# "-I , ST ATE OF U.P. AND ORS v. JEET S. BISHT AND ANR

- **Citation:** [2007] 7 S.C.R. 705
- **Court:** Supreme Court of India
- **Decided:** 2007-05-18
- **Case number:** Civil Appeal No. 2740 of2007
- **Bench:** S.B. Sinha, Markandey Ka Tju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-st-ate-of-u-p-and-ors-v-jeet-s-bisht-and-anr-23249
- **Pages:** 39

## Headnote

B
-i
Consumer Protection Act, 1986-Sections 9 and 16-Cons·umer
Forums-Conditions of service of members-Central and State Governments
requested to consider fixing adequate salaries and allowances for members c
at all three levels so that they can function effectively and with a free mindRequest also made to fill up vacancies expeditiously so that the forums can
function effectively-Matter referred before another bench.
Respondent approached a District Consumer Forum with a grievance
about charging of excessive electricity bills by the State Eledricity board. D
However, it was not decided as the Forum was not working since term of two
of its members had expired. Thereupon he filed a writ petition about same
grievance. While deciding the issue on merits, the High Court issued
directions to State Government to (i) constitute at least five State Consumer
Forums at State level, the Presiding Officer thereof being a retired High
Court judge enjoying the same facilities and amenities as enjoyed by a sitting E
High Court Judge; (i) provide infrastructure facilities of proper building and
recruitment powers of staff to the Presiding Officer of State Commission or
Vice-President. Aggrieved by this, State Government and others filed the
present appeal.
Appellant contended that (i) the directions issued by the High Court were F
..>,
contrary to the provisions of the Consumer Protection Act, 1986; (ii) the court
cannot issue a direction that the law be amended; (iii) directions of the Higil
Court related to policy matters in which the judiciary cannot interfere.
During course of hearing of the appeal, this Court passed interim orders G
· expressing its anguish that the very purpose of the Act was frustrated and it
was becoming non functional due to the indifference of the State Government
in filling up vacancies at the State and District Levels and providing
'
insufficient funds for salaries of members and the staff, and for the
infrastructure without which the State and District Consumer For a cannot
705
H
706
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A operate. Therefor.e, this Court directed the Union of India to file a
,..
comprehensive scheme with regard to the structuring of Consumer Forums
at all the three levels with emphasis on service conditions, not only of the
members of the District, State and the National Consumer Forums but also
with regard to the staff in each of the said Forums; the effort was to see that
the Consumer Forums became effective institutions where the consumers can
B give vent to their grievances rather than their going to the courts of law. The
scope of the writ petition in the appeal before this Court expanded to cover
the State and District Consumer For a all over India. The Court requested
the Solicitor General of India to assist it and seek instructfons.
f"
c
Additional Solicitor General of India contended that this Court should
fix the salaries and allowances of members of the State Consumer Dispute
Redressal Commission in all States of India as well as the salaries and
allowances of the District For a all over India. Referring the matter to another
Bench, the Court
D
HELD: Per Markandey Katju, J:-
1.1. The directions of the High Court are really an encroachment into
the legislative and executive domain. Whether there should be one State
Consumer Forum or five or mo.-e State Consumer For is entirely for the
legislature and executive to decide. The High Court has directed that the State
E Government should constitute at least five State Consumer Forums at the State
level by making necessary amendments in the Act. Such a direction was
clearly illegal. The Court (including this Court) cannot direct amendment of
an Act made by the legislature. The establishment of the District, State and
National level Consumer For a is done under Section 9 of the Consumer
F Protection Act by the authorities mentioned in that Act. The composition of
these For a is also prescribed in that section, and so are the salaries and
allo

## Text

_Characters 0–39,688 of 95,422. This is a partial read: ask again with offset=39688 for what follows._

"-I ,
ST ATE OF U.P. AND ORS.
A
v.
JEET S. BISHT AND ANR.
MAY 18, 2007
[S.B. SINHA AND MARKANDEY KA TJU, JJ.]
B
-i
Consumer Protection Act, 1986-Sections 9 and 16-Cons·umer
Forums-Conditions of service of members-Central and State Governments
requested to consider fixing adequate salaries and allowances for members c
at all three levels so that they can function effectively and with a free mindRequest also made to fill up vacancies expeditiously so that the forums can
function effectively-Matter referred before another bench.
Respondent approached a District Consumer Forum with a grievance
about charging of excessive electricity bills by the State Eledricity board. D
However, it was not decided as the Forum was not working since term of two
of its members had expired. Thereupon he filed a writ petition about same
grievance. While deciding the issue on merits, the High Court issued
directions to State Government to (i) constitute at least five State Consumer
Forums at State level, the Presiding Officer thereof being a retired High
Court judge enjoying the same facilities and amenities as enjoyed by a sitting E
High Court Judge; (i) provide infrastructure facilities of proper building and
recruitment powers of staff to the Presiding Officer of State Commission or
Vice-President. Aggrieved by this, State Government and others filed the
present appeal.
