# STATE OF UTIARANCHAL v. BALWANT SINGH CHAUFAL & OTHERS

- **Citation:** [2010] 1 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 2010-01-18
- **Case number:** Civil Appeal Nos.1134-1135 of 2002
- **Bench:** Dalveer Bhandari, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-utiaranchal-v-balwant-singh-chaufal-others-26514
- **Pages:** 90

## Headnote

Constitution of India, 1950:
Article 165, 217 and 226 - Advocate General for the
State - Eligibility - Age - HELD: It is fully settled that the
Advocate General for the State can be appointed after he/she
attains the age of 62 years - Similarly, the Attorney General
0 for India can be appointed after he/she attains the age of 65
years - Public Interest Litigation.
Public Interest Litigation:
Appointment of Advocate General for the State -
E Challenged by way of writ petition before High Court on the
ground that incumbent before his appointment to the post had
crossed 62 years of age - HELD: The issue having been
settled half a century ago by a judgment of the constitution
Bench of the Supreme Court and the position having been
F reiterated in several decisions of High Courts and Supreme
Court thereafter, filing of writ petition by practicing advocate
on an issue which is no longer res integra, is a clear abuse
of process of the Court for extraneous considerations - This
tendency has to be curbed effectively - Exemplary cost .
G imposed on writ petitioners - Significance and evolution of
public interest litigation - Explained - In order to preserve
purity and sanctity of PIL, guidelines laid down - Constitution
of India, 1950 -Article 165, 217 and 226 - Practice and
Procedure.
H
678
STATE OF UTTARANCHAL v. BALWANT SINGH
679
CHAUFAL & ORS.
Precedent:
A
When an issue is no longer res integra, fifing of
indiscriminate petitions raising the controversy repeatedly
creates unnecessary strain on judicial system and leads to
inordinate delay in disposal of genuine and bona fide cases
B
- It is the bounden duty of Courts to ensure that controversy
once settled by an authoritative pronouncement should not
be reopened unless there are extra-ordinary reasons for doing
so - Though a petitioner can ask the Court to review its own
judgment, but that should be in a bona fide presentation with
listing of all relevant cases in a chronological order and a brief C
description of what the judicial opinion has been,- and why
there should be re-consideration of the existing law.
'Words and Phrases:
D
Expression 'public interest litigation' - Defined.
A writ petition was filed as public interest litigation by
the respondents in the High Court challenging the
appointment of the Advoca~ General for the State on the
ground that the incumbent ·flad crossed the age of 62
E
years before his appointmentto the post and, therefore,
he was not eligible to hold the post. The High Court
directed the State Government to take decision on the
issue within the time stipulated i'n the order. Aggrieved,
the State Government filed the app~als.
F
Giving directions to High Courts and adjourning the
appeals for compliance thereof, the Court
HELD: 1.1. In view of the clear enunciation of law in
various judgments, the controversy has been fully settled G
that the Advocate General for the State can be appointed
after he/she attains the age of 62 years. Similarly, the
Attorney General for India can be appointed after he/she
attains the age of 65 years. In a number of other cases
regarding the appointment of other authorities, courts
H
680
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A have consistently taken the similar view. [Para 15) (706H; 707-A-B]
Atlas Cycle Industries Ltd. Sonepat v. Their Workmen
1962 Supp. (3) SCR 89; Binay Kant Mani Tripathi v. Union
B of India & Others (1993) 4 SCC 49, relied on.
G.D. Karkare v. T.L. Shevde & Others AIR 1952 Nagpur
330, Ghanshyam Chandra Mathur v. The State of Rajasthan
& Others 1979 Weekly Law Notes 773; Dr. Chandra Bhan
Singh v. State of Rajasthan & Others AIR 1983 Raj. 149;
C Manendra Nath Rai & Another v. Virendra Bhatia & Others
AIR 2004 All. 133; Prem Chandra Sharma & Others v. Milan
Banerji & Others 2005 (3) ESC 2001 and Baishnab Patnaik
& Others v. The State AIR 1952 Orissa 60 and Gurpal Singh
v. State of Punjab & Others (2005) 5 SCC 136, referred to.
D
1.2. When the controversy is no longer res integra,
the filing of indiscriminat

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A
B
c
[2010] 1 S.C.R. 678
STATE OF UTIARANCHAL
v.
BALWANT SINGH CHAUFAL & OTHERS
(Civil Appeal Nos.1134-1135 of 2002)
JANUARY 18, 2010
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
Constitution of India, 1950:
Article 165, 217 and 226 - Advocate General for the
State - Eligibility - Age - HELD: It is fully settled that the
Advocate General for the State can be appointed after he/she
attains the age of 62 years - Similarly, the Attorney General
0 for India can be appointed after he/she attains the age of 65
years - Public Interest Litigation.
Public Interest Litigation:
Appointment of Advocate General for the State -
E Challenged by way of writ petition before High Court on the
ground that incumbent before his appointment to the post had
crossed 62 years of age - HELD: The issue having been
settled half a century ago by a judgment of the constitution
Bench of the Supreme Court and the position having been
F reiterated in several decisions of High Courts and Supreme
Court thereafter, filing of writ petition by practicing advocate
on an issue which is no longer res integra, is a clear abuse
of process of the Court for extraneous considerations - This
tendency has to be curbed effectively - Exemplary cost .
G imposed on writ petitioners - Significance and evolution of
public interest litigation - Explained - In order to preserve
purity and sanctity of PIL, guidelines laid down - Constitution
of India, 1950 -Article 165, 217 and 226 - Practice and
Procedure.
