Tuesday, December 20, 2011
Policy decisions, Classification, Contracts and Judicial Review
A. POLICY DECISIONS:
PLD 2007 SC 642: See pages 672(N) and 674(s) for the balance between contractual rights, obligation, interests of the community at large and over-riding necessity.
1978 SCMR 327: At Page 329: “It was further held that in such cases the emphasis is on policy and any discretion vesting in the authorities is directed towards attaining the policy’s objectives.”
1986 SCMR 680: At Page 682: “Government has the right of laying down policy and if it chooses to do so and there is no law on the subject it offends, it is not the right of any Court to throw it out, other than to hold, in any genuine case, that the same is unreasonable or arbitrary.”
PLD 1973 SC 49: See generally for scope of judicial review, trichotomy of powers in our constitutional scheme.
PLD 2011 Lah 120: At Page 143: “The policy of the Government in the instant case ex facie appears to be motivated by the need to increase the export earnings so as to decrease/control the trade deficit and to avoid mass unemployment by the closure of the units of the value added textile sector. Hence, this Court is not persuaded to hold the said policy to be arbitrary and unreasonable.”
PLD 2002 Lah 359: Powers of the superior judiciary is just to interpret law and not to take the role of policy maker in the garb of interpretation.
1995 CLC 1687: At Page 1696: “That there is a presumption that a decision taken/policy adopted by the government is in public interest …”
B. PUBLIC FUNCTIONARIES/BODIES AND CONTRACTS
2011 SC 44: At Page 107: Violation of a contract or the failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of constitutional jurisdiction.
AIR 1977 SC 1496: At para 11: “ But after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from the contract. “
A.I.R 1990 SC 1851: At para 38: “In fixing prices, it is legitimate for ONGC to take into account the fact that its supplies are restricted only to a few industries that have entered into contracts with it… The supply to gas to a few chosen industries at a much lower rate than what the companies may have to pay for alternate fuel may indeed lead to cries of discrimination as ONGC is scarcely in a position to supply gas to all industries...” At para 40: It is for ONGC to fix the prices and there can be no requirement of a prior consultation with the present customers or prospective customers.
C. PROMISSORY ESTOPPEL
2007 PTD 1005: At page 1012: State does not assure every person/undertaking/business a particular margin of profits and losses – which are normal incident of business in a market economy.
2010 MLD 690: At para 2: “When confronted, the learned counsel for respondent no.1 has placed on record an agreement dated 29-11-2007… obviously, in the light of above, the petitioner is stopped by his own conduct and on account of the clear and unambiguous stipulation is precluded to maintain a cause of action.”
A.I.R. 1991 SC 14: At para 14: Before making the public authority responsible for acts of its subordinate, it must be established that the subordinate officer did in fact make the representation and as a fact, is competent to make a binding promise on behalf of the public authority or the Government.
A.I.R 1983 DELHI 445: At paras 32 and 33: Would the doctrine of estoppels be excluded whenever its operation would fetter the powers of a public body in a way that could not be done by a contract? It seems logical that it should be so. The application of estoppels in such a case would infringe the rule concerning statutory duties.
2006 YLR 229: At Page 241: “It is equally important toensure that no encroachment is made on the powers vested in the executive and no interference is made until and unless any such decision/executive order is shown to be violative of any provision of the constitution or is established to be in derogation of or violation of the statutory law.”
348 U.S. 483 (1955): Provisions of an Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist, are not invalid under the Due Process Clause of the Fourteenth Amendment. To subject opticians to this regulatory system while exempting all sellers of ready-to-wear glasses does not violate the Equal Protection Clause of the Fourteenth Amendment.
174 U.S. 96 (1899): It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Thus, when the legislature imposes on railroad corporations a double liability for stock killed by passing trains, it says, in effect, that if suit be brought against a railroad company for stock killed by one of its trains, it must enter into the courts under conditions different from those resting on ordinary suitors. If it is beaten in the suit, it must pay, not only the damage which it has done, but twice that amount. If it succeeds, it recovers nothing. On the other hand, if it should sue an individual for destruction of its live stock, it could, under no circumstances, recover any more than the value of that stock. So that it may be said that in matter of liability, in case of litigation, it is not placed on an equality with other corporations and individuals; yet this court has unanimously said that this differentiation of liability, this inequality of right in the courts, is of no significance upon the question of constitutionality. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality.