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TMI Blog2009 (9) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution dated 18-12-1986, announced its policy on software export, software development and training. The resolution provided for an inter-ministerial standing committee to function as an effective instrument for single point clearance and for coordination of all cases of software development and export. Thereafter, on 5-6-1991, STPI was registered as a Society under the Societies Registration Act, 1860. The Inter-Ministerial Standing Committee, constituted by the Department of Industrial Development, Ministry of Industry, Government of India issued notification dated 22-2-1992 delegating specific powers of the Committee to the jurisdictional Directors of STPI. Pursuant to the aforementioned resolution dated 18-12-1986 the Central Government, in exercise of its powers under Section 3(1) of the Foreign Trade (Development and Regulation) Act, 1992, (Act 22 of 1992), notified a Scheme on 22-3-1994 called the "Software Technology Parks (STP) Scheme." This 100% export oriented Scheme, for undertaking software development, was to be administered by the Department of Electronics through the Directors of the respective STPIs. By virtue of the said notification dated 22-3-1994, Directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an usurper without legal authority, and that necessarily leads to the enquiry as to whether appointment of the alleged usurper has been made in accordance with law or not. (University of Mysore v. Govinda Rao - AIR 1965 SC 491). A writ of quo warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Quo warranto proceedings afford a judicial remedy for removal of the usurper, from the office which he holds without title, by a judicial order. The proceedings give a weapon to control the executive from making appointments to a public office against the law. (N. Kannadasan v. S. Ajoy Khose = JT 2009 (7) SC 601). If there is any complaint about appointment of an officer, who is not eligible under the statute/statutory rules to be appointed, the proper remedy is to make an application for the issue of a writ of quo warranto. (Mir Ghulam Hussain v. The Union of India - AIR 1973 SC 1138). 5. The power conferred on the Central Government, under Section 11(1) of the SEZ Act, is to appoint any of its officers, not below the rank of Deputy Secretary to the Government of India, as a Development Commissioner. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the SEZ Act, meant officers belonging to the Central Government, that Development Commissioners of SEZ were required to report to the Ministry of Commerce, Government of India, that, for all actions taken as Development Commissioners of SEZ, they were accountable to the Department of Commerce, that their personnel matters were governed by the Department of Information Technology, that the sole objective of creating STPI was to have a pool of "its officers" who could support and nurture the IT Industry to grow and establish unassailable leadership in the global context, that STPI was created and controlled by the Central Government, that the 5th respondent was in the pay scale of Rs. 16,400 20,000 (pre-revised) which was higher than the pay scale of Rs. 12,000/-, 16,500/- (pre-revised) of the Deputy Secretary, Government of India and the 5th respondent was above the rank of Deputy Secretary to the Government of India. 9. Section 11(1) of the SEZ Act uses the words "Its officers" with reference to the Central Government. The word "Its" means possessive or genitive of "it". The words "Its Officers" in Section 11(1) would, therefore, mean officers of, or belonging to, the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the Government and its servant, is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. (Roshan Lal Tandon v. Union of India - AIR 1967 SC 1889; Girish Jayanti Lal Vaghela - 2006 (2) SCJ 207) 12. As the 5th respondent is an employee of STPI, (a society registered under the Societies Registration Act), there exists no master and servant relationship between the Central Government and himself. It is not even the case of the 5th respondent that the Central Government has the right to select and appoint the Director of STPI or that it has the right to terminate his services. The right to control the manner and method of work being done by the Director of STPI lies with the Governing Council of STPI and its Chairman and Vice Chairman. The salary and emoluments of the Director is paid by Society. The Central Government has no power to take any disciplinary action against the respondent as Director of S.T.P.I. since such a power is conferred only on the Society. Similarly, the right to prescribe the conditions of service of, and the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f deputy Secretary to the Government of India? 