
65. It is not uncommon to make a temporary enactment, and thereafter go on extending or repeating it every year or every alternate year." Holding of elections under the Panchayats Act and Tamil Nadu Co-operative Societies Act, elections to Municipalities under the Tamil Nadu District Municipalities Act etc., were postponed endlessly thereby making transitional enactments relating to appointment of Special Officers being extended for years. Hence, there is considerable force in the contention of Mr. Mohan Parasaran that the reason which prevailed for passing the, enactment cannot still be existing.
66. Though every attempt had been made to demonstrate before court that the present Committee of Management had committed several omissions and commissions, they are not gone into in this appeal, and they are left to be dealt with by the Board of Trustees that may come into. existence later on, and hold persons responsible for loss, if any, caused to the Trust.
67. It is then contended that, because of the bar under Section 9 of the Act, even court which framed the scheme, could not be moved for any relief. It is pointed out that for misdeeds committed by the present Committee of Management, no remedy is conceived under the Act. The court under Section 92, C.P.C. cannot be moved, though a scheme framed by it is in force. An attempt already made to move the court had not yet yielded any response. All these go to show that, by passing this enactment, the effective functioning of the court under Section 92, C.P.C., had been interdicted and without any amendment of Section 92, C.P.C., the power of the court had been interfered with to the detriment: of the proper management of the Trust under the scheme decree.
68. Hence, this writ appeal is dismissed with costs, with a direction to the appellant to hand over the management of the Trust to the Administrator-General and Official Trustee, Madras, within two weeks of the receipt of the steno copy of this order, and who shall in turn take appropriate directions from court within one week of take over by filing necessary applications on the basis of the scheme decree, for election of Trustees and for constitution of the Board of Trustees as per the scheme. Counsel fee Rs. 3,000 to be equally shared between the learned Counsel for Respondents 1 and 7.