Appellant contended that (i) the directions issued by the High Court were F
..>,
contrary to the provisions of the Consumer Protection Act, 1986; (ii) the court
cannot issue a direction that the law be amended; (iii) directions of the Higil
Court related to policy matters in which the judiciary cannot interfere.
During course of hearing of the appeal, this Court passed interim orders G
· expressing its anguish that the very purpose of the Act was frustrated and it
was becoming non functional due to the indifference of the State Government
in filling up vacancies at the State and District Levels and providing
'
insufficient funds for salaries of members and the staff, and for the
infrastructure without which the State and District Consumer For a cannot
705
H
706
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A operate. Therefor.e, this Court directed the Union of India to file a
,..
comprehensive scheme with regard to the structuring of Consumer Forums
at all the three levels with emphasis on service conditions, not only of the
members of the District, State and the National Consumer Forums but also
with regard to the staff in each of the said Forums; the effort was to see that
the Consumer Forums became effective institutions where the consumers can
B give vent to their grievances rather than their going to the courts of law. The
scope of the writ petition in the appeal before this Court expanded to cover
the State and District Consumer For a all over India. The Court requested
the Solicitor General of India to assist it and seek instructfons.
f"
c
Additional Solicitor General of India contended that this Court should
fix the salaries and allowances of members of the State Consumer Dispute
Redressal Commission in all States of India as well as the salaries and
allowances of the District For a all over India. Referring the matter to another
Bench, the Court
D
HELD: Per Markandey Katju, J:-
1.1. The directions of the High Court are really an encroachment into
the legislative and executive domain. Whether there should be one State
Consumer Forum or five or mo.-e State Consumer For is entirely for the
legislature and executive to decide. The High Court has directed that the State
E Government should constitute at least five State Consumer Forums at the State
level by making necessary amendments in the Act. Such a direction was
clearly illegal. The Court (including this Court) cannot direct amendment of
an Act made by the legislature. The establishment of the District, State and
National level Consumer For a is done under Section 9 of the Consumer
F Protection Act by the authorities mentioned in that Act. The composition of
these For a is also prescribed in that section, and so are the salaries and
allowances and other conditions of service of the members. It is only the
,.,.._
authorities mentioned in the Act who' can do the needful in this connection,
jand this Court cannot arrogate to itself the powers given by the Act to the
said authorities. [Para 35) (723-F-H; 724-A)
G
1.2. The High Court has also directed that the Presiding Officer of a
Bench will be a retired High Court Judge who would enjoy the same facilities
and amenities as enjoyed by a sitting High Court Judge. This again is contrary
to the provisions of the Act. Section 16(2) of the Act which clearly states that
the salaries, allowances and conditions of service of the members of the State
H
:
STATEOFU.P. v. JEETS. BISHT
707
Commission shall be such as may be prescribed by the State Government. A
Hence it was not open to the High Court to practically amend Section 16(2)
by its judicial verdict and prescribe the salaries or conditions of service of
the members of the State Commission. Such salaries or conditions of service
can only be prescribed by the State Government and not by the High Court as
is clear from Section 16(2). (Para 401 (724-H; 725-A-BJ
t.3. In some States these salaries and allowances are very low. Be that
as it may, this Court cannot arrogate to itself the powers and functions of
State Government in this connection. Different State Governments have
different constraints and considerations e.g. financial constraints, the number
B
of cases, etc. and it is entirely for the State Governments to exercise the powers
prescribed to them by the Act. Similarly it is entirely for the Central C
Government to perform the functions given to it by the Act, and this Court
cannot interfere with the Central or State Government in the exercise of their
functions. At best this Court or the High Court ca1t make recommendations
for increase of salaries, allowances and betterment of working conditions,
etc. but there its jurisdiction ends. It cannot give binding directions in this D
connection. (Para 36) (724-B-D)
1.4. The direction to increase the age of superannuation is really the
function of the legislature or executive. The Court cannot fix the age of
superannuation. (Para 20) (720-AI
T. P. George v. State of Kera/a, (1992) Supp. 3 SCC 191, Union of India E
v. Association/or Democratic Reforms & Anr., AIR (2002) SC 2112, Supreme
Court Employees Welfare Association v. Union of India & Ors., AIR (1990)
SC 334, Union of India v. Prakash P. Hinduja, AIR (2003) SC 2612, Sanjay
Kumar v. State of U.P., (2004) ALJ 239, JT (2006) 2 SC 361, Suresh Seth v.
Indore Municipal Corporation, AIR (2006) SC 767, and Union of India & F
Anr. v. Deoki Nandan Aggarwal, AIR (1992) SC 96, referred to.
2.1. The interim order of this Court by which it directed the Union of
India to file a comprehensive scheme with regard to the structuring of the
Consumer Forums at all the three levels does not seem to be within its
jurisdiction as it is contrary to the clear provisions of the Consumer Protection G
Act. (Para 37) (724-E(
2.2. It has been nowhere provided in the Consumer Protection Act that
the Central Government has a duty, or power, to prepare a comprehensive
scheme with regard to the structure of Consumer For a at all the three levels.
