Rashtriya Mukti Morcha Vs. the Mayor, Municipal Corporation of Delhi and Others - Court Judgment

Excerpt:
constitution of lndia, 1950 - article 226--writ--judicial review--powers of high court--exercise of--ambit and scope of--delhi municipal corporation act, 1957--sec. 32-a--declaration of assets by municipal councillors--dmc (declaration of assets by councillors) rules, 1994-- rule 3--disqualification from seat--sought disqualification and prohibitions from participating in meeting of corporation--opinion of election commission--councillors fulfilll requirement of submission of declaration of assets--none had acquired disqualification--decision not afflicted any such defects--no interference called--dismissed. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - - the benefit of doubt be given to the three councillors whose declarations were physically available with the mayor's office on the next working day from 30th april (as per the statement of the ministerial staff who were responsible for safe custody of these records). keeping in view all the facts and findings thereof, including the affidavits filed by the concerned councillors, their returns may also be treated as having been received in the office of the mayor in accordance with the provisions of section 32a(2)a).'5. the second respondent on april 24, 2000 keeping in view the opinion of the election commission held that all councillors fulfilled the requirements of submission of declaration of assets within the stipulated time and none of them had acquired disqualification in terms of sub-section (2) of section 32-a of the act. in all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention'.what is this charming principle of wednesbury unreasonableness? much less, wrapped by resentment, or personal dislike. we are satisfied that the decision of the second respondent is not afflicted with any of such defects.orderanil dev singh, j.1. by this petition the petitioner, who is stated to be a socio-political organisation, seeks intervention of this court under article 226 of the constitution for declaring the councillors of the delhi municipal corporation disqualified for not having declared their assets as per section 32a of the delhi municipal corporation act, 1957 (for short 'the act') read with rule 3 of the delhi municipal corporation (declaration of assets by councillors) rules, 1994 (for short 'the rules') the petitioner also seeks a direction prohibiting the councillors from participating in the meeting of the corporation on february 23, 1997.2. the election commission of the national capital territory of delhi held elections for 132 wards of the m.c.d. the election process was completed on february 23, 1997. the councillors took oath under sub-section (1) of section 32 of the act on april 1, 1997. the grievance of the petitioner is that except four councillors, whose names have not been specified in the writ petition, none of the remaining councillors filed their declaration of assets with the mayor within the period stipulated by section 32a of the act read with rule 3 of the rules. at this stage it will be appropriate to set out section 32-a of the act and rule 3 of the rules and the form of declaration of assets under rule 3:rule 32-a of delhi municipal corporation act, 1957:'32-a, declaration of assets. (1) every councillor shall not later than thirty days after making and subscribing the oath or affirmation under sub-section (1) of section 32 and before the last date of the same month in each succeeding year, file with the mayor a declaration in such form as may be prescribed by rules by the central government, of all the assets owned by him and members of his family and such declaration shall form part of the records of the corporation.explanation-- for the purpose of this sub-section 'family' means the spouse and dependent children of the councillors;(2) a person shall be disqualified for being a councillor -(a) if he fails to file a declaration referred to in sub-section (1); or(b) of he files a declaration under that sub-section which is either false or which he knows or believes to be false.'rule 3 of the delhi municipal corporation (declaration of asset by councillors) rules, 1994:'3. declaration of assets:(1) every councillor shall,not later than thirty days after making and subscribing the oath or affirmation under sub-section (1) of section 32 of the act, and before the last day of the same month in each succeeding year, file with the mayor a declaration, in the form appended to these rules, of all assets, moveable and immoveable, owned by him and members of his family.(2) declaration filed under sub-rule (1) shall form part of the records of the corporation.explanation:- .......xx xx xx 'formdeclaration of assets(see sub-rule b(1) of rules 3)declaration of assets by a ouncillor1. name in full .......................2. father's/husband's name .................3. date of birth ...........................4. ward no. from where elected..............5. address: present ................................................permanent..............................................tel.no. office..................residence.................6. personal particulars:(a) existing profession(b) date of starting(c) income for the last financial year(d) details of family members:---------------------------------------------------------------s. name date of relation- occupation income of last no. birth ship with financial year.councillor.---------------------------------------------------------------1. 2. 3. 4. 5. 6.---------------------------------------------------------------(e) whether owns a car, if so particulars of the car:(f) whether owns any other means of conveyance valued at rs.10,000 or more. if so, particulars thereof:7. details of bank accounts either in own name or in the name of family members:---------------------------------------------------------------s. account name of in whose last remarksno. number and bank name bank date of balance.opening.---------------------------------------------------------------1. 2. 3. 4. 5. 6.