H
678
STATE OF UTTARANCHAL v. BALWANT SINGH
679
CHAUFAL & ORS.
Precedent:
A
When an issue is no longer res integra, fifing of
indiscriminate petitions raising the controversy repeatedly
creates unnecessary strain on judicial system and leads to
inordinate delay in disposal of genuine and bona fide cases
B
- It is the bounden duty of Courts to ensure that controversy
once settled by an authoritative pronouncement should not
be reopened unless there are extra-ordinary reasons for doing
so - Though a petitioner can ask the Court to review its own
judgment, but that should be in a bona fide presentation with
listing of all relevant cases in a chronological order and a brief C
description of what the judicial opinion has been,- and why
there should be re-consideration of the existing law.
'Words and Phrases:
D
Expression 'public interest litigation' - Defined.
A writ petition was filed as public interest litigation by
the respondents in the High Court challenging the
appointment of the Advoca~ General for the State on the
ground that the incumbent ·flad crossed the age of 62
E
years before his appointmentto the post and, therefore,
he was not eligible to hold the post. The High Court
directed the State Government to take decision on the
issue within the time stipulated i'n the order. Aggrieved,
the State Government filed the app~als.
F
Giving directions to High Courts and adjourning the
appeals for compliance thereof, the Court
HELD: 1.1. In view of the clear enunciation of law in
various judgments, the controversy has been fully settled G
that the Advocate General for the State can be appointed
after he/she attains the age of 62 years. Similarly, the
Attorney General for India can be appointed after he/she
attains the age of 65 years. In a number of other cases
regarding the appointment of other authorities, courts
H
680
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A have consistently taken the similar view. [Para 15) (706H; 707-A-B]
Atlas Cycle Industries Ltd. Sonepat v. Their Workmen
1962 Supp. (3) SCR 89; Binay Kant Mani Tripathi v. Union
B of India & Others (1993) 4 SCC 49, relied on.
G.D. Karkare v. T.L. Shevde & Others AIR 1952 Nagpur
330, Ghanshyam Chandra Mathur v. The State of Rajasthan
& Others 1979 Weekly Law Notes 773; Dr. Chandra Bhan
Singh v. State of Rajasthan & Others AIR 1983 Raj. 149;
C Manendra Nath Rai & Another v. Virendra Bhatia & Others
AIR 2004 All. 133; Prem Chandra Sharma & Others v. Milan
Banerji & Others 2005 (3) ESC 2001 and Baishnab Patnaik
& Others v. The State AIR 1952 Orissa 60 and Gurpal Singh
v. State of Punjab & Others (2005) 5 SCC 136, referred to.
D
1.2. When the controversy is no longer res integra,
the filing of indiscriminate petitions raising the
controversy repeatedly, creates unnecessary straln on
the judicial system and consequently leads to inordinate
E delay in disposal of genuine and bona fide cases. [Para
9 and 24] [709-G-H; 704-E]
1.3. In the instant case, one of the petitioners before
the High Court was a local practicing lawyer. The State
of Uttrakhand was a part of the State of U.P. a few years
F ago. In the State of U.P., a large number of Advocate
Generals appointed were beyond 62 years of age at the
time of their appointment. The petitioner, ought to have
bestowed some care before filing the writ petition in
public interest under Article 226 of the Constitution.
G Similarly, it is the bounden duty of the court to ensure that
the controversy once settled by an authoritative judgment
should not be reopened unless there are extraordinary
reasons for doing so. [Para 20, 21 and 23) [708-C-E; 709E-F]
H
STATE OF UTTARANCHAL v. BALWANT SINGH
681
CHAUFAL & ORS.
2.1. Public interest litigation has been defined by this
A
Court* as a cooperative or collaborative effort by the
petitioner, the State or public authority and the judiciary
to secure observance of constitutional or basic human
rights, benefits and privileges upon poor, downtrodden
and vulnerable sections of the society. [Para 30) [711-DB
E]
*People's Union for Democratic Rights & Others v. Union
of India & Others (1982) 3 sec 235, relied on.
c
Black's Law Dictionary (6th Edition); Advanced Law
Lexicon; The Council for Public Interest Law, report of Public
Interest Law, USA, 1976, referred to.
2.2. Public interest litigation is an extremely important
jurisdiction exercised by the Supreme Court and the o
High Courts. It is the product of realization of the
constitutional obligation of the court. The Courts in a
number of cases have given important directions and
passed orders which have brought positive changes in
the country. Public interest litigation is upshot and
E
product of this court's deep and intense urge to fulfill its
bounden duty and constitutional obligation. The Courts'
directions have immensely benefited marginalized
sections of the society in a number of cases. It has also
helped in protection and preservation of ecology,
F
environment, forests, marine life, wildlife etc. etc. The
court's directions to some extent have helped in
maintaining probity and transparency in the public life.
[Para 31 and 33] [711-E-F; 712-C-E]
2.3. This court while exercising its jurisdiction of G
judicial review realized that a very large section of the
society because of extreme poverty, ignorance,
discrimination and illiteracy had been denied justice for
time immemorial and in fact they have no access to
justice. Pre-dominantly, to provide access to justice to the
H
682
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A poor, deprived, vulnerable, discriminated and
marginalized sections of the society, this court has
initiated, encouraged and propelled the public interest
litigation. [Para 34) [712-C-E]
8
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India & Others AIR 1981 SC 298; Bandhua Mukti
Morcha v. Union of India & Others AIR 1984 SC 802, referred
to.
