Esab India Limited v. Special Diriector of Enforcement & Anr

SANJIV KHANNA, J.

MARCH 08, 2011 VKR

2. * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 8th March, 2011 + WRIT PETITION (CIVIL) NO. 1138/2010 ESAB INDIA LIMITED ..... Petitioner Through Mr. Mathews J. Nedumpara, Mr. Robin Majumdar & Mr. K. Lingaraja, Advocates. versus SPECIAL DIRIECTOR OF ENFORCEMENT & ANR. ..... Respondents Through Mr. Sachin Datta, Standing Counsel for UOI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not ? Yes. 3. Whether the judgment should be reported in the Digest ? Yes. DIPAK MISRA, CJ. Before we proceed to state the facts, we may profitably refer to a paragraph from the decision rendered in the case of R.S. Joshi, Sales Tax Officer, Gujarat and others versus Ajit Mills Ltd. and another, (1977) 4 SCC 98, wherein Krishna Iyer, J., in his inimitable style expressed thus:- "2. A prefactory caveat.- When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn Vs. Illinois viz, "that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies". Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognized our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution." 2. That apart, in the case of Charanjit Lal Chowdhary versus Union of India, AIR 1951 SC 41, it has been held thus: "It is the accepted doctrine of American Courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles." 3. In Ram Krishna Dalmia and Others versus Justice S.R. Tendolkar and Others, AIR 1958 SC 538, the Apex Court ruled that there is always a presumption in favour of the constitutionality of an enactment and the burden is on him who challenges the same to show that there has been a clear transgression of the constitutional principles and it is the duty of the Court to sustain that there is a presumption of constitutionality and in doing so, the Court may take into consideration, the matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. 4. In State of Bihar and Others versus Bihar Distillery Limited, AIR 1997 SC 1511, the said principle was reiterated. 5. We have referred to the aforesaid authorities for the sanguine and sacrosanct reason as in this writ petition the petitioner, Esab India Limited, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, has prayed for declaring Section 24 read with Second Schedule of the Right to Information Act, 2005 (for brevity, "the Act") as unconstitutional and also for issuing a writ of certiorari for quashment of the order dated 11th May, 2009, Annexure-P7, passed by the Central Information Commission. We are disposed to think that the seemly cogitation is to be done in the backdrop of the "caveat". The modus vivendi which requires a purposive and constructive ratiocination while engaged in viceration of the provision, a legislative one, though may draw strength and stimulus in all its variation from the greatest instrument, i.e., the Constitution, in a given case and in a particular factual situation if the provisions trespass the quintessential characteristic of Organic Law or Judge made law should not be allowed to stand. 6. Presently to the factual matrix: The ess