15. Sri S.R. Ashok, Learned Senior Counsel appearing for the fifth respondent, would submit that the word "Officer" meant a person holding a public post, that the post of Chief Executive Officer of STPI was a public post and he was, therefore, an Officer, that STPI, (a single window for regulating, finalizing and guiding entrepreneurs, both with regards exports and imports), was an extended arm of the Central Government, that the Directors of STPI fell within the ambit of the words "its Officers" as used in Section 11(1) of the SEZ Act and could not be understood as "officers appointed by the Central Government". He would submit that there was no warrant for construing the expression "its officers", in Section 11 of the SEZ Act, narrowly so as to cover only persons recruited through the; Public Service Commission and borne on the cadre of the Union Government, that, as the expression 'its officers' was a wide expression which encompassed within its purview officers under the pervasive control of the Central Government and officers in the extended arm of the Government, the impugned notification could not be faulted, that, viewed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers constituting it. A society, when registered, comes into existence as a registered Society and has properties of its own. Although legal title in the properties may vest in the trustees or the Board of Governors yet the equitable title vests in the Society. (K.C. Thomas v. R.L. Gadeock - AIR 1970 Patna 163 (DB)). Such a Society is independent of the Central Government even if it has been established by the latter. 18. On the legal status of statutory corporations, Denning L.J, in Tamlin v. Hannaford - 1950 (1) Law Reports (Kings Bench Division) page 18, opined : "................In the eye of the law, the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a government department nor do its powers fall within the province of government..............." (emphasis supplied). 19. Accepting the submission that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t units, that the legal framework for the schemes was provided under Act 22 of 1992 and that the role of STPI was detailed in Chapter-6 of the Foreign Trade Policy made thereunder. 22. On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that STPI was created under Section 3(1) of Act 22 of 1992 which empowered the Central Government to make provision for the development and regulation of foreign trade, that the functions discharged by the Director of STPI, drawing power from various provisions of Act 22 of 1992, was not determinative, that the only requirement for conferment and delegation of powers under Act 22 of 1992 was publication in the Official Gazette and merely because the functions prescribed under the said Act were discharged by Directors of STPI did not make them officers of the Central Government. 23. In exercise of the powers conferred under Section 3(1) of Act 22 of 1992 the Central Government made the Software Technology Parks (STP) Scheme and notified it on 22-3-1994. Para 2.10 of the STP Scheme made the provisions of Paragraphs 111 to 117 of Chapter IX of the Exim Policy, as applicable to export oriented units (EOUs) and units in Export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector General authorized certain officers, including Development Commissioner of a Foreign Trade Zone or an Export Processing Zone, to grant, renew, suspend or cancel licences for the purpose of import or export of goods. Like Section 7, the words used in Section 9(2) are "an officer authorized by him". Section 9(2) does not also require the officer to be an officer of the Central Government. Similarly, under Section 13, any penalty may be imposed or any confiscation may be adjudged under the Act either by the Director General or by such other officer as the Central Government may, by notification in the Official Gazette, authorize in this behalf. The adjudicating authority under Section 13 can be any officer provided he is specified as such by the Central Government by way of a notification in the Official Gazette. In exercise of the powers conferred by Section 13, powers of adjudication have been conferred on Development Commissioners of Export Processing Zones also. Unlike Section 11(1) of the SEZ Act, Section 13 does not require the specified authority to be an officer of the Central Government not below the rank of a Deputy Secretary. 25. The Exim policy was also made in exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... away from the Central Government the power to appoint such officers who, in its view, are competent to hold the post. 28. On the other hand Sri. D. Prakash Reddy, Learned Senior Counsel, would submit that Section 11 of the SEZ Act, 2005 was clear and unambiguous, that the language employed therein was incapable of any other meaning or construction, that the provisions of a statute must be understood in their natural, ordinary or popular sense, that phrases and sentences used in the statute must be construed according to their grammatical meaning unless it leads to some absurdity or there is something in the context, or in the object, of the statute to suggest to the contrary. 29. The primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. (Unique Butyle Tube Industries Pvt. Ltd. v. Uttar Pradesh Financial Corporation - 2003 (2) SCC 455). Statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances, (Chertsey Urban District Council v. Mixnam's Properties Ltd. - (1964) 2 ALL ER 627), and must be construed according to the rules of gramma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a word. A provision is ambiguous only if it contains a word or phrase which, in that particular context, is capable of having more than one meaning [Kirkness (Inspector of Taxes) v. John Hudson & Co. Ltd. - (1955) AC 696 (HL)]. 31. It is only when the material words are capable of two constructions, one of which is likely to defeat, or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, would Courts prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct (Kannai Lai Sur - 1958 SCR 360). In the instant case, however, we find no reason to resort, to any secondary canon. 