2.4. Public interest litigation is not in the nature of
C adversary litigation but it is a challenge and an
opportunity to the government and its officers to make
basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them
social and economic justice which is the signature tune
D of our Constitution. The Government and its officers must
welcome public interest litigation because it would
provide them an occasion to examine whether the poor
and the down-trodden are getting their social and
economic entitlements or whether they are continuing to
E remain victims of deception and exploitation at the hands
of strong and powerful sections of the community and
whether social and economic justice has become a
meaningful reality for them or it has remained merely a
teasing illusion and a promise of unreattt,y, so that in case
F the complaint in the public interest litigation is found to
be true, they can in discharge of their constitutional
obligation root out exploitation and injustice and ensure
to the weaker sections their rights and entitlements. [Para
39] [713-H; 714-C-E]
G
H
Fertilizer Corporation Kamagar Union (Regd., Sindri &
Others v. Union of India & Others AIR 1981 SC 844;
Ramsharan Autyanuprasi & Another v. Union of India &
Others AIR 1989 SC 549, referred to.
STATE OF UTTARANCHAL v. BALWANT SINGH
683
CHAUFAL & ORS.
EVOLUTION OF PUBLIC INTEREST LITIGATION
A
3.1. The development of public interest litigation has
been extremely significant development in the history of
the Indian jurisprudence and it can be broadly divided in
three phases. The decisions of the Supreme Court in the
8
first phase in the 1970's loosened the strict locus standi
requiremehts to permit filing of petitions on behalf of
marginalized and deprived sections of the society by
public spirited individuals, institutions and/or bodies.
Most of the public interest litigation cases which were
entertained by the courts are pertaining to enforcement C
of fundamental rights under Article 21 of the Constitution,
of marginalized and deprived sections of the society. The
Supreme Court broadened the traditional rule of standing
and the definition of "person aggrieved". [Para 43 and 45]
[715-D-H; 716-A]
D
M. C. Mehta & Another v. Union of India & Others AIR
1987 SC 1086; Jasbhai Motibhai Desai v. Roshan Kumar,
Haji Bashir Ahmed & Others (1976) 1 SCC 671 ; Bar Council
of Maharashtra v. M. V. Dabholkar & Others 1976 SCR 306;
E
The Mumbai Kamgar Sabha, Bombay v. Abdulbhai
Faizu//abhai & Others AIR 1976 SC 1455; Sunil Batra v. Delhi
Administration & Others AIR 1978 SC 1675; Hussainara
Khatoon & Others v. Home Secretary, State of Bihar, Patna
AIR 1979 SC 1369; Prem Shankar Shukla v. Delhi
F
Administration AIR 1980 SC 1535; Municipal Council, Rat/am
v. Vardhichand & Others AIR 1980 SC 1622; S.P. Gupta v.
President of India & Others AIR 1982 SC 149; Anil Yadav &
Others v. State of Bihar and Bachcho Lal Das, Superintendent,
Central Jail, Bhagalpur, Bihar (1982) 2 SCC 195; Munna & G
Others v. State of Uttar Pradesh & Others, (1982) 1 SCC 545;
Sheela Barse v. State of Maharashtra AIR 1983 SC 378; Dr.
Upendra Baxi(/) v. State of Uttar Pradesh & Another 1983 (2)
SCC 308 ; Veena Sethi (Mrs.) v. State of Bihar & Others AIR
1983 SC 339; Labourers Working on Sala/ Hydro Project v.
State of Jammu & Kashmir & Others AIR 1984 SC 177; Shri
H
684
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A Sechidanand Pandey & Another v. The State of West Bengal
& Others (1987) 2 SCC 295; B. R. Kapoor & Anotherv. Union
of India & Others AIR 1990 SC 752 ; Smt. Nilabati Behera
alias Laltfa Behera v. State of Orissa & Others AIR 1993 SC
1960; Punjab and Haryana High Court Bar Association,
B Chandigarh through its Secretary v. State of Punjab & Others
(1994) 1 SCC 616; Navkiran Singh & Others v. State of
Punjab through Chief Secretary & Another ( 1995) 4 SCC 591;
Delhi Domestic Working Women's Forum v. Union of India
& Others (1995) 1 SCC 14; Citizens for Democracy v. State
C of Assam & Others (1995) 3 SCC 743; Paramjit Kaur (Mrs.)
v. State of Punjab & Others (1996) 7 SCC 20; M. C. Mehta
v. State of Tamil Nadu & Others (1996) 6 SCC 756; D. K.
Basu v. State of West Bengal (1997) 1 SCC 416; Vishaka &
Others v. State of Rajasthan & Others (1997) 6 SCC 241;
D Prajwala v. Union of India & Others (2009) 4 SCC 798;
Avinash Mehrotra v. Union of India & Others (2009) 6 SCC
398, referred to.
3.2. The second phase of public interest litigation
started sometime in the 1980's and it related to the courts'
E innovation and creativity, where directions were given to
protect ecology and environment, forests, marine life,
wild life, mountains, rivers and historical monuments etc.
with special attention to the problem of air pollution,
water pollution, environmental degradation. tpara 45 and
F 81) [729-F-G; 716-D]
M.C. Mehta & Another v. Union of India & Others AIR
1987 SC 1086; Rural Litigation and Entitlement Kendra,
Dehradun & Others v. State of U.P. & Others AIR 1985 SC
652; Chhetriya Pardushan Mukti Sangharsh Samiti v. State
G of U.P. & Others AIR 1990 SC 2060; Subhash Kumar v. State
of Bihar & Others AIR 1991 SC 420; M.C. Mehta v. Union of
India & Others (1988) 1 SCC 471; Ve/lore Citizens Welfare
Forum v. Union of'lndia & Others AIR 1996 SC 2715; M.C.
