K.B.NAGUR M.D(AYU) Vs UNION OF INDIA
Bench: S.H. KAPADIA,A.K. PATNAIK,SWATANTER KUMAR
Case number: W.P.(C) No.-000033-000033 / 2009
Diary number: 1886 / 2009
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1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 33 OF 2009
K.B. Nagur M.D. (Ayu.) … Appellant
Versus
Union of India … Respondent
WITH
I.A. NOS. 1, 3, 4, 6, 7, 8, 9, 10 AND 11
AND
WRIT PETITION (CIVIL) NO. 249 OF 2011
TRANSFER PETITION (CIVIL) NO. 736 OF 2011
TRANSFER PETITION (CIVIL) NO. 737 OF 2011
TRANSFER PETITION (CIVIL) NOS. 738-739 OF 2011
J U D G M E N T
Swatanter Kumar, J.
1. The Central Council of Indian Medicine (for short ‘the
Central Council’) is a statutory body, constituted in terms of
Section 3 of the Indian Medicine Central Council Act, 1970 (for
short ‘the Act’). Section 4 of the Act mandates that election
under clause (a) or clause (b) of sub-Section (1) of Section 3 of
the Act shall be conducted by the Central Government in
2
accordance with the rules as may be made in this behalf.
Where any dispute arises regarding any election to the Central
Council, it shall be referred to the Central Government whose
decision shall be final. Sub-section (1)(a) of Section 3 provides
that the Central Council shall consist of such number of
members, not exceeding five, as may be determined by the
Central Government in accordance with the provisions of the
First Schedule of the Act for each of the Ayurveda, Siddha and
Unani systems of medicine, from each State, in which a State
Register of the Indian Medicine is maintained, to be elected
from amongst themselves, by the persons enrolled on that
Register as registered practitioners of the respective systems.
Section 3(1)(b) of the Act states that one member each of the
Ayurveda, Siddha and Unani systems of medicine from each
University were to be elected from amongst themselves by the
members of the Faculty or Department of the respective
system of medicine of that University. The Central
Government could also nominate such number of members,
not exceeding thirty percent of the total members elected,
under the above mentioned clauses (a) and (b) to the Central
Council, from amongst persons having special knowledge or
practical experience in respect of Indian medicine, in
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accordance with Section 3(1)(c) of the Act. These elected
members are to elect their President, to be known as President
of the Central Council and a Vice-President for each of the
systems of medicine.
2. This elected Central Council, so constituted, is to
discharge various functions and duties as contemplated under
the provisions of the Act, which include the grant of
recognition to medical colleges/courses, maintenance of
education standards, appointment of Inspectors, conduct and
supervision of examinations, and even the withdrawal of
recognition, if necessary. A register is to be maintained of the
persons possessing requisite qualification in the type of
medicine which the member is eligible to practice and who
have been registered by the State Board and which register
has to be updated with regard to the qualification attained by
members of the respective professions subsequently.
3. As is evident from the above narrated provisions, the
Central Council discharges very significant and important
functions which would affect not only education in these three
systems but even their practice and treatment of thousands of
patients under these systems. The statute places an
obligation upon the Central Government to hold these
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elections and ensure that the Central Council works smoothly
and in accordance with the provisions of the Act. Section 7 of
the Act refers to the tenure that an elected member is entitled
to enjoy, upon his election to the Central Council. This
Section deals with the term of the Office of the President, Vice-
President and the members of the Central Council. The term
of office for all these persons is five years from the date of
election or nomination, as the case may be, or until a
successor has been duly elected or nominated, whichever is
longer. The latter part of this Section caused serious
impediment in the proper functioning of the Central Council
primarily for two reasons : (a) the Central Government did not
take appropriate steps to hold fresh elections and (b) the
persons who were elected and were interested in continuing as
such, took advantage of this provision and continued in office
far beyond five years as nobody was duly elected to replace
them.
