Supreme Court of India
THE STATE OF WEST BENGALversusUNION OF INDIA
- Citation
- 2024 INSC 502
- Decided
- 10 July 2024
- Disposal
- Directions issued
Holding
The Court held that the Union of India is the appropriate party under Article 131, the CBI is under the Union’s superintendence, the phrase “subject to the provisions of this Constitution” does not bar the suit, and the plaint discloses a valid cause of action, thereby rejecting the Union’s preliminary objections.
Summary
The State of West Bengal filed an original suit under Article 131 of the Constitution seeking a declaration that the Union of India’s registration of cases by the CBI after the State withdrew its consent under Section 6 of the Delhi Special Police Establishment (DSPE) Act is unconstitutional, and asked for an injunction restraining further CBI investigations in the State. The Union raised preliminary objections, contending that the suit was non‑maintainable under Article 131, that the CBI is not under the Union’s superintendence, that material facts were suppressed, and that no cause of action existed. The Court examined the statutory scheme of the DSPE Act, held that the CBI is an organ of the Union and that the Union’s superintendence over the DSPE is undisputed. It also interpreted the phrase “subject to the provisions of this Constitution” in Article 131, rejecting the Union’s argument that other pending proceedings barred the suit. The Court found that the plaint disclosed a cause of action, that no material suppression occurred, and that the preliminary objections were untenable. Consequently, the preliminary objections were rejected and the suit was listed for framing of issues, allowing the substantive dispute to proceed.
Issues considered
- The maintainability of the suit under Article 131 of the Constitution of India.
- Whether the Central Bureau of Investigation (CBI) is an organ of the Union of India and thus subject to its superintendence.
- Whether the phrase “subject to the provisions of this Constitution” in Article 131 bars the suit due to other pending proceedings.
- Whether the plaint discloses a cause of action against the Union of India.
- Whether material facts were suppressed in the plaint.
Legislation cited
- Central Vigilance Commission Act, 2003s. Sec. 8
- Code of Civil Procedure, 1908s. Order VII Rule 11
- Constitution of Indias. Art. 12, s. Art. 131, s. Art. 136, s. Art. 226, s. Art. 245, s. Art. 246, s. Art. 262, s. Art. 310, s. Art. 311, s. Art. 32, s. Art. 372
- Delhi Special Police Establishment Act, 1946s. Sec. 2, s. Sec. 3, s. Sec. 4, s. Sec. 5, s. Sec. 6
- Prevention of Corruption Act, 1988
- Supreme Court Rules, 2013s. Order VII Rule 11, s. Order XXVI Rule 6
Subjects
Withdrawal of Notification u/s. 6 of the DSPE ActMaintainability of the suitCBI independent agencyInstrumentality of the State u/Art. 12Art. 131 of the ConstitutionPowers of superintendence of the Central GovernmentSuperintendence of investigationAdministrative control and superintendence of the DSPERemedy for enforcement of rightsSpecial remedySubject to the provisions of this ConstitutionSuppression of material factsNon-disclosure of cause of actionPlaints, when to be rejectedDispute between Government of India and StateFederalismOriginal jurisdiction
Judgment
[2024] 7 S.C.R. 676 : 2024 INSC 502
The State of West Bengal
v.
Union of India
(Original Suit No. 4 of 2021)
10 July 2024
[B.R. Gavai* and Sandeep Mehta, JJ.]
Issue for Consideration
Instant suit has been filed by the State of West Bengal against
Union of India seeking declaration that registration of cases by the
defendant-UOI after withdrawal of Notification u/s. 6 of the DSPE
Act by the plaintiff-State is unconstitutional and non-est; seeking
restraining and forbearing the UOI from registering any case and/or
investigating a case in connection with offences committed within
the territory of State of West Bengal after withdrawal of the consent
u/s. 6 of the DSPE Act by the State, as also sought quashing of
such cases; and as regards the jurisdiction of the CBI to investigate
cases within the State of West Bengal after the withdrawal of the
consent u/s. 6 of the DSPE Act.
Headnotes†
Constitution of India – Art. 131 – Delhi Special Police
Establishment Act, 1946 – Withdrawal of the consent u/s. 6
of the DSPE Act by the State which allowed CBI to conduct
investigations of cases in West Bengal – Case of the
State that after withdrawal of the consent, the CBI continued
to register cases in the State of West Bengal – Suit filed by the
State of West Bengal against Union of India seeking declaration
that registration of cases by the UOI after withdrawal of the
consent u/s. 6 of the DSPE Act by the State is unconstitutional
and non-est; sought restraining and forbearing the UOI from
registering any case and/or investigating a case in connection
with offences committed within the territory of State of West
Bengal after withdrawal of the consent u/s. 6 of the DSPE
Act by the State, as also sought quashing of such cases;
and as regards the jurisdiction of the CBI to investigate
cases within the State of West Bengal after the withdrawal of
the consent u/s. 6 of the DSPE Act – Preliminary objections
raised by the Union of India with regard to the maintainability
of the suit:
* Author
[2024] 7 S.C.R. 677
The State of West Bengal v. Union of India
Held: Preliminary objections raised by the Union of India
with regard to the maintainability of the suit is rejected – Very
establishment, exercise of powers, extension of jurisdiction, the
superintendence of the DSPE, all vest with the Government
of India – CBI is an organ or a body which is established by
and which is under the superintendence of the Government of
India in view of the statutory scheme as enacted by the DSPE
Act – Plea that UOI having no superintendence or control over
the CBI cannot be accepted – Merely because, in any of the
proceedings initiated u/Art. 32 or Art. 136 or even Art. 226, one
of the parties is common, the pendency of such proceedings
would not come in the way of a specific party mentioned in Art.
131 to take recourse to the remedy available therein – Remedy
under Art. 131 is a special remedy available only to the parties
mentioned therein and for the purposes mentioned therein – Thus,
the plea that, in view of the term “subject to the provisions of this
Constitution” used in Art. 131, since various matters are already
pending with regard to the subject matter of the present suit, be
it the proceedings either u/Art. 136, Art. 32 or Art. 226, the suit
would not be maintainable, cannot be accepted – Also the plea
that suit is liable to be dismissed on the ground of suppression
of material facts as regards many of the FIRs mentioned in the
plaint are registered under the directions of the High Court u/Art.
226 is rejected – As regards, plea with regard to non-disclosure
of cause of action against the UOI, it is only the averments in the
plaint which can be gone into for considering as to whether the
cause of action against the UOI arises or not and on the basis
thereof, it cannot be said that the State has not made out any
cause of action against the UOI. [Paras 65-67, 77-83]
Supreme Court Rules, 2013 – Ord. XXVI r. 6 – Plaints, when
to be rejected:
Held: Plaint is liable to be rejected where it does not disclose a
cause of action or where the suit appears from the statement in
the plaint to be barred by any law – Provisions in Ord. XXVI r. 6
(a) and (b) are analogous to the provisions in clauses (a) and (d)
of Ord. VII r. 11 CPC – For considering objections u/Ord. VII r. 11
(a) and (d), only the averments made in the plaint needs to be
looked into – If the averments made in the plaint are germane then
the pleas taken by the defendant in the written statement would be
wholly irrelevant at this stage – Furthermore, in view of the word
678 [2024] 7 S.C.R.
Digital Supreme Court Reports
‘shall’ used in the provisions, a duty is cast on the court to examine
as to whether the plaint is hit by any of the infirmities provided
in the six clauses of Ord. VII r. 11 – Duty is cast on the court to
reject the plaint even without the intervention of the defendant –
Averments made in the plaint have to be read as a whole and
not in isolation – As such it cannot be said that the objections
could not be considered in the absence of an application for the
rejection of plaint filed by the defendant under Ord. XXVI r. 6 –
Code of Civil Procedure, 1908 – Ord. VII r. 11 (a), (d). [Paras 23-29]
Constitution of India – Art. 131 – Original jurisdiction of the
Supreme Court – Term “subject to the provisions of this
Constitution” used in Art. 131 – Interpretation of:
Held: Art. 131 is a special provision which deals with the original
jurisdiction of this Court in case of a dispute between the Federal
Government and the State Governments – It provides for a
special jurisdiction to this Court to decide any question on which
the existence or extent of a legal right depends – Jurisdiction of
this Court, subject to the provisions of the Constitution, is to the
exclusion of any other court – Any dispute either between the
Government of India and one or more States; or between the
Government of India and any State or States on one side and
one or more other States on the other; or between two or more
States which involve a question on which the existence or extent
of a legal right depends are covered by this provision – A special
provision has been made for deciding the question on which the
existence or extent of a legal right between the special parties
mentioned therein has been provided – Thus, the words “subject
to the provisions of this Constitution” will have to be considered in
that context – Jurisdiction u/Art. 131 would only be subject to any
other provision in the Constitution which provides for entertaining
a dispute between the parties mentioned therein. [Paras 31, 76]
Delhi Special Police Establishment Act, 1946 – Scheme of the
Act – Explained. [Paras 52-67]
Case Law Cited
Mumbai International Airport Private Limited v. Regency Convention
Centre and Hotels Private Limited and Others [2010] 7 SCR 790 :
(2010) 7 SCC 417 : 2010 INSC 362; Ram Kumar v. State of Uttar
Pradesh and Others [2022] 7 SCR 231 : (2022) SCC OnLine
SC 1312 : 2022 INSC 1032; D.M. Deshpande and Others v.
[2024] 7 S.C.R. 679
The State of West Bengal v. Union of India
Janardhan Kashinath Kadam (Dead) By LRs and Others [1998]
Supp. 2 SCR 669 : (1998) 8 SCC 315 : 1998 INSC 425; State of
Bihar v. Union of India and Another [1970] 2 SCR 522 : (1970) 1
SCC 67 : 1969 INSC 253; State of Rajasthan and Others v. Union
of India and Others [1978] 1 SCR 1 : (1977) 3 SCC 592 : 1977
INSC 143; Tashi Delek Gaming Solutions Limited and Another v.
State of Karnataka and Others [2005] Supp. 5 SCR 670 : (2006) 1
SCC 442 : 2005 INSC 607; National Textile Corporation Limited v.
Nareshkumar Badrikumar Jagad and Others [2011] 14 SCR 472 :
(2011) 12 SCC 695 : 2011 INSC 651; Vineet Narain and Others
v. Union of India and Another [1997] Supp. 6 SCR 595 : (1998) 1
SCC 226 : 1997 INSC 826; Centre for Public Interest Litigation and
Others v. Union of India and Others [2012] 3 SCR 147 : (2012)
3 SCC 104 : 2012 INSC 68; S.P. Chengalvaraya Naidu (Dead)
by LRs. v. Jagannath (Dead) by LRs. and Others [1993] Supp. 3
SCR 422 : (1994) 1 SCC 1 : 1993 INSC 344; Atma Linga Reddy
and Others v. Union of India and Others [2008] 10 SCR 741 :
(2008) 7 SCC 788 : 2008 INSC 805; Kazi Lhendup Dorji v. Central
Bureau of Investigation and Others [1994] 3 SCR 201 : (1994) Supp
2 SCC 116 : 1994 INSC 129; Saleem Bhai and Others v. State
of Maharashtra and Others [2002] Supp. 5 SCR 491 : (2003) 1
SCC 557 : 2002 INSC 554; Sopan Sukhdeo Sable and Others v.
Assistant Charity Commissioner and Others [2004] 1 SCR 1004 :
(2004) 3 SCC 137 : 2004 INSC 56; Bhau Ram v. Janak Singh and
Others [2012] 6 SCR 1018 : (2012) 8 SCC 701 : 2012 INSC 293;
Chhotanben and Another v. Kirtibhai Jalkrushnabhai Thakkar and
Others [2018] 3 SCR 422 : (2018) 6 SCC 422 : 2018 INSC 319;
State of West Bengal and Others v. Committee for Protection of
Democratic Rights, West Bengal and Others [2010] 2 SCR 979 :
(2010) 3 SCC 571 : 2010 INSC 104; The South India Corporation
(P) Limited v. The Secretary, Board of Revenue, Trivandrum and
Another [1964] 4 SCR 280 : 1963 INSC 163; Union of India and
Another v. Tulsiram Patel [1985] Supp. 2 SCR 131 : (1985) 3
SCC 398 : 1985 INSC 155 – referred to.
Books and Periodicals Cited
Black’s Law Dictionary, 5th Edition at Page 127 – referred to.
List of Acts
Constitution of India; Delhi Special Police Establishment Act, 1946;
Central Vigilance Commission Act, 2003; Supreme Court Rules,
2013; Code of Civil Procedure, 1908; Prevention of Corruption
Act, 1988.
680 [2024] 7 S.C.R.
