Judgment:
ORDER
1. By consent of all parties to these proceedings, the main writ petition itself was taken up for hearing.
2. The President of the All India Amitabh Bachchan Fans Association is a practising advocate of this Court. He has filed the above writ petition for the following relief: To issue a writ of certiorarified mandamus, calling for the records in connection with G.O. Ms. No. 739, Public Works (HV2) Department, dated 20-5-1992 on the file of the 1st respondent and quash the same and direct respondents 1 to 3 to grant permission to the petitioner Association to install life size bronze statue of the former Prime Minister of India, late Smt. Indira Gandhi, at the existing traffic Island at the junction of Anna Salai and Binny Club Road, opposite to Spencer, Madras, and pass such further or other orders as this Court may deem fit and proper.
3. According to the writ petitioner, the petitioner Association has been serving the poor and down-trodden and propagating national Integration and secularism. The object of the association is to promote international brotherhood and human understanding among fellow citizens and to create awareness among the people of India. As a mark of respect and admiration for the glorious memory of late Prime Minister Smt. Indira Gandhi, the petitioner Association has applied to the State Government to install a statue in the capital city of Tamil Nadu so as to inspire and stimulate young and old generations to emulate the fine example set up by the late Prime Minister. During 1986, the Association approached the Commissioner, Corporation of Madras, by letter dated 19-11-1986 for the purpose of erecting a bronze statue of the late leader in a prominent and fitting place opposite to Spencer Club House Road junction. The Corporation of Madras by its letter dated 26-12-1986 advised the petitioner Association to approach the Highways Department. Thereafter, the Association sent a requisition letter to the Chief Engineer, Highways Department, Madras-5, on 17-4-1987, requesting for a site at Anna Salai, opposite to Spencer Club House Road and Binny Road Junction, for the purpose of erection of a life size statue of Smt. Indira Gandhi. The Divisional Engineer, Highways and Rural Works Department, Madras-15,by letter dated 12-5-1987 requested the petitioner Association to send the site plan showing the exact location where the statue is to be erected and the plan showing the pedestal size and design of the statue, for taking further action. As per the request of the Divisional Engineer, the Association prepared and sent the site plan, pedestal size and other particulars required on 26-8-1987 with a request to approve the same at an early date. The Association sent another letter dated 29-8-1987 with a request to approve the plan sent along with that letter showing the exact desirable location of the place of erection of the statue. Again, the petitioner Association made a representation to the Governor of Tamil Nadu on 6-9-1988 in connection with the permission to install the life size bronze statue of the former Prime Minister late Smt. Indira Gandhi, at Anna Salai.
4. The petitioner Association, in fact, filed W.P. No. 9144 of 1989 before this Court and by order dated 12-7-1989, my learned Brother K.S. Bakthavatsalam, J., was pleased to direct the authorities concerned to consider the representation of the petitioner Association and pass final orders on merits within eight weeks from the date of receipt of a copy of the order. Pursuant to the direction issued by this Court, the Government has sanctioned the request of the petitioner Association for installing the statue by letter Ms, No. 1050 dated 12-9-1989 of the Secretary to Government, Transport Department. Since the permission to erect the statue has been sanctioned by the Government, the petitioner Association constituted a committee under the Chairmanship of Thiru O.K. Mooppanar, a leading congress leader. The statue committee headed by Thiru G.K. Mooppanar felt that the existing traffic Island abutting Binny Road Anna Salai Junction is the most desirable site and accordingly, the committee met the Governor of Tamil Nadu on 3-5-1991 and requested to allot the said site for the erection of the statue. In the meantime, the statue committee has also met the Secretary, Home Department, on 5-11-1991 and 23-4-1992 and requested the authorities to expedite the representation dated 3-5-1991.