4. The petitioner is an Ayurvedic doctor and holds the
degree of Ayurvedic Medicine, namely BAMS, has done his
post graduation MD (Ayurvedic) degree subsequently. The
petitioner claims that he held and still holds various offices in
different organizations dealing with Ayurveda system of
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medicine. He claims to be the General Secretary of the
Medical Association of India and member of the Governing
Body of All India Ayurvedic Congress Committee, New Delhi
and Indian Association of Blood Bank, Delhi. His aim is to
ensure proper functioning of the Central Council, which has
not been properly constituted and for which elections have not
been held for the last 20-25 years. The petitioner, having
failed to achieve any results at the hands of the Central
Government or the Central Council, despite the fact that he
was holding various offices directly connected with the
functioning of the Central Council, filed a petition under
Article 32 of the Constitution of India, 1950 (hereafter, ‘the
Constitution’) with the following prayers :
“(a) An appropriate writ, order or direction directing the Union of India to hold elections to the Central Council of Indian Medicines and to constitute the same in accordance with law;
(b) further direct the Union of India to fill up the posts of any member who has completed five years within one month;
(c) Strike down and quash the last clause in section 7 of Indian Medicine Central Council Act, 1970 reading as “or until his successor shall have been duly elected or nominated, whichever is longer” as contrary to the very Act, unconstitutional and undemocratic and violative of Articles 14 and 16 of the Constitution of India.”
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5. Obvious from the above prayers is that the petitioner,
firstly, wants a direction to the Union of India to discharge its
statutory duty in terms of Section 3 of the Act, to fill up the
membership of the Governing Body of the Central Council with
regard to the members who have completed the term of five
years within the stipulated period and secondly, the striking
down of provision of Section 7 of the Act as unconstitutional,
undemocratic and violative of Articles 14 and 16 of the
Constitution. It is the contention of the petitioner that the
elected members of the Central Council are adopting delaying
tactics and even invoking the jurisdiction of the High Courts to
stop the holding of elections or the declaration of result of the
elections wherever held, notwithstanding the fact that there is
an alternative remedy available to them of filing an election
petition. The inaction on the part of the Government borders
on complicity and with the passage of time vested interests
have developed. There is a specific averment in the petition
that the Union of India and even the members of the Central
Council are not evincing any interest in the functioning of the
Central Council and a few unelected members, whose term
expired long back, are squatting for an inordinately long
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period as being erstwhile elected members of the Central
Council with the aid of language of Section 7 of the Act. To
contend that the delay is prejudicial to the working of the
Central Council and is also opposed to the spirit of Section 3
of the Act, they rely on the decision of this Court in the case of
Kishansing Tomar v. Municipal Corporation of the City of
Ahmedabad and Others [(2006) 8 SCC 352], which held that
the Election Commission should take steps by following due
process of law, but that too should be done in a timely manner
and in no circumstances, shall such elections be delayed, so
as to cause gross violation of mandatory provisions contained
in Articles 243-U of the Constitution. This buttresses their
submission that timeliness in conduct of elections is
mandatory.
6. Lastly, challenge has been raised to the following
portion of Section 7 of the Act as unconstitutional, violative of
Articles 14 and 16 of the Constitution:-
“ or until his successor shall have been duly elected or nominated, whichever is longer”
7. First and foremost, we will deal with the contention of
the provision being ultra vires of Articles 14 and 16 of the
8
Constitution of India, raised on behalf of the petitioner.
Article 14 guarantees equality before law whereas Article 16
talks of equal opportunities in matters of public employment.
This concept of equality has to be patently infringed by a
provision before that provision or any part thereof, can be
declared as unconstitutional. The mere fact that there is
some inconvenience arising from the language of a provision
and its due implementation, cannot be a ground for declaring
a provision violative of fundamental rights. The impugned part
of Section 7 of the Act is intended to ensure that there is no
vacuum in the membership of the Central Council. The term,
as prescribed under Section 7 of the Act, is five years.
