Courts cannot legislate or direct the legislature to enact laws in a particular manner.

JUDGMENT :

B.S. Chauhan, C.J. - This writ petition has been filed as a PIL for issuing derection to the State of Orissa for formulating the guidelines/norms for setting up of retail outlets along the National Highways, State Highways, Major District Roads and other District Roads in the State of Orissa.

2. Petitioner is an Association of Petroleum Dealers and has filed this petition in public interest for laying down the Rules statutory in nature and for strict adherence/ observance thereof as the public at large would be benefited by it.

3. Learned Counsel for the Petitioner has submitted that the Petitioner's association is interested in the safety and welfare of the people at large and it is not seeking any direction that no retail outlet shall be established. Therefore, it has filed a petition issuing direction to the State of Orissa to formulate statutory provisions or at least guidelines analogous to the guidelines framed by the Union of India from time to time fixing the distance etc. between two petrol pumps depending upon the nature of the highway or width of the roads.

4. On the other hand, learned Standing Counsel has opposed the petition contending that in case this Court provides any guidelines it would amount to legislation and in case Court directs the State authorities to make the Rules/guidelines it would amount to direct to legislate. Both the Courses are not available as the Court can neither legislate nor can direct to legislate in a particular manner. So far the existing norms issued by the Union of India are concerned, the same are to be observed strictly.

5. In the counter affidavit it has been stated by the opposite partics-authorities that in lage number of cases, where the guidelines issued by the Central Government has not been complied with and when the grievance raised, by any person, it has been examined and restrained. In some cases where persons are not satisfied, they had also approached the Courts and appropriate directions have been issued, 6. We have considered the rival submissions made by the learned Counsel for the parties and perused the record.

7. In Mallikarjuna Rao and Others Vs. State of Andhra Pradesh and Others, the Apex Court has held that Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law making power. The Court observed that it is neither legal nor proper for the High Court to issue direction or advisory sermons to the Executive in respect of the sphere which IS exclusively within the domain of the Executive under the Constitution. The power under Article 309 of the Constitution to frame rules is the legislative power this power under the Constitution has to be exercised by the president or the Governor of a State, the case may be. The Courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the Executive under Article 309 of the Constitution.

8. While deciding the said case, the Hon'ble Court placed reliance on a large number of judgment, particularly Narinder Chand Hem Raj and Others Vs. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Others, .

9. In State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla and Others the Supreme Court deprecated the practice adopted by the Courts to issue directions to the legislature to enact a legislation to meet a particular situation and opined as under:

...The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the chief Secretary on behalf of the State Government that the Government will introduce legislation if f