---------------------------------------------------------------8. particulars of fixed deposit receipts either in own name or in the name of family members:9. particulars of lockers either in own name or in the name of family members:10. list of immovable properties (as per annexure 'a')11. list of movable assets (as per annexure 'b')(signature) full name .....................'thus it is clear that every councillor is required to file with the mayor a declaration in the form prescribed by rule 3 of the rules of all the assets owned by him and members of his family within thirty days of his subscribing to the oath or affirmation under sub-section (1) of section 32 of the act.3. on november 26, 1997, the first respondent the mayor, municipal corporation of delhi, filed an affidavit in which it was inter alias stated that all the 134 councillors filed their declarations regarding their assets within the prescribed period of time as laid down under sub-section (1) of section 32a of the act. on march 23, 1999, the division bench directed respondent no.2, the administrator of the national capital territory of delhi, to take a decision under sub-section (4) of section 33 of the act on the question whether or not the councillors of delhi municipal corporation or any one or more of them have disqualified themselves from being the councillors because of non-compliance with the provisions of section 32-a of the act read with rule 3 of the rules at this stage it will be convenient to set out section 33 of the act:'33. vacation of seat.- (1) if a councillor-(a) becomes subject to any of the disqualifications mentioned in section 9 or sub-section (2) of section 32a or,(b) resigns his seat by writing under his hand addressed to the mayor and delivered to the commissioner,his seat shall thereupon become vacant.(2) if during three successive months, a councillor is, without permission of the corporation, absent from all the meetings thereof, the corporation may declare his seat vacant.(3) if any question arises as to whether a councillor has become subject to any of the disqualifications mentioned in section 9 or sub-section (2) of section 32a, the question shall be referred for the decision of the administrator and his decision shall be final.(4) before giving any decision on any such question, the administrator shall obtain the opinion of the election commission and shall act according to such opinion. '4. pursuant to the provisions of sub-section (4) of section 33, the second respondent asked the election commission for the national capital territory of delhi to give its opinion on the aforesaid question. the election commission after examination of relevant records furnished its opinion. according to the election commission, out of 134 councillors, 131 filed their declarations of assets within the prescribed period. in respect of the remaining three councillors, namely, smt. divya jayaswal, shri vijender kumar and shri ved prakash gupta, the commission gave the following opinion:-'the benefit of doubt be given to the three councillors whose declarations were physically available with the mayor's office on the next working day from 30th april (as per the statement of the ministerial staff who were responsible for safe custody of these records). keeping in view all the facts and findings thereof, including the affidavits filed by the concerned councillors, their returns may also be treated as having been received in the office of the mayor in accordance with the provisions of section 32a(2)a).'5. the second respondent on april 24, 2000 keeping in view the opinion of the election commission held that all councillors fulfilled the requirements of submission of declaration of assets within the stipulated time and none of them had acquired disqualification in terms of sub-section (2) of section 32-a of the act.6. mr. p.n. lekhi, learned senior counsel appearing for the petitioner, submitted that in fact only smt. divya jayaswal, shri ved prakash gupta and shri vijender kumar had filed the declarations of assets with the mayor within the prescribed period and the remaining 131 councillors did not file the declarations in time and urged that the decision of the second respondent should be quashed. we do not see how the decision of the second respondent can be interfered with in these proceedings. it may be observed that the scope of judicial review is limited. it is not concerned with the merits of a decision but with the manner in which the decision is made. judicial review is not a substitute for an ordinary appeal. the scope of judicial review and an appeal is entirely different. in so far as the judicial review is concerned, the court cannot substitute its own decision for that of the administrative authority but in case of an appeal, the appellate court can substitute its own decision on merits for that of the administrative officer (see: chief constable of north wales police vs. evans (1982) 3 all er 141). there are large number of decisions of various high courts and the supreme court dealing with the scope of judicial review. it is not necessary to notice all the authorities. it will be suffice to refer to the decision of the supreme court in tata cellular vs . union of india : air1996sc11 wherein the supreme court dealing with the question of judicial review observed as follows:-' shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:(i) illegality: this means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.(ii) irrationality, namely, wednesbury unreasonableness.(iii) procedural impropriety.the above are only the broad grounds but it does not rule out addition of further grounds in course of time. as a matter of fact in r. v secretary of state for the home department, ex brind, lord diplock refers referees specifically to one development, namely, the possible recognition of the principle of proportionality. in all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'.what is this charming principle of wednesbury unreasonableness? is it a magical formula? in r. v askew, lord mansfield considered the question whether mandamus should be granted against the college of physicians. he expressed the relevant principles in two eloquent sentences. they gained greater value two centuries later:it is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the college of physicians and this court will not take it from them nor interrupt them in the due and proper exercise of it. but their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, wrapped by resentment, or personal dislike.'7. thus, unless the decision of an administrative authority suffers from illegality, irrationality, procedural impropriety and wednesbury unreasonableness, which means that decision is such as no reasonable person on proper application of mind could take, the court should decline to interfere. we are satisfied that the decision of the second respondent is not afflicted with any of such defects. in this view of the matter, the writ petition fails and is hereby dismissed.