Elections are expected to be held within that period of five
years to ensure that immediately after expiry of the specific
term, the members holding the office quit and the newly
elected members assume the charge. However, there can be
situations where the elections in the entire country or in any
part thereof cannot be held within the prescribed time and for
valid reasons. It may even be because of the situation that is
created by the people who are holding the office of the
members of the Central Council for their personal ends. In
such cases also, the elections may be delayed. It is the
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former situation which is intended to be protected by the
challenged words of Section 7 of the Act. The legislative intent
is clear that there cannot be a vacuum in the working of a
statutory body and it cannot be rendered non-existent even for
a short period by lapse of membership term or otherwise.
Thus, to provide a safeguard for the interregnum period, of the
earlier members of the Central Council vacating their office
and newly elected members assuming their office, the
provisions of Section 7 have been enacted by the Legislature.
8. Still another aspect is that presumption of
constitutionality is always in favour of a legislation, unless the
contrary is shown. Furthermore, a Legislature, in enacting a
law, operates on a presumption, in law and practice, both, that
all other forums and entities constituted under one or other
Act would, in their functioning, act in accordance with law and
expeditiously. As it is a settled precept in the application of
economic principles, that all other things will remain the same
i.e., ceteris paribus, similarly, for the proper interpretation and
examination of a provision of a statute, all bodies must be
presumed to act effectively and in accordance with law.
9. A statute is construed so as to make it effective and
operative as per the principle expressed in ut res valeat potius
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quam pereat. There is, therefore, a presumption that the
Legislature does not exceed its jurisdiction and the burden of
establishing that the Act is not within the competence of
Legislature or that it has transgressed other constitutional
mandates, such as those relating to fundamental rights, is
always on the person who challenges its vagaries.
10. Here, we may also notice that there are two rules, of
most general application, in construing a written instrument
which are pari materia, applicable to statutes as well. First, if
possible, the written instrument shall be interpreted in light of
the above mechanism and secondly, such a meaning shall be
given to it, as may carry out and effectuate, to the fullest
extent, the intention of the parties or the framers of law. Of
course, such interpretation will be subject to the limitations of
uniformity in the meaning given to such expressions etc.
11. It is also a settled and deeply rooted canon of
constitutional jurisprudence, that in the process of
constitutional adjudication, the courts ought not to pass
decisions on questions of constitutionality unless such
adjudication is unavoidable. In this sense, the courts have
followed a policy of strict necessity in disposing of a
constitutional issue. In dealing with the issues of
11
constitutionality, the courts are slow to embark upon an
unnecessary, wide or general enquiry and should confine their
decision as far as may be reasonably practicable, within the
narrow limits required on the facts of a case. From the above
discussion, it is clear that question of constitutionality of a
provision is a matter which the courts would venture to
examine only for valid, proper and sustainable grounds. We
do not see that the provisions of Section 7 of the Act, or any
part thereof, suffer from any legal infirmity, excessive
legislative power or violate any legal right of any person,
including the petitioner, much less a constitutional right.
Keeping the principle of strict necessity in mind, the courts do
not venture to examine the constitutional validity of a
provision and even strike down such provisions, if they are
constitutional and a Court does so only if the situation created
by such legislation is irremediable or unredeemable. None of
these circumstances exist in the present case.
12. In fact, it is not necessary for us to deliberate on this
issue at any greater length to notice that in a case under
Regulation 23 of the Dental Council (Election) Regulations,
1952, where it was provided that the President shall, no later
than 60 days before the date of occurrence of
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vacancy/vacancies, forward a notice by registered post to the
Registrar of each University concerned, requesting him to hold
an election not later than the date specified in the notice.
These regulations are framed under the Dentists Act, 1948.
Sections 6 and 7 of that Act deal with the tenure and election
of the President, Vice President and the Members of the Dental
Council of India. Section 6(1) of the Dentists Act further
provides that, subject to the provisions of that Section, an
elected or a nominated member would hold the office for a
term of five years from the date of his election or nomination,
or until his successor has been duly elected or nominated,
whichever was longer. The language of that Section is pari
materia with that of Section 7 of the Act. Challenge was raised
to the constitutional validity of Section 6(1) of the Dentists Act,
read with Regulation 23 of the Dental Council (Election)
Regulations, 1952, framed thereunder. A Constitution Bench
of this Court repelled the said challenge in the case of Dental
Council of India and Anr. v. Dr. H.R. Prem Sachdeva & Ors.