Digital Supreme Court Reports
List of Keywords
Withdrawal of Notification u/s. 6 of the DSPE Act; Maintainability of
the suit; CBI, an independent agency; Instrumentality of the State
u/Art. 12 of the Constitution; Art. 131 of the Constitution; Powers
of superintendence of the Central Government; Superintendence
of investigation; Administrative control and superintendence of
the DSPE; Remedy for enforcement of rights; Remedy by way
of special leave to appeal; General remedies; Special remedy;
Subject to the provisions of this Constitution; Suppression of
material facts; Non-disclosure of cause of action; Withdrawal of
the consent; Plaints, when to be rejected; Dispute either between
the Government of India and one or more States; Dispute between
the Government of India and any State or States on one side and
one or more other States on the other; Dispute between two or
more States; Dispute involves any question (whether of law or
fact); Dispute between the Federal Government and the State
Governments; Special jurisdiction; Scheme of the Delhi Special
Police Establishment Act, 1946.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Original Suit No. 4 of 2021
Original Suit has been instituted under Article 131 of the Constitution
of India
Appearances for Parties
Kapil Sibal, Dr. Abhishek Manu Singhvi, Siddarth Agarwal, Bishwajit
Bhattacharya, Sr. Advs., Ms. Astha Sharma, Sanjay Basu, Shadan
Farasat, Nipun Saxena, Adit Pujari, Ms. Aparajita Jamwal, Amit
Bhandari, Ms. Arshya Ghosh, Srisatya Mohanty, Ms. Anju Thomas,
Sanjeev Kaushik, Ms. Mantika Haryani, Shreyas Awasthi, Himanshu
Chakravarty, Ms. Ripul Swati Kumari, Bhanu Mishra, Ms. Muskan
Surana, Ms. Lihzu Shiney Konyak, Ms. Soumya Saxena, Archit
Adlakha, Aditya Raj Pandey, Advs. for the Plaintiff.
Tushar Mehta, Solicitor General, K M Nataraj, Vikramjeet Banerjee,
A.S.Gs., R Bala, Sr. Advs., Kanu Agrawal, Udai Khanna, Anirudh
Bhat, Abhishek Kumar Pandey, Raman Yadav, Chitvan Sinhal,
Karthikay Agrawal, Mrs. Ameya Vikrama Thanvi, Mukesh Kumar
Singh, Shreekant Neelappa Terdal, Advs. for the Defendant.
[2024] 7 S.C.R. 681
The State of West Bengal v. Union of India
Judgment / Order of the Supreme Court
Judgment
INDEX*
Sl. Particulars Para
No. Nos.
I. INTRODUCTION 1-3
II. SUBMISSIONS OF DEFENDANT 4-14
III. SUBMISSIONS OF PLAINTIFF 15-21
LEGAL FRAMEWORK 22-31
a. Supreme Court Rules, 2013 22-29
b. Article 131 of the Constitution 30-31
IV. JUDICIAL PRECEDENTS 32-43
a. State of Bihar v. Union of India 32-33
b. State of Rajasthan v. Union of India 34-43
V. CONSIDERATION 44-83
a. Reading of the Plaint 44-51
b. Scheme of the DSPE Act 52-66
c. Power of superintendence of the Central
Government 67
d. Interpretation of the term “subject to the
provisions of this Constitution” 68-77
e. Suppression of material fact 78-79
f. Cause of action of the suit 80-83
VII. CONCLUSION 84
B.R. Gavai, J.
I. INTRODUCTION:
1. The present suit has been filed by the State of West Bengal against
Union of India seeking the following reliefs:
i. “Pass a Judgment and Decree declaring that registration of
cases by the Defendant after withdrawal of Notification under
* Ed. Note: Pagination as per the original Judgment.
682 [2024] 7 S.C.R.
Digital Supreme Court Reports
Section 6 of the DSPE Act by the Plaintiff is unconstitutional
and non-est;
ii. Pass Judgment and Decree thereby restraining and forbearing
the Defendant from registering any case and/or investigating a
case in connection with offences committed within the territory
of State of West Bengal after withdrawal of the consent under
Section 6 of the DSPE Act by the State;
iii. Pass a Judgment and Decree declaring that the action of
the Defendant in registering cases by the Defendant after
withdrawal of Notification under Section 6 of the DSPE Act
by the Plaintiff is violative of Constitution of India as well as
violative of the basic structure of the Constitution and the
principle of federalism;
iv. Pass a Judgment and Decree thereby quashing all cases
registered by the Defendant after withdrawal of Notification
under Section 6 of the DSPE Act by the Plaintiff and transmit
those records to the Plaintiff for registration of regular cases
by the police force of the Plaintiff;
v. Ad-interim order restraining the Defendant from proceeding
with any investigation on an FIR and any proceeding arising
therefrom, registered after November 16, 2018 when the
consent under Section 6 of the DSPE Act was withdrawn by
the Plaintiff, other than investigation with respect to an FIR
filed/registered on an order of a competent court of law;
vi. Pass a Judgment and Decree granting such other and further
reliefs that are deemed fit in the facts and circumstances of
the case.”
2. On filing of the suit, preliminary objections have been raised by
the defendant – Union of India with regard to the maintainability
of the present suit. Through this judgment, we have dealt with the
contentions of the parties on the aspect of maintainability.
3. For the consideration of the present issue of maintainability, we
have heard Shri Tushar Mehta, learned Solicitor General of India
appearing on behalf of the defendant-Union of India and Shri Kapil
Sibal, Shri Abhishek Manu Singhvi and Shri Bishwajit Bhattacharya,
[2024] 7 S.C.R. 683
The State of West Bengal v. Union of India
learned Senior Counsel appearing on behalf of the plaintiff-State
of West Bengal.
II. SUBMISSIONS OF DEFENDANT:
4. The basic objection with regard to tenability of the suit is based on
Article 131 of the Constitution of India (for short, “the Constitution”).
The learned Solicitor General submitted that, upon interpretation of
Article 131 of the Constitution, it is clear that the provisions of Article
131 of the Constitution are subject to the other provisions of the
Constitution. He therefore submitted that, since the issue involved
in the present lis is also an issue arising in certain appeals pending
before this Court, under Article 136 of the Constitution, a fresh suit
under Article 131 of the Constitution would not be tenable. It is
submitted that the term “subject to the provisions of this Constitution”
has to be interpreted as “subject to the other provisions of the
Constitution including Article 136”. It is therefore submitted that, since
the issue with regards to the same subject matter is pending before
this Court under Article 136 of the Constitution, a suit for the same
purpose under Article 131 of the Constitution is barred.
5. The learned Solicitor General further submitted that, in various
proceedings filed either under Article 226 before the High Court or
under Article 136 of the Constitution wherein the State of West Bengal
is a party, the question with regards to the jurisdiction of the Central
Bureau of Investigation (for short “CBI”) to investigate cases within
the State of West Bengal after 16th November 2018, i.e., the date
on which the consent under Section 6 of the Delhi Special Police
Establishment Act, 1946 (hereinafter referred to as “DSPE Act”) was
withdrawn arises for consideration.
6. While making a reference to the term “subject to the provisions of this
Constitution” in Article 131 of the Constitution, the learned Solicitor
General submitted that, since the subject matter of the present suit
is also pending before this Court or the High Courts under Article
136 or 226 of the Constitution respectively, the present suit would
not be tenable.
7. The learned Solicitor General further submitted that, perusal of the
entire matter would reveal that, taking the averments in the plaint
at its face value, it can be seen that no cause of action has been
made out against the defendant to the suit i.e. the Union of India.
684 [2024] 7 S.C.R.
Digital Supreme Court Reports
Shri Mehta submitted that all the reliefs including declaration of the
registration of cases being unconstitutional, restraining and forbearing
the defendant from registering any case etc., are all related to
the CBI. It is submitted that the cases referred to in the plaint are
registered at the instance of the CBI and the Union of India has
no role to play. It is submitted that, though the reliefs are claimed
against the CBI, it has not been made a party to the suit and that
this has been rightly done inasmuch as if the CBI was made a party,
the suit would not have been maintainable under Article 131 of the
Constitution. It is submitted that, since the defendant has no role to
play in the registration of cases; even if the suit is decreed, the said
decree would remain unenforceable against the present defendant.
Reliance in this respect is placed on the judgments of this Court
in the cases of Mumbai International Airport Private Limited v.
Regency Convention Centre and Hotels Private Limited and
Others1 and Ram Kumar v. State of Uttar Pradesh and Others.2
It is therefore submitted that the present suit is liable to be dismissed
on the ground of misjoinder or non-joinder of parties.
8. The learned Solicitor General further submitted that the present suit
is also liable to be dismissed on the ground of non-laying down of the
factual foundation in the suit. It is submitted that, unless there is a
factual basis in the suit itself, no legal arguments arising therefrom can
be entertained. Reliance in this respect is placed on the judgment of
this Court in the case of D.M. Deshpande and Others v. Janardhan
Kashinath Kadam (Dead) By LRs and Others3 and the judgment
of the Privy Council in the case of Attorney-General of the Colony
of Fiji v. J.P. Bayly Limited.4
9. Shri Mehta further submitted that, Article 131 of the Constitution
clearly provides as to who can be parties to the suit under Article
131 of the Constitution. He submitted that, even for a moment, if it
is assumed that CBI is an instrumentality of the State under Article
12 of the Constitution, still the suit would not be maintainable. It is
submitted that the expanded meaning given to the term ‘State’ under
1 [2010] 7 SCR 790 : (2010) 7 SCC 417 : 2010 INSC 362
2 [2022] 7 SCR 231 : 2022 SCC OnLine SC 1312 : 2022 INSC 1032
3 [1998] Supp. 2 SCR 669 : (1998) 8 SCC 315 : 1998 INSC 425
4 1949 SCC OnLine PC 76
[2024] 7 S.C.R. 685
The State of West Bengal v. Union of India
Article 12 of the Constitution cannot be made applicable to the term
‘Union’ or ‘State’ mentioned under Article 131 of the Constitution.
Reliance in this respect is placed on the Constitution Bench judgments
of this Court in the cases of State of Bihar v. Union of India and
Another,5 State of Rajasthan and Others v. Union of India and
Others6 and Tashi Delek Gaming Solutions Limited and Another
v. State of Karnataka and Others.7
10. The learned Solicitor General further submitted that the dispute, at
the most, is between the State of West Bengal and the CBI. Reliance
in this respect is placed on the judgment of this Court in the case of
National Textile Corporation Limited v. Nareshkumar Badrikumar
Jagad and Others.8
11. Relying on the judgment of this Court in the case of Vineet Narain
and Others v. Union of India and Another,9 the learned Solicitor
General further submitted that the responsibility of superintendence
over the CBI’s functioning has been entrusted with the Central
Vigilance Commission (for short “CVC”). It is submitted that CVC is
an independent body appointed by an independent collegium. It is
submitted that this Court has clearly emphasized that the CBI has to
be viewed as a non-partisan agency. It is submitted that no control
is vested with the Central Government insofar as CBI is concerned.
The learned Solicitor General submitted that Section 8 of the Central
Vigilance Commission Act, 2003 (hereinafter referred to as “CVC
Act”) would make it clear that the CBI is under superintendence of
the CVC and not the Union of India. He submitted that the proviso
to Section 8(1)(b) of the CVC Act makes it clear that even the CVC
is not empowered to exercise powers in such a manner so as to
require the Delhi Special Police Establishment (for short, “DSPE”) to
investigate or dispose of any case in a particular manner. It is submitted
that this Court, in the case of Centre for Public Interest Litigation
and Others v. Union of India and Others10 held that the power of
5 [1970] 2 SCR 522 : (1970) 1 SCC 67 : 1969 INSC 253
6 [1978] 1 SCR 1 : (1977) 3 SCC 592 : 1977 INSC 143
7 [2005] Supp. 5 SCR 670 : (2006) 1 SCC 442 : 2005 INSC 607
8 [2011] 14 SCR 472 : (2011) 12 SCC 695 : 2011 INSC 651
9 [1997] Supp. 6 SCR 595 : (1998) 1 SCC 226 : 1997 INSC 826
10 [2012] 3 SCR 147 : (2012) 3 SCC 104 : 2012 INSC 68
686 [2024] 7 S.C.R.
Digital Supreme Court Reports
superintendence can neither be used by the CVC for interfering with
the manner and method of investigation by the CBI nor can the CBI
be directed to exercise its powers in a particular manner.
12. The learned Solicitor General further submitted that Section 4 of the
DSPE Act would also clearly reveal that the administration of the
CBI is with the CVC and not the Union of India.
