The present petition has been filed by the petitioner under Article 226 of the Constitution of India and also under sec. 482 read with sec. 197 of the Code of Criminal Procedure, 1973, for the following prayers on the grounds stated in the memo of petition: “(A) Your Lordships may be pleased to issue appropriate writ, order or direction including in the nature of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 26.7.2012 passed by Her Excellency, the Governor of Gujarat State (Annexure-A), in the interest of justice;
(B) Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 26.7.2012 passed by Her Excellency, the Governor of Gujarat (Annexure-A), pending admission, hearing and final disposal of this petition, in the interest of justice;
(C) Your Lordships may be pleased to grant such aid firmer communication as the nature and circumstances of the case may require, in the interest of justice.”
2. It has been, inter alia, contended that the Her Excellency the Governor has no discretion or authority to pass the impugned order as per the provisions of Art. 163. It is contended that H.E. the Governor has no discretion or authority to take any contrary decision in any manner and the Governor acts through the Council of Ministers. It is contended that as per the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh v. State of Punjab, reported in (1974) 2 SCC 831, the Governor has a right “to be consulted, to encourage and to warn” only. Therefore, it is contended that Her Excellency the Governor has acted contrary to the aid and advice of the Council of Ministers and such a decision/impugned order is alien to the Constitution.
3. It is also contended that the decision of the Hon'ble Apex Court in the case of M.P. Special Police Establishment v. State of M.P. & ors., reported in (2004) 8 SCC 788 is not applicable as the facts of the said judgment are totally different. It is contended that the Rules of Business has already been framed by Her Excellency the Governor for the State of Gujarat and item No. 9 refers to the business of prevention of corruption and the Governor has framed the rules with the aid and advice of the Council of Minsters. After framing of such rules, the same has to be executed by the Ministers, Officers in accordance with law and the constitutional provisions. It is therefore contended that there is an inherent lack of jurisdiction on the part of Her Excellency the Governor to pass the impugned order. It is contended that our country has accepted the parliamentary system of democracy with federal structure and the Council of Ministers are the real executives.
4. It is therefore contended that there is no material to show how the Council of Minsters collectively or members of the Council individually were in any way biased. A reference is made to the judgment of the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) wherein it has been observed, “.....But the doctrine of “apparent bias”, however, may not be applicable in a case where a collective decision is required to be taken ”
5. It is therefore contended that while passing the impugned order, Her Excellency the Governor has appreciated and re- appreciated the material instead of satisfying the constitutional requirement of the decision making process and therefore the same is bad in law. Her Excellency the Governor has therefore erred in applying the principle of quid pro quo and has erred in holding that after relying on different files/material/proceeding that would show that the minister was interested in getting the contract issued on the very next day of taking the decision. It is also contended that the Governor has erred in coming to the conclusion that extraneous reason could and would mean for financial benefit. It is contended that the difference between the allegation and evidence at least prima facie is completely ignored by the Her Excellency the Governor. It is contended that the basic principles for grant of sanction for prosecution have not been considered. It is contended that the petitioner would face the end of his political career because of such frivolous allegations if the order granting sanction for prosecution is allowed to be sustained.
6. Learned Sr. Counsel Shri P.M. Thakkar appearing for M/s.
Thakkar Associates for the petitioner has submitted that the present petition raises important issues about the functions of the Government and the interpretation of the Constitution. He emphasised that the factual assertions made in the order of H.E. the Governor are not existent and, therefore, the present petition may be allowed.
7. Learned Sr. Counsel Shri P.M. Thakkar submitted that the Governor has not considered the papers independently and in fact has proceeded on the assumption that the observations made by the Division Bench of this Court in Special Civil Application No. 9958 of 2008 with Special Civil Application No. 10918 of 2008 are binding. He emphasised that H.E. the Governor has proceeded on the footing that the decision was required to be taken for grant of sanction without consideration of the material independently. Learned Sr. Counsel Shri Thakkar submitted that it is required to be noted that even the judgment of the Division Bench of this Court in Special Civil Application No. 9958 of 2008 with Special Civil Application No. 10918 of 2008 has not made any observation with regard to the petitioner herein as he was not even a party in that proceeding. He emphasised that what the Court had observed was “extraneous reasons” while setting aside the decision of the Government in deviating from the policy in awarding fishing contracts without tender.
8. Therefore, learned Sr. Counsel Shri Thakkar has submitted that it is in this background the Court is required to consider two important aspects with reference to the scheme of the Constitution and the federal structure of our Constitution. Learned Sr. Counsel Shri Thakkar referred to Art. 163 and submitted that the Governor has no discretion and has to take decision as per the aid and advice of the Council of Ministers as per the constitutional provisions. It was submitted that in fact there is no occasion which can be said to have arisen for the Governor to take an independent decision.
9. Learned Sr. Counsel Shri Thakkar submitted that the Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh v. State of Punjab, reported in (1974) 2 SCC 831, has clearly laid down that the Governor has no discretion and has to act as per the “aid and advice” of the Council of Ministers. He has pointedly referred to the observations in Para 151 and 154. He emphasised the observation, “The omnipotence of the President and the Governor at State level is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture-lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the Head of State. A parliamentary style Republic like ours could not have conceptualised its self-liquidation by the process. On the contrary, democratic capital formation to strengthen the people's rights can be achieved only through invigoration of the mechanism of Cabinet-House-Elections.”
Further, he has also referred to the observations made in para 139 and submitted, “...These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to Ministerial advice.”
10. Therefore, learned Sr. Counsel Shri Thakkar submitted that excepting cases where the Constitution itself confers discretion upon the President or the Governor, as the case may be, the decision has to be taken by the Governor only in conformity with and on the aid and advice of the Council of Ministers. Learned Sr. Counsel Shri Thakkar submitted that there is no such situation which is created for exercise of the discretion. He, therefore, emphasised and submitted that the discretion has to be exercised as per the constitutional provisions only. Learned Sr. Counsel Shri Thakkar submitted that there are only two functions which are outside the executive discretion, (1) quasi- judicial, and (2) legislative decision.
11. Learned Sr. Counsel Shri Thakkar submitted that the background of the facts is also required to be appreciated for which he referred to the papers. He submitted that the decision was taken by the Government to award the fishing contracts without inviting tenders for the reason, namely, that it was considered and thought desirable to give such contracts without tenders. He submitted that it was found that if the tenders are invited, only big contractors can fill in and get the contracts and the local community who are surviving on such fishing would not be able to compete in getting the contracts pursuant to the tender. Further, for such project/reservoir persons have been affected and to provide them with employment and a source of livelihood, if the policy is made by the government to grant contract of fishing in respect of such affected persons, it cannot be said that there is any illegality. Learned Sr. Counsel Shri Thakkar submitted that it is a matter of policy which the Government in a democracy is entitled to have considering the situation and therefore it cannot be said that the Minister is responsible or there is any motive.
12. Learned Sr. Counsel Shri Thakkar submitted that, however, the decision of giving contracts without tenders was a matter of litigation before the Division Bench of this High Court by way of Special Civil Application No. 9958/2008 with Special Civil Application No. 10918 of 2008 and this Court set aside the said decision of the Government of granting the contracts without inviting tenders and the contracts for fishing lease granted to the concerned societies were quashed and set aside. Learned Sr. Counsel Shri Thakkar submitted that it is required to be mentioned that the contracts for fishing lease were granted in favour of such societies of which local persons were members and were earning their livelihood. It is not that any favour is made to one individual. Learned Sr. Counsel Shri Thakkar submitted that the Division Bench of this High Court had set aside the said contracts as it was given without inviting tenders, but the decision was found to be for “extraneous reasons” and not for “extraneous considerations.” Therefore, Learned Sr. Counsel Shri Thakkar submitted that merely because the decision awarding contracts for fishing lease were set aside by itself would not be sufficient to presume any kind of ill-motive by the Minister, the petitioner herein. Learned Sr. Counsel Shri Thakkar emphasised that in that matter the petitioner was not even a party and nothing adverse is observed against him, but what has been considered is a decision of the Government or the policy of the Government of awarding the contract of lease for fishing without tenders.
13. He submitted that many decisions of the Government which are taken as a collective decision based on some policy matters are not accepted in judicial scrutiny, but it would not lead to any presumption of corruption. Learned Sr. Counsel Shri Thakkar strenuously submitted that these aspects have not been appreciated by the Governor and the Governor under the erroneous presumption about ill-motive of the petitioner verified the files, herself took upon the inquiry and came to the conclusion while granting the sanction that prima facie material is found involving the present petitioner. Learned Sr. Counsel Shri Thakkar submitted that this approach of the Governor is alien to the Constitution and the constitutional provisions. Learned Sr. Counsel Shri Thakkar submitted that, therefore, the decision of the Governor is erroneous in both ways, inasmuch as it is alien to the constitutional provision and even on facts it is based on the presumptions and surmises without proper appreciation of the relevant record which has to do with the policy of the Government.
14. Learned Sr. Counsel Shri Thakkar submitted that the Governor ought to have appreciated that in a democracy like ours, decisions are taken at the Government level by the Council of Ministers. In the same way, the decision to give the lease for fishing contracts was given as a part of the government policy for the reasons stated above and the decision was taken in a meeting headed by the Minister of the Fisheries Department and not by the present petitioner, who is a Minister of State. Learned Sr. Counsel Shri Thakkar submitted that the decision was taken for giving the contracts of lease for fishing without inviting tenders and it was a conscious decision taken in the meeting and not by the petitioner himself. Therefore, there is a collective decision of the committee and it was presided over by the Minister of Fisheries and not by the petitioner who is a Minister of State. Learned Sr. Counsel Shri Thakkar submitted, therefore, that these aspects have not been considered.
He submitted that a state level minister does not have power to take the decision and therefore all the decisions have been taken as required under the Rules of Business and not by the petitioner, which is not appreciated.
15. Learned Sr. Counsel Shri Thakkar submitted that the decision, which was a subject-matter of litigation where the contracts of fishing lease were quashed and set aside, have been accepted by the Government and it would not itself suggest that there was any corruption or the petitioner had any corrupt motive. He submitted that therefore the inference cannot be drawn with regard to any corruption or corrupt motive by the petitioner in absence of any other material.
16. Learned Sr. Counsel Shri Thakkar, again, referred to the provisions of Art. 163 and submitted that as required under the law, while considering such application for grant of sanction, the authority like the Governor is required to consider only the material and not making any inquiry. It was submitted that if the earlier round of litigation where the decision of the Government for awarding the contracts without tender had been set aside is not attributing any corrupt motive to the petitioner, then, it only remains as to what was the further material on the basis of which the impugned decision is taken by the Governor.
17. Learned Sr. Counsel Shri Thakkar pointedly referred to the petition and submitted that the petition which has been filed by respondent No.3 being Special Criminal Application No. 2226 of 2010 again was to challenge the decision/order refusing to grant sanction and the reliance was placed mainly on the affidavit of Jeraji Monaji Pagi. Learned Sr. Counsel Shri Thakkar submitted that it is required to be appreciated the manner in which the allegations are levelled that respondent No.3 states that he had come to know that money was demanded from Mr. Pagi and others and that was for the purpose of contract of lease for fishing given to the society of which Shri Pagi was a member. It further records that the sequence of events which has also been reflected by this Court while passing the order in Special Criminal Application No. 2226 of 2010 dated 30.3.2012 clearly refers to this aspect that at no point of time the present respondent No.3 who was the petitioner in that petition averred or alleged in earlier petition that the present petitioner, respondent No.2 therein, had acted in any manner to attract the provisions of the Prevention of Corruption Act. Learned Sr. Counsel Shri Thakkar therefore submitted that the main basis was the affidavit of Shri Pagi which was secured much later inasmuch as the affidavit clearly states that Shri Pagi had gone to the petitioner in December 2009 after the contracts were awarded in 2008, and there was an alleged demand and when Shri Pagi is said to have stated that he has no provision, the petitioner is said to have agreed that he may pay later on next time. It is in this background the charges levelled against the petitioner are required to be appreciated for which Learned Sr. Counsel Shri Thakkar pointedly referred to the papers and invited the attention. The following observations are made by this High Court in its order passed in Special Criminal Application No. 2226 of 2010 (Coram: H.N. Devani, J.) dated 30.3.2012 :
“...In fact, respondent No.2 was not even joined as party respondent in the above petition. It is further averred that the petitioner has never alleged that any illegal gratification or bribe is paid by him to respondent No.2 or that the same is demanded from him by the respondent No.2. That in the background of the aforesaid sequence of events which had taken place, it would be amply clear that at no point of time, the petitioner had in the earlier petition averred or alleged that the respondent No.2 has acted in any manner as to attract the provisions of the Prevention of Corruption Act. It is further stated that the petitioner has placed on record the affidavit of Pagi Jeraji Monaji dated 24th December, 2009 who was not the petitioner. Pagi Jeraji Monaji was granted contract of fishing by an order dated 6th August, 2008 which came to be terminated in view of the judgment and order of this High Court. Pagi Jeraji Monaji has stated in the affidavit dated 29th December, 2009 that he had gone to respondent No.2 and a demand of Rs. 30 lakhs was made and only thereafter he had been given the contract. It is contended that Pagi Jeraji Monaji has not stated that any amount was ever paid by him and that if that was his case, he would not have remained silent for a long period of time. It is also averred that Pagi Jeraji Monaji had not made any representation, application or any complaint either to the State Government or to any authority or before the court and that he was not a bidder nor any contract is/was given to him in his individual capacity. Though the affidavit made by Pagi Jeraji Monaji is stated to have been affirmed by him on 24th December, 2009, the notary has signed the same on 24th November, 2009 which raises serious doubts about the authenticity and genuineness of the said affidavit. That on the basis of such an affidavit, the petitioner has based a case that the State Government has suffered a loss to the extent of Rs. 45 crores by giving such contract and, therefore, respondent No.2 has taken illegal gratification and thereby invited the applicability of the provisions of Prevention of Corruption Act.”