5. While the position is so, the petitioner Association has received the impugned G.O. Ms. No. 739, Public Works (HV2) Department, dated 20-5-1992 whereby the orders already issued in the letter Ms. No. 1050, Transport Department, dated 12-9-1989 granting permission to the petitioner Association for the installation of the statue of the former Prime Minister late Smt. Indira Gandhi at the Island to be formed at the junction of Club House Road and Anna Salai has been cancelled, and the request of the Annai Indira Gandhi Statue Committee (All India Amitab Bachchan Fans Association) for alternative location in the existing divisional Island abutting Binny Road has been rejected. In the impugned order, permission has been granted to Thiru Vazhapadi K. Ramamurthi, President, Annai Indira Gandhi Rajiv Gandhi Statue Committee, for the installation of the statue at the very same site chosen by the petitioner Association. According to the petitioner, no notice has been issued by the Government of Tamil Nadu before cancelling the order dated 12-9-1989. The Government has also rejected the request of the petitioner Association for an alternative location in the existing divisional Island abutting Binny Road without assigning any reason. It is also pertinent to notice that during January, 1990, when the D.M.K. Party was in power, the A.I. A.D. M.K. Party has made a request before the then Government for the allotment of the very same site already given to the petitioner Association for the erection of a statue of the late Chief Minister of Tamil Nadu Dr. M.G. Ramachandran and the same was negatived by the then Government on the ground that the very same site was already allotted to the petitioner Association. Thus, the petitioner Association has filed the above writ petition to quash the impugned Government Order dated 20-5-1992.
6. The Government of Tamil Nadu represented by the Joint Secretary to Government, Public Works Department, Madras-9, has filed its counter-affidavit dated 6-8-1992. According to the Government, the Government very carefully considered the facts andcircumstances of the case and since the petitioner Association has not made any sincere and earnest effort to install the statue for nearly 1 1/2 years and came up to the Government with a request to install the same statue in an alternative location, has cancelled the earlier orders issued in Letter Ms. No. 1050, Transport Department dated 12-9-1989 wherein the President of the petitioner Association was permitted to install the statue of the former Prime Minister of India. The Government also rejected the request of the petitioner Association for alternative location in the existing divisional Island abutting Binny Road. By the impugned order, the Government permitted the 4th respondent Thiru Vazhapadi K. Ramamurthi, President of Indira Gandhi and Rajiv Gandhi Statue Committee, Madras, to install the life size bronze statue of the former Prime Minister late Smt. Indira Gandhi at the existing traffic Island at the junction of Anna Salai and Binny Road, opposite to Spender.
7. S. Govindasamy, J., was pleased to admit the writ petition and interim stay was granted on 30-6-1992. On 4-8-1992, the interim stay already granted by this Court was extended by me and the main matter itself was directed to be listed for hearing by consent of all parties.
8. The 4th respondent Vazhapadi Thiru K. Ramamurthi filed W.M.P. No. 14848 of 1992 to vacate the stay granted in W.M.P. No. 12147 of 1992. He has also filed a counter-affidavit dated 25-7-1992 denying all the allegations contained in the affidavit filed in support of the main writ petition.
9. One Mr. R.S. Bharathi, Joint Secretary of the Legal Wing, D.M.K. Party, filed W.M.P. No. 15671 of 1992 to implead him as 5th respondent in the writ petition. The said petition was ordered on 4-8-1992 since it was not opposed by the petitioner and respondents 1 to 4. He filed a detailed affidavit stating that the 4th respondent, who has been called upon to answer the affidavit filed by the petitioner, has made a totally false allegation and irrelevant and unwarranted remarks against the D.M.K. Party and its President Dr. M. Karunanidhi in his counter-affidavit,which has necessitated the 5th respondent to implead himself as a party respondent in order to refute the allegations and remarks made by the 4th respondent in his counter-affidavit. According to the 5th respondent, the remarks made in the counter-affidavit of the 4th respondent against the President of the D.M.K. Party and former Chief Minister of Tamil Nadu Dr. M. Karunanidhi are disparaging and offending portions, which are separable from the main stream of the affidavit, have to be ordered to be expunged and the 4th respondent may be directed to withdraw the said allegations.
10. W.M.P. No. 17568 of 1992 was filed by one A.P. Padmanabhan claiming himself to be the President of the All India Amitabh Bachchan Fans Association, to implead himself as 6th respondent in the writ petition and permit him to file counter-affidavit, etc. According to him, he is the President of the Association having its administrative office at Bangalore and the object of his filing the petition for permission to implead him as 6th respondent is to bring to the notice of this Court that the writ petitioner Association is not a genuine or bona fide All India Amitabh Bachchan Fans Association and Mr. Isaiah, Advocate, is not its President and as such, he has no locus standi either to file the writ petition or to maintain the same.
11. Mr. Esaiah, Advocate, President of the writ petitioner Association, has filed a counter-affidavit in W.M.P. No. 17568 of 1992 denying all the allegations contained in the affidavit filed in support of W.M.P. No. 17568 of 1992. It is also contended in the said counter-affidavit that the writ petitioner Association is a registered one under the Tamil Nadu Societies Registration Act bearing Registration No. S. No. 174/1985 and its locus standi and status have been upheld by all the respondents including the 4th respondent Thiru Vazhapadi K. Ramamurthi and that the 4th respondent did not question the locus standi of the petitioner Association in any of these proceedings. It is, therefore, prayed by the writ petitioner to dismiss W.M.P. No. 17568 of 1992 as not maintainable.
