2009 Supreme(Mad) 2307

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
PSA Sical Terminals Limited
Versus
Union of India rep.by its Secretary & Another
Writ Petition No.9746 of 2009
Decided on: 13-07-2009

Ratios:
a. When a policy decision of the Government is equally in force and applicable in Chennai and that is under challenge, the Principal bench of High Court in Madras can entertain writ petition over that matter.
b. Unless the policy decision of the Government is capricious or arbitrary and not informed by any reason whatsoever, it is not permissible for the High Court to interfere with the same.
c. Government may not stick on to its policy decision all times. It may change it.
d. In policy matters especially in economic matters, the Court would not interfere with the decision of the Government.
e. Courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The Courts must act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest.
f. A decision would be called as per incurium or sub-silentio when some applicable rule of law was missed by the Court and the Court would have decided the case differently if that material had been placed before the Court.

Headnote:(A) Constitution of India-Art.226-Major Port Trusts Act, 1963 (38 of 1963)-Sec.111-High Court-Jurisdiction-Cause of action-Sub-silentio-Per incurium-Policy decision-Economic decision of Government-Change of policy-Interference by Court-Petitioner had already taken contract to establish and operate container terminal-Clause in the contract permits the petitioner to participate in the bid for similar projects-Later, Government changed its policy and restricted each player for a maximum of two terminals-2nd respondent initiated process to establish container terminal in Tuticorin-Petitioner was not permitted to bid for it in view of changed policy-Petitioner challenged it by invoking the right already reserved-Respondent contested it and stated that the High Court bench in Madras has no jusrisdiction, contract cannot be enforced in writ jurisdiction, permission was not given only in view of policy change of Government and it is justified by the terms of previous contract itself-Held, Policy change was effected by the Government and this change was under challenge. Since Government is having its offces in Chennai and the changed policy is effective in Chennai also, the Principal bench of High Court in Madras is having jurisdiction over the matter-Original contract itself provides for the contingency of change of policy by Government and in view of change of policy, denial of permission to the petitioner is justified-In policy matters especially in economic matters, the Court would not interfere with the decision of Government-Writ petition dismissed.

       (B) Constitution of India-Art.226-High Court-Jurisdiction-Cause of action-Interference by Court-When a policy decision of the Government is equally in force and applicable in Chennai and that is under challenge, the Principal bench of High Court in Madras can entertain writ petition over that matter.

       Mandamus has been sought for in the matter of a policy decision of the Union of India, who is the first respondent herein, and the second respondent is located within the State of Tamil Nadu. The policy in question has been issued by the Union of India and it has got application to the Ports in Chennai as well as Tuticorin. Hence, the Principal Seat at Madras and the Bench at Madurai have jurisdiction to deal with the matter in respect of a part of cause of action, which arose within the jurisdiction of the Principal Bench and the Madurai Bench. Para 11

       The circumstance in which the policy has to be given effect to to the Ports situated in the State of Tamil Nadu is a part of cause of action for this Court at Madras, based upon which the petitioner is seeking for a relief of mandamus. Para 12

       Besides, the petitioner has not challenged any of the proceedings, which emanated from the place of the respondent i.e., Tuticorin. Instead, what is sought for is only a mandamus. In the absence of any challenge to any of the proceedings of the second respondent, the writ of mandamus, as sought for based on the policy decision of the Union of India, with no iota of doubt, can be maintained before this Court at Chennai itself.

       Para 13

       (C) Constitution of India-Art.226-Writ jurisdiction-Policy decision-Challenge- Unless the policy decision is capricious or arbitrary and not informed by any reason whatsoever, it is not permissible for the High Court to interfere with the same.

       Unless it is demonstrated that the policy decision is capricious or arbitrary and not informed by any reason whatsoever, it is not permissible for this Court to interfere with the same. Para 18

       Anything done in line with the policy decisions of Governments cannot be subjected to litigations. Para 20

       (D) Constitution of India-Art.226- Writ jurisdiction- Policy decision-Economic decision of Government-Change of policy-Interference by Court- Government may not stick on to its policy decision all times. It may change it-In policy matters especially in economic matters, the Court would not interfere with the decision of Government.

       In matters of economic policy, the Courts give a large leeway to the executive and the legislature. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy is necessary in public interest, it would be entitled to revise the policy and lay down a new policy. Para 21

       (E) Administration of justice-Seperation of powers-Interference by Court in the decision of Government- Courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The Courts must act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest.

        In exercise of their enormous power, the Courts should not be called upon to undertake governmental duties or functions. The Courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The Courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason, in matters of policy, the Courts will not interfere. When there is a valid law, requiring the Government to act in a particular manner, the Courts ought not to, without striking down the law, give any direction, which is not in accordance with law. Para 22

       (F) Administration of justice-Precedents-Sub-silentio-Per incurium- A decision would be called as per incurium or sub-silentio when some applicable rule of law was missed by the Court and the Court would have decided the case differently if the material had been argued before the Court.

       A decision shall be construed to be sub silentio and per incurium, if, in that case, a statute or rule having statutory effect was not brought to the attention of the Court, which means some applicable rule of law was missed by the Court and the Court would have decided the case differently if the material had been argued before the Court. The significance of a judgment having been decided sub silentio and per incurium is that it need not be followed as a precedent by a lower Court.

       Para 28