(1999) 8 SCC 471 and held as under:-
“7. A conjoint reading of the various provisions of the Act and the Regulations referred to above go to show that the term of office of the members of the Council is five years from the date of the election or nomination,
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as the case may be. Section 6(1), however, also provides that a nominated or elected member, after the expiry of the term, may continue “until his successor has been duly elected or nominated, whichever is longer”. The expression “whichever is longer” does suggest the continuation after the expiry of the term. Can it, however, be construed to mean that if the authorities fail to act as per clauses (a) to (f) of Section 3, the member concerned can continue to remain in office till perpetuity? In our opinion that could not be the intention of the law-makers. Regulation 23 (supra) does give an indication of what we have said above.
8. A reasonable interpretation of the provisions of the Act and the Regulations would be that elections/nominations to the Council should normally be held/made once in five years. However, if for some valid reasons the elections cannot be held during the term of five years, the same should be held within a reasonable time thereafter and the continuance in office of the elected/nominated members should not go on for perpetuity. The continuance in office, after the expiry of the term, should only be a stopgap arrangement to avoid a vacuum. The obligation to nominate/hold elections is of various authorities obliged to elect/nominate members to the Council under clauses (a) to (f). The Act and the Regulations are silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five-year term or soon thereafter and this lacuna gives rise to unnecessary litigation. We hope that the authorities concerned shall take appropriate measures by amending the provisions of the statute or the Regulations or frame appropriate rules so that the ambiguity regarding the maximum period, after the expiry of the five-year term during which election/nomination should be held/made is removed.”
13. For the reasons recorded above, we follow the view
expressed by the Constitution Bench. Therefore, we have no
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hesitation in repelling the challenge raised by the petitioner
regarding the constitutionality of Section 7 of the Act.
14. Now, we shall proceed to deal with the other
contention, that the Central Government is liable to be
directed to hold the elections to the Central Council, as well as
to promptly fill up the vacancies occurring in the Central
Council due to efflux of time. This relief, to a large extent, has
become infructuous. During the pendency of this writ
petition, various orders had been passed by this Court,
directing the Central Government as well as the Central
Council to conduct elections in accordance with the provisions
of the Act. On 3rd July, 2010, both the Central Council and
the Union of India had agreed to complete the election process
within a period of six months from that date. It took some
more time to complete the process, but when the matter came
up before us for hearing on 18th July, 2011, and on
subsequent dates, we were informed that elections to the
Central Council have been completed in all the States.
15. The election process in regard to Siddha system of
medicine in the States of Andhra Pradesh, Himachal Pradesh
and Jammu & Kashmir had not been completed, though
elected candidates under the Unani and Ayurvedic systems
15
had been notified. This was because there were no Siddha
practitioners in those states. In all other States, the election
process in regard to the three medicine systems i.e., Ayurveda,
Unani and Siddha had been completed and the elected
candidates duly notified.
16. It was also pointed out before us that the Central
Government had not made its nomination in terms of Section
3(c) of the Act, under all the three systems of medicine.
17. We may notice that this petition has been rendered
infructuous, though to a limited extent. Section 3 of the Act
imposes a statutory obligation upon the Central Government
to hold elections to the Central Council, in accordance with
the statutory provisions, which we have discussed above.
Furthermore, the Central Government is responsible for
nominating such number of members not exceeding 30 per
cent of the total members elected under Sections 3(1)(a) and
3(1)(b) of the Act to the Central Council. In other words, the
Central Government has a major role to play in the
constitution, establishment and carrying on of activities by the
Central Council. This is an onerous and significant duty. We
cannot understand any reason whatsoever for the Central
Government not to perform its statutory duties, particularly
16
when it concerns with the systems of medicine catering to a
country of one billion people. The Court would take judicial
notice of the fact that a large number of people depend upon
these systems of medicine for treatment of various diseases.
The standards of education as well as the professionalism in
practice of medicine in these fields is bound to suffer a
setback, if the Central Government fails to exercise its powers
and discharge its functions and duties in accordance with law.