12. To deny some of the allegations contained in the affidavit filed in support of the main writ petition, M.N. Mani Nagappa, a Sculptor, has also filed an affidavit on 19-7-1992. A reply affidavit to the affidavit of M.N. Mani Nagappa dated 19-7-1992 was filed by the President of the petitioner Association on 30-7-1992 explaining the stand of the petitioner Association in regard to the allegations of M. N. Mani Nagappa. M. N. Mani Nagappa again filed an additional affidavit dated 6-8-1992 further explaining his stand on the subject-matter of dispute between the parties.
13. I have heard Mr. S. Govind Swaminathan, learned Senior Advocate on behalf of the Writ petitioner, Mr. P. Shanmugham, learned Addl. Govt. Pleader for respondents 1 to 3, Mr. R. Muthukrishnan, learned counsel for the 4th respondent and Mr. R. Shabmughasundaram, learned counsel for the impleaded 5th respondent.
14. Though the counsel appearing for the respective parties raised very many issues, it is unnecessary to go into those issues having regard to the view which I propose to take.
15. It is not in dispute that the petitioner Association made an application on 5-9-1988 for erecting the statue of late Prime Minister Smt. Indira Gandhi. This Court in W.P. No. 9144 of 1989 passed an order dated 12-7-1989 to the effect that the representation of the petitioner Association dated 5-9-1988 should be considered and final orders passed on merits within eight weeks from the date of receipt of a copy of the order. Pursuant to the aforesaid direction, the Secretary to Government, Transport Department, in his Letter Ms. No. 1050 dated 12-9-1989 permitted the petitioner Association to install the statue of the late Prime Minister Smt. Indira Gandhi at the Island to be formed at the junction of Club House Road and Binny Road at Anna Salai subject to the usual conditions for erection of statues. This communication records the fact that the petitioner Association had made a representation on 19-11-1986 to the Commissioner, Corporation of Madras, seeking permission to erect a statue. It is relevant in this context to reproduce the letter of theGovernment in Letter Ms. No. 1050 dated 12-9-1989 from Thiru S. Sivasubramanian, I.A.S., Secretary to Government, Transport Department, Madras-9 to Thiru A. Isaiah, President, All India Amitab Bachchan Fans Association, 20, Errabalu Street, Madras:
'Sub :-- Statue -- Highways and Rural Works -- National Highways Urban erection of statue of Tmt. Indira Gandhi -- Permitted.
Ref:-- 1. Your representation dated 19-11-1986 addressed to the Commissioner, Corporation of Madras.
2. Your representation dated 5-9-1988 addressed to the Governor of Tamil Nadu.
I am directed to invite your attention to the representations cited and to state that the Government have now decided to permit the installation of the statue of (late) Smt. Indira Gandhi at the Island to be formed at the junction of Club House Road and AnnaSalai subject to usual conditions for erection of statues. The request pending from 1986 has thus been fulfilled by this Government now in 1989.
Yours faithfully.
(Sd.) X X X X
For Secretary to Govt.
Copy to:
The Chief Engineer, H & R.W., Madras-5 by Special Messenger with reference to his Lr. No.64910/Thal 2/88 dated 24-7-1989. The Government Pleader, High Court, Madras-104 with reference to High Court Order in W.P. No. 9144 of 1989 dated 12-7-1989.'
16. Subsequently, on 3-5-1991, the Annai Indira Gandhi Statue Committee (under the auspices of All India Amitab Bachchan Fans Association) has made a representation to the Governor of Tamil Nadu seeking permission to shift the site to the existing traffic Island abutting Binny Road. This letter has been written without prejudice to the permission granted already under the communication dated 12-9-1989 and referred to above. It transpires that the 4th respondent has made arepresentation on 27-1-1992 for allotment of a site and permission to erect life size bornze statues of former Prime Minister late Tmt. Indira Gandhi and Thiru Rajiv Gandhi at Anna Salai, Madras. Thereafter, the Government passed the impugned order on 20-5-1992 cancelling the permission granted to the writ petitioner Association under the communication dated 12-9-1989 for the installation of the statue of Tmt. Indira Gandhi at the island to be formed at the junction of Club House Road and granting permission to the 4th respondent to install the statue of Tmt. Indira Gandhi at the traffic island at the junction of Anna Salai and Binny Road opposite to Spencer. This Government Order further rejects the request of the petitioner Association for shifting the site at the junction of Anna Salai and Binny Road opposite to Spencer.