(Para 38) (724-F) H
708
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A
3.1. No doubt the High Court, as well as this Court, are concerned that
fl ,.,..
the Consumer For a in many parts of the country are not functioning properly,
but the Court could at most have given some recommendations to the Central
and State Government in this connection, and it is entirely upto the Central --
and State Governments whether to accept those recommendations or not at
their discretion. This Court cannot amend the Consumer Protection Act by
B issuing directions contrary to the clear provisions of the Act nor can the High
C1.>urt do so. f Para 391 (724-GI
All India Judges' Association & Ors. v. Union of India & Ors., 11.9931 4
sec 288 held inapplicable and delivered sub-silento as to whether directions
C therein can validly be given by Court at all.
Municipal Corporation of Delhi v. Gurnam Kaur, [19891 I SCC 101,
State of U.P. & Anr. v. Synthetic & Chemicals ltd. & Anr., (199114 SCC 139,
Arnit Das v. State of Bihar, 12000) 5 SCC 488, v. State ofU.P. & Ors., (2001)
3 SCC 537, Divisional Controller, KSRTC v. Mahadeva Shetty & Anr., (2003)
D 7 sec 197, State of Punjab & Anr. v. Devans Modern Beweries Ltd. & Anr.,
(2004) 11 SC 26, Municipal Committee, Amritsar v. Hazara Singh, AIR (1975)
SC 1087, State of Punjab v. Baldev Singh, 11999] 6 SCC 172, Delhi
Administration v. Manoharlal, AIR (2002) SC 3088, Pivisional Controller,
KSRTCv. Mahadeva Shetf}, 12003) 7 SCC 197, and Jammu & Kashmir Public
' Service Commission v. Dr. Narinder Mohan, AIR (1994) SC 1808, relied on.
E
.
3.2. The Central and State Governments are requested to consider fn:ing
adequate salaries and allowances for members of the Consumers Fora at all
three levels, so that they can function effectively and with a free mind. They
· are also requested to fill up vacancies expeditiously so that the For a can
F · function efftctively. (Para 58) (730-G)
G
H
4.1. In recent years it has been noticed that the judiciary has not been
· exercising self restraint and has been very frequently encroaching into the
legislative or executive domain. The Court should do introspection and self
criticism in this connection. [Para 411 [725-C)
4.2. It is true that there is no rigid separation of powers under our
Constitution but there is broad separation of powers, and it not proper for
. one organ of the State to encroach into the domain of others.
jPara 42) [725-DI
4.3. It is well settled that the High Court cannot takeover the function
-
r
'
STATEOFU.P. v. JEETS.BISHT
709
_ of the statutory authorities under an Act. f Para 4511727-DI
4.4. Under our Constitution the Judiciary, the Legislature and the
Executive have their own broad spheres of operation. It is important that these
organs do not encroach on each other's proper spheres and confine themselves
A
to their own, otherwise there will always be danger of a reaction. Of the three
organs of the State, it is only the judiciary which has the right to determine B
the limits of jurisdiction of all these three organs. This great power must
therefore be exercised by the judiciary with the utmost humility and selfrestraint. !Para 4711728-A-BI
4.5. The judiciary must therefore exercise self-restraint and eschew
the temptation to encroach into the domain of the legislature or the C
administrative or statutory authorities. By exercising self-restraint it will
enhance its own respect and prestige. Of course, if a law clearly violates some
provision of the Constitution, it can be struck down, but otherwise it is not
for the Court to sit in appeal over the wisdom of the legislature, nor can it
amend the law. !Para 48) 1728-CI
D
4.6. The Court may feel that the law needs to be amended or .the Forum
created by an Act needs to be made more effective, but on this ground it cannot
itself amend the law or take over the functions of the legislature or executive.
The legislature and the executive authorities in their wisdom are free to
choose different methods of solving a problem and the Court cannot say that E
this or that method should have been adopted. !Para 49) 1728-D-EI
Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors., AIR (1989)
SC 1899, G. Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar,
Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore
District and Ors., AIR (1952) SC 192, State of U.P. v. Section Officer F
Brotherhood and Anr., 12004) 8 SCC 286, V.P. State Road Transport
Corporation and Anr. v. Mohd Ismail and Ors., (1991) 3 SCC 239 (paragraph
12) and State of V.P. and Anr. v. Raja Ram Jaiswal and Anr., 119851 2 SCC
131, N.K. Prasada v. Government of India& Ors., JT (2004) Supp. 1SC326,
Supreme Court Employees Welfare Association for Democratic Reforms & G
Anr., AIR (2002) SC: 2112, Union of India v. Prakash P. Hinduja, AIR (2003)
SC 2612 and Union of India & Anr. v. Deoki Nandan Aggarwal, AIR (1992)
SC 96, relied on.
Anderson v. Wilson, 289 U.S. 20 referred to
H
710
SUPREME COURT REPORTS
(2007) 7 S.C.R.