18. Learned Sr. Counsel Shri Thakkar, therefore, submitted that the Court is required to consider whether there was any material which prima facie was sufficient to suggest the alleged involvement of the present petitioner in the offences under the Prevention of Corruption Act. Learned Sr. Counsel Shri Thakkar strenuously submitted that if the affidavit of Shri Pagi is kept aside, there is no other evidence or material as there is no scope of any inquiry or investigation. Similarly, he emphasised that the said affidavit cannot inspire confidence. Therefore, Learned Sr. Counsel Shri Thakkar submitted that reference is made to the order of the Division Bench of this High Court to impute a motive to the petitioner without any context or relevance and therefore even considering the material and facts on record, the decision of the Governor is erroneous.
19. Learned Sr. Counsel Shri Thakkar again referred to the order of this High Court in Special Criminal Application No. 2226 of 2010 dated 30.3.2012 and emphasised the observations made particularly in para 34 and submitted that in earlier round the decision was stated to have been taken by the Secretary and therefore the High Court had observed that the decision is required to be taken keeping in light the constitutional provision of Art. 163, 166 and the Rules of Business as well as the observations made by the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra). Learned Sr. Counsel Shri Thakkar submitted that in Special Criminal Application No. 2226 of 2010 who would be the competent authority was an issue and in para 34 the High Court has specifically observed, “In the case of a Chief Minister or a Minister, be he a Cabinet Minister or a Minister of State, the expression “State Government” in section 19 of the Prevention of Corruption Act, 1988 would mean “the Governor”.
However, Learned Sr. Counsel Shri Thakkar submitted that what is required to be considered is also other relevant paras, namely, paras 4 and 5 of which he pointedly invited the attention. He emphasised again para 4 which reads as under:
“4. However, unless a situation arises as a result whereof the Council of Ministers disables or dis entitled itself, the Governor in such matters may not have any role to play. It is the Council of Ministers who has to first consider grant of sanction.”
20. Learned Sr. Counsel Shri Thakkar therefore submitted that when the Council of Ministers had not disentitled itself, it has been clearly observed that the Governor may not have any role to play. Further, he emphasised the observation in para 34(5) referring to M.P. Special Police Establishment v. State of M.P. and others (supra) to again emphasise that the decision of the Council of Ministers is shown to be irrelevant and based on non-consideration of relevant factors and only then the Governor would be right to act in his/her own discretion.
21. Learned Sr. Counsel Shri Thakkar submitted that the court is required to consider, could the Governor hold a parallel inquiry and rely upon the files and notings including the one prepared by her Secretary or translated by the Secretary as explained to her, and come to a conclusion contrary to the decision of the Council of Ministers? Again, learned Sr. Counsel Shri Thakkar submitted that if the decision of the Government was not acceptable, then she could have made a reference to the Government that she does not agree for the reasons stated therein, but could not have proceeded to hold an inquiry and take a decision contrary to the advice and decision of the Council of Ministers.
22. Learned Sr. Counsel Shri Thakkar, therefore, submitted that the manner in which the decision is arrived at itself raises doubt and whether it is permissible is required to be considered. He emphasised and submitted that glaring mistakes indicate lack of bona fide exercise of power. Learned Sr. Counsel Shri Thakkar submitted that ours is a federal government with two different ruling parties at the Centre and at the State and it is in such background such issues are required to be considered with reference to the scheme of the Constitution. Learned Sr. Counsel Shri Thakkar submitted that if, on such averments or allegations based on such affidavit of one person, which does not inspire confidence, decisions are to be taken, then the elected government will not be protected and no government would be safe.
23. Learned Sr. Counsel Shri Thakkar also pointedly referred to the observations made by the Hon'ble Apex Curt in the case of Dr. Subramanian Swamy v. Dr. Manmohan Singh & anr., reported in (2012) 3 SCC 64 = AIR 2012 SC 1185, and emphasised the observations made in para 49 & 50. He submitted that it has been specifically observed and laid down as a guideline as to what is required to be considered for the purpose of considering the grant of sanction by the authority. It has been observed, “49. CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab, State of Bihar v. PO.P. Sharma, Supt. Of Police (CBI) v. Deepak Chowdhary, framed guidelines which were circulated vide Office Order No. 31/5/05 dated 12-5-2005. The relevant clauses of the guidelines are extracted below:
“2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima facie constitute the offence.
(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the sanctioning authority, by asking the IO to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/inquiry by calling for the record/report of his department.
xxx xxx
(vii) However, if in any case, the sanctioning authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind properly, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.
(viii) If the sanctioning authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the sanctioning authority to adhere to the time-limit allowed by the Supreme Court in Vineet Narain case.”
24. Learned Sr. Counsel Shri Thakkar submitted that as observed in this judgment, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. Learned Sr. Counsel Shri Thakkar submitted that in this case there is no inquiry or investigation and the entire basis is the affidavit of Shri Pagi which does not inspire confidence and if that is taken out, there is no material. Learned Sr. Counsel Shri Thakkar submitted that it is in this background the court may consider whether it was open for the Governor to call for the files and come to any conclusion.
25. Learned Sr. Counsel Shri Thakkar also emphasised the observations made in para 74 and submitted that the Hon'ble Apex Court has also made the observation that the provisions are made for protecting the public servants and therefore the provisions relating to the sanction must be construed in a manner which advances the cause of justice. Learned Sr. Counsel Shri Thakkar therefore submitted that what could not be done directly cannot be permitted to be done indirectly. He emphasised that therefore what material could be considered by the Governor and whether she could make an inquiry sitting in appeal over the decision of the Council of Ministers is alien to the constitutional provisions.
26. Learned Sr. Counsel Shri Thakkar has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Samsher Singh (supra) and pointedly referred to the observations made in para 154 referring to the law laid down with regard to Art. 163 and decision of the Hon'ble Governor.
27. Learned Sr. Counsel Shri Thakkar submitted that in the facts of the present case, there are two competing orders and the court is required to consider whether the Governor could have taken the decision contrary to the decision of the Government as, under Art.
163, the Governor is bound to act as per the aid and advice of the Council of Ministers. He emphasised that the advice of the Government must prevail barring exceptional situations and the judgment in the case Samsher Singh (supra) has broadly referred to such exceptions. He emphasised and submitted that none of such grounds or situations exist and therefore whether the Governor could have taken independent decision when no such discretion is available. Learned Sr. Counsel Shri Thakkar submitted that in a democracy and the scheme of the constitution the Governor is the figurehead who is obliged to act as per the advice of the Council of Ministers except in certain circumstances. He submitted that if the Governor is to take decision as per his/her own discretion, it could be a parallel government and centre of power which is not permissible under the scheme of the constitution as observed by the Constitution Bench of the Hon'ble Apex Court in its judgment in the case of Samsher Singh (supra). Learned Sr. Counsel Shri Thakkar submitted that there has to be justification for deviating from such course laid down in the constitution, otherwise the decision would be alien to the constitution. Learned Sr. Counsel Shri Thakkar therefore submitted that the court is required to examine what were the material and what was the justification for exercise of the discretion.
28. Learned Sr. Counsel Shri Thakkar referred to the judgment of the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) and pointedly referred to the observations made in paras 11, 12, 24 and 29. He submitted that the facts in that case are not comparable to the facts of the present case inasmuch as, in the case before the Hon'ble Apex Court, the Lokayukta for the State of M.P. made a detailed inquiry and the report of the Lokayukta itself was sufficient material as observed in para 28. Learned Sr. Counsel Shri Thakkar submitted that in the facts of the present case, there is no such material except the affidavit of Shri Pagi and it cannot be equated with the report of the Lokayukta and cannot be said to be inspiring confidence even the way in which it is procured and submitted. Learned Sr. Counsel Shri Thakkar therefore submitted that if these aspects are not taken care, then it would be a collapse of the democracy as no government can function in present day where there are two parties with different governments at the Centre and the State level. Learned Sr. Counsel Shri Thakkar submitted that safeguards have been therefore provided for grant of sanction and in case of the Council of Ministers through which the affairs of the sate are managed, the procedure has been prescribed. Learned Sr. Counsel Shri Thakkar submitted that reference to the report of the Lokayukta in the M.P. Special Police Establishment case (supra) was with regard to “apparent bias” which has been discussed and there is no such situation in the present case. Learned Sr. Counsel Shri Thakkar submitted that in the facts of the present case the material is required to be examined for the purpose of grant of sanction and it has to be decided whether it is prima facie sufficient to grant sanction for the prosecution.
29. Learned Sr. Counsel Shri Thakkar submitted that if the provisions of the Prevention of Corruption Act are examined, prima facie offence has to be made out and there has to be basis or material for grant of sanction. Learned Sr. Counsel Shri Thakkar submitted that in the facts of the present case there is no such material as there was no inquiry or investigation and except the files and the affidavit of Shri Pagi, there is no material. Learned Sr. Counsel Shri Thakkar therefore submitted that the Governor could not have sat in appeal over the decision of the Council of Ministers based on such material.
30. Learned counsel, Shri Mukul Sinha appearing for the respondent no.3 has submitted that he has a preliminary objection regarding the maintainability of the present petition in the peculiar facts and circumstances. He submitted that his arguments have two aspects. First aspect which he has referred to as to whether this Court can exercise discretion under Article 226 of the Constitution of India under judicial review to examine the legality and validity of the order passed by the Hon'ble Governor. He emphasized that the issue is regarding whether this Court has jurisdiction or not. He emphasized that there is no authority to support the submission that this Court in exercise of discretion/jurisdiction under Article 226 of the Constitution of India can examine the order/decision granting sanction.
31. Learned counsel, Shri Mukul Sinha submitted that the Hon'ble Apex Court in a judgment in case of M.P. Special Police Establishment Vs. State of M.P. & Ors., reported in (2004) 8 SCC 788 had decided similar question but specific contention was not raised and answered in that petition. He referred to the said judgment and referring to the observations made therein, particularly para no.8, it was submitted that it is not a question of validity of the sanction or the order of the Hon'ble Governor but the petition was filed to call the Governor to decide whether in the fact of the present case the sanctioned is granted. He submitted that in view of the judgment of this Court delivered in Special Criminal Application No.2226 of 2010 (Coram : H.N. Devani, J.), same issue regarding the sanction had been raised and referring to the same judgment in case of M.P. Special Police Establishment (supra), the observations and directions have been given by this Court. He referred to the observations made in para nos.28 and 34 of the said judgment and submitted that the decision of this Court has been accepted and it has not been challenged. Therefore, issue is no longer integral that the Hon'ble Governor has authority to grant sanction and same issue was also before the Hon'ble Supreme Court in case of M.P. Special Police Establishment (supra). He pointedly referred to the observations made in para no.34 of the judgment in Special Criminal Application No.2226 of 2010 passed by this Court.