Mehta v. Union of India & Others AIR 1988 SC 1037; M.C.
H Mehta v. Union of India & Others AIR 1997 SC 734; A. P.
STATE OF UTIARANCHAL v. BALWANT SINGH
685
CHAUFAL & ORS.
Pollution Control Board v. Prof M. V. Nayadu (Retd.) & Others A
(1999) 2 SCC 718; Essar Oil Ltd. v. Halar Utkarsh Samiti &
Others AIR 2004 SC 1834, Karnataka Industrial Areas
Development Board v. Sri C. Kenchappa & Others AIR 2006
SC 2038; MC. Mehta v. Kamal Nath & Others (2000) 6 SCC
213; Managing Director, A.P.S.R. T.C. v. S. P. Satyanarayana B
AIR 1998 SC 2962; Re. Noise Pollution AIR 2005 SC 3136;
Indian Council for Enviro-Legal Action v. Union of India &
Others (1996) 5 SCC 281; and S. Jagannath v. Union of India
& Others (1997) 2 SCC 87, referred to.
3.3. In the third phase in the 1990' s, the Supreme C
Court expanded the ambit and scope of public interest
litigation further, and passed a number of judgments,
orders or directions to unearth corruption and maintain
probity, transparency, integrity and morality in the
governance of the State. The probity in governance is a D
sine qua non for an efficient system of administration and
for the development of the country and an important
requirement for ensuring probity in governance is the
absence of corruption. The High Courts also under
Article 226 followed the Supreme Court. (Para 106) (739E
E-G]
Vineet Narain & Others v. Union of India & Another AIR
1998 SC 889; Rajiv Ranjan Singh 'La/an' & Another v. Union
of India & Others (2006) 6 SCC 613.; M.C. Mehta v. Union
F
of India & Others (2007) 1 SCC 110; M.C. Mehta v. Union of
India & Others (2007) 12 SCALE 91; Centre for Public
Interest Litigation v. Union of India & Another AIR 2003 SC
3277; Pareena Swarup v. Union of India (2008) 13 SCALE
84; L. Chandrakumar v. Union of India & Others (1997) 3 SCC G
261, referred to.
3.4. The Indian courts may have taken some
inspiration from the group or class interest litigation of
the United States of America and other countries but the
shape of the public interest litigation as we see now is H
686
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A predominantly indigenously developed jurisprudence.
The public interest litigation as developed in various
facets and various branches is unparalleled. The Indian
Courts by its judicial craftsmanship, creativity and urge
to provide access to justice to the deprived, discriminated
B and otherwise vulnerable sections of society have
touched almost every aspect of human life while dealing
with cases filed in the label of the public interest litigation.
The credibility of the superior courts of India has been
tremendously enhanced because of some vital and
C important directions given by the courts. The courts'
contribution in helping the poorer sections of the society
by giving new definition to life and liberty and to protect
ecology, environment and forests are extremely
significant. [Para 159 and 160] [754-B-E]
D
Oshlack v Richmond River Council (1998) 193 CLR 72
: (1998) 152 ALR 83; Oliver Brown v. Board of Education of
Topeka 347 U.S. 483, 489-493 (1954); Association of Data
Processing Service Organizations v. William B. Camp 397
U.S. 150 (1970); Olive B. Barrows v. Leola Jackson 346 U.S.
E 249 (1953), 73 S.Ct. 1031; United States v. Students
Challenging Regulatory Agency Procedures (SCRAP) 412
US 669 (1973); Paul J. Trafficante v. Metropolitan Life
Insurance Company 409 U.S. 205 (1972) ; Thomas E.
Singleton v. George J. L. Wulff 428 U.S. 106 (1976); Caplin
F
v. Drysdale 491 U.S. 617, 623-24 n. 3 (1989); Robett Watth
v. Ira Seldin 422 U.S. 490, 511 (1975); James B. Hunt v.
Washington State Apple Advertising Commission, 432 U.S.
333, 343 (1977); Re. Reed, Bowen & Co. (1887) 19 QBD 174;
Attorney-General of the Gambia v. Pierre Sarr N'Jie (1961)
G AC 617; Regina v. Commissioner of Police of the Metropolis,
Ex patte Blackburn [1968] 2 W.L.R. 893 ("Blackburn I");
Blackburn v. Attorney-General [1971] 1 W.L.R. 1037); Regina
v. Commissioner of Police of the Metropolis, Ex parte
Blackburn [1973] Q.B. 241; Regina v. Greater London
H Council ex parte. Blackbum [1976] 1 W.L.R. 550; Attorney
STATE OF UTTARANCHAL v. BALWANT SINGH
687
CHAUFAL & ORS.
General Ex rel McWhirter v. Independent Broadcasting A
Authority, (1973) Q.B. 629; Gouriet v. Union of Post Office
Workers [1978] A.C. 435; Inland Revenue Commissioners v.
National Federation of Self-Employed and Small Businesses
Ltd. [1982) A.C. 617; Regina v. Secretary of State for the
Environment, Ex parte Rose Theatre Trust Co. (1990) 1 Q.B.
B
504; Soobramoney v. Minister of Health, KwaZulu-Natal, 1998
(1) SA 765 (CC); Ferreira v. Levin NO & Others 1996 (1) SA
984 (CC); S v. Twala (South African Human Rights
Commission Intervening), 2000 (1) SA 879; Xinwa & Others
v. Volkswagen of South Africa (PTY) Ltd. 2003 (4) SA 390, c
referred to.
3.5. The development of public interest litigation in
India has had an impact on the judicial systems of
neighbouring countries like Bangladesh, Sri Lanka,
Nepal and Pakistan and other countries. [Para 146) [750D
B-C]
General Secretary, West Pakistan Salt Miners Labour
Union (CBA) Khewra, Jhelum v. The Director, Industries and
Mneral Development, Punjab, Lahore 1994 SCMR 2061
E
(Supreme Court of Pakistan) ; Ms. Shehla Zia v. WAPDA
PLO 1994 Supreme Court 693, referr-ed to.
ABUSE OF THE PUBLIC INTEREST LITIGATION:
4.1. Unfortunately, of late, it has been noticed that
F
such an important jurisdiction which has been carefully
carved out, created and nurtured with great care and
caution by the courts, is being blatantly abused by filing
some petitions with oblique motives. Time has come
when genuine and bona fide public interest litigation G
must be encouraged whereas frivolous public interest
litigation should be discouraged. In considered opinion
of the Court this important jurisdiction has to be
protected and preserved in the larger interest of the
people of this country but for this purpose, effective H
688
SOPREME COURT REPORTS
(2010] 1 S.C.R.
A steps have to be taken to prevent and cure its abuse on
the basis of monetary and non-monetary directions by
the courts. [Para 161 and 162] [754-F-H]
BALCO Employees· Union (Regd.) v. Union -0f India &
8 Others AIR 2002 SC 350; Neetu v. State of Pubjab & Others
AIR 2007 SC 758; S.P. Anand v. HD. Deve Gowda & Others
AIR 1997 SC 272; Sanjeev Bhatnagar v. Union of India &
Others AIR 2005 SC 2841; Charan Lal Sahu & Others v.
Giani Zail Singh & Another AIR 1984 SC 309; J. Jayalalitha
v. Government of Tamil Nadu & Others (1999) 1 SCC 53;
C Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others
AIR 2008 SC 913, referred to.
Everywoman's Health Centre Society v. Bridges 54
B.C.L.R. (2nd Edn.) 294; Harris v. Marsh 679 F.Supp. 1204
D (E.D.N.C. 1987); Frye v. Pena 199 F.3d 1332 (Table), 1999
WL 974170, referred to.
4.2. The court should be careful that its jurisdiction
is not abused by a person or a body of persons to further
E his or their personal causes or to satisfy his or their
personal grudge or grudges. The stream of justice should
not be allowed to be polluted by unscrupulous litigants.
[Para 186] [763-A-B]
Dattaraj Nathuji Thaware v. State of Maharashtra &
F Others (2005) 1 SCC 590, referred to.
4.3. In the instant case, a practicing lawyer has made
a serious attempt to demean an important constitutional
office. The petitioner ought to have known that the
G controversy which he has been raising in the petition
stands concluded half a century ago by a Constitution
Bench of this Court and the controversy involved in this
case is no longer res integra. A degree of precision and
purity in presentation is a sine qua non for a petition filed
H by a member of the Bar under the label of public interest
STATE OF UTTARANCHAL v. BALWANT S1rJGH
689
CHAUFAL & ORS.
litigation. It is expected from a member of the Bar to at
A
least carry out the basic research whether the point
raised by him is res integra or not. The lawyer who files
such a petition cannot plead ignorance. The petitioner
ought to have refrained from filing such a frivolous
petition. This case is a clear case of the abuse of the
B
process of the court in the name of public interest
litigation. This tendency has to be curbed effectively.
[Para 189 and 190] [763-C-E-H; 764-A-B]
4.4. It is made it clear that the petitioner can ask the
C
court to review its own judgment because of flaws and
lacunae, but that should have been a bona fide
presentation with listing of all relevant cases in a
chronological order and a brief description of what
judicial opinion has been and cogent and clear request
why there should be re-consideration of the existing law.
D
Unfortunately, the petitioner has not done this exercise.
[Para 191] [764-C-E]
4.5. It may be pertinent to mention that, despite the
service of notice, the respondents, who had initially filed
E
the writ petition before the High Court challenging the
appointment of the Advocate General, did not appear
before this Court. This clearly demonstrates the nonseriousness and non-commitment of the respondents in
filing the petition. [Para 4] [697-C]
F
4.6. On consideration of the totality of the facts and
circumstan~es of the case, the proceedings of the writ
petition filed in the High Court are quashed. The
respondents-writ petitioners are directed to pay costs of
Rs.1,00,000/- (Rupees One Lakh) in the name of Registrar G
General of the High Court. Chief Justice of the High Court
would create a fund in the name of Uttarakhand High
Court Lawyers Welfare Fund, if not already. in existence.
It is abundantly made clear that 1the Court is not
discouraging the public interest litigation in any manner,
H
690
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A what the Court is trying to curb is its misuse and abuse.
[Para 192 to 194] [764-F-H; 765-A-C]
5. In order to preserve the purity and sanctity of the
PIL, it has become imperative to issue the following
8 directions:-
c
D
E
F
G
H
(1 j
The courts must encourage genuine and bona
fide PIL and effectively discourage and curb
the PIL filed for extraneous considerations.