A
4.7. The Court must presume that the legislature understands and
B
c
correctly appreciates the need of its own people. The legislature is free to
recognize degrees of harm and may confine its restrictions to those where
the need is deemed to be the clearest. I Para 5311729-DI
MH. Qureshi v. State of Bihar, 119591SCR629, relied on
Laker Airways Ltd v. Department of Trade, (1977) QB 643 724, referred
to
Essays on Legal History in Honour of Felix Frankfurther' Edited by
Morris D Forkosch, referred to
4.8. Adjudication must be done within the system of historically validated
restraints and conscious minimization of the Judges preferences. The Court
must not embarrass the legislature or the administrative authorities and must
realize that the legislature and authorities have to take into account various
considerations, some of which the court may not even be aware of.
D
tpara 5611730-B)
E
F
Lochner v. New York, 198 US 45 (1905), and Griswo/dv. Connecticut,
381 U.S. 479, referred to.
Frankfurter's Some Reflections on the Reading of Statutes, referred to.
Per S.B. Sinha, J (concurring with the conclusion but differing with the
:reasons):
1. The Central Government as also the respective State Governments
are requested to consider the desirability of fixing appropriate salaries and
allowances for members of the consumer for a at all three levels so that they
can function effectively and with a free mind. !Para 211731-A-BI
2.1. It is indisputably the solemn duty of the executive of both the
Government of India as also the Governments of States to implement tile
G provisions of the Act in true letter and spirit. I Para 511732-BJ
2.2. In a situation of this nature where the action or inaction on the
part of the executive government of a State or Union Territory would lead to
virtual closure and/or non-functioning of such an important judicial for a
created under the Act, it is permissible for the Superior Courts, and
H particularly this Court, while exercising its constitutional functions, to issue
J
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...
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7' r
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l
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STAi:EoFU.P. v. JEETS. BISHT
711
necessary directions for proper and effective implementation of the provisions A
· thereof. (Para 611732-CI
3. I. The public interest litigation which was filed in the High Court of
Allahabad was not in the nature of an adversarial litigation. It was filed for a
specific purpose and to serve a public cause. The directions issued by the
High Court in its impugned judgment were, of course, at one point of time B
challenged by the State of Uttar Pradesh, but the same had not only since
then been complied with, but also this Court from time to time, on the
intervention of several bodies, had issued various directions.
!Para 71 (732-D-EI
Public Law, 2006 Autumn, Human Rights Transformed: Positive Duties C
and Positive Rights (P. L. {2006), AUT, 498-520 at pg. 513), referred to.
3.2. The matter at hand involves consideration ofa PIL.A different set
of expectations stares the Court in the face, and significantly, it is also
anchored with a unique sense of responsibility. Judicial apathy with a valueneutral outlook would neither help the functioning of consumer for a nor our D
self-belief. (Para 1011733-GI
3.3. It may be true that the salary, honorarium or other allowances of
the members of the District Forum as also those of the State Commission
are ordina~ily to be prescribed by the State Governments have taken a very
reasonable stand by agreeing to pay reasonable salaries and other allowances E
to the Chairman and members of the different fora. !Para 1311734-CJ
3.4. It is a matter on record that even the salary and other allowances
payable to the members of the National Consumer Commission, as directed
by this Court, have been accepted by the Union of India and an appropriate
notification in this behalf has been published. !Para 191 [735-GI
4. I. The provisions of Consumer Protection Act envisage the role of
the executive in laying down the particulars of pay-scale as also the associated
benefits, but the fact situation as agreed on record by both the sides, potends
F
a rather grim future for consumer for a it different levels. It will not be the
spirit of any statute for that matter to put forward a framework of narrow
rules which will impedge issuing of directions to set in motion the machinery G
with respect to that law. Consumer Protection Act embodies a certain value
in protecting the interest of consumers in the age of consumerism, and the
institution of consumer fora has a :specific mission in that behalf. Instant order
needs to be seen in the perspective of achieving that 'point behind the law'.
!Para 141 [734-D-E} H
712
SUPREME COURT REPORTS
(2007) 7 S.C.R.
A
Stephen Breyer, Active Liberty: Interpreting Our Democratic
<;onstitution, (2005) Knopf. ronald Dworkin, Taking Rights Seriously, (1977);
r --
Ronald Dworkin, A. Matter of Principle, (1985); Bruce A. Ackerman, 93 Yale
law Journal 1013 (May 1984), The Storrs Lectures: Discovering the
Constitution), referred to.
