BABUBHAI JASHBHAI PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) High Policy Decisions which can make or mar better or bitter Central-State relationsare these to be made by the Political Managers of the State chosen by the people in that behalf or by private citizens (even if they are leaders of the elected Opposition) is one of the questions which has surfaced in this matter. It has surfaced along with the question whether such private citizens can be permitted to fling a challenge in the name of promoting interest of the State which if successful can ruin the economy of the State and create economic chaos. Such would be the outcome because if the impugned notifications are voided there will exist no legal authority whatsoever for recovering royalty/for the crude oil produced in the state (being collected at Rs.61.00 per metric tonne) which is considered rather low by the petitioners. Not only that even the royalty recovered for several years in the past may well have to be refunded. And yet another important question has also been raised: Whether Article 131 (which excludes the jurisdiction of all Courts except the Supreme Court in regard to suits for resolving disputed claims between State and Centre) of the Constitution of India not with standing this Court should exercise its High Prerogative discretionary jurisdiction virtually in order to enable circumvention thereof. Circumvention at the instance of private citizens not in charge of the running of the affairs of the State in a sensitive matter where National Interest is pitted against State Interest and a delicate balancing act of a tight rope walker is called for from the forum which undertakes this task.

(2.) Two Opposition Members of the Legislative Assembly one of whom is an ex Chief Minister (Petitioner No. 1) and the other is the Leader of Opposition in the Legislative Assembly along with the editor of a Weekly known as Lok Swaraj have instituted the present petition under Article 226 of the Constitution of India as in their view royalty paid to the State of Gujarat is extremely low and inadequate. The substantive relief claimed is the prayer contained in Paragraph 26(b) whereby the following notifications issued under the provisions of the Oilfields (Regulation and Development) Act 1948 have been challenged as illegal invalid and unconstitutional. The details of the notifications challenged are as follows. <FRM>JUDGEMENT_690_GLR2_1982Html1.htm</FRM> In order to substantiate the challenge to the aforesaid notifications petitioners have challenged the Constitutionality of the provisions of the Oilfields (Regulation and Development) Act 1948 (thereinafter referred to as Oilfields Act) and Rule 14(1) of the Petroleum and Natural Gas Rules 1959

(3.) Now it is common ground between the parties that a representation has already been made by the State Government to the Central Government in this behalf. In fact Union of India has placed on record a statement marked Annexure X made by the Minister of Petroleum & Chemicals & Fertilizers on the floor of the Parliament on 10/08/1982 in response to unstirred Question No. 4875 which shows that the matter is under consideration (See Answer C). Counsel for the Union of India has therefore raised an objection at the threshold relying on the provision contained in Article 131 of the Constitution of India which provides that subject to the provision of the Constitution the Supreme Court shall to the exclusion of any other Court have original jurisdiction inter alia in any dispute between Government of India and one or more States if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. In view of the provision contained in Article 131 it is clear that if the State of Gujarat claims a legal right to payment of royalty at a higher rate the dispute can be resolved only by the Supreme Court to the exclusion of any other Court. It is for the State of Gujarat to decide whether to press its claim for royalty at a higher rate by having political dialogue with the Central Government in the context of the relevant circumstances or to approach a legal forum. The State Government can make recourse to that mode of resolution of the dispute which it considers expedient and in the interest of the State and in National interest. If the State of Gujarat is of the opinion that it is a matter wherein it has any legal right which has to be asserted in a judicial forum recourse has to be made to Article 131 of the Constitution of India by instituting an appropriate proceeding in the Supreme Court. It is a high policy decision which the State Government has to make. The right of the State Government to take such a policy decision cannot be usurped by any citizen claiming to have interest of the State of Gujarat at heart by initiating a proceeding on his own by invoking the jurisdiction of this Court under Article 226. Nor can the option of the State Government to make an appropriate decision be pre-empted or foreclosed by such an approach. In a Parliamentary democracy the interest of the State and management of its affairs is entrusted to the State Government and it is the State Government which is the custodian of the rights and interests as also of the affairs of the State. In matters pertaining to rights which the State Government claims vis-a-vis the Central Government in the matter of fixation of royalty the State Government has to exercise its option and take a fully informed decision which in the Opinion of the State Government will preserve and promote the interest of the State and National interest. The right to adopt the course which is considered most appropriate and suitable by the State Government elected by the democratic process cannot be taken over from the State Government and exercised by private individuals who claim to have the interest of the State at heart. That they themselves are Members of the Legislative Assembly and have held high position in the Government in the past does not alter the situation. In fact to permit private citizens to institute a legal proceeding in such a matter would be tantamount to permitting circumvention of the Constitutional bar created by Article 131 which excludes the jurisdiction of Courts other than the Supreme Court in regard to matters between State and the Government of India. No doubt Article 131 will not be directly attracted when a party other than a State Government initiates proceedings. (See The State of Bihar v. The Union of India And Another A.I.R. 1970 S.C. 1446). But not only the letter but also the spirit of the provision has to be embossed on the mental screen. Why did the Founding Fathers make such a provision in the Constitution ? For the obvious reason that in a partly federal structure like that of India the paramount consideration is that of NATIONAL INTEGRATION and the gravest danger that of DISINTEGRATION. To guard against such a danger disputes between the States and the Center are required to be resolved in the Highest Court of the land which is the ultimate repository of the faith of the the Nation. And the apex Court being the custodian of National Interest as polarized from provincial or sectional interest is entrusted with the delicate and sensitive task of striking balance between two competing goals. On the one hand to ensure that narrow self interest of a State does not overshadow larger good of the Nation as a whole. On the other hand to ensure that legitimate aspirations of a State are not denied unless the genuine compulsions of National Interest so demand. And that is why the Highest Court has been conferred with the exclusive jurisdiction in this behalf by the Constitution. What the State Government itself cannot do in respect of its right to claim royalty at an enhanced rate private citizens cannot be permitted to do by initiating proceeding on their own. The prestigious label of public interest litigation notwithstanding in fact what petitioners are doing is to assert the claim of the State Government vis-a-vis the Government of India there in after referred to as G.O.I). Whether the proceedings are initiated in the Dame of the State-Government or in the name of private individuals who claim to be doing so by way of a public interest litigation the lis in substance remains a lis between the State of Gujarat on the one hand and G.O.I. on the other though in form it may not be so. (And what really matters is the substance-not the form). What cannot be done directly by the State Government cannot be permitted to be done indirectly by circumventing the bar of Article 131 of the Constitution by private citizens claiming to do so on their own in the name of a public interest litigation. This is the first hurdle in the way of the petitioners.