32. Learned counsel, Shri Mukul Sinha has also raised another contention that it is not amenable to writ jurisdiction and issue could be decided by the Hon'ble Apex Court only in view of Article 131 of the Constitution of India. He referred to the provisions of Article 131 of the Constitution of India and submitted that any such dispute arising has to be decided as provided therein and same has also been interpreted in several cases. He, therefore, submitted that Suit under Article 131 of the Constitution of India would be maintainable not the petitioner under Article 226 of the Constitution of India would be maintainable. He has pointedly referred to the observations made in the judgment in case of State of Rajasthan & Ors. Vs. Union of India & Ors., reported in 1977 (3) SCC 592 in support of his submission.
33. Learned counsel, Shri Mukul Sinha submitted that the Governor has also authority and word 'Government' would mean 'Governor' as clearly observed in a judgment of this Court in Special Criminal Application No.2226/2010 that for the purpose of prevention of Corruption Act, the expression 'State Government in Section 19 of the Prevention of Corruption Act, 1988 would mean 'Governor'. The Hon'ble Governor would be a competent authority to grant sanction and this Court has decided and pursuant thereto, if the decision is taken by the Hon'ble Governor, it is not open for the Court to examine the validity and propriety of the sanction, which has been granted. He emphasized and submitted that once the sanction is granted by the Hon'ble Governor, only Court, which may consider the validity and propriety of such sanction, is the trial court. He has pointedly referred to the observations made in the judgment of the Hon'ble Apex Court in case of Prakash Singh Badal & Anr. Vs. State of Punjab & Ors., reported in (2007) 1 SCC 1. Referring to the observations made in para no.47, he submitted that when the dispute between the body of the Union Government/President and the Council of Minister in the State arises, the positive morality of the Constitution should be upheld and the said aspect has also been observed in a judgment in case of Prakash Singh Badal (supra). Learned counsel, Shri Sinha has also submitted referring to the judgment of the Hon'ble Apex Court in case of State of Punjab & Anr. Vs. Mohammed Iqbal Bhatti, reported in 2009 (17) SCC 92 that as observed in para nos.6 and 7, the decision could be taken. He submitted that at the stage of grant of sanction, what is required to be considered is only a prima- facie material to ascertain whether it is sufficient for the purpose of grant of sanction and the allegations, which have been made are sufficient to attract the alleged offences. He submitted that basic ingredients of the Prevention of Corruption Act, 1988 are therefore required to be considered. He submitted that at that stage, the allegations for the alleged offences under the Prevention of Corruption Act are required to be examined and the truthfulness or other veracity of such material including the affidavit is not required to be considered. He submitted that the submissions have been made that no money transaction has admittedly taken place and what has been relied upon is only the affidavit of one Shri Pagi, who has claimed that the demand was made in respect of the contract of fishing. In this connection, learned counsel, Shri Sinha submitted that it is not in dispute that the petitioner is a 'public servant' and the Division Bench of this Court while deciding Special Civil Application No.9958/2008 with Special Civil Application No.10918/2008 has made observations with regard to the usurpation of power by the petitioner and misuse thereof in grant of such contract without inviting tenders. He, therefore, submitted that the Division Bench has observed that the petitioner has misused his powers so as to favour some of the persons and, therefore, the decision was struck down. Learned counsel, Shri Sinha submitted that it is in background of this fact, the affidavit and other material including the notes or files have been considered by the Hon'ble Governor, which cannot be said to be erroneous. He submitted that much emphasis is given on the discretion exercised by the Hon'ble Governor and powers of the Government that the Governor has no such power and the Governor is required to act as per the aid and advise of the Council of Ministers as provided in Article 163 of the Constitution of India. In this connection, he referred to the Article 163 of the Constitution of India and submitted that normally for such functions, it may be true but in a peculiar circumstances, it cannot be said that the Governor has no discretion at all and in support thereof, he has referred to the observations made by the Hon'ble Apex Court in case of M.P. Special Police Establishment (supra). He, therefore, submitted that submission is with regard to the maintainability of the petition and the jurisdiction of this Court under Article 226 of the Constitution of India. Assuming that it is open for this High Court to examine the decision of the Governor in judicial review in exercise of discretion under Article 226 of the Constitution of India, the decision of the Governor is not erroneous, where there is a conflict of opinion with regard to the appointee of the President or the Union Government i.e. the Governor and Council of Ministers in the State, it has to be decided as laid down by the Hon'ble Apex Court in a judgment in case of M.P. Special Police Establishment (supra). Learned counsel, Shri Sinha submitted that this judgment of the Hon'ble Apex Court has clearly observed that the discretion remains with the Hon'ble Governor inspite of the decision of the Constitution Bench's judgment in case of Samsher Singh Vs. State of Punjab & Anr., reported in (1974) 2 SCC 831.
34. Learned counsel, Shri Sinha has also submitted that it is a peculiar situation whether the Governor being a competent authority under Article 361 of the Constitution of India is required to decide and take decision contrary to the decision of the Council of Ministers. He submitted that all business or transaction of business are in the name of the 'Governor' and, therefore, the State Government would mean and include Governor. He submitted that as per the constitutional position, the Advocate General has to represent the State and not the Council of Ministers, for which, he has referred to the Constitution. Learned counsel, Shri Sinha submitted that Articles 153 and 154 of the Constitution of India clearly provide that the State is headed by the Governor and aided by the Council of Ministers and there are no two centres of powers as sought to be canvased. He submitted that therefore in a petition filed by the accused, whether the State Government can take stand or not, which is a beneficial to the accused. He submitted that in a peculiar situation, when there are two sets of decision or order; one by Council of Ministers and another by the Governor, the order of the Governor would prevail as the Governor is the head of the State. He submitted that it is a classical case of Constitutional of impropriety. Learned counsel, Shri Sinha again referred to the order of this Court in Special Criminal Application No.2226/2010 and referring to the observations made in para no.29, he submitted that what has been clearly decided as to who shall be a competent authority namely the Governor. Therefore, this point or the issue has also been decided and it is no longer to open for this Court to examine again on the principles of resjudicata. He emphasized and submitted that only question that can be raised is whether Her Excellency Hon'ble Governor trenched upon or gone beyond jurisdiction vested with the Governor under the Constitution. He submitted that whether in the facts and circumstances, it cannot be said that the Governor can be said to have committed any irregularity or the illegality or the decision is malafide in granting sanction. He submitted that this is the only question, which is required to be answered by this Court, which is mere a question relating to the facts and material. Again he submitted that it is a question, which is required to be considered on facts. Therefore, it could be decided by the trial court on examination of the facts and material whether the order of the Governor granting sanction is valid or not and it is not a question of law to be answered and, therefore, it should be left to the trial court to be decided at an appropriate stage.
35. Learned Advocate General, Shri Kamal Trivedi appearing with learned Government Pleader, Shri Prakash Jani for respondent no.1- State has submitted that this petition raises a question of interpretation of the Constitutional provisions as to whether the Governor is required to act as per the 'aid and advise of the Council of Ministers as provided in Article 163 of the Constitution of India or not. Again if there is any such occasion for disagreement or difference of opinion with the decision reached by the Government i.e. the Council of Ministers and the Office of the Governor, what are the options. He submitted that it requires to be examined in background of the scheme of the Constitution where we have adopted a democratic set up with a federal structure with two layers of the Government at the Central as well as at the State level. He submitted that the State could function as corporate sole through the Council of Ministers headed by the Hon'ble Chief Minister and we have inherited British model from UK. He submitted that Article 166 of the Constitution of India refers to as to how the State would function and Rules of Business are promulgated. He has referred to the Rules of Business promulgated by the Governor for the administration and the function of the State. He pointedly referred to both schedules. He has also referred to the scheme of the Constitution and submitted that as provided in the scheme of the Constitution, the State would function through the cabinet i.e. Council of Ministers, which is accountable to the people in a democratic set up and real power is therefore as provided in the preamble remain with the people but their representatives have every right to make policy and implement and concerned Government or Council of Ministers is made accountable. Therefore, learned Advocate General, Shri Trivedi submitted that while considering this important issue, there are various judicial pronouncements, which have aided and supplemented the specific constitutional provisions with regard to this aspect and by judicial pronouncement, it has been laid down as guidelines how the Constitution works. It has been therefore specifically and expressly provided in Article 163(1) of the Constitution of India that the Governor shall act on 'aid and advise of the Council of Ministers'. Therefore, that is the rule, which is not normally to be followed and there are specific occasions or the situations, which have been provided where the Governor may have a discretion to take a decision like exercise of discretion under Article 356 of the Constitution of India. Learned Advocate General, Shri Trivedi again emphasized that underlying scheme of Article 356 of the Constitution of India has to be considered that in a given situation with regard to the situation prevailing in the State, the Governor may report to the President and based on that report, a decision could be taken for the presidential rule. But again that decision is a subject to debate in the Parliament whether entire report could be placed and again the representative of the people would consider the decision taken and the report of the Governor exercising such discretion. Therefore, learned Advocate General, Shri Trivedi submitted that the submission with regard to the maintainability of the petition is not an issue, which requires any consideration in view of the judicial pronouncement. He again submitted that the contentions, which have been raised referring to the order of High Court in Special Criminal Application No.2226/2010 that it has already been decided and it is not open to this Court to consider again is thoroughly misconceived. Learned Advocate General, Shri Trivedi has emphasized referring to the order of this Court in Special Criminal Application No.2226/2010 produced at Annexure-J and submitted that the High Court had directed that the decision may be taken as provided in the Constitution referring to the judgment of Samsher Singh (supra) as well as M.P. Special Police Establishment (supra). Therefore, learned Advocate General, Shri Trivedi submitted that the question which has arisen in the petition is with regard to the stage or situation, which has arisen thereafter regarding the decision for grant of sanction for the prosecution. It is at this stage, there are two divergent views that Council of Ministers having considered the relevant material has come to a conclusion that the petitioner cannot be found at a fault when a decision has been taken by the Council of Ministers in background of the policy of making special provision for small group of local communities, who were earning their livelihood by fishing, which has been affected. It was submitted that it was decided that if the tenders were invited, it would have an effect that big contractors will take away the contract and, therefore, when the lease for fishing contract was provided, same came to be challenged by way of Special Civil Application No.9958/2008.
36. Learned Advocate General, Shri Trivedi submitted that this Court had not approved of the decision and, therefore like any other decision, it was set aside and same has been accepted by the Government. It is in this background, the Council of Ministers according to the Rules of Business had taken decision, which he has placed on record and pointedly referred to the decision to emphasis that every aspect has been considered including the judgment of the Hon'ble Division Bench of High Court as well as the judgment of this Court in Special Criminal Application No.2226/2010. Learned Advocate General, Shri Trivedi, therefore, submitted that it is a policy matter where the Government may have to consider for various reasons including prevailing local situation and some decision which has been taken is not approved of, has been accepted by the Government. Thereafter pursuant to the earlier order in Special Criminal Application No.2226/2010 regarding grant of sanction, complaint and affidavit of Shri Pagi, the Government i.e. the Council of Ministers has taken decision, which cannot be said that it is without considering any material. Learned Advocate General, Shri Trivedi, therefore, submitted that it is at this stage, the Court is required to consider whether the Governor had discretion to seat in appeal over the decision of the Government taken through Council of Minister as required under the Law. He again emphasized that scheme of the Constitution for the Governance in the country has been laid down and Article 163 of the Constitution of India provides that the Governor shall act on aid and advise of the Council of Ministers and, therefore, any such decision contrary to the decision of the Council of Ministers taken by the Governor would be alien to the Constitution. Learned Advocate General, Shri Trivedi has also submitted that scheme of the Constitution itself has provided other circumstances as referred to hereinabove where in a given situation, the Governor is given a limited discretion to exercise the discretion and take decision. Therefore, learned Advocate General, Shri Trivedi submitted that except on those situations, which have been expressly provided in Constitution like Articles 200, 356, 371A(1)(b), 371A(1)(d) etc. of the Constitution of India, the Governor is obliged to act as per the aid and advise of the Council of Ministers. The present case regarding the grant of sanction does not fall in any of the situations, which have been contemplated in the Constitution in the public interest. He, therefore, submitted that Article 356 of the Constitution of India is a different aspect as discussed above and again it has an ultimate decision by the people. Similarly, other Articles in which such discretion has been expressly conferred referred to the areas of general public importance in a given situation, where a decision is required to be taken and not in a routine course of business of the Government. He emphasized that Rules of Business are promulgated by the Governor and the Governance of the State has to be in accordance with Rules of Business as provided. Therefore, he emphasized that when the Rules of business provide that the decision has to be by the Council of Ministers and when the Council of Ministers have taken decision or conscious decision after considering the relevant material, the Hon'ble Governor has no discretion to deviate from that, otherwise, it would lead to situation that there can be a parallel Government in many matters and could result in deadlock for trivial matters, which is not the purpose of the Constitution. Learned Advocate General, Shri Trivedi, therefore, submitted that ours is a democratic country having accepted the Parliament system of democracy with the federal structure with two Governments with different political ideology could result in a situation where the decision of the Council of Minister by the State reached by one party is set at naught by the appointee of the President or the Central Government without any justification. Therefore, learned Advocate General, Shri Trivedi pointedly referred to the observations made in case of Samsher Singh (supra) and emphasized the observations in para nos.54 to 57. He submitted that in these paragraphs, whether the Governor can exercise his discretion independently is referred to in Article 371A(1)(b), 371A(1)(d) and also Article 356, 200 etc. of the Constitution of India. It has been specifically observed “In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.” Learned Advocate General, Shri Trivedi, therefore, submitted that whether the Constitution expressly provides for exercise of discretion by the Governor as referred to in the Constitutional Bench's judgment of the Hon'ble Apex Court in case of Samsher Singh (supra) with specific observations that beyond this, the Governor is obliged to act as per the aid and advise of the Council of Ministers in harmony with the decision taken by them, which would make it clear that there is no discretion left with the Governor. He, therefore, submitted that any such discretion or decision taken would be alien to the Constitution and the provisions of the Constitution. He also referred to the observations made in para no.138 to emphasized that “While he plays such a role, he is not a rival centre of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery.” He has, therefore, submitted that even this narrow territory or the express provisions in the Constitution have also been found to be slippery, which would call for sound exercise of discretion. He has also emphasized the observations in para no.139 that “For a centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the Cabinet or to interfere in the administration directly - these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional Functions it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Minister's acts and advice. Of course, a limited free-
wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions.” Therefore, learned Advocate General, Shri Trivedi submitted that if the decision taken by the Council of Ministers is not without any material and it is taken based on document as directed by this Court in Special Criminal Application No.2226/2010, the Hon'ble Governor has no occasion for taking a contrary view and was obliged to take a decision as per the aid and advise of the Council of Minister. He again emphasized the observations made in Para No.142 that “As we have already indicated, the overwhelming catena of authorities of this Court have established over the decades that the cabinet form of Government and the Parliamentary system have been adopted in India and the contrary concept must be rejected as incredibly allergic to our political genius, constitutional creed and culture. In other words, he submitted that unless it is shown that the decision is without material or for extraneous consideration or bias, the Governor does not have any discretion.