13. Shri Mehta further submitted that the plaintiff has suppressed the
material fact that most of the cases stated in the plaint have been
registered on the directions of the High Court issued under Article 226
of the Constitution. He submitted that, under Order XXVI Rule 9 of the
Supreme Court Rules, 2013 (hereinafter referred to as “SC Rules”),
the plaintiff, when he sues upon a document in his possession, is
required to deliver such document or a copy thereof with the plaint
and under Order XXVI Rule 10 of the SC Rules, the plaintiff, when he
relies on any other documents (whether in his possession or power
or not) as evidence in support of his claim, is required to enter such
documents in a list to be added or annexed to the plaint. It is submitted
that, admittedly, the requirements under Order XXVI Rules 9 and 10
of SC Rules have not been fulfilled in the present plaint. Relying on
the judgment of this Court in the case of S.P. Chengalvaraya Naidu
(Dead) by LRs. v. Jagannath (Dead) by LRs. and Others,11 it is
submitted that when a party withholds a vital document in order to
gain advantage on the other side, then such a party would be guilty
of playing fraud on the court as well as on the opposite party. He
therefore submitted that, on this short ground alone, the suit is liable
to be dismissed. In addition to S.P. Chengalvaraya Naidu (Dead)
by LRs. (supra), reliance is placed on the judgments of this Court in
the cases of Atma Linga Reddy and Others v. Union of India and
Others12 and Kazi Lhendup Dorji v. Central Bureau of Investigation
and Others.13 It is therefore submitted that, in view of Order XXVI
Rule 6 of the SC Rules, the plaint is liable to be rejected.
14. In response to the contention of the plaintiff regarding the defendant
not filing an application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “CPC”) is concerned,
11 [1993] Supp. 3 SCR 422 : (1994) 1 SCC 1 : 1993 INSC 344
12 [2008] 10 SCR 741 : (2008) 7 SCC 788 : 2008 INSC 805
13 [1994] 3 SCR 201 : 1994 Supp (2) SCC 116 : 1994 INSC 129
[2024] 7 S.C.R. 687
The State of West Bengal v. Union of India
it is submitted that the defendant has taken preliminary objections
with regard to the maintainability of the suit itself and therefore there
is no substance with regard to the said submission of the plaintiff.
III. SUBMISSIONS OF PLAINTIFF:
15. Shri Sibal, on the contrary submitted that, for considering the question
as to whether the suit is maintainable or not, only the averments made
in the plaint will have to be taken into consideration. It is submitted
that, only the averments made in the plaint can be considered to
decide as to whether the plaint discloses any cause of action or not.
It is submitted that, perusal of the averments made in the plaint would
clearly reveal that a cause of action has been made out against the
defendant – Union of India. It is submitted that, perusal of Section
2 of the DSPE Act would reveal that it is the Central Government
that is empowered to constitute a special police force to be called
the DSPE for the investigation of offences notified under Section
3 of the DSPE Act. It is submitted that, perusal of Section 3 of the
DSPE Act would also reveal that it is the Central Government that is
empowered to specify the offences or classes of offences which are to
be investigated by the DSPE. He submitted that, perusal of sub-section
(1) of Section 4 of the DSPE Act would reveal that the superintendence
of the DSPE vests with the CVC only for the investigation of offences
committed under the Prevention of Corruption Act, 1988 (hereinafter
referred to as “PC Act”). He submitted that sub-section (2) of Section
4 clearly reveals that, except what has been provided in sub-section
(1) thereof, the superintendence of DSPE in all other matters shall
vest with the Central Government. He submitted that sub-section (3)
of Section 4 would reveal that the administration of the said police
establishment shall vest in an officer appointed in this behalf by the
Central Government and that such an officer, in respect of the CBI,
is entitled to exercise powers exercisable by an Inspector-General
of Police in respect of the police force in a State.
16. Shri Sibal further submitted that sub-section (1) of Section 5 of
the DSPE Act would reveal that it is only the Central Government
that is empowered to extend to any area (including Railway areas)
in a State, the powers and jurisdiction of members of the CBI for
the investigation of any offences or classes of offences specified
in a notification under Section 3 of the DSPE Act. He submitted
that under sub-section (2) of Section 5, a member of the CBI may,
688 [2024] 7 S.C.R.
Digital Supreme Court Reports
when by an order under sub-section (1) thereof, the powers and
jurisdiction of the CBI are extended to any such area, discharge
the functions of a police officer in that area. However, this is again
subject to any orders which the Central Government may make in
this behalf. It is submitted that, perusal of sub-section (3) thereof
would reveal that any member of CBI of or above the rank of Sub-
Inspector is entitled to exercise the powers of the officer in charge
of a police station in that area and when so exercising such powers,
shall be deemed to be an officer in charge of a police station
discharging the functions of such an officer within the limits of
his station. This is again subject to the orders which the Central
Government may make in that behalf. It is therefore submitted
that the provisions of the DSPE Act would reveal that CBI cannot
be said to be an instrumentality of a State by giving an expanded
meaning to the term ‘State’ in Article 12 of the Constitution but is
one of the organs of the Union of India through which it derives
powers to investigate offences.
17. It is further submitted that the power available with the Central
Government for extension of the jurisdiction of CBI to other areas
is subject to the consent of such State Government under Section
6 of the DSPE Act. It is therefore submitted that if consent is given
by a State and subsequently withdrawn, then the CBI will not have
jurisdiction to exercise the powers in that State.
18. Shri Sibal submitted that grant of consent under Section 6 of the
DSPE Act is a privilege. It is the discretion of the State as to whether
such a privilege is to be granted or not. He submitted that the cause
of action in the present suit is that, after withdrawal of the consent
which was granted under Section 6 of the DSPE Act by the plaintiff,
the Central Government has no jurisdiction to authorize investigating
agency (CBI) to register cases in the State of West Bengal.
19. Shri Sibal further submitted that the interpretation sought to be
given by the defendant to the words “subject to the provisions of
this Constitution” as appearing in Article 131 of the Constitution is
incorrect. It is submitted that the correct interpretation would be that
when there is some other provision in the Constitution prohibiting
this Court from exercising its jurisdiction, then a suit under Article
131 of the Constitution would not be tenable. He refers to Articles
262 and 279A(11) of the Constitution in this regard. He submits that
[2024] 7 S.C.R. 689
The State of West Bengal v. Union of India
the words “subject to the provisions of this Constitution” would not
make the present suit non-maintainable.
20. Dealing with the arguments of the learned Solicitor General on Order
XXVI Rule 6 of the SC Rules, Shri Sibal submitted that the plaint
can be rejected only when it either does not disclose a cause of
action or where the suit appears from the statement in the plaint to
be barred by any law. It is submitted that neither of the grounds is
available in the present case. Insofar as the argument with regard
to Order XXVI Rules 9 and 10 of the SC Rules are concerned, Shri
Sibal submitted that there is sufficient compliance with regard to the
said provisions.
21. With regard to the allegations regarding suppression, Shri Sibal
submitted that, out of so many instances listed in the plaint, only one
or two cases are registered under the directions of the High Court.
It is therefore submitted that there is no material suppression as
alleged. Shri Sibal therefore pressed for rejection of the preliminary
objections raised by the learned Solicitor General.
IV. LEGAL FRAMEWORK:
a. Supreme Court Rules, 2013
22. For appreciating the rival submissions, it will be relevant to refer to
Order XXVI Rule 6 of the SC Rules, which reads thus:
“Order XXVI
Plaints
…………
6. The plaint shall be rejected:-
(a) where it does not disclose a cause of action;
(b) where the suit appears from the statement in the plaint
to be barred by any law.”
23. It can thus be seen that a plaint is liable to be rejected where it does
not disclose a cause of action or where the suit appears from the
statement in the plaint to be barred by any law.
24. As such, it could be seen that the provisions in Order XXVI Rule 6
(a) and (b) are analogous to the provisions in clauses (a) and (d) of
Order VII Rule 11 of the CPC.
690 [2024] 7 S.C.R.
Digital Supreme Court Reports
25. It is a settled position of law that, for considering objections under
Order VII Rule 11 (a) and (d) of the CPC, what needs to be looked
into is only the averments made in the plaint. It is well settled that
if the averments made in the plaint are germane then the pleas
taken by the defendant in the written statement would be wholly
irrelevant at this stage. Reference in this respect could be made to
the judgments of this Court in the cases of Saleem Bhai and Others
v. State of Maharashtra and Others,14 Sopan Sukhdeo Sable and
Others v. Assistant Charity Commissioner and Others,15 Bhau
Ram v. Janak Singh and Others16 and Chhotanben and Another
v. Kirtibhai Jalkrushnabhai Thakkar and Others.17
26. In view of the word ‘shall’ used in the provisions, a duty is cast on
the court to examine as to whether the plaint is hit by any of the
infirmities provided in the six clauses of Order VII Rule 11 of the
CPC. A duty is cast on the court to reject the plaint even without
the intervention of the defendant. Reference in this respect could be
made to the judgment of this Court in the case of Sopan Sukhdeo
Sable (supra).
27. It is further settled that the averments made in the plaint have to
be read as a whole and not in isolation. Reference in this respect
could be made to the judgment of this Court in the case of Kirtibhai
Jalkrushnabhai Thakkar (supra).
28. As already discussed hereinabove, the provisions under Order XXVI
Rule 6 of the SC Rules are analogous to Order VII Rule 11 (a) and
(d) of the CPC. We will have to therefore consider the preliminary
objections as raised by the defendant in the light of the aforesaid
legal provisions.
29. As already observed hereinabove, the word ‘shall’ casts a duty upon
the court to consider as to whether the plaint is hit by any of the
infirmities mentioned in the provision even without the intervention of
the defendant. As such, we do not find any force in the submission
of the plaintiff that the objections could not be considered in the
14 [2002] Supp. 5 SCR 491 : (2003) 1 SCC 557 : 2002 INSC 554
15 [2004] 1 SCR 1004 : (2004) 3 SCC 137 : 2004 INSC 56
16 [2012] 6 SCR 1018 : (2012) 8 SCC 701 : 2012 INSC 293
17 [2018] 3 SCR 422 : (2018) 6 SCC 422 : 2018 INSC 319
[2024] 7 S.C.R. 691
The State of West Bengal v. Union of India
absence of an application for the rejection of plaint filed by the
defendant under Order XXVI Rule 6 of the SC Rules.
b. Article 131 of the Constitution:
30. It will be apposite to refer to Article 131 of the Constitution, which
reads thus:
“131. Original jurisdiction of the Supreme Court.-
Subject to the provisions of this Constitution, the Supreme
Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute-
(a) between the Government of India and one
or more States; or
(b) between the Government of India and any
State or States on one side and one or more
other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question
(whether of law or fact) on which the existence or extent
of a legal right depends:
Provided that the said jurisdiction shall not extend to a
dispute arising out of any treaty, agreement, covenant,
engagement, sanad or other similar instrument which,
having been entered into or executed before the
commencement of this Constitution, continues in operation
after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.”
31. It is thus clear that the jurisdiction of this Court, subject to the
provisions of the Constitution, is to the exclusion of any other court.
The jurisdiction has to be exercised for any dispute either between
the Government of India and one or more States; or between the
Government of India and any State or States on one side and one
or more other States on the other; or between two or more States.
The jurisdiction is also limited insofar as the dispute involves any
question (whether of law or fact) on which the existence or extent
of legal right depends.
692 [2024] 7 S.C.R.
Digital Supreme Court Reports
V. JUDICIAL PRECEDENTS:
a. State of Bihar v. Union of India:
32. The learned Solicitor General relied on the Constitution Bench
judgment of this Court in the case of State of Bihar v. Union of
India and Another (supra). In the said case, the State of Bihar had
filed 9 suits against the Union of India who was the first defendant in
all of the said suits. Whereas in 6 suits, the second defendant was
Hindustan Steel Limited and in 3 others, the second defendant was
Indian Iron and Steel Company Limited. The cause of action in all
the said suits was that “due to the negligence or deliberate action
of the servants of both defendants, there was a shortage in the
delivery of iron and steel material ordered by the plaintiff to various
sites in the State of Bihar in connection with the construction work
of the Gandak Project”. It will be relevant to refer to the following
observations made in the said judgment:
“3. Clauses (a), (b) and (c) of the article specify the parties
who can appear as disputants before this Court. Under
clause (a) it is the Government of India and one or more
States; under clause (b) it is the Government of India and
one or more States on one side and one or more other
States on the other, while under clause (c) the parties can
be two or more States without the Government of India
being involved in the dispute. The specification of the
parties is not of an inclusive kind. The express words of
clauses (a), (b) and (c) exclude the idea of a private
citizen, a firm or a corporation figuring as disputant
either alone or even along with a State or with the
Government of India in the category of a party to the
dispute. There is no scope for suggesting that a private
citizen, a firm or a corporation can be arrayed as a party
by itself on one side and one or more States including the
Government of India on the other. Nor is there anything
in the article which suggests a claim being made by or
preferred against a private party jointly or in the alternative
with a State or the Government of India. The framers of
the Constitution appear not to have contemplated the
case of a dispute in which a private citizen, a firm or a
corporation is in any way involved as a fit subject for
[2024] 7 S.C.R. 693
The State of West Bengal v. Union of India
adjudication by this Court under its exclusive original
jurisdiction conferred by Article 131.
…………..
9. So far as the proceedings of the Joint Committee
on Indian Constitutional Reform and the report of the
Committee on the same are concerned, they make it
clear that the object of conferring exclusive original
jurisdiction on the Federal Court was that the disputes
of the kinds specified between the Federation and the
Provinces as the constituent units of the Federation,
should not be left to be decided by courts of law of a
particular unit but be adjudicated upon only by the
highest tribunal in the land which would be beyond
the influence of any one constituent unit.