B
4.2. In this situation, this Court had only been considering the matter
relating to better implementation of the provisions of the Act so as to uphold
the dignity and impartiality of the Chairman and members of the for a which
would help them in discharging their judicial functions. (Para 1811735-FJ
c
5. If financial constraint was not considered to be a criterion for issuing
a direction to create and sanction a huge number of posts by one Bench, it
would be inappropriate for the Court to restrain itself from doing so in respect
of judicial officers and other members of different for a created under the
Act who perform judicial functions. The consumer courts, it must be borne
with mind, in effect and substance, are virtual substitutes for the civil court
D in respect of certain categories of cases. tpara 4111742-F-GI
All India Judges' Association and Ors. v. Union of India and Ors., 120021
4 SCC 247, Dr. J. J. Merchant and Ors. v. Shrinath Chaturvedi, (20021 6 SCC
>
635, and Union of India v. S. B. Vohra, 1200412 SCC 150, followed
E
All India Judges' Association and Ors. v. Union of India and Ors.,
1199314 SCC 288, Supreme Court Advocates-On-Record Association and Ors.
v. Union of India and Anr., 1199314 SCC 441, Vishaka v. State of Rajasthan,
(199716 SCC 241, Vineet Narain v. Union of India, 1199811SCC226, Union
of India and Ors. v. All Gujarat Fed. of Tax Consultants and Ors., (SLP Nos.
6904-6905of1998) disposed of on September 16, (2003) Ajay Gandhi and
!
F
Anr. v. B. Singh and Ors., 120041 2 SCC 120, High Court Employees' Welfare
"
Association, Calcutta & Ors. v. State of West Bengal & Ors., 120071 1 SCALE
,..
180 and People's Union For Civil Liberties. v. Uni~n of India, 120061 13
SCALE 399, relied on.
G
6. The criticisms of various orders passed in this case itself by other
r
Benches is wholly inappropriate. One Bench of the Court, it is trite, does not
sit in appeal over the other Bench particularly when it is a coordinate Bench.
It is equally inappropriate for us to express total disagreement in the same
1'
matter as also in similar matters with the directions and observations made
rH
by the larger Bench. Doctrine of judicial restraint applies even in this realm.
STATEOFU.P. v. JEETS. BISHT
713
Ill
1
Other doctrines which are equally developed viz., Judicial Discipline and A
Respect for the Brother Judges, should not be forgotten.
(Para 43( (743-8-C(
7.1. Each organ of the State in terms of the constitutional scheme
performs one or the other functions which have been assigned to the other
organ. Although drafting of legislation and its implementation by and large B
are functions of the legislature and the executive respectively, it is too late in
the day to say thlit Constitutional Court's ole in that behalf in non-existent.
The judge made law is now well recognized throughout the world. If one is to
put the doctrine of separation of power to such a rigidity, it would not have
been possible for any superior court of any country, whether developed or C
developing, to create new rights through interpretative process. (Para 201(735-
.'f. H; 736-AI
7.2. Separation of power in one sense is a limit on active jurisdiction of
·i!ach organ. But it has another deeper and more relevant purpose: to act as
check and balance over the activities of other organs. Thereby the active D
jurisdiction of the organ is not challenged; nevertheless there are methods
of podding to communicate the institution of its excesses and shortfall in duty.
Constitutional mandate sets the dynamics of this communication between the
organs of polity. Therefore, it is suggested to not understand Separation of .
Power as operating in vacuum. Separation of power doctrine has been
reinvented in modern times. [Para 21( [736-B-q
E
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952),
referred to.
7.3. The modern view, which is today gathering momentum in
Constitutional Courts world over, is not only to demarcate the realm of F
functioning in a negative sense, but also to define the minimum content of
the demarcated realm of functioning. Objective definition of function and role
entails executing the same, which however may be subject to the plea of
financial constraint but only in exceptional cases. In event of any such
shortcoming, it is the essential duty of the other organ to advise and
recommend the needful to substitute inaction. To this extent we must be G
prepared to frame answers to these difficult questions. (Para 23) (736-G-H)
John Rawls in Political liberalism £1996] at pg. 231, Cass R. Sunstein
(Constitutiona/ism After The New Deal, JOI HVLR 421), Bruce A. Ackerman
H
714
SUPREME COURT REPORTS
(2007] 7 S.C.R.
A I We, the People (1991), referred to
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2740 of2007.
From the Judgment and Order dated 08. l 0.1998 of the High Cour:t of
Judiacture at Allahabad in Civil Misc. Writ Petition No. 968 of 1997.
Amarendra Sharan, ASG, Sonam P. Wangdi, A.G., Rachna Srivastava,
A.K. Rathore, Aruneshwar Gupta, J.S. Attri, Addi. Adv. Genis., Dr. R.G. Padia,
M.N. Krishnamni, Shobha Dixit, Sr. Adv., Pradeep Misra, R.K.S. Yadav, kiran
Bhardwaj ,V.K. Verma, S.K. Sham:;i., V. N. Raghupathy, Ashok K. Srivastava,
N.S. Bisht, U.P. Sharma, M.P.S. Tomar, Sandhya Goswami, Arun K. Sinha, Anil ·
C Katiyar, Anis Suhrawardy, C.K. Sucharita, Hemantika Wahi! Shivangi MBRS.