37. Learned Advocate General, Shri Trivedi, therefore, submitted that as observed in Samsher Singh's case, letter and spirit of the Constitution has to be borne in mind, otherwise it would result in a deadlock situation, where the elected Government may not be able to function as there are parallel centres of powers, which is prohibited. The Constitution Bench has therefore specifically made this observation accepting the cabinet form of Government. Learned Advocate General, Shri Trivedi also referred to the judgment of the Hon'ble Apex Court in case of B.R. Kapur Vs. State of T.N. & Anr., reported in (2001) 7 SCC 231, in case of Rameshwar Prasad & Ors. Vs. Union of India & Ors., reported in (2006) 2 SCC 1 and in case of Bhuri Nath & Ors. Vs. State of J & K & Ors., reported in (1997) 2 SCC 745 and submitted that the scope of judicial review is well accepted by catena of judicial pronouncements. He has, therefore, submitted that the submission that even under Article 226 of the Constitution of India, this Court has no jurisdiction, cannot be readily accepted as the concept of judicial review has been accepted as basic feature of the Constitution and if decision of Constitution functionary is alien to the Constitution, a writ would lie and the power of judicial review of this Court and the Hon'ble Apex Court cannot be questioned.
38. Learned Advocate General, Shri Trivedi submitted that alternative submission about the fact that the petition would not be maintainable and Suit under Article 131 of the Constitution of India would be maintainable has no application as it is not a dispute as contemplated under Article 131 of the Constitution of India. He has referred to the judgment of the Hon'ble Apex Court in case of Rameshwar Prasad (supra) and pointedly referred to the observations made in para nos.161, 171, 173 and 177 to 180. He also submitted that the bar of entertainment of writ petition was also well considered in earlier judgment in case of State of W.B. Vs. Sailendra Nath Bose, reported in 1964 Cal. 184 and, therefore, such argument is not open to debate particularly in light of the subsequent judgment including the judgment in case of M.P. Special Police Establishment (supra), which has been relied upon by all sides.
39. Learned Advocate General, Shri Trivedi, therefore, submitted that the Court has to consider whether the Governor is having any discretion to take independent decision in such matters contrary to the aid and advise of the Council of Ministers. He strenuously submitted that it is the conscious decision taken by the Council of Ministers pursuant to the order of this Court in Special Criminal Application No.2226/2010 and having considered all the relevant aspects or issues referred to in the judgment, it can hardly be said that there is any extraneous consideration or the decision is taken without considering the relevant material. He submitted that therefore once the decision is taken after considering all the relevant material, it is not open to the Hon'ble Governor to have her own view contrary to the Council of Ministers. He submitted that the theory of bias, which has been referred, has no application in such matters where it is a collective decision by the Council of Ministers. Learned Advocate General, Shri Trivedi submitted that the theory of bias does not apply to a collective decision by a body where it is not an individual but collective body is taking decision and decision making process is also separate. Therefore, learned Advocate General, Shri Trivedi submitted that basis or foundation or the justification shown by the Governor in exercise of such discretion based on theory of bias is ill-founded. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of M.P. Special Police Establishment (supra) and referring to page no.804, he emphasized that it has been specifically observed that “But the doctrine of 'apparent bias', however, may not be applicable in a case where a collective decision is required to be taken.” He, therefore, submitted that as observed, it is only in case of apparent bias, exception to the general rule would apply, otherwise, when the Council of Ministers collectively take a decision, doctrine of bias will not be applicable.
40. Learned Advocate General, Shri Trivedi submitted that even otherwise, if the facts and the decision, which has been taken, is considered, it would be evident that the Council of Ministers had taken decision as per the direction given by the High Court in Special Criminal Application No.2226/2010 and that has already been reflected in the decision. For that purpose, he again referred to the decision of the Council of Ministers. He, therefore, submitted that the Court is required to consider as to when the theory of bias could be applicable. In support of his submission, he has referred and relied upon the judgment of the Hon'ble Apex Court in case of J. Y. Kondala Rao & Ors., Vs. Andhra Pradesh State Road Transport Corporation & Ors. reported in AIR 1961 SC 82 (Para No.14), in case of T.Govindaraja Mudaliar Etc. Vs. The State of Tamil Nadu & Ors., reported in AIR 1973 SC 336 (Para No.17), in case of G.N. Nayak Vs. Goa University & Ors., reported in (2002) 2 SCC 712 (Para Nos.32, 33 & 35). He emphasized and submitted that all these decisions clearly suggest that whether the bias or doctrine of bias has any application or not. He has also relied upon the judgment in case of State of Kerala & Ors. Vs. O.C. Kuttan & Ors., reported to the judgment reported in (1999) 2 SCC 651, more particularly, para nos.112, 113 & 119 of the judgment.
41. Learned Advocate General, Shri Trivedi submitted that at the same time, whether it will have any application of theory of waiver, the judgment of this Court has directed that the decision to be taken by the Council of Ministers as required under Article 163 of the Constitution of India and the decision has been taken with relevant material. Therefore, it will not have any issue for the grievance by the complainant. He emphasized that otherwise the complainant could have raised objection and this Court could have given direction that the decision may be taken by the Governor in a peculiar facts and circumstances and not by the Council of Ministers. He submitted that having not done so, the High Court having considered the rival submissions directed the decision to be taken in accordance with the Constitutional scheme under Article 163 of the Constitution of India and when the decision has been taken by the Council of Ministers, the Hon'ble Governor will have no discretion to take a contrary view than that of Council of Ministers and was obliged to act as per the aid and advise of the Council of Ministers.
42. Learned Advocate General, Shri Trivedi has also referred to the judgment of the High Court in Special Criminal Application No.2226/2010 and submitted that as directed in the said order, the Council of Ministers was to decide an issue of grant of sanction as required under Article 163 of the Constitution of India and the decision has been taken by the Council of Ministers, which is sent for approval of the Governor according to the Rules of Business. He, therefore, submitted that once such decision is taken, it was not open for the Hon'ble Governor to exercise any discretion and ought to have approved the decision of the Council of Ministers in view of Article 163 of the Constitution of India and the Governor is obliged to act as per the aid and advise of the Council of Ministers when the Council of Ministers as directed by the High Court has taken decision after considering relevant material, there was no occasion for the Hon'ble Governor to exercise any discretion taking a different view of the matter. He, therefore, submitted that if there was any reservation about the decision by the Council of Ministers then in that petition, when the issue was decided with regard to the competent authority for grant of sanction, appropriate direction could have been passed that the Governor should decide such an issue of grant of sanction. Learned Advocate General, Shri Trivedi, therefore, submitted that as no such submissions have been advanced, same is covered by the doctrine of waiver and it is now not open for the complainant to make any grievance. In support of his submissions, learned Advocate General, Shri Trivedi referred to and relied upon the judgment of the Hon'ble Apex Court in case of G. Sarana, Dr. Vs. University of Lucknow, reported in (1976) 3 SCC 585, more particularly, Para Nos.12 to 15. He has also referred the judgment in case of Baidyanath Mahapatra Vs. State of Orissa & Anr., reported in (1989) 4 SCC 664 (Para No.8) as well as in case of State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., reported in (1982) 2 SCC 463.
43. Learned Advocate General, Shri Trivedi submitted that on what ground the decision of the Council of Ministers could be tinkered with by the Hon'ble Governor is not clear. He submitted that the ground of bias is created for exercise of discretion. He, therefore, submitted that in fact, the decision of the Council of Ministers itself would reflect that they have discussed as per the directions given by the High Court in Special Criminal Application No.2226/2010 and after considering the relevant aspects, a conscious decision is taken. Learned Advocate General, Shri Trivedi submitted that if one looks at closely the order passed in Special Civil Application No.14483/2008, which has been filed in the year 2008, the said order has been passed by this Court declaring the grant of contract as illegal and there is no averments made in the petition about any corrupt motive though such grant of contract has been challenged. He pointedly referred to the order of the Division Bench in Special Civil Application Nos.9958/2008 with 10918/2008 as well as the averments.
Therefore, learned Advocate General, Shri Trivedi submitted that the Council of Ministers having considered all aspects has taken conscious decision that there is no substance and the sanction for the prosecution cannot be granted, which is just and proper. Learned Advocate General, Shri Trivedi submitted that the submission with regard to resjudicata and maintainability of the petition is misconceived as the field is wide open and in fact, it is pursuant to the direction of this Court in Special Criminal Application No.2226/2010, the decision was required to be taken considering the ratio laid down in case of M.P. Special Police Establishment (supra) and, therefore, there is no question of any resjudicata. Similarly, he submitted that aspect of maintainability of the petition is misconceived for a simple reason that the judgments, which have been referred in fact clearly suggests that such issues are subject to judicial scrutiny and the concept of judicial review has been well accepted in Constitution. Learned Advocate General, Shri Trivedi submitted that submission that the petition would not be maintainable and Suit as required under Article 131 of the Constitution of India would be maintainable and not writ petition is misconceived as it refers to the eventuality and the fact that the decision including in case of M.P. Special Police Establishment (supra) itself would suggest that the petition would be maintainable. Therefore, learned Advocate General, Shri Trivedi submitted that the Hon'ble Governor was obliged to approve the decision of the Council of Ministers under the scheme of the Constitution.
44. Learned Sr. Counsel, Shri S.N. Shelat appearing with learned counsel, Shri Nitin Amin for the respondent no.2 has referred to the chronology of events including the order passed by the Division Bench of this Court in Special Civil Application Nos.9958/2008 with 10918/2008 and, thereafter, the order passed by the High Court in Special Criminal Application No.2226/2010 dated 30.03.2012. He has also referred to the order passed by the Division Bench of this Court in Misc. Civil Application No.1745/2012. He submitted that the decision was taken by the Council of Ministers and, thereafter, the Hon'ble Governor has taken decision. Learned Sr. Counsel, Shri Shelat, therefore, submitted that the issue, which is required to be considered, is whether the Hon'ble Governor has crossed any limit under Article 163 of the Constitution of India or whether the Governor had discretion to take an independent decision in the facts and circumstances of the case. He submitted that the question that arise at this stage is that once the decision has been taken by the Governor declining to approve the decision of the Council of Ministers, it looses its efficacy. He referred to the judgment of the Hon'ble Apex Court in case of U.P. Avas Evam Vikas Parishad Vs. Friends Co-op. Housing Society Ltd., reported in AIR 1996 SC 114.