As already indicated, the Central Council exercises
supervisory, administrative and regulatory powers in relation
to education and practice of all these three systems. If the
Central Government wishes to exercise such control over
statutory bodies discharging important and diverse functions
in the field of medicine, then it is undoubtedly expected of the
Central Government to discharge its functions and duties
without failure and on time. It cannot justify its conduct in
unduly delaying the proper constitution of such bodies in
accordance with the provisions of the statutes and create faux
pas which shall prejudicially affect all concerned, including
the people at large.
18. We are conscious of the fact that this Court has to
adopt a purely judicial approach. The Constitution and the
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Rule of Law are the only supreme powers in any democracy
and no higher duty rests upon this Court, than to enforce, by
its decree, the will of the Legislature, as expressed in a statute,
unless such statute is plainly and unmistakably in violation of
the Constitution or Rule of Law.
19. In the case of Kishansing Tomar (supra), this Court
while dealing with the question of revision of electoral rolls by
the State Election Commission, noticed that the Election
Commission shall complete the election before the expiration
of the duration of five years' period as stipulated in Clause (9)
of Article 243-U of the Constitution and not yield to situations
that may be created by vested interests to postpone elections
beyond the stipulated time. The State Election Commission
shall take steps to prepare the electoral rolls, by following due
process of law, but that too, should be done in a timely
manner and in no circumstances, shall the elections be
delayed so as to cause gross violation of the mandatory
provisions contained in Article 243U of the Constitution.
Further, while drawing a distinction between severe man-made
calamities such as rioting, breakdown of law and order or
natural calamities, which could distract the authorities from
holding elections to the Municipality and other reasons for
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delay, this Court noted that the former are exceptional
circumstances and under no other circumstance would the
Election Commission be justified in delaying the process of
election after consulting the State Government and other
authorities. This Court laid significant emphasis on the
independence of the State Election Commission and expected
all other authorities to fully cooperate, and in default, granted
liberty to the State Election Commission to approach the High
Court and/or the Supreme Court, as the case may be for
relief/directions. However, no final or time-bound directions
were issued, in the petition above-referred, because election to
the Ahmedabad Municipal Corporation in that case had
already been held in the meanwhile.
20. Statutory or constitutional independence is a pre-
requisite to the proper functioning of such statutory bodies.
Their appropriate constitution, in accordance with the
provisions of the statute is mandatory. All concerned,
including the Central and State Governments have the onus to
discharge their duties and functions effectively and
expeditiously, in coordination and within the time specified.
No Court can permit any authority, much less the Central or
State Government to frustrate the statutory requirements of a
19
provision and also the very object of an Act.
21. The language of Section 7 of the Act is intended to
provide for a situation which is interregnum by its very
existence. Whatever be the methods adopted, by whichever
agency including the Government, to extend beyond a regular
term the tenure of members, would not only be impermissible
in law, but would also be illegal.
22. As already referred above, the provisions of Section 3
are concerned with the constitution of the Central Council by
election and nomination. Section 4 requires the Central
Government to conduct elections in accordance with the
Rules. Section 7 provides the term of office. Once these
provisions are read together, it is clear that the legislative
intent is that election to the Central Council should be held
within the period of five years which is the term of office
prescribed for the elected and/or nominated members.
However, if for any reason, the elections are not held and
newly elected members do not join their office immediately
after expiry of five years, then the latter part of Section 7
comes into play. This is an extra-ordinary situation that the
elected members continue beyond their prescribed term
because the elections had not been held and newly elected
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members cannot join the Central Council. Though, no outer
limit has been specified by the Legislature for which such
previously elected members can continue in office, but this
certainly cannot be for indefinite period. For whatever reason,
once recourse to this exceptional situation becomes necessary,
then the concept of reasonable time would come into play. It
is a settled rule of statutory interpretation that wherever no
specific time limit is prescribed, the concept of reasonable time
shall hold the field for completing such an action. The courts
in the process of interpretation can supply the lacuna, which
would help to achieve the object of the Act and the legislative
intent and make the provisions effective and operative.