D
Raju, S. Sudeen, S. Balaji, S. Sunita, S. Srinivasan, Ranjan Mukherjee, Ravindra
Kumar, B.V. Balaram Das, Riku Sarma, Angshuman (for Corporate Law Group)
Kavita Wadia, Pallav Shishodia, Naveen Kumar Singh, kukul Sood, Shashwat
Gupta, Kamini Jaiswal, Shomila Bakshi, Sumita Dwivedi, Suparna Srivastava,
Pooja Matlani, Rajesh Srivastava, Vivek Singh, Ajay Siwach, T.V. George,
Manjit Singh, Harikesh Singh, V.G. Pragsam, S. Vallinayagam, S. Prabhu,
Ramasubramanian, P.V. Dinesh, D. Bharathi Reddy, U. Hazarika, Satya Mitra,
Sumita Hazarika, Pinky Anand, D.N. Goburdhan, Rajesh Pathak, Kuldip Singh,
R.K. Pandey, Sanjay Katyal, T.P. Mishra,Gopal Singh,Rituraj Biswas, Nishakant -
Pandey, S.S. Shinde, V.N. Raghupathy, T.C. Sharma, Neelam Sharma, Ranjan
E Mukherjee, Anil Srivastava, Janaranjan Das, Swetketu Mishra, K.N.
Madhusoodhanan, R. Sathish, Ashok Bhan, Kiran Bhardwaj, R.C. Kathai, Anil
Katiyar, Sumita Sharma, D.S. Mehara, Kh. Nobin Singh, A. Subhashini, A.
Mariaputham, Aruna Mathur (for Arpputham, Aruna & Co.) Su.nita Sharma,
Rajeev Sharma, C.D. Singh, Merusagar Samantaray, Sanjay R. Hedge, Javed
F Mahmud Rao, Prakash Shrivastava, Radha Shyam Jena, Revathy Raghavan,
T. Mahipal, Prfil.nod Dayal, T.V. Ratnam and Ashok Mathur for the appearing
parties.
G
The Judgment of the Court was delivered by
MARKANDEY KAT JU, J. I. Leave granted.
2. This a~peal furnishes a typical instance of a widespread malady
which has infected the judicial system in India, namely, the tendency in some
courts of not exercising judicial restraint and crossing their limits by
encroaching into the legislative or executive domain, contrary to the broad
H separation of powers envisaged under our Constitution.
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STATE OF U.P. v. JEETS. BISHT [MARKANDEY KATJU, J.)
715
•
1
3. Heard learned counsel for the parties as well as Shri Amarendra A
Sharan, learned Additional Solicitor General and Shri M.N. Krishnamani, .Sr.
Advocate.
4. This appeal arises out of a writ petition filed in the Allahabad High
Court in which the grievance of the writ petitioner was of charging excessive
electricity bills by the U .P. State Electricity Board. In para 19 of the writ B
petition it was also mentio'led that the petitioner had, before filing the writ
petition, approached the Di~ trict Consumer Forum, Chamoli but the same was
not decided because the term of two members of the District Consumer Forum
had expired and till the filing of the petition new members were not appointed
and hence the District Consumer Forum, Chamoli was not working.
C
5. In the counter affidavit to the writ petition it was stated by the Special
Secretary, Department of Food and Civil Supplies, U.P. Government, that
appropriate steps were being taken to fill up the vacancies of the District
Consumer Forum, Chamoli vide paragraphs 4 to 12 of the counter affidavit.
In the said counter affidavit mention was also made about the grants given D
by the State Government for the State Consumer Forum and also mentioned
the statistics about the number of cases filed and disposed off.
6. By the impugned judgment dated 8.1.1998 the High Court apart from
making observations on the merits of the controversy issued the following
directions :
E
"We direct the State Government to constitute at least five State
Consumer Forums at State level as used under Section 16 of Consumer
Protection Act by making necessary amendment. The State Government
can also make law by making local amendment with the prior consent
of the President of India under Article 254 of Constitution of India if F
it falls under concurrent list and the Benches can be constituted at
"Commissionery level" at the beginning with at five places on the
pattern of Benches constituted under Administrative Tribunal Act.
We further direct that the Presiding Officer of a Bench will be a retired
High Court Judge who would enjoy the same facilities and amenities G
as enjoyed by a sitting High Court Judge as in Vice Chairman of
Administrative Tribunal; At present the President of State Commission
is not enjoying the facilities of a Judge of High Court.
,.
We are also of the view that the infrastructure facilities of proper
building and recruitment powers of staff be given to the Presiding H
716
SUPREME COURT REPORTS
(2007) 7 S.C.R.
A
Officer of State Commission or Vice President and be given proper
budgetary power to regulate the budget within the allocated sufficient ·
budget so that he has not to run to the administrative department off
and on.
B
c
We make it clear that in case if it does not fall within the jurisdiction
of State Government to issue ordinance by local amendment or enact
law then the State Government is to approach immediately in view of
the above discussion to the Central Government for making necessary
infrastructure facilities regarding constitution of Benches and proper
staff, building etc. so that the 5Jnctioning starts within four months
to mitigate the suffering of the consumers."