17. There is no dispute that no opportunity was given to the peritioner Association before cancellation of the permission granted to it earlier. It is settled position of law that even administrative orders should conform to the principles of natural justice. When the petitioner Association has been granted permission to erect the statue at the junction of Club House Raod, rights have accrued in its favour to erect the statue. That right, which had accrued in favour of the petitioner Association cannot be denied or taken away without hearing the petitioner Association. The Government in their counter-affidavit have not denied the specific allegation of the petitioner Association that the rule of 'Audi Alteram Parlem' has been violated. What is stated in the counter-affidavit is that the petitioner Association did not take tangible steps to erect the statue even after a lapse of 1 1/2 years from the date of granting permission. A careful reading of the Government communication under which the petitioner Association was permitted to erect the statue does not stipulate any time limit within which the statue should be erected. Further, on 3-5-1991, the petitioner Association had sought permission to shift the site. No steps were taken by the Government for cancelling the permission accorded to the petitioner Association before the issuance of the impugnedGovernment Order. The Government has cancelled the permission granted to the petitioner Association earlier only after the receipt of the representation dated 27-1-1992 from the 4th respondent and accorded permission to the 4th respondent to erect the statue in the very same place where the petitioner Association wanted to erect the statue as per its representation dated 3-5-1991. Hence, I have no other alternative except to quash the impugned order on the ground of violaton of the principles of natural justice. Accordingly, the impugned G.O. is set aside. However, the Government will be at liberty to pass appropriate orders after hearing all the parties concerned.
18. Mr. S. Govind Swaminathan, learnedSenior Advocate for the petitioner Association, in support of his contention, cited the following decisions reported in A.K. Kraipak v. Union of India, : [1970]1SCR457 it has been observed as follows (at page 154):--
'The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merelythose which facilitate if not ensure a just and fair decision. In recent years the concept of quasi judicial power has been undergoing a redical change. What was considered a an administrative power some years back is now being considered as a quasi judicial power, the following observations of Lord Parker, C.J., in Reg. v. Criminal Injuries Compensation Board, Ex parte Lain, 1967 2 QB 864 are instructive.
'With regard to Mr. Bridge's second point I cannot think that Atkin L.J. intended toconfine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioner case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the Commissioners had to be approved by the Minister of Transport and by reasolutions of Parliament. The Commissioners nevertheless were held amenable to the jurisdiction of this Court. Moreover, as can be seen from Rex v. Postmaster General, Ex parte Carmichael, 1928 I KB 291 and Rex v. Boycott; Ex parte Keasley, 1939 2 KB 651 the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected.
The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory Tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned.
Finally, it is to be observed that the remedy has now teen extended, see Reg. v. Manchester Legal Aid Committee, Ex ParteR. A. Brand and Co. Ltd., 1952 (2) QB 413, tocases in which the decision of an administrative officer is only arrived at after an enquiry or process of a judicial or quasi judicial character. In such a case this Court has jurisdiction to supervise that process.
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this Court. It is, as Mr. Bridge said, 'a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown'. It is clearly, therefore, performing public duties.'
19. The next decision cited by Mr. S. Govind Swaminathan, learned Senior Advocate is reported in Mohinder Singh Gill v. the Chief Election Commissioner, New Delhi, : [1978]2SCR272 . Head note 'A' runs thus (at page 858):
'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.'
This decision has been cited by the learned Senior Counsel in support of his contention that the impugned order of the State must be judged by the reasons so mentioned in the said order and cannot be supplemented by fresh reasons in the shape of affidavit filed in this case, thereby referring to the new facts mentioned in the counter-affidavit filed on behalf of the State Government in paragraph 11 and other reasons mentioned in the counter-affidavit.
20. The third decision cited by the learned Senior Counsel for the petitioner Associationis reported in The Scheduled Caste and Weaker Section Welfare Association (Regd.) v. State of Karnataka, : [1991]1SCR974 . The learned Senior Counsel invited my attention to paragraph 15 of this decision, which is at page 1121 and which is reproduced here-under:
'It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty impsoed itself necessarily implied an obligation to hear before deciding that the audi alteram partem rule could be imported. Thus in applying the test to the provisions of the earlier Act. The Mysore Slum Areas (Improvement and Clearance) Act, 1958, this Court held in Govt. of Mysore v. J.V. Bhat : [1975]2SCR407 : There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under Section 3 or an area as a clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed.'.'