32. Sri S.R. Ashok, Learned Senior counsel, would contend that, as there was nothing in the scheme of the Act to restrict its operation, the expression "its officers", occurring in Section 11 of the SEZ Act, should not be understood in a restricted sense to be limited only to those officers appointed by, or in the service of, the Central Government and that it should be given a wide import as conferring on the Central Government the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry or Department of the Central Government dealing with economic affairs (financial services) Member, ex officio : (d) such number of officers, not exceeding ten, not below the rank of the Joint Secretary to the Government of India, to be nominated by the Central Government to represent the Ministries or Departments of the Central Government dealing with commerce, industrial policy and promotion, science and technology, small scale industries and agro and rural industries, home affairs, defence, environment and forests, law, Overseas Indian Affairs and urban development-Members, ex officio : (e) a nominee of the State Government concerned - Member, ex officio : (f) the Director General of Foreign Trade or his nominee-Member, ex officio: (g) the Development Commissioner concerned-Member, ex officio : (h) a Professor in the Indian Institute of Management, being a society registered under the Societies Registration Act, 1860 (21 of 1860) or the Indian Institute of Foreign Trade, being a society registered under the Societies Registration Act, 1860 (21 of 1860), as may be, nominated by the Central Government-Member, ex officio : (i) an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not, necessarily, be officers and employees of the Central Government. While Sections 8(2)(h) and 11(2) enable the Central Government to appoint persons other than its officers, Section 11(1), however, mandates it to do so. When the situation has been differently expressed in different provisions of a statute legislature must be taken to have intended to express a different intention.(Commissioner of Income Tax, New Delhi v. M/s. East West Import & Export (P) Ltd. - AIR 1989 SC 836). 35. Sri S.R. Ashok, learned Senior Counsel, would submit that, while issuing the impugned notification, the Central Government had understood the expression "its officers" as including the 5th respondent, that the; Directors of STPI were being treated as "its Officers" by the ministry concerned, that prior conduct must be the guiding factor in interpreting Section 11(1) in the absence of any contra indication and that the interpretation placed by the Central Government, on Section 11(1) of the SEZ Act, prior to issuing the impugned notification, should be given effect to. 36. Even if the historical background, of appointment of Development Commissioners of SEZ, is borne in mind while interpreting S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances conceivable within the contemplation of the statute. (Gurudevdatta VKSSS Maryadit v. State of Maharashtra - 2001 (4) SCC 534; Manohar Lal v. Vinesh Anand - (2001) 5 SCC 407. A construction that reduces one of the provisions to a "dead letter" must be avoided. (Anwar Hasan Khan v. Mohd. Shafi - (2001) 8 SCC 540. 40. There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. (State of Kerala v. Mathai Verghese - (1986) 4 SCC 746; Union of India v. Deoki Nandan Aggarwal - AIR 1992 SC 96. A Judge is not entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. (Union of India v. Elphinstone Spinning and Weaving Co. Ltd. - (2001) 4 SCC 139. The legislative casus omissus cannot be supplied by the judicial interpretative process. (Maruti Wire Industries Pvt. Ltd. v. S.T.O., I.S.T. Circle, Mattancherri - (2001) 3 SCC 735; and Govind Singh - (2005) 10 SCC 437. 41. Sri S.R. Ashok, Learned Senior Counsel, would then submit that amongst the avowed purposes for proposal of the SEZ bill, as was evident from its Statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EHTP Schemes, that, keeping in view the pay scales of Directors of STPI, they were above the rank of Deputy Secretary and that, in view of their expertise in the field, appointment of Directors of STPI as Development Commissioners of IT/ITES specific SEZs would help the Central Government in the smooth and efficient administration of SEZs relating to IT and ITES. 43. Where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time. (National & Grindlays Bank Ltd. v. Municipal Corpn. of Greater Bombay - AIR 1969 SC 1048. The terms of the statute can well be construed by reference to such exposition, in the absence of anything in the statute to indicate to the contrary. (State of T.N. v. Mahi Traders - (1989) 1 SCC 724; Desh Bandhu Gupta v. Delhi Stock Exchange Association Ltd. - AIR 1979 SC 1049 and K.P. Varghese v. ITO - (1981) 4 SCC 173. 44. Contemporanea expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes. (Baktawar Singh Bal Kishan v. Union of India - (1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Girnar Traders v. State of Maharastra - (2007) 7 SCC 555 in this regard. 47. Learned Assistant Solicitor General would submit that, at present, more than 8,000 STP/EHTP Units were approved and were being served by the Jurisdictional Directors of STPI, that it was for this reason that the Central Government had appointed the Jurisdictional Directors of STPI in various States as Development Commissioners for IT/ITES SEZs and that it would not be in public interest to disturb their appointment made by the Government in furtherance of IT development and export. 