Constitution of India, 1950 — Article 131 — Delhi Special Police Establishment Act, 1946 — Section 6 — The State of West Bengal filed a suit against the Union of India, challenging the Central Bureau of Investigation (CBI)’s authority to register cases in West Bengal after withdrawing consent under Section 6 of the DSPE Act — The main issue is the maintainability of the suit, which focuses on whether the CBI can continue to register and investigate cases without the state’s consent — The State argues that post-withdrawal of consent, the CBI’s actions are unconstitutional and violate federalism principles — The Union of India argues that the suit is not maintainable under Article 131 of the Constitution and that the CBI is under the superintendence of the Central Vigilance Commission (CVC) — The Court rejected the Union’s preliminary objections, stating that the jurisdiction under Article 131 is applicable and the dispute involves a question of law on which the existence or extent of a legal right depends — The suit will proceed on its merits, with the next hearing scheduled for August 13, 2024.

2024 INSC 502

SUPREME COURT OF INDIA

DIVISION BENCH

THE STATE OF WEST BENGAL — Appellant

Vs.

UNION OF INDIA — Respondent

( Before : B.R. Gavai and Sandeep Mehta, JJ. )

Original Suit No. 4 of 2021

Decided on : 10-07-2024

A. Constitution of India, 1950 — Article 131 — Delhi Special Police Establishment Act, 1946 — Section 6 — The State of West Bengal filed a suit against the Union of India, challenging the Central Bureau of Investigation (CBI)’s authority to register cases in West Bengal after withdrawing consent under Section 6 of the DSPE Act — The main issue is the maintainability of the suit, which focuses on whether the CBI can continue to register and investigate cases without the state’s consent — The State argues that post-withdrawal of consent, the CBI’s actions are unconstitutional and violate federalism principles — The Union of India argues that the suit is not maintainable under Article 131 of the Constitution and that the CBI is under the superintendence of the Central Vigilance Commission (CVC) — The Court rejected the Union’s preliminary objections, stating that the jurisdiction under Article 131 is applicable and the dispute involves a question of law on which the existence or extent of a legal right depends — The suit will proceed on its merits, with the next hearing scheduled for August 13, 2024.

B. Constitution of India, 1950 — Article 131 — Interpretation of — The Court clarified that the term “subject to the provisions of this Constitution” in Article 131 should be interpreted as “subject to the other provisions of the Constitution, including Article 136” — This means that if an issue is already pending before the Court under Article 136, a fresh suit under Article 131 may not be maintainable.

C. Delhi Special Police Establishment Act, 1946 — Section 6 — Jurisdiction of the Central Bureau of Investigation (CBI) – The Court held that the CBI cannot exercise its powers and jurisdiction in a State after the State government withdraws its consent under Section 6 of the Delhi Special Police Establishment Act (DSPE Act) — The CBI’s jurisdiction is subject to the consent of the State government, and its exercise of powers is controlled by the Central Government.

D. Constitution of India, 1950 — Article 131 — Maintainability of suits under Article 131 — The Court held that for a suit to be maintainable under Article 131, it must involve a dispute 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, and the dispute must involve a question on which the existence or extent of a legal right depends.

E. Federalism and State autonomy — The Court emphasized the importance of federalism and State autonomy in the Indian constitutional framework — It held that the State governments have the right to assert their legal rights and challenge the exercise of powers by the Central Government if it is in violation of the provisions of the Constitution.