23. Neither the Government, nor the Central Council can
abjure their obligation to complete the election process within
five years, or in any case, within a reasonable time thereafter.
Thus, in our considered opinion, a period of three months
would be more than sufficient for completing the election
process in accordance with law. This time limit shall operate
only and as and when the Central Government and the
Central Council jointly and severely are not able to hold the
fresh elections within the term of office of the previously
elected members, i.e., five years from the date on which the
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members first assumed office.
24. The words of Section 7 of the Act are intended to
operate in an extra-ordinary situation, as the normal course
should be that the Central Government hold the elections
within a period of five years from the date of notification of the
elected candidates for the previous tenure. Even where
recourse to this exceptional situation becomes necessary, even
there, the concept of reasonable time would come into play, in
a situation where no definite period has been prescribed by the
Legislature itself. The courts can always supply such lacuna
in the interpretation of provisions of a law so as to achieve the
object of the Act particularly when such interpretation would
be in consonance with the legislative object of the statute.
Thus, in our considered opinion, a period of three months
would be more than sufficient time for completing the election
process, in the event of exceptional circumstances and if the
elections had not been commenced and completed within the
period of previous tenure of five years, as is the requirement of
law, and the Government cannot abjure its obligation to do so
within a maximum period of three months.
25. For the reasons afore-recorded, we partially allow this
Public Interest Litigation, with the above observations and the
22
following directions:-
(A) Section 7 of the Indian Medicine Central Council Act,
1970 or any part thereof is neither ultra vires nor
violative of Articles 14 and/or 16 of the Constitution of
India.
(B)We hereby mandate that the Central Government shall
discharge all its duties and functions as contemplated
under Sections 3, 4 and 7 of the Indian Medicine
Central Council Act, 1970, without default, delay and
within the required intervals. We make it clear that it
is the obligation of the Central Government to hold
election to the Central Council within the period of five
years i.e., before expiry of , the term of office of the
President/Vice-President and Member of the Central
Council, as provided under Section 7 of the Act.
(C)In the eventuality of exceptional circumstances, if the
Central Government is not able to hold elections
within the period of the prescribed term, it shall
complete the process within a reasonable time
thereafter and in no case, exceeding three months
from the date on which the term of the members in
office expires.
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(D)No elected Member, under any of the three systems of
medicine, Ayurveda, Unani or Siddha shall hold the
office of the President, Vice President or Member,
beyond a period of three months from the expiry of
their term.
(E)We direct the Secretary, Ministry of Health and Family
Welfare and the President of the Central Council to
circulate copies of this judgment, for strict compliance
by all concerned.
26. During the pendency of this writ petition, another writ
petition being Writ Petition (Civil) No. 249 of 2011, was filed
with identical prayers. In view of this judgment, that writ
petition has been rendered infructuous and is liable to be
dismissed as such.
27. I.A. No. 8 is an application for intervention in the
present writ petition, by one Dr. Vinod Kumar Chauhan. I.A.
No. 9 is an application by the same party, with the prayer that
the election to Central Council, held from the State of
Uttarakhand be set aside and that fresh selection process be
ordered. I.A. No. 9 is dismissed, with the liberty to that
petitioner to approach the court of competent jurisdiction,
seeking appropriate relief and in accordance with law.
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28. In view of the order of I.A. No. 9, I.A. No. 8 does not
survive and is dismissed as such.
29. Transfer Petition (Civil) No. 736 of 2011 is also
dismissed, with liberty to the petitioner to pursue his remedy,
if the cause of action survives, before the concerned High
Court.
30. All Transfer Petitions and Interlocutory Applications
for impleadment are hereby dismissed. Other applications do
not survive for consideration.
31. Before we part with this judgment, we would like to
place on record our appreciation for the valuable and able
assistance rendered by the learned ASG and all counsel and
assisting counsel appearing in the present PIL.
.….............................. CJI.
[S.H. Kapadia]
…………………………….,J. [A.K. Patnaik]
…………………………….,J. [Swatanter Kumar]
New Delhi; February 24, 2012
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