21. Mr. P. Shanmugham, learned Addl. Govt. pleader would invite my attention to the reasons given in paragraph 11 of the counter-affidavit filed on behalf of the Government to justify the action of the Government in according permission to the 4th respondent. The impugned G.O. does not giveany reason as to why the 4th respondent has been preferred as against the petitioner as very rightly contended by Mr. S. Govind Swaminathan, learned Senior Counsel for the petitioner. In view of my decision, it is unnecessary to go into the jurisdiction for according permission to the 4th respondent to erect the statue. I have already opined that the impugned G.O. contravenes the principles of natural justice, in that, the rule of 'Audi Alteram Partem' has been violated, and therefore, the impugned G.O., is void.
22. Mr. R. Muthukrishnan, learned counsel for the 4th respondent would argue that the petitioner has not come to Court with clean hands, in that, the President of the petitioner Association has falsely alleged that he has paid moneys to the sculptor for making the statue, and would invite my attention to the affidavit and the additional affidavit filed by the sculptor M.N. Mani Nagappa. I do not propose to refer to the allegations and the counter allegations in this regard and give a finding thereon because I have already held that the impugned G.O., is void as it contravenes the Principles of natural justice. When once the order issued by the Government is void, there is no need for me to go into the contentions raised by the learned counsel for the 4th respondent. Hence, it is unnecessary to load this judgment with the decisions referred to by the learned counsel for the 4th respondent and reported in Charanji Lal v. Financial Commissioner Haryana Chandigarh, AIR 1978 Punjab & Haryana 326 and R.S. Dass v. Union of India : [1987]1SCR527 .
23. Mr. R. Shanmugasundaram, learned counsel for the impleaded 5th respondent R.S. Bharathi, who is the Joint Secretary of the Legal Wing of the D.M.K. Party, would urge that this Court should totally expunge the offended remarks made by the 4th respondent Thiru Vazhapadi K. Ramamurthi against the President of the D.M.K. Party and the former Chief Minister of Tamil Nadu Dr. M. Karunanidhi, in the counter-affidavit filed by the 4th respondent in W.M.P. No. 14848 of 1992, which was filed to vacate the stay granted in W.M.P. No. 12147 of1992. The reasons given by the 4th respondent in paragraph 2 of his counter-affidavit for not approaching the Government with a request for erection of statue till 27-1-1992 have absolutely no relevance or bearing in deciding the validity of the impugned G.O., or other issues arising in the writ petition. However, the said allegations have been made by the 4th respondent in the affidavit filed in support of his vacate stay petition. This Court has not gone into the various contentions raised by the parties concerned but confined itself only to the questions relating to the violation of the principles of natural justice. Hence, it is open to the 5th respondent to proceed against the 4th respondent in appropriate forum, if so advised.
24. W.M. P. No. 17568 of 1992 has been filed by the All India Amitab Bachchan Fans Association represented by its President A.P. Padmanabhan, for impleading himself as 6th respondent in the writ petition. Admittedly, the writ petitioner Association has filed the earlier W.P. No. 9144 of 1989 in this Court and it is the said Association which got the permission to erect the statue under the communication dated 12-9-1989. Further, it is the writ petitioner Association which applied for permission to shift the site. The deponent of the affidavit filed in support of W.M.P. No. 17568 of 1992 claims himself to be the President of the Petitioner Association. It is unnecessary for me to decide the question as to who is the President of the petitioner Association in the present proceedings. Hence, I dismiss W.M.P. No. 17568 of 1992.
25. Before parting with this case, it is necessary to point out that in the matter of erection of statue for an accredited and acclaimed international leader and former Prime Minister late Tmt. Indira Gandhi, there should not be differences and disputes. Both the petitioner Association and the 4th respondent have a common cause, in that, both of them are keen to erect the statue of the late leader in one and the same place. It is my earnest desire that both the petitioner Association and the 4th respondent should sink their differences and work in unity to see that the statue is erected as early as possible forgetting their personal and political differences.
26. For the fore-going reasons, I allow the writ petition and quash the impugned G.O., and direct the Government to pass appropriate orders on the application made by the writ petitioner for change of location of the site and also the application of the 4th respondent for erecting a statue in the same place, after giving opportunity to both parties, on merits and purely in accordance with law. No costs. W.M.P. No. 17568 of 1992 is dismissed.
27. Petition allowed.