10. Although Article 131 does not defines the scope of the
disputes which this Court may be called upon to determine
in the same way as Section 204 of the Government of
India Act, and we do not find it necessary to do so this
much is certain that the legal right which is the subject
of dispute must arise in the context of the constitution
and the Federalism it sets up. However, there can be
no doubt that so far as the parties to the dispute are
concerned, the framers of the Constitution did intend
that they could only be the constituent units of the
Union of India and the Government of India itself
arrayed on one side or the other either singly or jointly
with another unit or the Government of India.
………………
18. It was argued by counsel on behalf of the State of Bihar
that so far as the Hindustan Steel Limited, is concerned it
is “State” and the suits in which the Government of India
along with Hindustan Steel Limited, have been impleaded
are properly filed within Article 131 of the Constitution
triable by this Court in its original jurisdiction. Reference
was made to the case of Rajasthan State Electricity Board
v. Mohan Lal [1967 3 SCR 377] . There the question
arose between certain persons who were permanent
694 [2024] 7 S.C.R.
Digital Supreme Court Reports
employees of the Government of the State of Rajasthan
and later placed at the disposal of the State Electricity
Board and one of the questions was whether the appellant
Board could be held to be “State” as defined in Article 12.
This Court by a majority held that the Board was “other
authority” within the meaning of Article 12 and therefore
was a “state” to which appropriate directions could be
given under Articles 226 and 227 of the Constitution. It
will be noted that under Article 12 all local or other
authorities within the territory of India or under the
control of the Government of India are “States” for
purposes of Part III which defines and deals with the
Fundamental Rights enshrined in the Constitution. The
expression “the State” has the same meaning in Part
IV of the Constitution under Article 36. No reason was
shown as to why the enlarged definition of “State” given
in Parts III and IV of the Constitution would be attracted
to Article 131 of the Constitution and in our opinion
a body like the Hindustan Steel Limited cannot be
considered to be “a State” for the purpose of Article
131 of the Constitution.”
[emphasis supplied]
33. It could be seen that this Court held that the express words of clauses
(a), (b) and (c) of Article 131 of the Constitution exclude the idea of
a private citizen, a firm or a corporation figuring as a disputant either
alone or even along with a State or with the Government of India
in the category of a party to the dispute. It has been held that the
framers of the Constitution did not contemplate a dispute in which
a private citizen, a firm or a corporation is in any way involved as a
fit subject for adjudication by this Court under its exclusive original
jurisdiction conferred by Article 131 of the Constitution. It further
observed that the legal right which is the subject of dispute must
arise in the context of the Constitution and the Federalism it sets up.
It has been unequivocally held that there can be no doubt that so
far as the parties to the dispute are concerned, the framers of the
Constitution did intend that they could only be the constituent units
of the Union of India and the Government of India itself arrayed on
one side or the other, either singly or jointly with another unit or the
Government of India. The Court then observed that, under Article 12
[2024] 7 S.C.R. 695
The State of West Bengal v. Union of India
of the Constitution, all local or other authorities within the territory of
India or under the control of the Government of India are “States”
for purposes of Part III of the Constitution which defines and deals
with the Fundamental Rights enshrined in the Constitution. It further
observed that the expression “the State” has the same meaning as
in Part IV of the Constitution under Article 36. It therefore observed
that a body like the Hindustan Steel Limited cannot be considered
to be “a State” for the purpose of Article 131 of the Constitution.
A strong reliance has been placed on these observations by the
learned Solicitor General.
b. State of Rajasthan v. Union of India:
34. The learned Solicitor General strongly relies on the judgment of this
Court in the case of State of Rajasthan and Others v. Union of India
and Others (supra). The brief facts of the said case are as under:
“In the elections held in March, 1977, the Janata party
had secured overwhelming majority in the Lok Sabha. In
some of the States, the Congress was continuing in power.
In view of the complete and unequivocal rejection of the
Congress Party, the Union Home Minister addressed a
communication on 18th April 1977 to nine States asking
them to advise their respective Governors to dissolve the
Assemblies and seek a fresh mandate from the people.
Some of the States had filed suits before the Supreme
Court praying for a declaration that the letter of the Union
Home Minister was illegal and ultra vires of the Constitution
of India and not binding on the plaintiffs and prayed for
an interim injunction restraining the Central Government
from restoring to Article 356 of the Constitution. Preliminary
objections were raised on behalf of the defendant – Union
of India against the maintainability of the suits under
Article 131 of the Constitution of India. The preliminary
objections were raised on two grounds. The first was that
under Article 131 of the Constitution of India, the ‘State’
and not the ‘State Government’ should be a party. The
second was that the present matter did not involve a
legal dispute.”
35. It will be apposite to refer to the following paragraphs of the said
judgment of Y.V. Chandrachud, J. (as His Lordship then was):
696 [2024] 7 S.C.R.
Digital Supreme Court Reports
“108. The absence of the expression “State Government”
and the use in its place of the expression “State” in
Article 131, is said to furnish intrinsic evidence that
for a suit to fall under that article, the dispute must
arise between the Government of India and a State, not
between the Government of India and the Government
of a State. The intrinsic evidence, it is argued, assumes
greater credibility in the context that the article does employ
the expression “Government of India” when what was
meant was the government, as contra distinguished from
the State. The presence of the particular expressions in
Article 131 does not, in my opinion, support the inference
suggested on behalf of the Union of India. The use of the
phrase “Government of India” in Article 131(a) and (b)
does not mean that one party to the dispute has to be the
Government of the day at the Centre. “Government of India”
means “Union of India” because if there be merit in the logic
that Article 131 does not comprehend disputes in which
the Government of a State as contrasted with the State
itself is interested, it must follow that correspondingly, the
“Government of India” too cannot mean the Government for
the time being in power at the Centre. The true construction
of Article 131(a), true in substance and true pragmatically,
is that a dispute must arise between the Union of India
and a State.
109. This may sound paradoxical because if the preliminary
objection is unsustainable, it would be easier to say that
the expression “Government of India” means “Government
in office” and the expression “State” means the State as a
polity and not “the Government in Office”. But convenient
interpretations are apt to blur the significance of issues
involved for interpretations. Therefore, the effort has to be
to accept what the words truly mean and to work out the
constitutional scheme as it may reasonably be assumed
to have been conceived.
110. The dispute between the Union of India and a
State cannot but be a dispute which arises out of the
differences between the Government in office at the
Centre and the Government in office in the State. “In
[2024] 7 S.C.R. 697
The State of West Bengal v. Union of India
office” means “in power” but the use of the latter expression
may prudently be avoided with the realisation of what
goes with power. But there is a further prerequisite which
narrows down the ambit of the class of disputes which
fall within Article 131. That requirement is that the dispute
must involve a question, whether of law or fact, on which
the existence or extent of a legal right depends. It is this
qualification which affords the true guide for determining
whether a particular dispute is comprehended within
Article 131. Mere wrangles between governments have
no place in the scheme of that article. They have to
be resolved elsewhere and by means less solemn and
sacrosanct than a court proceeding. The purpose of
Article 131 is to afford a forum for the resolution
of disputes which depend for their decision on the
existence or extent of a legal right. It is only when a
legal, not a mere political, issue arises touching upon
the existence or extent of a legal right that Article 131
is attracted.
…………..
113. I find it difficult to accept that the State as a polity
is not entitled to raise a dispute of this nature. In a
federation, whether classical or quasi-classical, the
States are vitally interested in the definition of the
powers of the Federal Government on one hand and
their own on the other. A dispute bearing upon the
delineation of those powers is precisely the one in
which the federating States, no less than the Federal
Government itself, are interested. The States, therefore,
have the locus and the interest to contest and seek
an adjudication of the claim set up by the Union
Government. The bond of constitutional obligation
between the Government of India and the States
sustains that locus.
114. The expression “legal right” which occurs in Article
131 has to be understood in its proper perspective. In a
strict sense, legal rights are correlative of legal duties and
are defined as interests which the law protects by imposing
698 [2024] 7 S.C.R.
Digital Supreme Court Reports
corresponding duties on others. But in a generic sense, the
word “right” is used to mean an immunity from the legal
power of another: immunity is exemption from the power
of another in the same way as liberty is exemption from
the right of another. Immunity, in short, is “no-subjection”.
[ Salmond’s Jurisprudence 11th Edn. pp. 276-7] R.W.M.
Dias says in his “Jurisprudence” (1976 Edn., pp. 33-4)
that the word “right” has undergone successive shifts in
meaning and connotes four different ideas concerning the
activity, or potential activity, of one person with reference to
another. One of these four jural relationships, according to
the learned Author, is the “you cannot” relationship, which
is the same thing as the right of immunity which “denotes
freedom from the power of another” (p. 58). Paton’s book
on Jurisprudence (3rd Edn. p. 256) contains a similar
exposition of legal rights. The legal right of the States
consists in their immunity, in the sense of freedom
from the power of the Union Government. They are
entitled, under Article 131, to assert that right either
by contending in the absolute that the Centre has no
power to dissolve the Legislative Assemblies or with
the qualification that such a power cannot be exercised
on the ground stated.
115. It is true that the State, like the British Monarch, never
dies. A Legislative Assembly may be dissolved, a Council
of Ministers may go out of power, the President’s rule
may be introduced or imposed, or an emergency may be
declared which can conceivably affect the States’ powers
in matters legislative and executive. The State survives
these upheavals. But it is constitutionally unsound to
say that the State, as a political entity, has no legal
interest in such cataclysmic events and no legal rights
to assert in relation thereto. Were it so, which then
are the legal rights which the State, as distinguished
from its Government, can agitate under Article 131?
Whatever be the nature of the claim, the argument
can always be put forward that the Government, not
the State, is interested in making that claim. Such a
rigid interpretation of the scope of Article 131 will
[2024] 7 S.C.R. 699
The State of West Bengal v. Union of India
virtually reduce it to a dead-letter and destroy a
precious safeguard against the use of arbitrary power.
The interpretation canvassed by the learned Additional
Solicitor General must, therefore, be avoided, Insofar
as the language of the article permits it which in my
opinion it does.
……….
117. The judgment of this Court in State of Bihar v. Union
of India [(1970) 1 SCC 67 : (1970) 2 SCR 522] affords no
real assistance on the question arising before us. In that
case, the Court raised three issues in the suits filed under
Article 131. The first issue which related to the question
whether the suits were within the scope of Article 131
was not answered by the Court because it held on the
second issue that the suits were not maintainable, since a
private party was impleaded thereto. The only assistance
which may be derived from the judgment in that case is
that it said that the disputes under Article 131 should be
“in respect of legal rights and not disputes of a political
character” and that though it was unnecessary to
define the scope of Article 131, “this much is certain
that the legal right which is the subject of dispute
must arise in the context of the Constitution and the
Federalism it sets up” (p. 529). These observations do
not affect the construction which I have placed on Article
131. I have endeavoured to show that it is competent
to the State Governments to bring suits of the present
nature under that article and that by these suits, the
State Governments are raising a legal, not a political,
issue. Their assertion is that the Government of India
does not possess the constitutional power claimed
by it and therefore, this Court should declare that
they are immune from the exercise of that power. The
States assert their legal right of immunity which, as
explained above, denotes freedom from the power
of another.”
[emphasis supplied]
700 [2024] 7 S.C.R.
Digital Supreme Court Reports
36. It could thus be seen that Justice Chandrachud observed that the true
construction of Article 131(a), true in substance and true pragmatically,
is that a dispute must arise between the Union of India and a State.
His Lordship further observed that the dispute between the Union
of India and a State cannot but be a dispute which arises out of the
differences between the Government in office at the Centre and the
Government in office in the State. It was further held that the further
requirement for a dispute to fall within the ambit of the classes of
disputes under Article 131 of the Constitution is that the dispute must
involve a question, whether of law or fact, on which the existence
or extent of a legal right depends. It was further observed that mere
wrangles between governments have no place in the scheme of that
article. His Lordship further held that the purpose of Article 131 is to
afford a forum for the resolution of disputes which depend for their
decision on the existence or extent of a legal right. It has been held
that it is only when a legal, not a mere political issue arises touching
upon the existence or extent of a legal right that Article 131 of the
Constitution is attracted.
37. Justice Chandrachud specifically rejected the contention that the State
as a polity was not entitled to raise a dispute of the nature raised
herein. His Lordship observed that in a federation, whether classical
or quasi-classical, the States are vitally interested in the definition of
the powers of the Federal Government on one hand and their own
on the other. A dispute bearing upon the delineation of those powers
is precisely the one in which the federating States, no less than the
Federal Government itself, are interested. It was also observed that
the States therefore have the locus and the interest to contest and
seek an adjudication of the claim set up by the Union Government.