7. Against the aforesaid judgment of the High Court the State of U.P.
and others filed this appeal before us in which a ground inter a/ia taken was
that the aforesaid directions issued by the High Court wen~ contrary to the
provisions of the Cr>nsumer Protection Act. It was also urged that the court
D cannot issue a direction that the law be amended. It was further contended
that the various directions of the High Courtrelated to policy matters in which
the judiciary cannot interfere.
8. When the appeal was taken up for hearing on the earlier occasions
this Court passed interim orders expressing its anguish that the very purpose
E of the Consumer Protection Act was frustrated and the Act was becoming
non functional due to the indifference of the State Government in filling up
vacancies at the State and District Levels and providing in sufficient funds
for salaries of members and the staff, and for the infrastructure without which
the State and District Consumer Fora cannot operate. By the order dated
8. l .200 l this Court requested the Solicitor General of India to assist the Court
F and seek instructions. Thereafter, on 16.4.200 l the learned Solicitor General
submitted that he had discussed the matter with the Chairman of the National
Consumer Forum with a view to find out the difficulties being faced by the
various Fora created at the National level, State level and Distriet level so that
effective steps can be taken to make these Fora functional ano the object of
G the Act achieved.
H
9. Thereafter bv an interim order dated 26. l l .200 I this Court observed:
"After hearing learned counsel for the parties we direct the Union of
India to file, within two weeks from today, a comprehensive scheme.
with regard to the structuring of Consumer Forums at all the three
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STATE OF U.P. v. JEETS. BISHT [MARKANDEY KATJU,J.]
717
..
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,...
levels. The emphasis has to be with regard to service conditions, not
1
only of the members of the District, State and the National Consumer
Forums but also with regard to the staff in each of the said Forums.
In formulating the scheme, the report of the Bagla Commission may
be taken into consideration.
On the scheme being filed in Court, notices will then be issue to B
all the State Governments for theii" comments. The effort has to be
to see that these Consumer Forums become effective institutions
,
where the consumers can give vent to their grievances rather then
their going to the courts of law.
List for further orders on I Ith December, 2001."
c
I 0. Thereafter it appears that a series of interim orders have been
passed by this Court (including issuance of notices to all State Governments)
relating to various matters concerning the Consumer Fora at the National,
State and District level. It appears that the scope of the writ petition in the D
appeal before us has been expanded so as to cover not only the State and
District Consumer Fora in U.P., but also of those all over India. Thus the
initial controversy relating to the District Forum, Chamoli was expanded by
the Allahabad High Court to the State level, and further expanded by this
Court to the National level.
11. It was contended before us by Shri Amarendra Sharan, Additional E
Solicitor General of India that this Court should fix the salaries and allowances
of members of the State Consumer Dispute Redressal Commission in all States
of India as well as the salaries and allowances of the District Fora all over
lndta.
F
12. We pointed out to learned Additional Solicitor General that this
cannot be validly done as it would be contrary to the provisions of the Act.
Thus, Section 10(3) of the Consumer Protection Act states :
"The salary or honorarium and other allowance payable to, and the
other terms and conditions of service of the members of the District G
Forum shall be such as may be prescribed by the State Government. "
Similarly, Section 16(2) of the Act states:
7
"The salary or honorarium and other allowances payable to, and the
other terms and conditions of service (including tenure of office) of, H
,
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718
SUPREME COURT REPORTS
(2007) 7 S.C.R.
the members of the State Commission shall be such as may be
prescribed by the State Government. "
13. We pointed out to the learned Additional Solicitor General of India
that the salaries and allowances of the members of the State Commissions as
well as the District Consumer Fora can only be prescribed by the State
B Government and not by this Court.
When Parliament in its wisdom has
nominated a particular authority (in this case the State Government) to fix the
salaries and allowances of the members of the State and District Fora, this
Court cannot override the clear language of the statute and substitute the
words "the Supreme Court" for the words ,;the State Government" under
C section I 0(3) and section 16(2). It is a well settled principle of interpretation
that the Court cannot add or substitute words in a statute.
14. No doubt the Court can make a recommendation to the State
Governments that the salaries and allowances of the members of the State and
District Fora are inadequate and should be increased, but that is about as far
D as the Court can go. It can only make recommendations but it cannot give
binding directions in this connection. By a judicial verdict the court cannot
amend the law made by Parliament or the State Legislature.
15. Learned Additional Solicitor General submitted that such a direction
can be given, and for this proposition he relied on the decision of this Court
E in All India Judges' Association & Ors. v. Union of India & Ors., [1993]
4 SCC288.
16. We have carefully gone through the above decision. We fully agree
with the observations in this judgment that Judges should get adequate
salaries and allowances to enable them to function impartially and with a free
F mind, but we do not agree that that decision has laid down any principle of
law that the salaries, allowances and other conditions of Judges should be
fixed by the judiciary.
17. The salaries, allowa.nces and other conditions of service of Judges
G are either fixed by the Constitution (e.g. the age of superannuation and
sal&ries of Supreme Court and High Court Judges) or by the legislature or the
executive. In fact this is the position all over the world.