(2)
Instead of every individual judge devising his
own procedure for dealing with the public
Interest litigation, it would be appropriate for
each High Court to properly formulate rules for
encouraging
the
genuine
PIL
and
discouraging the PIL filed with oblique
motives. Consequently, the High Courts who
have not yet framed the rules, should frame the
rules within three months. The Registrar
General of each High Court is directed to
ensure that a copy of the Rules prepared by
the High Court is sent to the Secretary General
of this Court immediately thereafter.
(3)
The courts should prima facie verify the
credentials of the petitioner before entertaining
a P.1.L.
(4)
The court should be prima facie satisfied
regarding the correctness of the contents of
the pP-tition before entertaining a PIL.
(5)
The court should be fully satisfied that
substantial public interest is involved before
entertaining the petition.
(6)
The court should ensure that the petition
which involves larger public interest, gravity
STATE OF UTTARANCHAL v. BALWANT SINGf'I
691
CHAUFAL & ORS.
and urgency must be given priority over other
A
petitions.
(7)
The courts before entertaining the PIL should
ensure that the PIL is aimed at redressal of
genuine public harm or public injury. The
B
court should also ensure that there is no
personal gain, private motive or oblique
motive behind filing the public Interest
litigation.
(8)
The court should also ensure that the petitions c
filed by busybodies for extraneous and ulterior
motives must be discouraged by Imposing
exemplary costs or by adopting similar novel
methods to curb friv~lous petitions and the
petitions filed for extraneous considerations.
D
[Para 198] [765-G-H; 766-A-H; 767-A·B]
Case Law Reference:
1962 Supp. (3) SCR 89
relied on
para 8
AIR 1952 Nagpur 330
referred to para 8
E
1979 Weekly Law
Notes 773
referred to para 11
AIR 1983 Raj. 149
referred to para 12
F
AIR 2004 All. 133
referred to para 13
2005 (3) ESC 2001
referred to para 14
(1993) 4 sec 49
relied on
para 16
G
AIR 1952 Orissa 60
referred to para 17
(2oos) 5 sec 136
. referred to para 18
(1982) 3 sec 235
relied on
para 30
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SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
AIR 1981 SC 298
referred to para 36
AIR 1984 SC 802
referred to para 37
AIR 1981 SC 844
referred to para 40
B
AIR 1989 SC 549
referred to para 41
AIR 1987 SC 1086
referred to μara 42
(1976) 1 sec 671
referred to para 47
1976 SCR 306
referred to para 48
c
AIR 1976 SC 1455
referred to para 50
AIR 1978 SC 1675
referred to para 51
AIR 1979 SC 1369
referred to para 52
D
AIR 1980 SC 1535
referred to para 53
AIR 1980 SC 1622
referred to para 54
AIR 1982 SC 149
referred to para 57
E
(1982) 2 sec 195
referred to para 59
(1982) 1 sec 545
referred to para 60
AIR 1983 SC 378
referred to para 62
F
1983 (2) sec 308
referred to para 63
AIR 1983 SC 339
referred to para 64
AIR 1984 SC 177
referred to para 65
(1987) 2 sec 295
referred to para 66
G
AIR 1990 SC 752
referred to para 67
AIR 1993 SC 1960
referred to para 68
(1994) 1 sec 616
referred to para 69
H
(1995) 4 sec 591
referred to para 70
STATE OF UTTARANCHAL v. BALWANT SINGH
693
CHAUFAL & ORS.
(1995) 1 sec 14
referred to para 71
A
(1995) 3 sec 743
referred to
para 72
(1996) 1 sec 20
referred to para 73
(1996) 6 sec 756
referred to para 74
B
(1997) 1 sec 416
referred to para 75
(1997) 6 sec 241
referred to para 76
(2009) 4 sec 798
referred to para 77
c
(2009) 6 sec 398
referred to para 78
AIR 1987 SC 1086
referred to para 86
AIR 1985 SC 652
referred to para 87
AIR 1990 SC 2060
referred to para 88
D
AIR 1991 SC 420
referred to para 89
(1988) 1 sec 471
referred to para 90
AIR 1996 SC 2715
referred to para 91
E
AIR 1988 SC 1037
referred to para 92
AIR 1997 SC 734
referred to para 93
(1999) 2 sec 718
referred to para 94
F
AIR 2004 SC 1834
referred to para 96
AIR 2006 SC 2038
referred to para 97
(2000) 6 sec 213
referred to para 98
AIR 1998 SC 2962
referred to para 100
G
AIR 2005 SC 3136
referred to para 101
(1996) 5 sec 281
referred to para 102
(1997) 2 sec a1
referred to
para 103
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[2010] 1 S.C.R.
A
AIR 1998 SC 889
referred to para 107
(2006) & sec 613
referred to para 108
(2001) 1 sec 110
referred to para 109
B
(2007) 12 SCALE 91
referred to para 111
AIR 2003 SC 3277
referred to para 112
(2008) 13 SCALE 84
referred to para 115
(1997) 3 sec 261
referred to para 115
c
(1998) 193 CLR 72 :
(1998) 152 ALR 83
referred to para 119
347 U.S. 483, 489-493
(1954)
referred to para 121
D
397 U.S. 150 (1970)
referred to para 122
346 U.S. 249 (1953),
73 S.Ct. 1031
referred to para 123
E
412 us 669 (1973)
referred to para 125
409 U.S. 205 (1972)
referred to para 126
428 U.S. 106 (1976)
referred to para 128
491 U.S. 617, 623-24
F
n. 3 (1989)
referred to para 128
422 U.S. 490, 511 (1975)
referred to para 129
432 U.S. 333, 343 (1977)
referred to para 129
G
(1887) 19 QBD 174
referred to para 131
(1961) AC 617
referred to para 132
[1968] 2 W.L.R. 893
("Blackburn I
referred to para 133
H
[1971] 1 W.L.R. 1037
referred to para 135
STATE OF UTTARANCHAL v. BALWANT SINGH
695
CHAUFAL & ORS.