Judgment:
ORDER

ANIL DEV SINGH, J.

1. By this petition the petitioner, who is stated to be a socio-political organisation, seeks intervention of this court under Article 226 of the Constitution for declaring the Councillors of the Delhi Municipal Corporation disqualified for not having declared their assets as per section 32A of the Delhi Municipal Corporation Act, 1957 (for short 'the Act') read with Rule 3 of the Delhi Municipal Corporation (Declaration of Assets by Councillors) Rules, 1994 (for short 'the Rules') The petitioner also seeks a direction prohibiting the Councillors from participating in the meeting of the Corporation on February 23, 1997.

2. The Election Commission of the National Capital Territory of Delhi held elections for 132 wards of the M.C.D. The election process was completed on February 23, 1997. The councillors took oath under sub-section (1) of section 32 of the Act on April 1, 1997. The grievance of the petitioner is that except four Councillors, whose names have not been specified in the writ petition, none of the remaining Councillors filed their declaration of assets with the Mayor within the period stipulated by section 32A of the Act read with Rule 3 of the Rules. At this stage it will be appropriate to set out section 32-A of the Act and Rule 3 of the Rules and the form of declaration of assets under Rule 3:

Rule 32-A of Delhi Municipal Corporation Act, 1957:

'32-A, Declaration of assets. (1) Every Councillor shall not later than thirty days after making and subscribing the oath or affirmation under sub-section (1) of section 32 and before the last date of the same month in each succeeding year, file with the Mayor a declaration in such form as may be prescribed by Rules by the Central Government, of all the assets owned by him and members of his family and such declaration shall form part of the records of the Corporation.

Explanation-- For the purpose of this sub-section 'family' means the spouse and dependent children of the councillors;

(2) A person shall be disqualified for being a councillor -

(a) if he fails to file a declaration referred to in sub-section (1); or

(b) of he files a declaration under that sub-section which is either false or which he knows or believes to be false.'

Rule 3 of the Delhi Municipal Corporation (Declaration of Asset by Councillors) Rules, 1994:

'3. Declaration of assets:

(1) Every Councillor shall,not later than thirty days after making and subscribing the oath or affirmation under sub-section (1) of section 32 of the Act, and before the last day of the same month in each succeeding year, file with the Mayor a declaration, in the Form appended to these rules, of all assets, moveable and immoveable, owned by him and members of his family.

(2) Declaration filed under sub-rule (1) shall form part of the records of the Corporation.

Explanation:- .......

xx xx xx 'Form

Declaration of Assets

(See sub-rule b(1) of rules 3)

Declaration of Assets by a ouncillor

1. Name in full .......................2. Father's/husband's name .................3. Date of birth ...........................4. Ward No. from where elected..............5. Address: Present ................................................Permanent..............................................Tel.No. Office..................Residence.................6. Personal particulars:

(a) Existing Profession

(b) Date of starting

(c) Income for the last financial year

(d) Details of family members:

---------------------------------------------------------------S. Name Date of Relation- Occupation Income of last No. birth ship with financial year.councillor.---------------------------------------------------------------1. 2. 3. 4. 5. 6.---------------------------------------------------------------(e) Whether owns a car, if so particulars of the car:

(f) Whether owns any other means of conveyance valued at Rs.10,000 or more. If so, particulars thereof:

7. Details of Bank Accounts either in own name or in the name of family members:

---------------------------------------------------------------S. Account Name of In whose Last RemarksNo. Number and Bank name bank date of balance.opening.---------------------------------------------------------------1. 2. 3. 4. 5. 6.---------------------------------------------------------------8. Particulars of Fixed Deposit Receipts either in own name or in the name of family members:

9. Particulars of lockers either in own name or in the name of family members:

10. List of immovable properties (As per Annexure 'A')

11. List of movable assets (As per Annexure 'B')

(Signature)

Full Name .....................'

Thus it is clear that every Councillor is required to file with the Mayor a declaration in the form prescribed by Rule 3 of the Rules of all the assets owned by him and members of his family within thirty days of his subscribing to the oath or affirmation under sub-section (1) of section 32 of the Act.