45. Learned Sr. Counsel, Shri Shelat referred to Article 163 of the Constitution of India and submitted that judicial review is permissible and this Court can in exercise of discretion under Article 226 of the Constitution of India examine such an issue. However, learned Sr. Counsel, Shri Shelat submitted that the Court can examine with regard to the constitutional provision as to whether the Governor has discretion or not. He submitted that for that matter, the factual background is required to be considered and, thereafter, the Court may consider whether Governor was obliged to act as per the aid and advice of Council of Ministers or whether it is permissible for the Hon'ble Governor to exercise the discretion. He submitted that if the advise of the Council of Ministers is not justifiable, the Governor may have discretion to consider and decide objectively the issue and the advise of the Council of Ministers. Learned Sr. Counsel, Shri Shelat referred to and relied upon the judgment of the Hon'ble Apex Court in case of S.R. Bommai & Ors. Vs. Union of India & Ors., reported in AIR 1994 SC 1918. He has referred to and relied upon Para Nos.24, 25, 35 and 37 of the said judgment. He submitted that the jurisdiction of the High Court under the concept of judicial review is well accepted and he has no quarrel on the said issue. He submitted that in other words, the correctness of such decision could be examined. He referred to preposition No.VII of the order of the Hon'ble Governor for the said purpose.
46. Learned Sr. Counsel, Shri Shelat submitted that the submission has been made that it was the policy decision regarding the grant of contract for fishing. It was submitted that the fact that the judgment has been accepted, which does not implicate the present petitioner is required to be considered in context of the relevant material. Learned Sr. Counsel, Shri Shelat submitted that the manner in which the contracts are sought to be given itself requires consideration. He emphasized and submitted that the petitioner, who is Minister of State, has taken a personal interest and unusual haste has been shown for the grant of contract without following any procedure. He emphasized and submitted that the orders have been passed even before the notification could be issued. He also emphasized about the way in which the matter was proceeded and has referred to the observations in Para Nos.40 to 50 of the said judgment. Learned Sr. counsel, Shri Shelat referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Karnatak Vs. Ameerjan, reported in 2007 (11) SCC 273. Learned Sr. Counsel, Shri Shelat submitted that whether Her Excellancy Hon'ble Governor could have taken different or contrary view than that of the Council of Ministers is required to be considered. He submitted that what is required to be considered for the purpose of present petition is whether the material prima-facie suggest the involvement of the petitioner and what was the material available with the Hon'ble Governor for exercise of discretion. Learned Sr. Counsel, Shri Shelat submitted referring to the papers including Page No.188 that the Hon'ble Governor has considered files also and direction of this Court in Special Criminal Application No.2226/2010 and on the basis thereof has exercised the discretion, which cannot be questioned. He submitted that the orders of Her Excellency Hon'ble Governor at Page Nos.57 and 74 are required to be considered. He submitted that earlier the Committee of the Ministers had taken decision and in the decision taken by the Council of Ministers, same Ministers would have expressed opinion and, therefore, there would be an apparent bias.
47. Learned Sr. Counsel, Shri Shelat submitted that the guideline has been laid down by the Hon'ble Apex Court as to what should be considered for the purpose of grant of sanction. He submitted that at the stage of grant of sanction, the Court or competent authority is required to consider prima-facie material whether it is sufficient to constitute any offence and the prosecution of the accused. He submitted that this aspect has been considered by the Hon'ble Apex Court. He referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Karnatak (supra) (Para No.8). Similarly, he referred to the judgment of the Hon'ble Apex Court in case of Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors., 1996(6) SCC 263 (Para No.13) as well as judgment in case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, reported in 1998 (1) GLH 248 (Para No.18) and submitted that what material is required to be considered has been discussed. Learned Sr. Counsel, Shri Shelat submitted that what is required to be seen at the stage of sanction is only a prima-facie case is made out or not. He submitted that the Court is not required to appreciate nor the sanctioning authority is required to scrutinize the evidence and has to only consider prima-facie material available. Learned Sr. Counsel, Shri Shelat, therefore, submitted that the Governor has to consider while deciding such an issue the constitutional provision, under which, the Governor is required to function and protect the public interest. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Subramanian Swamy Vs. Manmohan Singh & Anr., reported in AIR 2012 SC 1185. Learned Sr. Counsel, Shri Shelat submitted that on one hand, the protection is required to be granted to the public servant from fictitious litigation but at the same time, it should not be a shield to erring public servant, which will otherwise have an effect of erosion of public confidence and also the good Governance. Learned Sr. Counsel, Shri Shelat submitted that at that stage, the material is not required to be assessed or evaluated and the Governor has taken the decision. It was submitted that as referred in the judgment of the Hon'ble Apex Court in case of Beed District Central Co-op. Bank Ltd. & Anr. Vs. Jagannath S. Shahane & Ors., reported in AIR 1992 SC 1249 that “as a matter of propriety the Governor is required to exercise the discretion” and it is dictum of the judgment. He again referred to the judgment of the Hon'ble Apex Court in case of M.P. Special Police Establishment (supra) and pointedly referred to the observations made in Para Nos.8, 11 and 19. He submitted that if the Ministers had influenced the decision of the Council of Ministers then, it would be a bias. He referred to and relied upon the judgment of the Hon'ble Apex Court in case of Alka Gupta Vs. Narender Kumar Gupta, reported in AIR 2011 SC 9 and also judgment in case of A.K. Kraipak Vs. Union of India, reported in AIR 1970 SC 150 (Para No.15) and judgment in case of G. Sarana, Dr. Vs. University of Lucknow, reported in AIR 1976 SC 2428.
48. Learned Sr. Counsel, Shri Shelat has referred to and relied upon the judgment of the Hon'ble Apex Court in case of G.B. Mahajan & Ors. Vs. The Jalgaon Municipal Council & Ors., reported in AIR 1991 SC 1153, particularly Para No.19 and emphasized that “When Lord Denning MR stated in the Court of Appeal that "Not only must (the probationer-Counseller) be given a fair hearing, but the decision itself must be fair and reasonable" (emphasis supplied), the House of Lords thought that the statement of the learned Master of the Rolls, if allowed to pass into law, would wrongly transform the remedy of judicial review, as the statement would imply that the Court can itself sit, as in appeal, in judgment of the reasonableness of the decision instead of on the correctness of the "decision making process".
49. Similarly, Learned Sr. Counsel, Shri Shelat referred to and relied upon the judgment in case of B.C. Chaturvedi Vs. Union of India, reported in AIR 1996 SC 484 and referring to Para No.12, it was submitted that judicial review is not an appeal from the decision but it is a review of the manner in which the decision is made. He has referred to and relied upon the of the Hon'ble Apex Court in case of A.K. Kraipak (supra) to emphasis the submission that even if there is a collective decision, the doctrine of bias may not be attracted but as observed in this judgment, in a group of deliberation, each member of group is bound to influence others and, therefore, bias is likely to operate. He, therefore, submitted that since the same three Ministers were the part of the Council of Ministers when the decision is taken, the objectivity could not be maintained and that is the reason, the Hon'ble Governor had examined the papers with files and has granted sanction. Learned Sr. Counsel, Shri Shelat submitted that the decision of the Hon'ble Governor clearly reflects that every aspect has been examined with reference to the files and the material and it is revealed that the movement of the files is contrary to the as initiated by the Ministers. The Minister himself has initiated the files. Further as noted in the notings by the Secretary or the concerned Officer are that it is not as per the policy. Further even before the sanction/notification, the orders for contract have been awarded to the concerned parties and, therefore, there is a specific note that it is like a ex-post-facto sanction. Learned Sr. Counsel, Shri Shelat, therefore, submitted that this Court is required to considered as to whether the Governor could be said to be erroneous without any material and if the decision is taken by the Governor on examination of the material, detailed scrutiny of such material is not called for. He submitted that the scope of judicial review cannot be disputed but it is also a limited to the extent of considering whether the Governor has considered the relevant material and acted bonafide or not.
50. Learned counsel, Shri S.N. Shelat referring the aforesaid various judgments regarding the doctrine of bias has submitted that it is not actual bias but even the possibility of bias has to be considered from the surrounding circumstances. He submitted that in a situation like this, as a result of which, the Council of Ministers are required to take a decision with regard to the grant of sanction for Ministers, it is possible that they may not take a fair and impartial decision. He emphasized the observations made in M.P. Special Police Establishment (supra) in Para No.23 referring to the same that “Taking a cue from Antulay, it is possible to contend that a Council of Ministers may not take a fair and impartial decision when his Chief Minister or other members of the Council face prosecution”. It was submitted that though the doctrine of apparent bias may not be applicable as held in this judgment, in a given case it is required to be considered which the Governor has done with reference to the material. He emphasized and submitted that therefore it is not the decision alone but the decision making process also have to be considered which has a reference to the judgment of the Division Bench of this Court and again the direction of the High Court in Special Criminal Application No.2226/2010 directing the Government to take the decision as referred in that judgment in Para No.34. It is at this stage when the decision is said to have been taken by the Council of Ministers whether it is inconsonance with the direction after considering the material keeping in mind the aforesaid observations of the Hon'ble Apex Court in M.P. Special Police Establishment (supra)'s it was a matter before the Governor and the Governor has taken decision, which cannot be said to be erroneous. He emphasized and submitted that the Court has to consider whether based on such material in a given set of circumstances, whether the decision of the Governor can be said to be erroneous or lacking in bonafide as sought to be canvased. Therefore, Learned Sr. Counsel, Shri Shelat submitted that the present petition may not be entertained.
51. Learned Sr. Counsel, Shri P.M. Thakkar in rejoinder submitted that Section 19 of the Prevention of Corruption Act refers to the grant of sanction and the sanction is granted by the competent authority. He submitted that the competent authority is 'State Government'. He submitted that as per the parliamentary democracy, the State Government would decide and function through Council of Ministers and it is the State Government, which has to take decision and the Governor is only required to approve as per Article 163 of the Constitution of India. Learned Sr. Counsel, Shri Thakkar submitted that even the prayer by the complainant for the grant of sanction was made to the State Government and not to the Governor. He, therefore, submitted that decision of the State Government through Council of Ministers would be the decision and the Hon'ble Governor had no discretion to take a different view disregarding the opinion of the Council of Ministers. Learned Sr. Counsel, Shri Thakkar submitted that even in earlier litigation being Special Criminal Application No.2226/2010, prayers were asked that direction may be issued to the Government to decide about the grant of sanction. Therefore, the High Court had directed as per the order passed therein to take a decision. He, therefore, submitted that the decision has been taken and merely because the High Court has remanded it to be decided by the Government again, it does not render such decision bias. Learned Sr. Counsel, Shri Thakkar referred to the order of this Court in Special Criminal Application No.2226/2010 and referring to Page No.199 in Para No.34, in which, it has been summarized, he submitted that it has been specifically observed that “However, unless a situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. It is the Council of Ministers who has to first consider grant of sanction.” He, therefore, submitted that in background of these clear observations, it is not open to anybody to content that the State Government is not the competent authority to decide. He submitted that if the State Government is the competent authority, meaning thereby, the decision taken by the Council of Ministers on consideration of the relevant material cannot be disputed. There is no scope or discretion left with the Hon'ble Governor for a different view or exercising any discretion in view of Article 163 of the Constitution of India. Learned Sr. Counsel, Shri Thakkar also referred to Para No.34, Clause (5) of the said judgment and submitted that referring to the case of M.P. Special Police Establishment (supra), reference is made that whether there would be a scope for the Governor to exercise the discretion. He submitted that unless such a situation is said to have been existing, there is no scope for exercise of discretion by the Hon'ble Governor. Again he referred to Para No.35 of the said judgment and submitted that reference is made to the judgment of Subramanian Swamy (supra) as well as M.P. Special Police Establishment (supra) and observed that the State Government shall keep in mind the guidelines of the Hon'ble Apex Court while considering the issues regarding the grant of sanction. It was submitted that it was not the decision of the present petitioner, which was under challenge in the litigation before the Hon'ble Division Bench in Special Civil Application Nos.9958/2008 with 10918/2008. It was the decision of the Minister and not the Minister for State. He submitted that distorted version of fact would not make out any case for grant of sanction.