[1973] Q.B. 241
referred to para 136
A
(1976] 1 W.L.R. 550
referred to para 137
(1973) Q.B. 629
referred to para 138
(1978] A.C. 435
referred to para 138
B
[1982] A.C. 617
referred to para 139
(1990) 1 Q.B. 504
referred to para 140
1998 (1) SA 765 (CC)
referred to para 141
c
1996 (1) SA 984 (CC)
referred to para 143
2000 (1) SA 879
referred to para 144
2003 (4) SA 390
referred to para 145
1994 SCMR 2061
D
(Supreme Court
of Pakistan)
referred to para 150
PLO 1994 Supreme
Court 693
referred to para 164
E
AIR 2002 SC 350
referred to para 163
AIR 2007 SC 758
referred to para 166
AIR 1997 SC 272
referred to para 167
F
AIR 2005 SC 2841
referred to para 168
c2oos) 1 sec 590
referred to para 169
AIR 1984 SC 309
referred to para 170
(1999) 1 sec 53
referred to para 171
G
AIR 2008 SC 913
referred to para 176
54 B.C.L.R. (2nd Edn.) 294
referred to para 177
H
A
B
c
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[2010] 1 S.C.R.
679 F.Supp. 1204 (E.D.N.C.
1987)
referred to
para 178
199 F.3d 1332 (Table),
1999 WL 974170
referred to para 180
(1992) 4 sec 305
relied on
para 184
(2003) 1 sec 546
relied on
para 185
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1134-1135 of 2002.
From the Judgment & Order dated 12. 7.2001 & 1.8.2001
of the High Court of Uttaranchal at Nainital in Civil Misc. Writ
Petition No. 689 M/B of 2001.
Dinesh Dwivedi, S.S. Shamshery, Rachna Srivastava for
D the Appellant.
E
F
P.N. Gupta for the Respondent.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. These appeals have been
filed by the State of Uttaranchal (now Uttarakhand) against the
orders dated 12. 7.2001 and 1.8.2001 passed by the Division
Bench of the High Court of Uttaranchal at Nainital in Civil
Miscellaneous Writ Petition No. 689 (M/B) of 2001.
2. The appointment of L. P. Nathani was challenged before
the High Court in a Public Interest Litigation on the ground that
he could not hold the august Office of the Advocate General of
Uttarakhand in view of Article 165 read with Article 217 of the
G Constitution. According to the respondent, Mr. Nathani was
ineligible to be appointed as the Advocate General because
he had attained the age of 62 years much before he was
appointed as the Advocate General. The High Court entertained
the petition and directed the State Government to take decision
H
STATE OF UTTARANCHAL v. BALWANT SINGH
697
CHAUFAL & ORS. [OALVEER BHANDARI, J.]
on the issue raised within 15 days and apprise the same to the A
High Court.
3. The State of Uttaranchal preferred special leave
petitions before this Court on 6.8.2001. This Court vide order
dated 9.8.2001 stayed the operation of the impugned judgment 8
of the High Court. Thereafter on 11.2.2002, this Court granted
leave and directed that the stay already granted shall continue.
4. It may be pertinent to mention that, despite the service
of notice, the respondents who had initially filed the writ petition
before the High Court challenging the appointment of Nathani C
as the Advocate General did not appear before this Court. This
clearly demonstrates the non-seriousness and non-commitment
of the respondents in filing the petition.
5. Before we proceed to examine the controversy involved o
in this case, we deem it appropriate to set out Articles 165 and
217 of the Constitution dealing with the post of the Advocate
General and the qualifications for appointment to this post in
the Constitution. Article 165 which deals with the appointment
of the Advocate General for the States is reproduced as under:
E
"165. The Advocate-General for the State.-(1) The
Governor of each State shall appoint a person who is
qualified to be appointed a Judge of a High Court to be
Advocate-General for the State.
F
(2) It shall be the duty of the Advocate-General to give
advice to the Government of the State upon such legal
matters, and to perform such other duties of a legal
character, as may from time to time be referred or
assigned to him by the Governor, and to discharge the G
functions conferred on him by or under this Constitution or
any other law for the time being in force.
(3) The Advocate-General shall hold office during the
pleasure of the Governor, and shall receive such
remuneration as the Governor may determine.
H
A
B
c
D
E
F
G
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[2010) 1 S.C.R.
6. Article 217 which deals with the appointment and the
conditions of the office of a Judge of a High Court is set out
as under:
217 - Appointment and conditions of the office of a Judge
of a High Court.- (1) Every Judge of a High Court shall
be appointed by the President by warrant under his hand
and seal after consultation with the Chief Justice of India,
the Governor of the State, and, in the case of appointment
of a Judge other than the Chief Justice, the Chief Justice
of the High court, and shall hold office, in the case of an
additional or acting Judge, as provided in article 224, and
in any other case, until he attains the age of sixty-two years:
Provided that-
(a) a Judge may, by writing under his hand addressed to
the President, resign his office;
(b) a Judge may be removed from his office by the
President in the manner provided in clause (4) of article
124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the Supreme
Court or by his being transferred by the President to any
other High Court within the territory of India.