The bond of constitutional obligation between the Government of India
and the States sustains that locus. His Lordship further observed that
the legal right of the States consists in their immunity, in the sense
of freedom from the power of the Union Government. It has been
held that the States are entitled, under Article 131, to assert that right
either by contending in the absolute that the Centre has no power to
dissolve the Legislative Assemblies or with the qualification that such
a power cannot be exercised on the ground stated. It has been held
that it is constitutionally unsound to say that the State, as a political
entity, has no legal interest in such cataclysmic events and no legal
rights to assert in relation thereto. The Court specifically rejected the
[2024] 7 S.C.R. 701
The State of West Bengal v. Union of India
argument on the rigid interpretation of the scope of Article 131 and
observed that if such an interpretation was to be accepted, it would
virtually reduce it to a dead-letter and destroy a precious safeguard
against the use of arbitrary power.
38. After referring to the judgment in the case of State of Bihar v.
Union of India and Another (supra), His Lordship observed that,
in the said case, the Court held that on the second issue, the suits
were not maintainable since a private party was impleaded thereto.
His Lordship further observed that the only assistance that could
be derived from the said judgment was that the disputes under
Article 131 should be “in respect of legal rights and not disputes
of a political character”. His Lordship further observed that the
assertion of the States was that the Government of India did not
possess the constitutional power claimed by it and therefore, this
Court should declare that they are immune from such exercise of
that power.
39. With the aforesaid observations, the Court rejected the preliminary
objections with regard to maintainability of the suits therein. Justice
Chandrachud, further observed thus:
“138. That takes us to the question of maintainability of
the suits. There are six suits before us filed by the States
of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal
Pradesh and Orissa. Each of these suits has been filed
under Article 131 of the Constitution. This Article confers
original jurisdiction on the Supreme Court, to the exclusion
of all other courts, in respect of certain categories of suits
and is in the following terms:
“131. Subject to the provisions of this Constitution,
the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any
dispute—
(a) between the Government of India
and or more States; or
(b) between the Government of India
and any State or States on one side
and one or more other States on the
other; or
702 [2024] 7 S.C.R.
Digital Supreme Court Reports
(c) between two or more States,
if and insofar as the dispute involves any
question (whether of law or fact) on which the
existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend
to a dispute arising out of any treaty, agreement,
covenant, engagement, sanad or other similar
instrument which having been entered into or
executed before the commencement of the
Constitution, continues in operation after such
commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.”
There are two limitations in regard to the nature of the suit
which can be entertained by the Supreme Court under
this Article. One is in regard to parties and the other is
in regard to the subject-matter. The Article provides in so
many terms in clauses (a), (b) and (c) that the dispute
must be between the Government of India and one or
more States, or between the Government of India and
any other State or States on one side and one or more
other States on the other, or between two or more States.
It does not contemplate any private party being
arrayed as a disputant on one side or the other. The
parties to the dispute must fall within one or the other
category specified in clauses (a), (b) and (c). That
was established by a decision of this Court in State
of Bihar v. Union of India [(1970) 1 SCC 67 : (1970) 2
SCR 522] where this Court pointed out:
“a dispute which falls within the ambit of Article
131 can only be determined in the forum
mentioned therein, namely, the Supreme Court
of India, provided there has not been impleaded
in any said dispute any private party, be it a
citizen or a firm or a corporation along with a
State either jointly or in the alternative. A dispute
in which such a private party is involved must
be brought before a court, other than this court,
having jurisdiction over the matter.”
[2024] 7 S.C.R. 703
The State of West Bengal v. Union of India
This is the limitation as to parties. The other limitation as
to subject-matter flows from the words “if and insofar as
the dispute involves any question (whether of law or fact)
on which the existence or extent of a legal right depends”.
These words clearly indicate that the dispute must be one
relating to a legal right and not a dispute on the political
plans not based on a legal right, for instance, to take an
example given by Mr Seervai in his well known work on
“Constitutional Law of India” at p. 1385: “a claim that a
State project should be included in the Five-Year Plan.” The
dispute must, therefore, involve assertion or vindication of
a legal right of the Government of India or a State. It is not
necessary that the right must be a constitutional right. All
that is necessary is that it must be a legal right. It is true
that in the State of Bihar v. Union of India this Court,
while discussing the scope of the dispute which may
be determined by the Supreme Court under Article
131, happened to make an observation that “this much
is certain that the legal right which is the subject of
dispute must arise in the context of the Constitution
and the federalism it sets up”. But this observation,
Insofar as it suggests that the “legal right” must be one
which arises under the Constitution, goes much further
than what the language of Article 131 warrants. The
Article speaks only of “legal right” and does not qualify
it by any other words. It may be noted that the provision
in the corresponding Section 204 of the Government of
India Act, 1935 was significantly different. It contained
a proviso that the dispute must inter alia concern the
interpretation of the Government of India Act, 1935 “or of
an Order in Council made thereunder or the extent of the
legislative or executive authority vested in the Federation
by virtue of the Instrument of Accession of that State”.
This provision has been deliberately and designedly
omitted in Article 131 and now any legal right can
be enforced by a suit in the Supreme Court provided
the parties fill the character specified in clauses (a),
(b) and (c). The question which therefore requires to
be considered in determining the maintainability of
the suits is whether any legal right of the States is
704 [2024] 7 S.C.R.
Digital Supreme Court Reports
sought to be vindicated in the suits. We shall presently
consider this question, but before we do so, we must
point out one other error in which, with the greatest
respect, the learned Judges who decided the case of
State of Bihar v. Union of India seem to have fallen.
They held that in a suit under Article 131 the only order
which the Supreme Court could make was a declaration
adjudicating on the legal right claimed in the suit and
once such a declaration was given, the function of the
Supreme Court under Article 131 was at an end. If this
conclusion were correct, then obviously the present suits
seeking permanent injunction restraining the Government
of India from issuing a proclamation under Article 356
clause (1) could not lie and equally no interim injunction
could be granted by this Court, but the learned Additional
Solicitor General, with his usual candour and fairness,
conceded that he was not in a position to support this
view. This view seems to be erroneous and for two very
good reasons. In the first place, it overlooks the fact that
whereas sub-section (2) of Section 204 of the Government
of India Act, 1935 provided that the Federal Court, in
exercise of its original jurisdiction, shall not pronounce
any judgment, other than a declaratory judgment, no
such provision limiting the power of the Supreme Court
in regard to the relief to be granted is to be found in
Article 131. The power of the Supreme Court to grant
relief in a suit under Article 131 is not restricted only to
“declaratory judgment”. Secondly, as pointed out by Mr
Seervai in his book at p. 1385, “when a court is given
exclusive jurisdiction in respect of a dispute between the
parties, it is reasonable to hold that the Court has power
to resolve the whole dispute”, unless its power is limited
by express words or by necessary implication. There is no
such limitation in Article 131 and hence it is not correct to
say that the Supreme Court can only give a declaratory
judgment in a suit under Article 131. The Supreme Court
would have power to give whatever reliefs are necessary
for enforcement of the legal right claimed in the suit if
such legal right is established.”
[emphasis supplied]
[2024] 7 S.C.R. 705
The State of West Bengal v. Union of India
40. It could thus be seen that His Lordship approved the ratio in State
of Bihar v. Union of India and Another (supra) to the effect that
the suit under Article 131 of the Constitution does not contemplate
any private party being arrayed as a disputant on one side or the
other. It held that the parties to the dispute must fall within one or
the other category specified in clauses (a), (b) and (c) of Article 131
of the Constitution.
41. His Lordship disapproved the observations made in the case of State
of Bihar v. Union of India and Another (supra) to the effect that
“this much is certain that the legal right which is the subject of dispute
must arise in the context of the Constitution and the federalism it
sets up”. His Lordship held that the suggestion that the legal right
must be one which arises under the Constitution, goes much further
than what the language of Article 131 of the Constitution warrants.
42. Justice Chandrachud further pointed out that, under the Government
of India Act, 1935, Section 204 provided that the dispute must inter
alia concern the interpretation of the Government of India Act, 1935
or of an Order in Council made thereunder or the extent of the
legislative or executive authority vested in the Federation by virtue of
the Instrument of Accession of that State. It has been observed that
the said provisions have been deliberately and designedly omitted in
Article 131 of the Constitution and now any legal right can be enforced
by a suit in this Court provided the parties fill the character specified
in clauses (a), (b) and (c) of Article 131 of the Constitution. What is
required to be considered is that in determining the maintainability
of the suits, whether any legal right of the States is sought to be
vindicated or not. His Lordship, in paragraph 142, specifically observed
that the suits for consideration before it sought to enforce a legal right
of the States arising under the Constitution and the suits could not be
thrown out in limine as being outside the scope and ambit of Article
131 of the Constitution. The same view has been taken by Justice
P.K. Goswami in paragraph 159 with regard to parties that may be
impleaded in a suit under Article 131 of the Constitution as well as
with regard to the subject matter of the litigation.
43. In the light of the law laid down in the case of State of Rajasthan
and Others v. Union of India and Others (supra), which is a
judgment of seven Judges of this Court, we will have to examine
the rival submissions.
706 [2024] 7 S.C.R.
Digital Supreme Court Reports
VI. CONSIDERATION:
a. Reading of the Plaint:
44. As observed hereinabove, in a catena of judgments, it has been held
that for considering the preliminary objections, only the averments
made in the plaint are to be looked into to determine as to whether
a cause of action has been made out or not. In that regard, it will
be relevant to refer to some of the paragraphs in the plaint, which
read thus:
“3. Article 246(1) empowers the Parliament with exclusive
power to make laws with respect to any of the matters
enumerated in List I, Seventh Schedule (known as the
Union List). Entry 80, List I is relevant in this regard:
“80. Extension of the powers and
jurisdiction of members of a police force
belonging to any State to any area outside
that State, but not so as to enable the
police of one State to exercise powers and
jurisdiction in any area outside that State
without the consent of the Government of
the State in which such area is situated;
extension of the powers and jurisdiction
of members of a police force belonging
to any State to railway areas outside that
State.”
4. That the police powers come within the State’s exclusive
jurisdiction is also recognized in Article 246(3) of the
Constitution, which provides that the State has exclusive
power to make laws for such state for any of the matters
enumerated in List II. Specifically, of such matters, Entry
1 and Entry 2 are relevant which are:
“1. Public order (but not including the use
of any naval, military or air force or any
other armed force of the Union or of any
other force subject to the control of the
Union or of any contingent or unit thereof
in aid of the civil power).
[2024] 7 S.C.R. 707
The State of West Bengal v. Union of India
2. Police (including railway and village
police) subject to the provisions of entry
2A of List I.”
5. Entries 1 and 2 of List II, the Seventh Schedule to the
Constitution of India thus prescribe that public order and
the police are exclusive subject matters of the concerned
State. Further Entry 80, List I, ensures that the Union/
Center does not transgress into the jurisdiction of the
State without permission of the concerned State.
6. The CBI which draws its powers under the DSPE Act
has acted in violation of the aforementioned Constitutional
provisions and the DSPE Act. The DSPE Act, as its
preamble provides, was enacted to make provisions for
the constitution of a Special ‘Police Force’ in Delhi for the
investigation of certain offences in the Union Territory, for
the superintendence and administration of the said Force
and for the extension of its powers and jurisdiction in
regard to the investigation of the said offences. Section
2 of the DSPE Act provides for constitution of the force,
Section 3 thereof prescribes the offence which are to
be investigated by CBI; Section 5 of DSPE Act provides
extension of power and jurisdiction of CBI into any area
(including a railway area) in a State; Section 6 thereof
expressly provides that the force/CBI is required to obtain
the consent of the concerned State in case of exercise
of such power in terms of Section 5 of the DSPE Act.
7. Section 6 of the DSPE Act is the statutory recognition
of the principle of federalism which forms a part of the
basic structure of the Constitution of India, as also
protected under Entry 80, List I and Entries 1 and 2, List
II, Constitution of India. In absence of Section 6 in the
statute book, the piece of legislation would have attracted
the vice of unconstitutionality.
8. Any act of the CBI in violation of Section 6, DSPE Act,
strikes at the roots of federalism, which this Hon’ble Court
in S.R. Bommai v. Union of India, 1994 SCC (3) 1, has
held to be a part of the Constitution’s basic structure.
708 [2024] 7 S.C.R.
Digital Supreme Court Reports
Therefore, the CBI’s exercise of powers by violating
Section 6, DSPE Act, subverts the basic structure of the
Constitution.
9. Under the Constitution, a threefold distribution of
legislative power by the three Legislative Lists in the
Seventh Schedule to the Constitution of India has been
conceptualized (vide Article 246). List II of the Seventh
Schedule to the Constitution of India is the part and
parcel of a single constitutional instrument envisaging a
federal scheme. It thus confers plenary power on the State
to legislate on certain exclusive subject matters which
includes “public order” and “police” in a State.
10. Section 6 of the DSPE Act is a component of such
federalism that provides for a prior approval of the State
in case Centre wishes to transgress in the territory of the
State and usurping the powers of the police force of the
State.