52. Learned Sr. Counsel, Shri Thakkar, therefore, submitted that the Hon'ble Governor is obliged to act as per the aid and advise of the Council of Ministers as per Article 163 of the Constitution of India and has no discretion. He submitted that though the submission made by learned Sr. Counsel, Shri Shelat referring to the 'propriety', there is no question of any propriety and the observations have been referred out of the context and, therefore, the propriety requires the Governor to act as per the aid and advise of the Council of Ministers under Article 163 of the Constitution of India. Learned Sr. Counsel, Shri Thakkar submitted that if the fabric of pluralism and pluralist democracy and the unity and integrity of the country are to be preserved, judiciary in the circumstances is the only institution which can act as the saviour of the system and of the nation. Learned Sr. Counsel, Shri Thakkar, therefore, submitted that the present petition may be allowed and the decision of the Hon'ble Governor regarding grant of sanction may be set aside.
53. In view of rival submissions, it is required to be considered whether the present petition can be entertained or not.
54. The issue involved raises a question of law regarding interpretation of the constitutional provision and also the position of the Governor vis-a-vis the parliamentary system of democracy in background of not only the constitutional provision but also the pronouncements of the Hon'ble Apex Court and also the peculiar facts of the case.
55. The factual background which has been recorded hereinabove has its genesis in the award of lease for fishing contracts without inviting tenders which led to litigations and the justification was made and, ultimately, the judgment of the Division Bench of this Court has been accepted cancelling the contracts. This has led to further litigation by way of Special Criminal Application No. 2226 of 2010 and the issue of grant of sanction for prosecution was also considered with regard to the alleged involvement of the petitioner. This High Court (Coram: H.N. Devani, J.), while passing the order in Special Criminal Application No. 2226 of 2010, as summarised in para 34 directed the respondent Government to take the decision with regard to grant of sanction for prosecution of the petitioner as per the provisions of the Constitution keeping in mind various aspects including the judgment of the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra). It is at this stage, as there are two divergent views, and the Council of Ministers having considered, as per the direction of this High Court in Special Criminal Application No. 2226 of 2010, has declined to grant sanction, whereas the Hon'ble Governor in her discretion has passed the order for grant of sanction, meaning thereby, there are two sets of decisions which has led to the present petition.
56. The moot questions which are required to be considered are,
(i) whether the Hon'ble Governor is obliged to act as per the aid and advice of the Council of Ministers or can have the discretion depending upon the facts of the case?
(ii) whether the Hon'ble Governor has discretion only as expressly provided in the Constitution itself by way of Art. 239(2), 371- A(1)(b), 371-A(2)(b), 371-A(2)(f) and paras 9(2) and 18(3) of the Sixth Schedule and also Art. 356 and 200 and not otherwise?
(iii) Again, assuming that Art. 163 provides and oblige the Governor to act as per the aid and advise of the Council of Ministers, whether the Governor, in light of the observations of the Hon'ble Apex Court in the judgment in the case of M.P. Special Police Establishment (supra), and also considering the political climate and the scenario, could exercise the discretion contrary to the decision of the Council of Ministers in the interest of democracy or the public interest?
(iv) Moreover, assuming that the Governor has such a discretion under Art. 163, whether in the facts of the case, the discretion exercised by the Hon'ble Governor taking a different view contrary to the Council of Minsters is justified and also based on any material and evidence?
57. The submissions have been made at length by all concerned emphasising about the scheme of the Constitution in a parliamentary system of democracy with a federal structure and again with emphasis as to the political climate and the possibility where the Union Government is headed by one party and the State Government with the another and whether it could lead to a deadlock and what would be the mechanism for addressing such issues.
58. Therefore, the Constitution as a vibrant organic document has to be considered like 'the Bhagawadgita' which has different perceptions, shades and colour and one has to consider the perception which is focused for the purpose of interpreting a particular viewpoint. Therefore, it is a matter of perception. However, in the facts of the present case, the parliamentary system of democracy has to go by a constitutional discipline and in background of the aforesaid circumstances, one is required to consider, though everybody has a different perception, and like the Bhagawadgita, it will have different shades and colour of perception at different stages from person to person or from circumstances to circumstances or the situation.
59. Therefore, before focusing on the submissions which have been made, the first aspect which needs to be addressed is whether the President or the Governor, in the facts of the case, is merely a figurehead and are we to say that we have borrowed exactly the British system? If one looks at the Constituent Assembly Debates and also the scheme of the Constitution, it is evident that it was not even the idea by the founding fathers of the constitution that it should be identical to the British model. In fact, the constitution itself provided by an express provision for exercise of the discretion by the Governor in a given situation. So, it is not that the Governor is bound to accept and follow the advice of the Council of Minsters. Had it been the situation, then, the words in Art. 163 of the Constitution would have been “follow the aid and advice of the Council of Ministers” instead of “act on the aid and advice of the Council of Ministers.” The word “act” as referred to in the law dictionary signifies doing something or taking a step.
60. A useful reference can be made to the Constituent Assembly Debates which have also been referred to in the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh (supra). However, the focus has to be on the words “aid and advice of the Council of Minsters” and the submissions which have been canvassed at great length that it is incumbent upon the Governor always to act according to the aid and advice of the Council of Ministers and the Governor is under an obligation to act accordingly unless there is an express provision in the constitution is not borne out from either the Constituent Assembly Debates or the Constitution itself. There has been much debate on this aspect and it has been accepted that there is a difference between the powers of the British Monarch and our President. This distinction has been made as, under the constitution, the President as well as the Governor, both are under an obligation to discharge their functions and there had been a serious discussion about the various factors about the selection of the Governor who is the representative of the President and the persons from active politics having been appointed to the post of Governor. Still, the fact remains that the scheme of the Constitution and the Constituent Assembly Debates suggests that the “Instrument of Instruction” was dropped after such a debate and the question whether the President or the Governor, as the case may be, was bound to follow the advice of his Ministers was left without resolving the issue and it could be inferred that the “Instrument of Instruction” was dropped because it was thought desirable to leave the issue open for consideration at appropriate time for the appropriate decision and measures after working of the constitution and the experience which the country receives through such mechanism of parliamentary system of democracy.
61. A reference could be made to the 'Constitutional Law of India' by H.M. Seervai, 'Indian Constitutional Documents' by K.M. Munshi, and also the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Samsher Singh v. State of Punjab, reported in (1974) 2 SCC 831. It has been discussed, “However, the decision of the Governor is slightly different, because Art. 163 provides “Council of Ministers to aid and advise Governor.- (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.”
Further, Art. 163 provides that the business is required to be transacted according to the Rules of Business for which provisions are made in the Constitution itself. The Rules are made by the Governor. The issue has been considered in Samsher Singh's case. The concept of judicial review, therefore, has been evolved to decide such an issue.
62. In this background the provisions of Art. 163 as referred to hereinabove though provided that the Governor is obliged to act as per the aid and advice of the Council of Ministers. However, in a situation like this where there are two conflicting opinions, the court is required to examine and consider the observations made by the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra). It is well accepted that the concept of judicial review has been evolved and accepted by the Hon'ble Apex Court in Minerva Mill's case, which has been also accepted as a basic feature of the Constitution. Therefore, considering the judgment of the Constitution Bench in the cases of Samsher Singh (supra) as well as M.P. Special Police Establishment (supra), it would clearly reflect that such an issue regarding the discretion of the Governor under Art. 163 would be subject to judicial review by the High Court under Art. 226 of the Constitution of India.
63. It is required to be mentioned that learned Sr. Counsel Shri S.N. Shelat appearing for the Hon'ble Governor has also not made the submissions raising the issue of jurisdiction of this Court or the concept of judicial review. Learned Sr. Counsel Shri Shelat in his submission, as recorded hereinabove, has only confined to the facts and the propriety of the decision in background of the provisions of Art. 163, though he has not disputed about the jurisdiction of this Court under Art. 226 to examine and scrutinize the decision of the Hon'ble Governor. His emphasis was only with regard to the extent to which the court can examine or scrutinize to submit that the scope is limited and only to examine whether the decision of the Governor can be said to be actuated by mala fides or bias and/or without taking into consideration the relevant material.
64. It is in this background, again, the Court is required to consider the rival view points with two sets of decisions, one by the Council of Ministers and the other by the Hon'ble Governor. The moot question which is required to be answered is, which would prevail, or rather, whether the decision of the Hon'ble Governor expressing a different opinion than the Council of Ministers can be said to be illegal or biased.
65. Learned Advocate General Shri Kamal Trivedi had submitted on the decision of the Council of Ministers to emphasise and support his submission that if the decision of the Council of Ministers is a conscious decision considering the relevant material as per the direction of the Hon'ble High Court in Special Criminal Application No. 2226 of 2010, the Hon'ble Governor has no discretion as such decision cannot be said to be without considering the relevant material. His emphasis was also on the parliamentary system of democracy where the Council of Ministers headed by the Chief Minister is accountable to the people and they have to reflect on the working and the functions of the government to make them answerable which also empower the suitable decision to be taken depending upon the situation. Emphasis has been given by learned Advocate General Shri Trivedi as well as learned Sr. Counsel Shri Thakkar for the petitioner to the background in which the decision was taken to grant lease of fishing contracts without tenders and, therefore, the decision of the Division Bench of this High Court has been honoured and accepted.
66. Therefore, the focus was on the striking down or not approving the decision of the Government with regard to any policy which is one thing and finding a particular minister responsible for the charge of corruption or favouritism is another aspect for which there has to be material. Both had emphasised that except the affidavit of Shri Pagi, which does not inspire confidence, there was no material and it cannot be the basis for taking a different view by the Hon'ble Governor, otherwise it would be a parallel centre of power not approved of in the parliamentary system of democracy.
67. On the other hand, learned Sr. Counsel Shri Shelat having regard to the decision of the Governor, has emphasised to stress the point that it is the decision of the Hon'ble Governor which is required to be focused, whether it can be said to be biased, mala fide and without considering the relevant material? Learned Sr. Counsel Shri Shelat emphasised that if the decision of the Governor cannot be termed as biased and made after considering the relevant material including the decision of the Council of Ministers justifying different a view, the court should then not have further scrutiny like appreciation of evidence. He had emphasised that at this stage for grant of sanction the law is settled that what is required to be seen prima facie is whether the averments and allegations with the material are sufficient to grant sanction.
68. It is in this background the judgment of the Hon'ble Apex Court in the case of Samsher Singh (supra) is required to be considered, wherein it has been observed:
“109. The deletion of the earlier proposal for an Instrument of Instructions, has been mentioned in this context by some writers, but the reason for dropping it was set out by Alladi Krishaswamy Ayyar in the Assembly thus:-
"It was provided in the Constitution .....that the Council of Ministers would be collectively responsible to the House of the People. If a President stood in the way of the Council of Ministers discharging that responsibility, he would be guilty of violation of the Constitution and would even be liable for impeachment. It was, therefore, merely a euphemistic way of saying that the President had to be guided by the advice of his Ministers. The Council of Ministers was collectively responsible to the House of the People, answerable to the House in regard to the budget, all legislation and indeed for every matter connected with the administration of the country. There was therefore no necessity for setting out in detail in an article of the Constitution what the functions and incidents of responsible government would be.''
69. There is also a discussion with regard to the Assembly Debate which has been pointedly referred :
“If the 'inner voice' of the founding fathers may be any guide, it is proved beyond reasonable doubt that the President and, a fortiori, the Governor enjoys nothing more and nothing less than the status of a constitutional head in a Cabinet-type Government – a few exceptions and marginal reservations apart.
We must however notice that a strong current of high-placed scholarship has expressed itself in the opposite direction. For instance, Mr. K.M. Munshi, the author, has gone back on his thesis as framer. He writes in The President under the Indian Constitution that the President is “an independent organ of the State representing the while Union and exercising independent powers” and reads our Constitution as a composite one “in which the Parliamentary form of Executive and a President with power and authority are combined”. Why? “To prevent a Parliamentary Government from becoming Parliamentary anarchy.” Indeed, he has regarded the importation of English conventions as “tantamount to an amendment of the Constitution”. The election of President, his oath of office, his specific powers and his obligation to prevent Cabinet dictatorship, have been marshalled by this respected statesman. He has climaxed his reasoning by taking the view that “aid and advice” in Article 74, do not imply that the advice must be accepted in all cases. Shri K. Santhanam, another elder statesman, also shares this view. Even Dr. Rajendra Prasad is reported to have had second thoughts on the denudation of Presidential powers. This imperative volte face may be due to disillusionment; for, Shri Munshi has plainly stated :
“During the framing of the Constitution, we all dreamt that we would make a success of Parliamentary democracy and the British Cabinet system. It must be confessed that this experiment has failed. If I had to make a choice again, I would vote for the Presidential form of Government, so that, whenever the politicians fail the country, there is at least one strong organ of the State capable of tiding over the crisis.”
70. It is in this background, considering the present day political scenario with all round fall in standards in public life, the aforesaid observations have to be borne in mind to make the Constitution a vibrant and effective document. In other words, the letter and spirit of the Constitution has to be considered with the passage of time in order to evolve a suitable mechanism which meets with the needs and expectations of the people. The constitutional provisions are pious wishes, but the discretion must be left open to such constitutional heads when there is a strength of the political party and the analysis of the working and parliamentary system of democracy has made it more imperative to see that the constitutional interpretation should not be reduced to a degree of ineffectiveness which unless corrected could create problems for the country and may not be termed as in public interest.
71. At the same time, apprehension has been voiced by learned Sr.
Counsel Shri Thakkar for the petitioner and learned Advocate General Shri Trivedi with much emphasis on the possible bias referring to para 33 of the judgment in the case Samsher Singh (supra). He has emphasised the observations :
“33. This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system.......
The real executive powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions.
34. The functions of the Governor under the rules of business of Madras Government in regard to a scheme for nationalization of certain bus routes considered by this Court in Sanjeevi Naidu's case (supra).”
It has been emphasised, “while he plays such a role, he is not a rival centre of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery.”........
xxx xxx xxx “...These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to Ministerial advice. The practice of sending periodical reports to the Union Government is a pre-constitutional one and it is doubtful if a Governor could or should report behind the back of his Ministers. For a centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the Cabinet or to interfere in the administration directly - these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional Functions it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Minister's acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions.”
72. These observations have been again pressed into service by learned Advocate General Shri Kamal Trivedi and learned Sr. Counsel Shri P.M. Thakkar with much emphasis on the parliamentary system of democracy where the elected government is responsible to the people and the real authority lies with the elected government. It has been emphasised that if any other course is permitted with the discretion at the sweet will of the Hon'ble Governor, it would be alien to the constitution. Learned Advocate General Shri Trivedi specifically pointed out that such discretion would be alien to the constitution as the constitution itself provides for the situation in which the discretion could be exercised and beyond that the Hon'ble Governor is obliged to act as per the aid and advice of the Council of Ministers. It cannot be concluded that the Hon'ble Governor has discretion only to the extent expressly provided in the Constitution and not otherwise, as sought to be canvassed. In other words, the position of the President and the Governor under our Constitution has left them with a discretion when “Instrument of Instructions” were dropped by the Constituent Assembly leaving it open and therefore it cannot be read as an open and shut case for the purpose of deciding such an issue. In fact, the “Instrument of Instructions” were dropped giving an indication that it has been left for the future and for allowing the proper decision or measures to be taken with the experience of working of the Constitution in future so that a proper mechanism could be evolved.
73. It is in this background the judgment of the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) is required to be considered where the Hon'ble Apex Court has focused and considered the provisions of Art. 163 in similar situation with regard to the grant of sanction for prosecution of a minister. The same issue has been addressed with regard to the power of the Governor to act independently or whether the Governor was obliged to act as per the advice of the Council of Ministers and observations have been made and the same contention was pressed into service that the Constitution has expressly provided for the contingencies or cases where the Governor is to act in his discretion and not beyond. The same submissions were canvassed that the Governor is required to act as per the advice of the Council of Ministers and his discretion can only arise in case the constitution has expressly provided that the Governor can act in his discretion.
74. Again, a reference was made to the judgment of the Constitution Bench of the Hon'ble Apex Court in Samsher Singh's case (supra) and after considering the judgment in Samsher Singh's case, the observations have been made that “however, on those rare occasions where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on facts of that case, to act in his own discretion and grant sanction.” Similar submission was also pressed into service that if it is interpreted in this manner, the Governor would be sitting in appeal over the decision of the Council of Ministers and the Hon'ble Apex Court has negatived such contention taking a cue from Antulay's judgment that the Council of Ministers may not take a fair and impartial decision when their Chief Minister or other members of the Council face prosecution. It has been observed that the doctrine of “apparent bias” may not be applicable in a case where a collective decision is required to be taken under a statute. Therefore, it would depend upon the facts of each case and this judgment has left open the discretion with the Governor in the public interest as well as in the interest of democracy to exercise the discretion when it is prima facie found that the Council of Ministers may not be able to take an objective decision.
75. The words “apparent bias” has to be, therefore, considered in context and background of the facts of each case in a given situation, and merely because the Council of Ministers has taken the decision which is a conscious collective decision, the doctrine of apparent bias may not be applicable. However, it has been specifically observed that there might be exceptions to this general rule. In other words, as a general rule as provided in Art. 163(1) of the Constitution of India, normally, the Governor is obliged to act as per the aid and advice of the Council of Ministers, but in a given situation, as and by way of exception, may use the discretion which again will be subject to judicial scrutiny to take care of any such apprehension of bias or mala fide in exercise of power by the Governor. It is required to be recalled that the emphasis given by learned Advocate General Shri Trivedi as well as learned Sr. Counsel for the petitioner Shri Thakkar that if that is permitted it would be impossible to function and it could be a threat to the elected government and a deadlock would be created when issues are joined for many matters when there is a parallel centre of power. However, if that be so, it is proceeding on the assumption of bias by the office of the Governor and normally the presumption would be that the person holding such high position would have constitutional morality. Assuming that in the present day political scenario with the fall in standards and two sets of governments in power, one by a certain political party at the Centre and another different party at the State level and the Governor being an appointee of the President who acts according to the suggestion of the President who in turn would be acting as per the aid and advice of the Council of Ministers (Centre), it will have two parallel checks, both in the Parliament as well as by way of judicial scrutiny of any such bias, which could be examined by the courts for the purpose of considering whether any such mala fides or bias has crept in while arriving at the decision. It will have to be made more transparent and that will reveal and reflect about the justification for exercise of any such discretion by the Hon'ble Governor. Unless there is any justification shown, such discretion would be bad even if there is no mala fides.
On the other hand, if there is a justification, the decision would be considered as in the public interest as the Council of Ministers may have some kind of reservation which has been reflected in the judgment in the case of M.P. Special Police Establishment (supra). It has been specifically observed that the question of bias has to be considered based on human probabilities and ordinary course of human conduct.
76. Therefore, the ultimate test in every case is that the Hon'ble Governor may, as and by way of exception, exercise the discretion in light of the discussion made hereinabove in a given case which will be subject to further scrutiny, but it cannot be said that no such discretion exists under the scheme of the Constitution and any such discretion exercised by the Hon'ble Governor is alien to the constitution as sought to be canvassed. On the other hand, any such discretion would be subject to judicial scrutiny as well as a debate in the Parliament which would be sufficient for taking care of any such apprehension. In other words, there is no lack of discretion in a given situation as an exception and the Hon'ble Governor may, in a given case, exercise the discretion in public interest as, on the contrary, it has to be shown that the decision is in public interest and for protection of the rule of law and democracy rather than anything else.
77. The Hon'ble Apex Court in the judgment in the case of Samsher Singh (supra) in para 154 has laid down that normally the Hon'ble Governor is obliged to act as per the aid and advice of the Council of Ministers. However, it has also been observed that there could be a discretion in given circumstances which are peril to the democracy and the same has been elaborately considered by another Constitution Bench of the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra), where similar contentions, as canvassed by learned Advocate General Shri Kamal Trivedi have been considered that the Hon'ble Governor has no discretion under the Constitution of India and is required to exercise the discretion only in contingencies provided in the Constitution and not otherwise, It has been observed, “However, merely because the Constitution of India expressly provides, in some cases, for the Governor to act in his discretion, can it be inferred that the Governor can so act only where the Constitution expressly so provides. If that were so then sub-clause (2) of Article 163 would be redundant.”
78. In other words, such a question whether the matter is or is not in which the Governor is required to exercise the discretion could only arise where there is no express provision in the constitution and the courts have to consider in light of the aforesaid judgment. Tthe Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh (supra) has, referring to and laying down the law, expressly made the observations which are also referred to and quoted in a subsequent Constitution Bench judgment in the case of M.P. Special Police Establishment (supra), and it has been specifically observed, “Thus, as rightly pointed out by Mr. Sorabjee, a seven-Judges' Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the Judgment are not exhaustive. It is also recognized that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognized that there may be situations where by reason of peril to democracy or democratic principles an action may be compelled which from its nature is not amenable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.” (emphasis supplied)
79. Therefore, once it is accepted that there is no issue with regard to exercise of discretion by the Hon'ble Governor in a given situation, another facet of the submissions which have been emphasised with regard to the justification or the scope of exercise of such discretion are required to be considered. The submissions have been canvassed by learned Sr. Counsel Shri Thakkar as well as learned Advocate General Shri Kamal Trivedi that the scope of exercise of discretion which has been referred to in the case of M.P. Special Police Establishment (supra) is totally in different facts and circumstances. It was emphasized by learned Sr. Counsel Shri Thakkar that in that case a detailed inquiry was made by the Lokayukta, who was a retired Judge of the Hon'ble Apex Court, and on his report when the grant of sanction was declined, the question has arisen like the present one that there were two sets of decisions or orders, (i) by the Council of Ministers declining or refusing the sanction for the prosecution, and (ii) by the Hon'ble Governor granting sanction for the prosecution.
80. May be, the facts may have a different background, but what is required to be considered is the justification for exercise of discretion by the Hon'ble Governor in a given situation like the present one which is also in a way similar, inasmuch as, in the present case also, there are two competing orders, one by the Council of Ministers and another by the Hon'ble Governor, one refusing to grant sanction and the other granting the sanction. Therefore, as observed by the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) again referring to the same situation and Art. 163 has reiterated and observed, “Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disable itself or disentitles itself.”
81. In other words, though the Council of Ministers may not have disabled itself or disentitled itself, the moot question which arises is whether in such a situation, the bias can be said to be inherent or manifest in the advice of the Council of Ministers. Assuming that there is no such inherent bias, as the doctrine of “apparent bias” may not be applicable in a case where a collective decision is required to be taken, the issue is required to be considered with reference to the peculiar facts of the case. Moreover, the Hon'ble Apex Court in its judgment has also referring to the same submissions made the observation that it may not be applicable and different views or opinions may be there but in a democracy the opinion of the majority would prevail and has proceeded to consider not the real bias but the doctrine of likelihood of bias which may also not be applicable in a given case.
82. These propositions have been considered by the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) as a general rule and in subsequent paras referring to the peculiar situation, where there are two competing orders, has proceeded to consider that even though there may not be any apparent bias, but in a given case if the relevant material is not considered, the decision could be vitiated and referring to the facts of the case made an observation that at the prima facie stage it could not have been concluded that no case was made out. Therefore, it depends on the decision making process reflecting about the process of arriving at the decision and consideration of relevant material.
83. There may not be any dispute with regard to the discretion as regards the policy matters with the Government or the Council of Ministers. However, in the facts of the case regarding grant of lease for fishing contracts, the observations have been made by the Division Bench of this High Court as referred to hereinabove in which it has been considered that the action of the Government of granting fishing contracts without inviting tenders were not approved. However, there is a reference to the files with the notings which are referred to in the judgment. Thereafter, Special Criminal Application No. 2226 of 2010 for grant of sanction and direction was filed and when the occasion arose with regard to a decision for grant of sanction as directed by this High Court in Special Criminal Application No. 2226 of 2010, the aforesaid two competing orders/decisions are taken. The Hon'ble Governor referred to these aspects and the files with the notings which are forming the basis of the material considered by the Hon'ble Governor. There is a mention in the order of the Hon'ble Governor referring to those aspects like the file having been mooted by the petitioner in a reverse procedure, the notings by the Finance Department that it would be a deviation from the established policy of the Government, the orders having been issued before the decision and the ex-post facto sanction for such decision etc.
84. In other words, broadly, it refers to an interest which could be said to be in conflict with the constitutional governance of the affairs of the Government and the transparency thereof. Not only that, but the interest shown by the petitioner may be in conflict with his discharge of duties as a public servant. It is in this background, when there are allegations of ill-motive and the discretion is exercised by the Hon'ble Governor, it cannot be said to be erroneous or without justification as sought to be canvassed.