(2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in the
territory of India; or
(b) has for at least ten years been an advocate of a High
Court or of two or more such courts in succession;
Explanation: For the purposes of this clause-
STATE OF UTIARANCHAL v. BALWANT SINGH
699
CHAUFAL & ORS. [DALVEER BHANDARI, J.]
(a) in computing the period during which a person has held
A
judicial office in the territory of India, there shall be included
any period, after he has held any judicial office, during
which the person has been an advocate of a High Court
or has held the office of a member of a tribunal or any post,
under the Union or a State, requiring special knowledge
B
of law;
(aa) in computing the period during which a person has
been an advocate of a High Court, there shall be included
any period during which the person has held judicial office
C
or the office of a member of a tribunal or any post, under
the Union or a State, requiring special knowledge of law
after he became an advocate;
(b) in computing the period during which a person has held
judicial office in the territory of India or been an advocate
D
of High Court, there shall be included any period before
the commencement of this Constitution during which he
has held judicial office in any area which was comprised
before the fifteenth day of August, 1947, within India as
defined by the Government of India Act, 1935, or has been
E
an advocate of any High Court in any such area, as the
case may be.
(3) If any question arises as to the age of a Judge of a
High Court, the question shall be decided by the President
after consultation with the Chief Justice of India and the
decision of the President shall be final."
F
7. The Division Bench of the High Court in the impugned
judgment observed that the first clause of Article 165 insists
that the Governor shall appoint a person as the Advocate
G
General who is qualified to be appointed as a Judge of a High
Court. The qualifications for the appointment of a Judge of a
High Court are prescribed in the second clause of Article 217.
It is true that the first clause of Article 217 says that a Judge of
a High Court "shall hold office until he attains the age of 60
H
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SUPREME COURT REPORTS
(2010) 1 S.C.R.
A years" (at the relevant time the age of retirement of a Judge of
the High Court was 60 years and now it is 62 years). The
Division Bench further held that the real question then was
whether this provision is to be construed as one prescribing a
qualification or as one prescribing the duration of the
s appointment of a Judge of a High Court. It was further held that
as the provision does not occur in the second clause, it can
only be construed as one prescribing the duration of the
appointment of a Judge of a High Court. The Court further
observed that the provisions about duration in the first clause
C of Article 217 cannot be made applicable to the Advocate
General because the Constitution contains a specific provision
about the duration of the appointment of the Advocate General
in the third clause of Article 165 which says that the Advocate
General shall hold office during the pleasure of the Governor.
D This provision does not limit the duration of the appointment
by reference to any particular age, as in the case of a Judge,
it is not permissible to import into it the words "until he attains
the age of sixty years". The specific provision in the Constitution
must, therefore, be given effect to without any limitation. If a
person is appointed as an Advocate General, say at the age
E of fifty-five years, there is no warrant for holding that he must
cease to hold his office on his attaining sixty two years because
it is so stated about a Judge of a High court in the first clause
of Article 217. If that be a true position, as we hold it is, then
the appointment is not bad because the person is past sixty
F two years, so long as he has the qualifications prescribed in
the second clause of Article 217.
8. Shri Dinesh Dwivedi, the learned senior counsel
appearing for the State of Uttarakhand submitted that, over half
G a century ago, in G.D. Karkare v. T.L. Shevde & Others AIR
1952 Nagpur 330, this controversy has been settled by the
Division Bench of the Nagpur High Court and the said judgment
was approved by a Constitution Bench of this Court in the case
of Atlas Cycle Industries Ltd. Sonepat v. Their Workmen 1967
H Supp. (3) SCR 89. In Karkare's case (supra), it w~s observed
STATE OF UTTARANCHAL v. BALWANT SINGH
701
CHAUFAL & ORS. [DALVEER BHANDARI, J.]
as follows:
A
"25. It is obvious that all the provisions relating to a Judge
of a High Court cannot be made applicable to the
Advocate-General. The provisions about remuneration are
different for the two offices. A Judge of the High Court is
B
governed by Art. 221. The Advocate-General is governed
by clause (3) of Art. 165 and receives such remuneration
as the Governor may determine.
26. What the first clause of Art. 165 insists is that the
Governor shall appoint a person who is qualified to be
C
appointed a Judge of a High Court to be AdvocateGeneral for the State. The qualifications for the
appointment of a Judge of a High Court are prescribed in
the second clause of Art. 217. It is true that the first clause
of Art 217 says that a Judge of a High Court "shall hold
D
office until he attains the age of 60 years". The real
question then is whether this provision is to be construed
as one prescribing a qualification or as one prescribing
the duration of the appointment of a Judge of a High Court.
As the provision does not occur in the second clause, it
E
can only be construed as one prescribing the duration of
the appointment of a Judge of a High Court.
27. The provision about duration in the first clause of Art.
217 cannot be made applicable to the Advocate-General
because the Constitution contains a specific provision
about the duration of the appointment of the AdvocateGeneral in the third clause of Art. 165 which says that the
Advocate-General shall hold office during the pleasure of
F
the Governor. As this provision does not limit the duration
of the appointment by reference to any particular age, as
G
in the case of a Judge, it is not permissible to import into
it the words "until he attains the age of sixty years". The
specific provision in the Constitution must therefore be
given effect to without any lir.f!ation. If a person is
appointed Advocate~General, say.at the age of fifty-five,
H
'
.
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B
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G
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SUPREME COURT REPORTS
[2010] 1 S.C.R.
there is no warrant for holding that he must cease to hold
his office on this attaining sixty years because it is so stated
about a Judge of a High Court in the first clause of Art.
217.