3. On November 26, 1997, the first respondent the Mayor, Municipal Corporation of Delhi, filed an affidavit in which it was inter alias stated that all the 134 Councillors filed their declarations regarding their assets within the prescribed period of time as laid down under sub-section (1) of section 32A of the Act. On March 23, 1999, the Division Bench directed respondent No.2, the Administrator of the National Capital Territory of Delhi, to take a decision under sub-section (4) of section 33 of the Act on the question whether or not the Councillors of Delhi Municipal Corporation or any one or more of them have disqualified themselves from being the Councillors because of non-compliance with the provisions of section 32-A of the Act read with rule 3 of the Rules At this stage it will be convenient to set out section 33 of the Act:

'33. Vacation of seat.- (1) If a Councillor-

(a) becomes subject to any of the disqualifications mentioned in section 9 or sub-section (2) of section 32A or,

(b) resigns his seat by writing under his hand addressed to the Mayor and delivered to the Commissioner,

his seat shall thereupon become vacant.

(2) If during three successive months, a councillor is, without permission of the Corporation, absent from all the meetings thereof, the Corporation may declare his seat vacant.

(3) If any question arises as to whether a councillor has become subject to any of the disqualifications mentioned in section 9 or sub-section (2) of section 32A, the question shall be referred for the decision of the Administrator and his decision shall be final.

(4) Before giving any decision on any such question, the Administrator shall obtain the opinion of the Election Commission and shall act according to such opinion. '

4. Pursuant to the provisions of sub-section (4) of section 33, the second respondent asked the Election Commission for the National Capital Territory of Delhi to give its opinion on the aforesaid question. The Election Commission after examination of relevant records furnished its opinion. According to the Election Commission, out of 134 Councillors, 131 filed their declarations of assets within the prescribed period. In respect of the remaining three Councillors, namely, Smt. Divya Jayaswal, Shri Vijender Kumar and Shri Ved Prakash Gupta, the Commission gave the following opinion:-

'The benefit of doubt be given to the three councillors whose declarations were physically available with the Mayor's office on the next working day from 30th April (as per the statement of the ministerial staff who were responsible for safe custody of these records). Keeping in view all the facts and findings thereof, including the affidavits filed by the concerned councillors, their returns may also be treated as having been received in the office of the Mayor in accordance with the provisions of section 32A(2)a).'

5. The second respondent on April 24, 2000 keeping in view the opinion of the Election Commission held that all Councillors fulfilled the requirements of submission of declaration of assets within the stipulated time and none of them had acquired disqualification in terms of sub-section (2) of section 32-A of the Act.

6. Mr. P.N. Lekhi, learned senior counsel appearing for the petitioner, submitted that in fact only Smt. Divya Jayaswal, Shri Ved Prakash Gupta and Shri Vijender Kumar had filed the declarations of assets with the Mayor within the prescribed period and the remaining 131 Councillors did not file the declarations in time and urged that the decision of the second respondent should be quashed. We do not see how the decision of the second respondent can be interfered with in these proceedings. It may be observed that the scope of judicial review is limited. It is not concerned with the merits of a decision but with the manner in which the decision is made. Judicial review is not a substitute for an ordinary appeal. The scope of judicial review and an appeal is entirely different. In so far as the judicial review is concerned, the Court cannot substitute its own decision for that of the administrative authority but in case of an appeal, the appellate court can substitute its own decision on merits for that of the Administrative Officer (See: Chief Constable of North Wales Police vs. Evans (1982) 3 All ER 141). There are large number of decisions of various High Courts and the Supreme Court dealing with the scope of judicial review. It is not necessary to notice all the authorities. It will be suffice to refer to the decision of the Supreme Court in Tata Cellular vs . Union of India : AIR1996SC11 wherein the Supreme Court dealing with the question of judicial review observed as follows:-

' Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact in R. V Secretary of State for the Home Department, ex Brind, Lord Diplock refers referees specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'.

What is this charming principle of Wednesbury unreasonableness? Is it a magical formula? In R. V Askew, Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later:

It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physicians and this Court will not take it from them nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, wrapped by resentment, or personal dislike.'

7. Thus, unless the decision of an administrative authority suffers from illegality, irrationality, procedural impropriety and Wednesbury unreasonableness, which means that decision is such as no reasonable person on proper application of mind could take, the court should decline to interfere. We are satisfied that the decision of the second respondent is not afflicted with any of such defects. In this view of the matter, the writ petition fails and is hereby dismissed.