85. The Hon'ble Apex Court in the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001) 1 SCC 182, referring to the Judicial Review of Administrative Action by de Smith, Woolf and Jowell, has observed that “the principle of real likelihood of bias has now taken a tilt to “real danger of bias” and “suspicion of bias” reflecting on the modern concept of transparency in governance according to the constitutional norms and being conscious of such situation, the Hon'ble Apex Court even in Samsher Singh's case (supra) had made the observations which have been reiterated in the case of M.P. Special Police Establishment (supra) leaving it open for the Hon'ble Governor to exercise the discretion in a certain situation even though there may not be any express provision in the Constitution. This is required to be considered as falling in line with the changed circumstances and the political scenario as stated above, all round fall in standards in public life and also the expectation of people which they have a legitimate right to claim under the doctrine of legitimate expectation that there has to be a governance according to the constitutional norms and discipline. It is only if it is observed, the rule of law and the democracy could survive and be protected. The Hon'ble Governor, while discharging the function, is also under a constitutional obligation to discharge such duty of protecting the constitutional norms, public interest as well as the democracy.
86. The Hon'ble Apex Court in a judgment in the case of R.S. Nayak v. A.R. Antulay, reported in (1984) 2 SCC 183, referring to the same issue regarding grant of sanction has made the observations. it has been discussed that it is the fundamental obligation and duty to serve and act with fidelity and with a single- mindedness for the welfare of the community. He holds an office. He exercises the powers or discretion and correspondingly discharges his duties towards the State (for people) under a trust and he would be performing as a trustee for the people otherwise than of any other purpose.
87. A useful reference can also be made to the observations made by the Hon'ble Apex Court in a recent judgment in the case of Subramanian Swamy (supra), wherein the Hon'ble Apex Court has made the observation, “Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the right against corruption. That is to say, in a situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”
88. The Hon'ble Apex Court has also, referring to the Administrative Law by Prof. Wade, referring to the concept of Rule of Law and the opinion of Lord Griffiths, has observed, “....the judiciary accepts a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behavior that threatens either basic human rights of the rule of law.”
89. Therefore, it could not be said that there is any error or lack of bona fide in exercise of such discretion or that the material was not sufficient for grant of sanction in exercise of the discretion.
90. It leads us to another submission which has been canvassed by learned Sr. Counsel Shri P.M. Thakkar that all the relevant material has been considered by the Council of Ministers and the Hon'ble Governor, while exercising the discretion for grant of sanction, has virtually sat in appeal over the decision of the Council of Ministers which was not open to her. It has also been submitted that no fishy inquiry could be made and she was required to consider on the basis of the material only and there is no material, except the affidavit of Shri Pagi.
91. Therefore, the submissions which have been made cannot be sustained on consideration of the entire record including the files which have been called for and the decision of the Hon'ble Governor referring to various aspects as discussed above in context of the observations made by the Division Bench of this High Court cannot be said to be alien to the Constitution and such submissions made cannot be accepted. It is required to be mentioned that same contentions have been raised before the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra), which have been negatived by the Hon'ble Apex Court. A reference has been made to Antulay's case and it was observed that it was possible to contend that the Council of Minsters may not take a fair and impartial decision when their Chief Minister or other member of the Council faces the prosecution. This aspect has been considered in light of the submissions with regard to the bias or the doctrine of apparent bias, which may not be attracted when there is a collective decision. However, as observed as back as in 1970 in the case of A.K. Kraipak v. Union of India, reported in AIR 1970 SC 150, it has been observed that in a group deliberation also a group is bound to influence the others and the opinion could be influenced. Therefore, the real question is not of bias, but there must be a reasonable likelihood of bias. While deciding such a question of bias, we have to take into consideration the human probabilities and the ordinary course of human conduct.
92. The same is also required to be considered in reference to the observations of the Hon'ble Apex Court in a judgment reported in 1998(1) GLH 248 in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat, where it has been observed referring to the grant of sanction as under:
“A Division Bench of this Court comprising of Kuldip Singh and B.P. Jeevan Reddy, JJ. in U.P. Financial Corporation v. M/s. Gem Cap (India) Pvt. Ltd. and others, JT 1993(2) SC 226 = AIR 1993 SC 1435, observed as under:
“ The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this court as far back as 1970 in A. K. Kraipak v. Union of India, AIR 1970 SC 150. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well- known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred" (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Council - 1977 AC 1014 at 1064). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 at 229) :
"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
At the same time, in this very judgment the observations of Lord Denning has been quoted which read as under:
“If the decision-making body is influenced by the considerations which ought not influence it; or fails to take into account matters which it ought to take into account, the Court will interfere. [See, Pad field v. Minister of Agriculture, Fisheries and Food, 1968 AC 997]”
93. Further, a useful reference can be made to the judgment of the Hon'ble Apex Court in the case of Sterling Computers Ltd. v. M/s. M&N Publications Ltd. and ors., reported in AIR 1996 SC 51 = (1993) 1 SCC 445 referring to the power of judicial review for the scrutiny of decision making process and it has been observed, “"The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended.”
94. Therefore, keeping in view the aforesaid broad parameters or the criteria for the purpose of considering the justification for exercise of discretion by the Hon'ble Governor and the right or the discretion of the authority or the body like the Council of Ministers, and applying the test of objectivity on a broad consideration of the material and evidence, it could not be said that the decision of the Hon'ble Governor exercising the discretion for grant of sanction is erroneous.
95. One more aspect which is required to be considered at the stage of grant of sanction is whether the material prima facie establish the existence of the evidence with regard to involvement of a public servant in the alleged offence or not. It does not require a detailed scrutiny. A useful reference can be made to the judgment reported in (2007) 11 SCC 273 in the case of State of Karnataka v. Ameerjan. A useful reference can also be made to the observations in the case of Samsher Singh (supra).
96. Moreover, a useful reference can be made to the observations made by the Hon'ble Apex Court in its judgment in the case of Vineet Narain v. Union of India, reported in (1996) 2 SCC 199. It has been observed, “55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the role of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.”
97. The submissions which have been made by learned counsel Shri Mukul Sinha for respondent No. 3 with regard to the jurisdiction of this Court to examine the decision is no longer res integra in light of the clear observations made by the Hon'ble Apex Court in its judgment in the case of M.P. Special Police Establishment (supra), wherein it has been observed, “We have, on the premises aforementioned, no hesitation to hold that the decision of the Council of Ministers was ex facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ Court while exercising its jurisdiction under Article 226 of the Constitution of India as also this Court under Articles 136 and 142 of the Constitution of India can pass an appropriate order which would do complete justice to the parties. The High Court unfortunately failed to consider this aspect of the matter.”
98. Moreover, the submission that a writ petition would not lie and a suit under Art. 131 should have been preferred also cannot be accepted. However, a bare perusal of the provision of Art. 131 would makes it clear that it would apply only in a case where there is a dispute between the two organs or states of the government.
99. Another facet of the argument which has been emphasised with regard to res judicata is also misconceived. When the direction has been given by this High Court to the Government to take appropriate decision for grant of sanction, and the decision is taken by the Council of Ministers refusing to grant sanction, at the same time the Governor has taken the decision exercising the discretion and not pas per the aid and advice of the Council of Ministers taking a contrary view resulting in two competing decisions, then, the real issue whether the Hon'ble Governor was obliged to act as per the aid and advice of the Council of Ministers or could have exercised the discretion in the facts of the case is an issue which could arise only after disposal of Special Criminal Application No. 2226 of 2010 which directed the Government to take the decision. Therefore, the submission that the present petition is barred by res judicata is thoroughly misconceived.
100. Another facet of the submission referring to the fact that sanction as required could be a matter to be considered by the trial court based on the material, whether there was a prima facie material or not is also misconceived in context of the facts of the case. In the facts of the case, the issue has been touching the interpretation of Art. 163 of the Constitution of India with reference to the parliamentary system of democracy and it is not merely a decision to grant sanction by the executive/Government which could be considered by the trial court in all matters. However, in the present case, it has reference to an issue which has been touching the interpretation of the Constitution which the trial court may not consider and the Hon'ble Apex Court in the case of M.P. Special Police Establishment (supra) has clearly laid down the law which is no longer res integra referring to the earlier judgment in the case of Samsher Singh (supra). Therefore, the submission on this count also must fail.
101. Another facet of the submission referring to the decision of the Council of Ministers and the affidavit of the Government and also the observations made by the Division Bench of this High Court in Special Civil Application No. 9958 of 2008 with Special Civil Application No. 10918 of 2008 as well in Special Criminal Application No. 2226 of 2010 is required to be considered in context of the facts of the case. It is required to be mentioned that the text of any law or the authority has to be read in context of the facts. In fact, the reliance placed by learned counsel Shri Sinha referring to the observations made in the judgment in the case of Rameshwar Prasad & ors. v. Union of India and ors., reported in (2006) 2 SCC 1, would make his own submissions about the maintainability of a writ petition self- contradictory. The reliance placed by learned counsel Shri Sinha referring to the judgment of the Hon'ble Apex Court in the case of B.R. Kapur v. State of T.N. and anr., reported in (2001) 7 SCC 231, para 72, on the contrary, also have been considered as discussed hereinabove.
102. The submission made by learned counsel Shri Sinha referring to the judgment in the case of M.P. Special Police Establishment (supra) that this High Court has no jurisdiction and the issue as to whether the High Court has jurisdiction was not raised, considered or answered and therefore the petition under Art. 226 is not maintainable, is thoroughly misconceived.
103. Reliance has been placed by learned counsel Shri Sinha on the judgment of the Hon'ble Apex Court in the case of Prakash Singh Badal & anr. v. State of Punjab & ors., reported in (2007) 1 SCC 1, and referring to para 47 he has made the submissions. However, the submission has been considered in a later judgment and specific answer to the issue involved in the present case has been directly addressed in the case of M.P. Special Police Establishment (supra) which clarifies the position and therefore it does not require any further elaboration. Similarly, the reliance is placed by learned counsel Shri Sinha on the judgment reported in (2009) 17 SCC 92 in the case of State of Punjab and anr. v. Mohammed Iqbal Bhatti as well as in the case of Dinesh Kumar v. Chairman, Airport Authority of India and anr., reported in (2012) 1 SCC 532, regarding the observations made earlier which is again regarding the validity or propriety of the sanction which is required to be considered normally at the trial. However, the submission, as discussed above, cannot be accepted for the simple reason that the issue has totally a different angle involving the interpretation of the scheme of the Constitution in background of the parliamentary system of democracy and therefore the submission that the sanction which has been granted by the Hon'ble Governor could be examined at the trial is thoroughly misconceived.
104. Learned counsel Shri Sinha has also referred to the provisions of the Prevention of Corruption Act to emphasise with regard to the allegations that it prima facie supports the allegations referring to the affidavit of Shri Pagi. However, he has much emphasised on the aspect of the ingredients and the definition of the public servant and the observations made by the Division Bench of this High Court in Special Civil Application No. 9958 of 2008 with Special Civil Application No. 10918 of 2008. However, these issues and the submissions are not relevant for the purpose of deciding the basic issue whether the Hon'ble Governor was obliged to act as per the aid and advice of the Council of Ministers and once the decision of the Hon'ble Governor is found to be not lacking in bona fide or erroneous, as a necessary corollary, these aspects will not have much relevance.
105. Therefore, in view of the decision of the Hon'ble Apex Court in Samsher Singh's case (supra) and the decision that the Governor is required to act in his/her discretion only by express provision cannot be accepted as a proposition as this judgment as well as the judgment in the case of M.P. Special Police Establishment (supra) have held that in some cases the Governor had the power to act in his/her discretion as a matter of necessary implication. These judgments imply that the Governor is not obliged to act as per the aid and advice of the Councilor Ministers and could exercise discretion in discharge of his/her function. It may also be added that it cannot be readily understood or inferred that the Governor has a general discretionary power to act against the aid and advice of the Council of Ministers, as otherwise, the specific discretionary power referred to in Art. 163(2) of the constitution would be redundant. In other words, it has to be considered more as a discretion to be exercised as a necessity or as an exception rather than a general rule.
106. It is in these circumstances, examining the rival contentions as well as the material and the issues which have been raised with the submissions at length, it cannot be said that the exercise of discretion by the Hon'ble Governor based on the material was erroneous. The observations made by the Hon'ble Apex Court in the case of M.P.
Special Police Establishment (supra) are also required to be borne in mind, wherein it has been observed in para 32, “If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.”
107. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. The exercise of discretion by the Hon'ble Governor in granting the sanction for prosecution is not found erroneous and should be given effect to.
(Rajesh H. Shukla, J.) (hn/Patil)