11. The provision of Section 6 therefore, assumes immense
significance and therefore, cannot be ignored and violated
by the Defendant. Any such attempt on the part of the
Defendant would cause an inroad to the constitutionalism
and therefore, this Hon’ble Court being the conscience
keeper of the Constitution ought not to permit the Defendant
to do so.
12. In State of West Bengal and others v. Committee for
Protection of Democratic Right, West Bengal and others
reported in (2010) 3 SCC 571, this Hon’ble Court held that
although Section 5(1), DSPE Act empowers the Central
Government to extend power and jurisdiction of members of
the DSPE force to any area in a State, Section 6 imposes
a restriction on such power of the Central Government
requiring it to obtain the consent of the concerned State
Government. This Hon’ble Court further held that the only
exception is when either the Hon’ble High Courts or this
Hon’ble Court, in exercise of its jurisdiction under Article
226 or 32 of the Constitution, respectively, directs the CBI
to investigate a cognizable offence allegedly to have been
[2024] 7 S.C.R. 709
The State of West Bengal v. Union of India
committed within the territory of a state without the consent
of that particular state; such direction under Articles 226 or
32 of the Constitution will neither impinge upon the federal
structure of the Constitution nor violate the doctrine of
separation of power, and shall be valid in law.
13. In the instant proceeding, the Plaintiff is challenging
the act of the defendant in registering suo moto cases
for offences that have occurred within the territory of the
plaintiff dehors any direction from any competent court or
prior consent granted by the Plaintiff.
14. In this regard, Section 6 of the DSPE Act is crucial
since it requires prior consent of the State Government for
exercising power and jurisdiction under the DSPE Act by
CBI to any area in a State not having Union Territory or
Railways. Before the provision of DSPE Act are invoked
to authorize the CBI to exercise its power and jurisdiction
within any State, the following conditions are to be specified
compulsorily.
i) A notification must be issued by the Central
Government specifying the offences to be
investigated by CBI (Section 3);
ii) An order must be passed by the Central
Government extending power and jurisdiction
of CBI to any area (including railway area) in
a State not being an Union Territory in respect
of offences specified under Section 3 (Section
5); and
iii) Consent of the State Government must be
obtained for the exercise of power by CBI in
the concerned State (Section 6).
15. Thus, from a plain reading of the law, it is evident that
the CBI does not have any inherent jurisdiction in any
area in a State including a railway area. The DSPE has to
mandatorily meet the requirements of Section 3 and Section
5, DSPE Act, and thereafter its powers become subject
to the consent of the State under Section 6, DSPE Act.
710 [2024] 7 S.C.R.
Digital Supreme Court Reports
16. This Hon’ble Court has held that fulfillment of all three
conditions under Sections 3,5, and 6 are required prior to
the CBI exercising its powers in any State (M. Balakrishna
Reddy v. CBI, (2008) 4 SCC 409).
17. On February 18, 1963, the Defendant under Section 3
(1) of the DSPE Act notified a class of offences, wherein,
the power to investigate given to be vested with CBI. On
February 18, 1963, by order No. 25/12/6-AVD-II, issued by
Ministry of Home Affairs, Government of India Act, under
Section 5, DSPE Act extended jurisdiction of members of
the Delhi Special Police Establishment to various states,
including the State of West Bengal.
18. On August 2, 1989, in exercise of its powers under
Section 6, DSPE Act, the Plaintiff vide Notification being
G.O. No. 6845-PL/PE/2A- 10/88, accorded its consent
to CBI to exercise the power and jurisdiction within the
territory of the State of West Bengal for certain offences,
except for public servants employed in connection with
the affairs of the State or any Authority controlled or aided
wholly or partly by the State Government for which the
specific request and with the prior concurrence of the
State Government was required.
19. On November 16, 2018, the Plaintiff, in exercise of
its powers under Section 6, DSPE Act, withdrew the
aforesaid consent accorded vide G.O. No. 6845-PL/
PE/2A-10/88 dated August 2, 1989. Thus, the Plaintiff,
during the period August 2, 1989 to November 16, 2018,
had given a limited consent to the CBI to investigate certain
offences pertaining to persons who were not employed
in connection with the affairs of the State Government/
authority controlled or aided by the State Government.
However, after November 16, 2018, the CBI would have
been required to obtain the prior and specific consent of
the Plaintiff for exercise of any power under the DSPE
Act in the State of West Bengal.
…………
21. The cause of action for filing this suit thus does not
arise from any one particular event or case but arises due
[2024] 7 S.C.R. 711
The State of West Bengal v. Union of India
to the fact that the CBI, despite the withdrawal of consent
by the State under Section 6, DSPE Act, has registered
cases and has been exercising its powers under the DSPE
Act in an unconstitutional manner. This impacts many cases
and investigation of offences that ought to be done by the
State Police. The details of some of the cases registered
by the CBI without obtaining consent of the Plaintiff, which
gives rise to a continuing cause of action, are as follows:
Sl. No. Date of Registration Regular Case No.
1. 17/11/2018 RC0102018A0011
2. 19/11/2018 RC0102018A0012
3. 23/08/2019 RC0562019S0004
4. 30/09/2019 RC0562019S0005
5. 21/09/2020 RC0102020A0018
6. 21/09/2020 RC0102020A0019
7. 22/09/2020 RC0102020A0020
8. 19/10/2020 RC0102020A0021
9. 27/11/2020 RC0102020A0022
10. 07/12/2020 RC0102020A0023
11. 29/01/2021 RC0732021E0001
12. 15/06/2021 RC0102021A0003
22. All of the abovementioned FIRs concern offences
under laws such as the Indian Penal Code 1860 and/or
Prevention of Corruption Act, 1988, all of which the State/
Kolkata Police is empowered to investigate by statute.
Therefore, the CBI in exercising its powers under the DSPE
Act, without the requisite State consent is not only violating
Section 6, DSPE Act, but also usurping and ousting State/
Kolkata Police’s statutory jurisdiction over such offences.
23. Such action of the Defendant violates the Constitutional
provisions, the DSPE Act, and derogates from the doctrine
of federalism. By registration of these cases, the Defendant
herein has rendered the provisions under Section 6 of the
DSPE Act nugatory.
712 [2024] 7 S.C.R.
Digital Supreme Court Reports
24. The requirement of obtaining consent of the concerned
state to enable CBI to investigate in the said state under
section 6 of the DSPE Act aligns with the principles of
federalism as envisaged in the constitution which has
vested the state with the power to exercise exclusive
jurisdiction by making laws with respect to police under
Entry 2 of the State List of the Seventh Schedule read
with Article 246(3) of the Constitution of India.
………….
29. In accordance with the provisions of Constitution and
the law interpreted by this Hon’ble Court, the Plaintiff
State will suffer grave constitutional prejudice in case the
Defendant is allowed to operate its own police force within
the State of West Bengal in absence of previous approval
of the Plaintiff State. Thus, there exists a dispute, involving
of question of law and fact, between the Plaintiff State of
West Bengal and the Defendant Union of India, regarding
the encroachment of jurisdiction and encroachment of legal
rights as a State and as well as for the enforcement of the
fundamental, statutory constitutional and other legal rights
of the State of West Bengal. Hence, this Original Suit under
Article 131 of the Constitution of India is being preferred.
30. The action of the Defendant is an act of constitutional
overreach inasmuch as by registering cases within the
State of West Bengal in absence of the consent of the
Plaintiff, the Defendant has exceeded its jurisdiction and
has acted contrary to the scheme of Constitution and
DSPE statute.
31. Such action of the Defendant also violates the law
laid down by this Hon’ble Court that no investigation can
be conducted within the territory of a State in absence
of consent under Section 6 of the DSPE Act (see Kazi
Lehendup Dorji v. CBI, & Ors 1994 Supp (2) SCC 116
(para 4,9,17); Subramanian Swami v. CBI 2014 (8) SCC
682 (Para 67,68); State of West Bengal v. Committee
for Protection of Democratic Right, West Bengal & Ors.
2013(3) SCC 571 (Para 35,37); Mayawati v. Union of
India (2012) 8 SCC 106 (Para 9, 30, 41, 44); A.C Sharma
[2024] 7 S.C.R. 713
The State of West Bengal v. Union of India
v. Delhi Administration, 1973 (1) SCC 726 (Para 13); M
Balakrishnan v. Director, CBI Delhi 2008 (4) SCC 409
(Para 18, 19)).
32. It is well settled that when differences arise between
the representative of the State and that of the Union on
questions of interpretation of the Constitution and law
which may affect the welfare of the whole people and
particularly that of the people of the State concerned, a
suit under Article 131 of the Constitution lies. Given the
aforesaid statutory obligation of the Defendant, the Plaintiff
being the repository of people on the subject of law and
order in State, the Defendant cannot cause investigation
into the offences in the State. Since there cannot be two
parallel investigations in respect of the same offence, the
registration of FIRs by the Defendant precludes the State
from initiating appropriate action on the allegations of this
subject. As a consequence thereof, the Plaintiff fails to
adhere to the constitutional obligation.
33. Article 131 of the Constitution provides for independent
adjudication in case of federal disputes and should be
widely and generously interpreted to advance the intended
remedy. It can be invoked whenever a State and other
States or Union differ on a question of interpretation of
constitution or law so that a decision of it will affect the
scope and exercise of the governmental powers which
are attributes of a State. The jurisdiction conferred on
this Hon’ble Court under Article 131 of the Constitution
should not be tested on the anvil of banal rules which are
applied under the provisions of Code of Civil Procedure
for determining whether a suit is maintainable.
34. The Constitution aims at maintaining a fine balance
not only between the legislature, the executive and the
judiciary, but also between the powers of the Union and
State, as demonstrated by the Legislative Lists and the
executive power of the Central Government and the
State Governments in part XI of the Constitution. This
is a delicate relationship particularly if different political
parties are in power in the Centre and in the States.
The object of the Articles 245-246 is to ensure that the
714 [2024] 7 S.C.R.
Digital Supreme Court Reports
Central Government and State Governments act within the
respective spheres of their authority and do not transgress
upon each other’s constitutional functions or powers.
…………
36. This present suit is being filed to challenge the
constitutionality of the actions of the defendant. Thus, a suit
under Article 131 of the Constitution of India challenging
the constitutionality of the impugning the action of the
Defendant at the instance of a constituent State of the
Union is maintainable.
37. A proceeding under Article 131 of the Constitution
stands in sharp contrast with an ordinary suit. The
proceedings are adjudicatory of the limits of the
constitutional power vested in the Central and the State
Governments. The competition in such a proceeding is
between two or more Governments either the one or the
other of which possesses the constitutional power to act.
38. While mere wrangles between the Governments have
no place under the scheme, when legal as distinct from a
mere political issue arises touching upon the existence or
extent of the legal right the article is attracted. There is a
distinction between “State” and “State Government”. When
a right or capacity or lack of it attributed to any institution
of person acting on behalf of the State, it raises a matter in
which the State is involved or concerned. The State would
therefore be affected by any unconstitutional exercise of
power by the Central Government. The word “right” in
Article 131 of the Constitution is used in a generic sense.
If the State claims to be entitled to legislative exclusivity
on a particular matter on the ground that it falls within List
II of Seventh Schedule and the Union of India questions
this right, despite the constitutional restriction under Entry
80, List I, the dispute is one relating not to not only the
right of the State in the strict sense of the term but also
of the liberty of the State, and the same would directly
come within the scope of Article 131 of the Constitution.
It is therefore, evident that the present suit is maintainable
by the Plaintiff against the Defendant before this Hon’ble
[2024] 7 S.C.R. 715
The State of West Bengal v. Union of India
Court under Article 131 of the Constitution. The plaintiff
has not filed any other similar suit claiming the same
reliefs before this Hon’ble Court or any other Court. The
Suit is not barred by limitation as on the date of filing of
the present Suit.”
45. A perusal of the plaint would reveal that it refers to Article 246(1)
of the Constitution which empowers the Parliament with exclusive
power to make laws with respect to any of the matters enumerated
in List I. It refers to Entry 80 of List I which enables the Parliament
to make laws with regard to extension of the powers and jurisdiction
of members of a police force belonging to any State to any area
outside that State. However, the same cannot be done without the
consent of the Government of the State in which such area is situated.
Then, it refers to the exclusive jurisdiction of the State Legislature
as recognized in Article 246(3) of the Constitution to make laws
with regard to any of the matters enumerated in List II. It refers to
Entries 1 and 2 which relate to public order and police. Then, the
plaint avers that the public order and police are exclusive subject
matters of the concerned State. It avers that Entry 80, List I, ensures
that the Union/Centre does not transgress into the jurisdiction of the
State without permission of the concerned State. It therefore avers
that the CBI which draws its powers from the DSPE Act has acted
in violation of the aforementioned Constitutional provisions as also
the DSPE Act and then it refers to various provisions of the DSPE
Act including Section 6 thereof which requires the consent of the
Government of the concerned State in whose areas the jurisdiction
of the CBI is being extended. Thereafter, it refers to Section 6 of
the DSPE Act as a component of the concept of federalism. It avers
that the provisions of Section 6 of the DSPE Act cannot be ignored
or violated by the defendant.