48. On the other hand Sri D. Prakash Roddy, Learned Senior Counsel, would submit that expertise or otherwise of the 5th respondent to discharge the functions of a Development Commissioner was immaterial as he was not eligible to be appointed as such and since he did not fulfil the conditions prescribed under Section 11(1) of the SEZ Act, 2005. 49. In Girnar Traders - (2007) 7 SCC 555, the Supreme Court held that where the legislature has used words in an Act. which, if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 SCR 435. If two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used in order to meet a possible injustice (T.V. Sundram Iyengar (P) Ltd. - 1976 (1) SCC 77. Denigration of the bureaucrats by the fifth respondent notwithstanding, if Parliament has, in its wisdom, chosen to restrict eligibility, for appointment as Development Commissioners of SHZs, only to bureaucrats in the rank of Deputy Secretary and above, it is not for Courts to interpret Section 11(1) on the hypothesis that technocrats are better suited to man such posts. LOCUS STANDI : 52. In Dr. Devinder Gupta v. Union of India - Vol. 128 (2006) DLT 337, a Division bench of the Delhi High Court observed that public interest litigation should be conducted with great care and circumspection, that the real intention of the petitioner ought be kept in mind while entertaining such a petition, that a writ of quo warranto could not be filed by a person who did not have any direct connection or grievance or interest in the matter and that, where the averments relating to the petitioner's locus standi were vague, and he did not show his credentials, a writ petition was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Disputes Act for appointment as a Presiding Officer of the Labour Court, is not less than 7 years service as Judicial Officer. The services rendered by the officer concerned, as Sub-Deputy Collector and Circle Officer, were taken info consideration for computing the period of service as a Judicial Officer as he was conferred the powers of a III Class Magistrate. After coming to the conclusion that a Magistrate also held a judicial office the Supreme Court observed that, even if there be some doubt, it should be resolved in favour of upholding the appointment on the ground that the Legislature itself, under Section 9 of the I.D. Act, had contemplated that such appointments should not be called in question. The Supreme Court further held that, although the provisions of Section 9 cannot shut out an inquiry, (if there was a clear usurpation), for the purposes of a writ of quo warranto but atleast in an unclear case the intent of the legislature was entitled to great weight, that the Legislature had created the conditions of appointment and, with its last voice, had shut out. an inquiry, that Section 7(3)(d) was not so absolute as to be wholly mandatory in the same way as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualification as prescribed under the rules for appointment as Managing Director of the Board, that Section 7(1)(d) did not apply to an officer or servant who ceased to be such on the date of his appointment as Managing Director, that, as the appellant was an erstwhile employee of the Board, the disqualification under Section 7(1)(d) disappeared when the appellant retired from service, that the High Court was under the misconception that the appellant had been reappointed to the said office, whereas it was a fresh appointment under the provisions of the Act and that the appellant was appointed as he fulfilled the qualification and eligibility criteria prescribed under the Act. 57. Grant of relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction of the High Court. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or a quo warranto or a writ filed in public interest, (Vinoy Kumar v. State of U.P. - (2001) 4 SCC 734, where the rule of locus standi is relaxed. (Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed - (1976) 1 SCC 671. In quo warranto pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition for the same relief, this disability on the ground of oblique motive and conduct would not attach to him. This being so, the relief claimed by the petitioner in the writ petition being in the nature of a class action, without socking any relief personal to him, ought not to be dismissed merely on this ground, since this is a matter of public concern and relates to the good governance of the State itself. (Dr. Kashinath G. Jalmi - (1993) 2 SCC 703). 62. In Mr. Gopal Singh v. Sri J. Parthasarthy - Judgment in W.P. (C) No. 161/2009, dated 13-1-2009 the Delhi High Court observed that, apart from relying upon the employment notice issued prior to coming into force of the Act, and also annexing a copy of the notification dated 8-8-2008, the petitioner had nowhere averred about the qualifications of the first respondent nor had he attempted to disclose that the said respondent was ineligible for consideration or appointment, that the writ petition merely extracted the provisions of the Act and the petitioner had only urged that the first respondent did not possess the required qualifications. The Delhi High Court dismissed the writ petition as not maintainable as the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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