Cases Referred

• A.C Sharma v. Delhi Administration, 1973 (1) SCC 726
• Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara [(1962) 1 SCR 1]
• Atma Linga Reddy and Others v. Union of India and Others, (2008) 7 SCC 788 : 2008 INSC 805
• Attorney-General of the Colony of Fiji v. J.P. Bayly Limited, 1949 SCC OnLine PC 76
• Bhau Ram v. Janak Singh and Others, (2012) 8 SCC 701 : 2012 INSC 293
• Binoy Bhusan v. States of Bihar [AIR 1954 Pat 346]
• Centre for Public Interest Litigation and Others v. Union of India and Others, (2012) 3 SCC 104 : 2012 INSC 68
• Chhotanben and Another v. Kirtibhai Jalkrushnabhai Thakkar and Others, (2018) 6 SCC 422 : 2018 INSC 319
• D.M. Deshpande and Others v. Janardhan Kashinath Kadam (Dead) By LRs and Others, (1998) 8 SCC 315 : 1998 INSC 425
• Gannon Dankerly and Co. v. Sales Tax Officer, Maatancherry [ILR (1957) Kerala 462]
• Jagdish Prasad v. Saharanpur Municipality [AIR 1961 All 583]
• Kanpur Oil Mills v. Judge (Appeals) Sales Tax, Kanpur [AIR 1955 All 99]
• Kazi Lhendup Dorji v. Central Bureau of Investigation and Others, 1994 Supp (2) SCC 116 : 1994 INSC 129
• M Balakrishnan v. Director, CBI Delhi 2008 (4) SCC 409 State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others, (2010) 3 SCC 571 : 2010 INSC 104
• M. Balakrishna Reddy v. CBI, (2008) 4 SCC 409
• Mayawati v. Union of India (2012) 8 SCC 106
• Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others, (2010) 7 SCC 417 : 2010 INSC 362
• National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad and Others, (2011) 12 SCC 695 : 2011 INSC 651
• Rajasthan State Electricity Board v. Mohan Lal [1967 3 SCR 377]
• Ram Kumar v. State of Uttar Pradesh and Others, 2022 SCC OnLine SC 1312 : 2022 INSC 1032
• S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and Others, (1994) 1 SCC 1 : 1993 INSC 344
• S.R. Bommai v. Union of India, 1994 SCC (3) 1
• Saeoshankar v. M.P. State [AIR 1951 Nag 58] ; State v. Yash Pal [AIR 1957 P&H 91]
• Sagar Mall v. State [ILR (1952) 1 All 862]
• Saleem Bhai and Others v. State of Maharashtra and Others, (2003) 1 SCC 557 : 2002 INSC 554
• Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 : 2004 INSC 56
• State of Bihar v. Union of India [(1970) 1 SCC 67 : (1970) 2 SCR 522]
• State of Bihar v. Union of India and Another, (1970) 1 SCC 67 : 1969 INSC 253
• State of Rajasthan and Others v. Union of India and Others, (1977) 3 SCC 592 : 1977 INSC 143
• State of West Bengal and others v. Committee for Protection of Democratic Right, West Bengal and others reported in (2010) 3 SCC 571
• Subramanian Swami v. CBI 2014 (8) SCC 682
• Tashi Delek Gaming Solutions Limited and Another v. State of Karnataka and Others, (2006) 1 SCC 442 : 2005 INSC 607
• 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) 3 SCC 398 : 1985 INSC 155
• Vineet Narain and Others v. Union of India and Another, (1998) 1 SCC 226 : 1997 INSC 826

JUDGMENT

INDEX

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:

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, 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. 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 Others, (2010) 7 SCC 417 : 2010 INSC 362 and Ram Kumar v. State of Uttar Pradesh and Others, 2022 SCC OnLine SC 1312 : 2022 INSC 1032. It is therefore submitted that the present suit is liable to be dismissed on the ground of misjoinder or nonjoinder 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 Others, (1998) 8 SCC 315 : 1998 INSC 425 and the judgment of the Privy Council in the case of Attorney-General of the Colony of Fiji v. J.P. Bayly Limited, 1949 SCC OnLine PC 76.

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 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, (1970) 1 SCC 67 : 1969 INSC 253, State of Rajasthan and Others v. Union of India and Others, (1977) 3 SCC 592 : 1977 INSC 143 and Tashi Delek Gaming Solutions Limited and Another v. State of Karnataka and Others, (2006) 1 SCC 442 : 2005 INSC 607.

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, (2011) 12 SCC 695 : 2011 INSC 651.

11. Relying on the judgment of this Court in the case of Vineet Narain and Others v. Union of India and Another, (1998) 1 SCC 226 : 1997 INSC 826, 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 Others, (2012) 3 SCC 104 : 2012 INSC 68 held that the power of 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, (1994) 1 SCC 1 : 1993 INSC 344, 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 Others, (2008) 7 SCC 788 : 2008 INSC 805 and Kazi Lhendup Dorji v. Central Bureau of Investigation and Others, 1994 Supp (2) SCC 116 : 1994 INSC 129. 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, 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, 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 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

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.

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, (2003) 1 SCC 557 : 2002 INSC 554, Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 : 2004 INSC 56, Bhau Ram v. Janak Singh and Others, (2012) 8 SCC 701 : 2012 INSC 293 and Chhotanben and Another v. Kirtibhai Jalkrushnabhai Thakkar and Others, (2018) 6 SCC 422 : 2018 INSC 319.

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 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:

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.

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:

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 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:

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):

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 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:

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.

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:

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 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:

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 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:

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. Subsection (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:

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:

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:

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.

61. Section 6 of the DSPE Act reads thus:

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.

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 Others, (2010) 3 SCC 571 : 2010 INSC 104 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:

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 Another, [1964] 4 SCR 280 : 1963 INSC 163 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:

72. The Constitution Bench has held that the words “subject to the other provisions of the Constitution” should be given a reasonable 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 Patel, (1985) 3 SCC 398 : 1985 INSC 155 also had an occasion to consider the said term which is also recorded in Article 309 of the Constitution. The Court held thus:

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 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:

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 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.

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:

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 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.