46. In paragraph 12 of the plaint, the plaint refers to various judgments
of this Court interpreting Sections 5(1) and 6 of the DSPE Act. In
paragraph 13, the plaint avers that the plaintiff is challenging the act
of the defendant in registering suo moto cases for offences that have
occurred within the territory of the plaintiff without any direction from
the competent court or prior consent granted by the plaintiff. Then,
in paragraph 14, averments are made with regard to the approval
to be made by the Central Government, a rule which is required to
be followed by the Central Government in extending powers and
716 [2024] 7 S.C.R.
Digital Supreme Court Reports
jurisdiction of the CBI. Thereafter, it refers to the judgment of this
Court which requires the fulfillment of the three conditions under
Sections 3, 5 and 6 of the DSPE Act prior to the CBI exercises
powers in any State, which read thus:
i) A notification must be issued by the Central Government
specifying the offences to be investigated by CBI (Section 3);
ii) An order must be passed by the Central Government extending
power and jurisdiction of CBI to any area (including railway area)
in a State not being an Union Territory in respect of offences
specified under Section 3 (Section 5); and
iii) Consent of the State Government must be obtained for the
exercise of power by CBI in the concerned State (Section 6).
47. Thereafter, the plaint refers to the consent granted by the plaintiff
under Section 6 of the DSPE Act on 2nd August 1989 vide notification
issued by it. Then, it refers to the withdrawal of the said consent on
16th November 2018.
48. Paragraph 21 of the plaint avers regarding the powers of the CBI.
It avers that despite withdrawal of the consent given by the plaintiff
under Section 6 of the DSPE Act, the CBI has registered cases
and has been exercising its powers under the DSPE Act in an
unconstitutional manner. The plaint thereafter gives a list of the
cases and states that the CBI exercised its powers under the DSPE
Act without the requisite consent of the State and as such, not only
violated Section 6 of the DSPE Act but also usurped and ousted
the State police’s statutory jurisdiction.
49. In paragraph 24 of the plaint, the averments with regard to principles
of federalism are reiterated.
50. Paragraph 27 of the plaint states that the present lis involves
substantial question of law as to the interpretation of Articles 245
and 246 of the Constitution and various Entries in the Seventh
Schedule as well as corresponding provisions of Code of Criminal
Procedure, 1973 and the DSPE Act.
51. In paragraph 29 of the plaint, it is averred that, in case the defendant
is allowed to operate its own police force within the State of West
Bengal in the absence of previous approval of the plaintiff State,
the plaintiff will suffer grave constitutional prejudice. It is therefore
[2024] 7 S.C.R. 717
The State of West Bengal v. Union of India
averred that there exists a dispute involving question of law and fact
between the plaintiff and the defendant – Union of India regarding
the encroachment of jurisdiction and legal rights. In paragraph 30
of the plaint, it is averred that the action of the defendant is an
act of constitutional overreach. In paragraph 32 and subsequent
paragraphs of the plaint, it delineates the scope of Article 131 of
the Constitution.
b. Scheme of the DSPE Act:
52. After considering the averments in the plaint, we now propose to
consider the contention of the learned Solicitor General with regard
to Union of India having no superintendence or control over the CBI.
For considering the same, it will be necessary to refer to certain
provisions of the DSPE Act.
53. Section 2 of the DSPE Act reads thus:
“2. Constitution and powers of special police
establishment.—(1) Notwithstanding anything in the
Police Act, 1861 (5 of 1861), the Central Government
may constitute a special police force to be called the Delhi
Special Police Establishment for the investigation in any
Union Territory, of offences notified under Section 3.
(2) Subject to any orders which the Central Government
may make in this behalf, members of the said police
establishment shall have throughout any Union Territory,
in relation to the investigation of such offences and arrest
of persons concerned in such offences, all the powers,
duties, privileges and liabilities which police officers of that
Union Territory have in connection with the investigation
of offences committed therein.
(3) Any member of the said police establishment of or
above the rank of Sub-Inspector may, subject to any orders
which the Central Government may make in this behalf,
exercise in any Union Territory any of the powers of the
officer in charge of a police station in the area in which he
is for the time being and when so exercising such powers
shall, subject to any such orders as aforesaid, be deemed
to be an officer in charge of a police station discharging the
functions of such an officer within the limits of his station.”
718 [2024] 7 S.C.R.
Digital Supreme Court Reports
54. A perusal of sub-section (1) of Section 2 of the DSPE Act clearly
shows that it is the Central Government that is entitled to constitute
a special police force to be called the DSPE for investigation of
cases in any Union Territory of offences notified under Section 3
of the DSPE Act. Sub-section (2) thereof would show that, subject
to any orders which the Central Government may make in this
behalf, members of the DSPE shall have, throughout any Union
Territory, in relation to the investigation of such offences and arrest
of persons concerned in such offences, all the powers, duties,
privileges and liabilities which police officers of that Union Territory
have in connection with the investigation of offences committed
therein. Again, under sub-section (3) thereof, any member of the
DSPE of or above the rank of Sub-Inspector may, subject to any
orders which the Central Government may make in this behalf,
exercise, in any Union Territory, any of the powers of the officer in
charge of a police station in the area in which he is for the time
being and when so exercising such powers, he shall, subject to any
such orders as aforesaid, be deemed to be an officer in charge of
a police station discharging the functions of such an officer within
the limits of his station.
55. Section 3 of the DSPE Act reads thus:
“3. Offences to be investigated by special police
establishment.—The Central Government may, by
notification in the Official Gazette, specify the offences or
classes of offences which are to be investigated by the
Delhi Special Police Establishment.”
56. It is thus clear that the DSPE is entitled to investigate only such
offences or classes of offences which are specified by the Central
Government by issuing a notification in the official gazette.
57. Section 4 of the DSPE Act reads thus:
“4. Superintendence and administration of Special
Police Establishment.—(1) The superintendence of the
Delhi Special Police Establishment insofar as it relates to
investigation of offences alleged to have been committed
under the Prevention of Corruption Act, 1988 (49 of 1988),
shall vest in the Commission.
[2024] 7 S.C.R. 719
The State of West Bengal v. Union of India
(2) Save as otherwise provided in sub-section (1), the
superintendence of the said police establishment in all
other matters shall vest in the Central Government.
(3) The administration of the said police establishment shall
vest in an officer appointed in this behalf by the Central
Government (hereinafter referred to as the Director) who
shall exercise in respect of that police establishment
such of the powers exercisable by an Inspector-General
of Police in respect of the police force in a State as the
Central Government may specify in this behalf.”
58. A perusal of sub-section (1) of Section 4 of the DSPE Act would
reveal that the superintendence of the DSPE insofar as it relates to
investigation of offences alleged to have been committed under the PC
Act is concerned, shall vest with the CVC. However, sub-section (2)
thereof provides that except for what has been provided in sub-section
(1) thereof, the superintendence of the said police establishment in
all other matters shall vest with the Central Government. Sub-section
(3) thereof provides that the administration of the DSPE shall vest in
an officer appointed in this behalf by the Central Government who
shall exercise, in respect of that police establishment, such of the
powers exercisable by an Inspector-General of Police in respect of
the police force in a State as the Central Government may specify
in this behalf.
59. Section 5 of the DSPE Act reads thus:
“5. Extension of powers and jurisdiction of special
police establishment to other areas.—(1) The Central
Government may by order extend to any area (including
Railway areas) in a State, not being a Union Territory the
powers and jurisdiction of members of the Delhi Special
Police Establishment for the investigation of any offences
or classes of offences specified in a notification under
Section 3.
(2) When by an order under sub-section (1) the powers and
jurisdiction of members of the said police establishment
are extended to any such area, a member thereof may,
subject to any orders which the Central Government may
make in this behalf, discharge the functions of a police
720 [2024] 7 S.C.R.
Digital Supreme Court Reports
officer in that area and shall, while so discharging such
functions, be deemed to be a member of a police force
of that area and be vested with the powers, functions and
privileges and be subject to the liabilities of a police officer
belonging to that police force.
(3) Where any such order under sub-section (1) is made in
relation to any area, then, without prejudice to the provisions
of sub-section (2) any member of the Delhi Special Police
Establishment of or above the rank of Sub-Inspector may
subject to any orders which the Central Government may
make in this behalf, exercise the powers of the officer
in charge of a police station in that area and when so
exercising such powers, shall be deemed to be an officer
in charge of a police station discharging the functions of
such an officer within the limits of his station.”
60. A perusal of sub-section (1) of Section 5 of the DSPE Act would
reveal that the Central Government, by an order, is entitled to extend
to any area including Railway areas in a State, not being a Union
Territory, the powers and jurisdiction of members of the DSPE for
the investigation of any offences or classes of offences specified
in a notification under Section 3 of the DSPE Act. Sub-section (2)
thereof provides that when by an order under sub-section (1), the
powers and jurisdiction of members of the DSPE are extended to
any such area, a member thereof may, subject to any orders which
the Central Government may make in this behalf, discharge the
functions of a police officer in that area and shall, while so discharging
such functions, be deemed to be a member of the police force of
that area and be vested with the powers, functions and privileges
and be subject to the liabilities of a police officer belonging to that
police force. Again, under sub-section (3) thereof, where any such
order under sub-section (1) is made in relation to any area, then,
without prejudice to the provisions of sub-section (2), any member
of the DSPE of or above the rank of Sub-Inspector may, subject to
any orders which the Central Government may make in this behalf,
exercise the powers of the officer in charge of a police station in
that area and when so exercising such powers, shall be deemed to
be an officer in charge of a police station discharging the functions
of such an officer within the limits of his station.
[2024] 7 S.C.R. 721
The State of West Bengal v. Union of India
61. Section 6 of the DSPE Act reads thus:
“6. Consent of State Government to exercise of powers
and jurisdiction.—Nothing contained in section 5 shall
be deemed to enable any member of the Delhi Special
Police Establishment to exercise powers and jurisdiction in
any area in a State, not being a Union Territory or railway
area, without the consent of the Government of that State.”
62. A perusal of Section 6 of the DSPE Act would reveal that nothing
contained in Section 5 shall be deemed to enable any member of
the DSPE to exercise powers and jurisdiction in any area in a State,
not being a Union Territory or railway area, without the consent of
the Government of that State.
63. A perusal of the entire scheme would therefore reveal that right from
the constitution of the special police force which is called DSPE,
issuance of notifications specifying the offences or classes of offences
which are to be investigated by the DSPE, superintendence and
administration of DSPE and the extension of powers and jurisdiction
of DSPE to the areas beyond the Union Territories, it is the Central
Government which is vitally concerned with. Not only that, only such
offences which the Central Government notifies in the official gazette,
can be investigated by the DSPE. Under Section 4 of the DSPE Act,
except the offences under the PC Act in which the superintendence
will be with the CVC, the superintendence of the DSPE in all other
matters would vest with the Central Government.
64. If the powers and jurisdiction of the members of the DSPE are to be
extended to any area including railway areas, in a State not being
a Union Territory, the same cannot be done unless the Central
Government passes an order in that regard. The statutory scheme
makes it clear that, for extending such powers under Section 5 of the
DSPE Act, it cannot be done without the consent of the Government
of that State under Section 6 of the DSPE Act.
65. In that view of the matter, we find that the contention of the learned
Solicitor General that even if the CBI, being an independent agency,
is considered to be an instrumentality of the State under Article 12
of the Constitution, it cannot be equated to the term Government of
India as contemplated under Article 131 of the Constitution, in our
view, holds no water.
722 [2024] 7 S.C.R.
Digital Supreme Court Reports
66. We further find that the very establishment, exercise of powers,
extension of jurisdiction, the superintendence of the DSPE, all vest
with the Government of India. In that view of the matter, in our
opinion, the reliance placed by the learned Solicitor General on the
judgment of this Court in the case of State of Bihar v. Union of
India and Another (supra), is not well placed. In our view, the CBI
is an organ or a body which is established by and which is under the
superintendence of the Government of India in view of the statutory
scheme as enacted by the DSPE Act.
c. Power of superintendence of the Central Government:
67. Insofar as reliance placed by the learned Solicitor General on the
judgments of this Court in the cases of Vineet Narain (supra) and
State of West Bengal and Others v. Committee for Protection of
Democratic Rights, West Bengal and Others18 is concerned, no
doubt that the powers of superintendence of the Central Government
would not relate to the superintendence of investigation of a particular
case and the investigating agency (CBI) would always be entitled
to investigate the offences independently. However, that would not
water down the administrative control and superintendence of the
DSPE that vests with the Central Government. In that view of the
matter, we find that the contention in that regard needs to be rejected.
d. Interpretation of the term “subject to the provisions of this
Constitution”:
68. The learned Solicitor General has vehemently argued that, in view
of the term “subject to the provisions of this Constitution” used in
Article 131 of the Constitution, since various matters are already
pending with regard to the subject matter of the present suit, be it
the proceedings either under Article 136, Article 32 or Article 226 of
the Constitution, the present suit would not be maintainable.