18. No doubt in the aforesaid decision various direction have been
given by this Court but in our opinion that was done without any discussion
H as to whether such directions can validly be given by the Court at all. The
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STATEOFU.P. v. JEETS. BISHT[MARKANDEY KATJU,J.)
719
decision therefore passed sub silentio. The meaning of a judgment sub A
silentio has been explained by this Court in Municipal Corporation of Delhi
v. Gurnam Kaur, (1989] 1 SCC IOI vide paras 11 and 12 as follows:-
"A decision passes sub silentio, in the technical sense that has come
to be attached to that phrase, when the particular point of law involved
in the decision is not perceived by the court or present to its mind. B
The court may consciously decide in favour of one party because of
point A, which it considers and pronounces upon. It may be shown,
however, that logically the court should not have decided in favour
,
of the particular party unless it also decided point Bin his favour; but
point B was not argued or considered by the court.
In such
circumstances, although point B was logically involved in the facts ~
and although the case had a specific outcome, the decision is not an
authority on point B. Point B is said to pass sub silentio.
In General v. Worth of Paris Ltd., (k) (1936) 2 All ER 905 (CA),
the only point argued was on the question of priority of the claimant's D
debt, and, on this argument being heard, the court granted the order.
No consideration was given to the question whether a garnishee order
could properly be made on an account standing in the name of the
liquidator.
When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremith Ltd., (1941) I KB 675, the court held itself E
not bound by its previous decision. Sir Wilfrid Greene, M.R., said that
he could not help thinking that the point now raised had been
deliberately passed sub silentio by counsel in order that the point of
substance might be decided. He went on to say that the point had
to be decided by the earlier court before it could make the order which f
it did; nevertheless, since it was decided "without argument, without
reference to the crucial words of the rule, and without any citation of
authority", it was not binding and would not be followed. Precedents
sub silentio and without argument are of no moment. This rule has
ever since been followed."
19. The principle of sub silentio has been thereafter followed by this
Court in State of U.P. & Anr. v. Synthetics & Chemicals Ltd. & Anr., [1991]
4 SCC 139; Arnit Das v. State of Bihar, (2000] 5 SCC 488; A-One Granites
v. State of U.P. & Ors., [2001] 3 SCC 537; Divisional Controller, KSRTC v.
,Mahadeva Shetty & Anr., [2003] 7 SCC 197 and State of Punjab & Anr. v.
G
Devans Modern Breweries Ltd. & Anr., (2004] 11 sec 26.
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720
SUPREME COURT REPORTS
(2007) 7 S.C.R.
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20. The direction to increase the age of superannuation is really the
function of the legislature or executive. It has been held in sever~I decisions
of this Court that the Court cannot fix the age of superannuation e.g. T.P.
George v. State of Kera/a, [1992] Supp. 3 SCC 191 (vide para 6).
. 21. It is well settled that a mere direction of the Supreme Court without
B laying down any principle of law is not a precedent. It is only where the
Supreme Court Jays down a principle of law that it will amount to a precedent.
22. In Municipal Committee, Amritsar v. Hazara Singh, AIR (1975) SC
1087, the Supreme Court observed that only a statement of law in a decision
is binding. fo State of Punjab v. Baldev Singh, [1999] 6 SCC 172, this Court
C observed that everything in a decision is not a precedent.
In Delhi
Administration v. Manohar/al, AIR 2002 SC 3088, the Supreme Court observed
that a mere direction without laying down· any principle of law is not a
precedent. In Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7
SCC 197, this Court observed as follows:
D
E
" ..... The decision ordinarily is a decision on the case before the Court,
while the principle underlying the decision would be binding as a
precedent in a case which comes up for decision subsequently. The
scope and authority of a precedent should never be expanded
unnecessarily beyond the needs of a given situation. The only thing
binding as an authority upon a subsequent Judge is the principle,
upon which the case was decided ...... "
23. In Jammu & Kashmir Publiuc Service Commission v. Dr. Narinder
Mohan, AIR (1994) SC 1808, this Court held that the directions issued by the
court from time to time for regularization of ad hoc appointments are not a
F ratio of this decision, rather the aforesaid directions were to be treated under
Article 142 of the Constitution of India. This Court ultimately held that the
High Court was not right in placing reliance on the judgment as a ratio to give
the direction to the Public Service Commission to consider the cases of the
respondents for regularization. In that decision this Court observed:
G
H
"11. This Court in Dr. A. K. Jain v. Union of India, [ 1988] I SCR 335,
gave directions under Article 142 to regularize the services of the
ad hoc doctors appointed on or before October 1, 1984.
It is a
direction under Article 142 on the particular facts and circumstances
therein. Therefore, the High Court is not right in placing reliance
on the judgment as a ratio to give the direction to the PSC to
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STATE OF U.P. v. JEETS. BISHT [MARKANDEY KATJU,J.]
721
consider the cases of the respondents. Article I 42 power is confided A
only to this Court. The ratio in Dr. P.C.C Rawani vs. Union of India
I992 (1) SCC 33I, is also not an authority under Article 14I.
24.