69. No doubt that Article 131 of the Constitution begins with the term
“subject to the provisions of this Constitution”. To understand the
said term, we can gainfully refer to a few authorities.
70. In Black’s Law Dictionary, 5th Edition at Page 1278, the expression
“subject to” has been defined as under:
18 [2010] 2 SCR 979 : (2010) 3 SCC 571 : 2010 INSC 104
[2024] 7 S.C.R. 723
The State of West Bengal v. Union of India
“Liable, subordinate, subservient, inferior, obedient
to; governed or affected by; provided that; provided;
answerable for.”
71. A Constitution Bench of this Court in the case of The South India
Corporation (P) Limited v. The Secretary, Board of Revenue,
Trivandrum and Another19 also had an occasion to consider the
said term, though it was in a case concerning Article 372 of the
Constitution. It will be apposite to refer to the following part of the
said judgment of the Constitution Bench:
“13. ……..Article 372 reads:
“(i) Notwithstanding the repeal by this Constitution
of the enactments referred to in Article 395
but subject to the other provisions of this
Constitution, all the law in force in the territory
of India immediately before the commencement
of this Constitution shall continue in force
therein until altered or repealed or amended
by a competent legislature or other competent
authority.
***
Explanation I.—The expression “law in force” in
this article shall include a law passed or made
by a legislature or other competent authority in
the territory of India before the commencement
of this Constitution and not previously repealed,
notwithstanding that it or parts of it may not be
then in operation either at all or in particular
areas.”
The object of this article is to maintain the continuity of the
pre-existing laws after the Constitution came into force till
they were repealed, altered or amended by a competent
authority. Without the aid of such an article there would be
utter confusion in the field of law. The assumption underlying
the article is that the State laws may or may not be within the
19 [1964] 4 SCR 280 : 1963 INSC 163
724 [2024] 7 S.C.R.
Digital Supreme Court Reports
legislative competence of the appropriate authority under
the Constitution. The article would become ineffective and
purposeless if it was held that pre-Constitution laws should
be such as could be made by the appropriate authority under
the Constitution. The words “subject to the other provisions
of the Constitution” should, therefore, be given a reasonable
interpretation, an interpretation which would carry out the
intention of the makers of the Constitution and also which
is in accord with the constitutional practice in such matters.
The article posits the continuation of the pre-existing laws
made by a competent authority notwithstanding the repeal
of Article 395; and the expression “other” in the article
can only apply to provisions other than those dealing with
legislative competence.
14. The learned Advocate-General relied upon the following
decisions for the said legal position : Gannon Dankerly
and Co. v. Sales Tax Officer, Maatancherry [ILR (1957)
Kerala 462] ; Sagar Mall v. State [ILR (1952) 1 All 862] ;
Kanpur Oil Mills v. Judge (Appeals) Sales Tax, Kanpur [AIR
1955 All 99] ; Amalgamated Coalfields Ltd. v. Janapada
Sabha, Chhindwara [(1962) 1 SCR 1] ; Jagdish Prasad v.
Saharanpur Municipality [AIR 1961 All 583] ; Saeoshankar
v. M.P. State [AIR 1951 Nag 58] ; State v. Yash Pal [AIR
1957 P&H 91] ; and Binoy Bhusan v. States of Bihar [AIR
1954 Pat 346] . It is not necessary to consider in detail
the said decisions, as they either resume the said legal
position or sustain it, but do not go further. They held that a
law made by a competent authority before the Constitution
continues to be in force after the Constitution till it is altered
or modified or repealed by the appropriate authority, even
though it is beyond the legislative competence of the said
authority under the Constitution. We give our full assent
to the view and hold that a pre-Constitution law made by
a competent authority, though it has lost its legislative
competency under the Constitution, shall continue in
force, provided the law does not contravene the “other
provisions” of the Constitution.”
72. The Constitution Bench has held that the words “subject to the
other provisions of the Constitution” should be given a reasonable
[2024] 7 S.C.R. 725
The State of West Bengal v. Union of India
interpretation. It has been held that the interpretation which would
carry out the intention of the makers of the Constitution and also
which is in accord with the constitutional practice in such matters,
should be adopted. The Court held that Article 372 of the Constitution
posits the continuation of the pre-existing laws made by a competent
authority notwithstanding the repeal of Article 395 of the Constitution.
It has been held that the expression “other” under Article 372 of
the Constitution can only apply to the provisions other than those
dealing with legislative competence. The Court therefore held that a
pre-Constitution law made by a competent authority, though it has
lost its legislative competency under the Constitution, shall continue
in force, provided the law does not contravene the “other provisions”
of the Constitution.
73. Another Constitution Bench of this Court in the case of Union of
India and Another v. Tulsiram Patel20 also had an occasion to
consider the said term which is also recorded in Article 309 of the
Constitution. The Court held thus:
“106. It is not possible to accept this submission. The
opening words of Article 309 make that article expressly
“Subject to the provisions of this Constitution”. Rules
made under the proviso to Article 309 or under Acts
referable to that article must, therefore, be made subject
to the provisions of the Constitution if they are to be valid.
Article 310(1) which embodies the pleasure doctrine is a
provision contained in the Constitution. Therefore, rules
made under the proviso to Article 309 or under Acts
referable to that article are subject to Article 310(1). By
the opening words of Article 310(1) the pleasure doctrine
contained therein operates “Except as expressly provided
by this Constitution”. Article 311 is an express provision of
the Constitution. Therefore, rules made under the proviso
to Article 309 or under Acts referable to Article 309 would
be subject both to Article 310(1) & Article 311……….”
74. This Court held that, in view of the said term “subject to the provisions
of this Constitution”, rules made under the proviso to Article 309 must
20 [1985] Supp. 2 SCR 131 : (1985) 3 SCC 398 : 1985 INSC 155
726 [2024] 7 S.C.R.
Digital Supreme Court Reports
be made subject to the provisions of this Constitution if they are to
be valid. The Constitution Bench held that the rules made under
the proviso to Article 309 or under Acts referable to that article are
subject to Articles 310(1) and 311 of the Constitution.
75. In our opinion, Article 131 of the Constitution is a special provision
which deals with the original jurisdiction of this Court in case of a
dispute between the Federal Government and the State Governments.
It provides for a special jurisdiction to this Court to decide any
question on which the existence or extent of a legal right depends.
Any dispute either between the Government of India and one or
more States; or between the Government of India and any State
or States on one side and one or more other States on the other;
or between two or more States which involve a question on which
the existence or extent of a legal right depends are covered by
this provision. A special provision has been made for deciding the
question on which the existence or extent of a legal right between
the special parties mentioned therein has been provided. Therefore,
the words “subject to the provisions of this Constitution” will have
to be considered in that context. The jurisdiction under Article 131
of the Constitution would only be subject to any other provision in
the Constitution which provides for entertaining a dispute between
the parties mentioned therein. We could notice only one such other
provision in the Constitution, which is Article 262, which reads thus:
“262. Adjudication of disputes relating to waters of
inter-State rivers or river valleys.—(1) Parliament may
by law provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control
of the waters of, or in, any inter-State river or river valley.
(2) Notwithstanding anything in this Constitution,
Parliament may by law provide that neither the Supreme
Court nor any other court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred
to in clause (1).”
76. Article 262 of the Constitution deals with adjudication of disputes
relating to waters of inter-State rivers or river valleys. It provides
that the Parliament may by law provide for the adjudication of such
disputes or complaints excluding the jurisdiction of all courts including
[2024] 7 S.C.R. 727
The State of West Bengal v. Union of India
this Court. As such, ordinarily a dispute with respect to the use,
distribution or control of the waters of, or in, any inter-State river
or river valley between two States could have fallen under Article
131 of the Constitution but because of the words “subject to the
provisions of this Constitution” used therein and in view of Article
262, such a dispute would not be entertainable under Article 131
of the Constitution.
77. Article 32 of the Constitution provides for remedy for enforcement
of rights conferred by Part-III of the Constitution whereas Article
136 provides for remedy by way of special leave to appeal before
this Court. These are the general remedies available to “any party”.
Merely because, in any of the proceedings initiated under Article
32 or Article 136 or even Article 226 of the Constitution, one of the
parties is common, in our view, the pendency of such proceedings
would not come in the way of a specific party mentioned in Article
131 of the Constitution to take recourse to the remedy available
therein. As already discussed hereinabove, a remedy under Article
131 of the Constitution is a special remedy available only to the
parties mentioned therein and for the purposes mentioned therein.
In our view, therefore, the interpretation as placed by the defendant
- Union of India would not be in consonance with the constitutional
scheme and as such, is liable to be rejected.
e. Suppression of material fact:
78. The Union of India has also pressed that the present suit is liable
to be dismissed on the ground of suppression of material facts.
It is argued that many of the FIRs mentioned in the plaint are
registered under the directions of the High Court under Article 226
of the Constitution. It is submitted that this fact is suppressed by
the plaintiff and as such, the plaint is liable to be rejected on this
ground.
79. No doubt that material suppression of fact would entail a plaint to be
rejected. However, a very reading of the plaint including the prayer
clause and specifically paragraph 13 of the plaint would reveal that
the claim of the petitioner is with regard to the investigations except
with respect to the FIRs registered under the order of competent
court of law. In that view of the matter, we find that the contention
in that respect is also liable to be rejected.
728 [2024] 7 S.C.R.
Digital Supreme Court Reports
f. Cause of action of the suit:
80. The next contention is with regard to non-disclosure of cause of
action against the defendant. We have hereinabove extensively
reproduced the averments made in the plaint. At the cost of
repetition, it is only the averments in the plaint which can be gone
into for considering as to whether the cause of action against the
defendant arises or not.
81. The main case of the plaintiff as could be gathered from the
averments in the plaint is that, before the provisions of DSPE Act
can be invoked to authorize the CBI to exercise its powers and
jurisdiction within any State, the following conditions are necessary:
i) “A notification must be issued by the Central
Government specifying the offences to be investigated
by CBI (Section 3);
ii) An order must be passed by the Central Government
extending power and jurisdiction of CBI to any
area (including railway area) in a State not being
an Union Territory in respect of offences specified
under Section 3 (Section 5); and
iii) Consent of the State Government must be obtained
for the exercise of power by CBI in the concerned
State (Section 6).”
82. It is the case of the plaintiff that unless the three conditions under
Sections 3, 5 and 6 of the DSPE Act are fulfilled, the CBI cannot
exercise its powers in any State. It is the case of the plaintiff that after
withdrawal of the consent by the plaintiff on 16th November 2018,
the CBI could not have continued to register cases and exercise its
powers under the DSPE Act. It is the plaintiff’s case that continuation
of the registration of cases and exercise of powers after withdrawal
of the consent is an act of constitutional overreach.
83. As already discussed hereinabove, the averments in the plaint cannot
be read in isolation but are to be read in entirety. It is the case of the
plaintiff that the CBI is established by the defendant, its exercise of
powers is controlled by the defendant and its functioning is also under
the superintendence of the defendant. Therefore, it cannot be said
that the plaintiff has not made out any cause of action against the
defendant. As has been held by Their Lordships Justice Chandrachud
[2024] 7 S.C.R. 729
The State of West Bengal v. Union of India
and Justice Bhagwati in the case of State of Rajasthan and Others
v. Union of India and Others (supra), the legal right of the States
could be sought to be indicated in the suits. In the said case, the
Court has disapproved the observations made by five-Judges Bench
in the case of State of Bihar v. Union of India and Another (supra)
that the legal right which is the subject of dispute must arise in
the context of the Constitution and federalism itself. As has been
held by this Court in the case of State of Rajasthan and Others
v. Union of India and Others (supra), the legal right of the States
consists in their immunity, in the sense of freedom from the power
of the Union Government. Therefore, in light of DSPE Act and the
judgments of this Court, even this contention is liable to be rejected.
VII. CONCLUSION:
84. We find that, in the present suit, the plaintiff is raising the legal
issue as to whether after withdrawal of the consent under Section
6 of the DSPE Act, the CBI via the defendant – Union of India can
continue to register and investigate cases in its area in violation of
the provisions of Section 6 of the DSPE Act. The same has been
sought to be attacked by the defendant – Union of India by raising
various contentions challenging the maintainability of the suit. In
our considered opinion, the contentions raised by the defendant, do
not merit acceptance and for the reasons given hereinbefore, are
rejected. The preliminary objection is, therefore, rejected. However,
we clarify that the aforesaid findings are for the purposes of deciding
preliminary objection and will have no bearing on merits of the suit.
The suit shall proceed in accordance with law on its own merits.
85. List the suit on 13th August, 2024 for framing of issues.
Result of the case: List the suit for framing of issues.
†
Headnotes prepared by: Nidhi Jain
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Withdrawal of Notification u/s. 6 of the DSPE Act"Sign in to search