At, High Court of Andhra Pradesh
By, THE HONOURABLE CHIEF JUSTICE DR. AR. LAKSHMANAN & THE HONOURABLE MR. JUSTICE Y.V. NARAYANA
For the Appearing Parties: A.Satya Prasad, C.V.Ramulu, Advocates.
AR. LAKSHMANAN, C.J.
( 1 ) HEARD Sri A. Satya Prasad, learned Counsel appearing on behalf of the petitioner-Association and learned Additional Advocate-General appearing on behalf of the Government of Andhra Pradesh.
( 2 ) THE present writ petition has been filed by the petitioner-People of Economical and Effective Medicare ('PEEM' for short) represented by its Chairman, Dr. P. V. R Bhaskar Rao, Hyderabad for the following reliefs:-". . . . . . TO issue a writ, order or direction, more particularly one in nature of writ of mandamus directing Respondent No. 3 not to act upon the agreements entered into with the Dubai Government on 15-1-2001 by declaring the agreement entered into with the Dubai Government as unconstitutional and violative of the executive power available to the State Government under Article 162 of the Constitution of India apart from violative of Articles 10 to 20 of List-I of Schedule VII besides declaring that the State Government has no jurisdiction or authority to enter into agreements with the Foreign Government or agency under the parameters of the Constitution of India. "The petitioner claims to be a registered Association working for the cause of common man and also is trying to do its best in projecting and propagating the evils in the society and remedying the same by its efforts. It is seen from the affidavit of the Chairman of the petitioner-Association filed in support of the writ petition that the cause of action for the writ petition is a publication made in some news papers referring to the agreements entered into by the State Government (Respondent No. 3 herein) with the Foreign Government. According to the petitioner, the Constitution of India has conferred functions and limitations on the Union Government on one hand and the State Government on the other hand. Insofar as the Union Government is concerned, Article 73 of the Constitution of India stipulates the extent of the executive powers of the Union including exercise of such rights, authority and jurisdiction exercisable by the Government of India by virtue of any treaty or any Government. Thus, the Union Government alone is having authority to act upon by virtue of any treaty or agreement and such power was not conferred on the State Government. It is submitted by the petitioner that by virtue of the wording deployed in Article 73 the Union Government alone is having the authority or jurisdiction to enter into a treaty or agreement with a foreign country or agency and to honour the same. Entries 10 to 20 in List I of Schedule VII authorise the Union Government to deal with different situations with regard to the foreign policy. Even the legislative power is confined to entries referred to above and thus the Union Government alone is having the power to deal with the situations stipulated in the entries mentioned above. Therefore, it is submitted that the State Government does not possess any power either to enter into any agreement or treaties or to deal with any Foreign Government or agency directly on its own accord. A reference to Article 162 of the Constitution of India is also made in the writ affidavit. It is submitted that the said Article is not exhaustive in nature and not similar to that of Article 73 of the Constitution of India. It is the specific case of the petitioner that the State Government has no power or authority to enter into any agreement with the Foreign Government even through the Union Government.
( 3 ) A detailed counter-affidavit was filed by the Principal Secretary to Government of Andhra Pradesh, Industries Department supporting the Memorandum of Understanding entered into by the State Government with the Government of Duba.
( 4 ) AT the time of hearing of the writ petition, a copy of the Memorandum of Understanding executed between the Government of Andhra Pradesh and the Government of Dubai was also filed before us and we have perused the same. We have given our anxious consideration to the points raised by the petitioner in the writ petition attacking the Memorandum of Understanding.
( 5 ) THE Constitution of India is a federal polity as Article 1 Sub-clause (1) states that India is a Union of States. The relationships between the States and the Centre and the respective authorities have been set out in several provisions of the Constitution of India. The executive power confided to State Governments and the Union Government is correlated to their respective legislative powers. In respect of matters which are within the entries enumerated in Lists II and III of Schedule VII of the Constitution, the State Government has the power to issue executive orders. As pointed out by the learned Advocate-General, the petitioner has not chosen to elucidate how and in what manner the subject-matter of the contracts which the petitioner alleges, the State Government has entered into, fall within the exclusive authority of the Union Government and the Parliament. It is stated in the writ affidavit that the Union Executive has exclusive power under Entries 10 to 20 of List I of Schedule VII to deal with the subject-matter of the contracts. According to the respondents, the above said statement is vague and not readily comprehensible. In fact, the petitioner has not stated as to how and in what manner the subject-matter of the Memorandum of Understanding falls within the purview of any of the entries mentioned in List I of Schedule. The petitioner's assertion that under no circumstance can there be any agreement between a State Government and a foreign agency or country cannot be countenanced. It is stated by the learned Advocate-General that the State Government is endeavouring in all respects to further the interest of the State and its people within the parameters of the Constitution of India. For the purpose of some projects it has undertaken or desires to undertake and is endeavouring to secure expertise from other countries which have special experience in similar matters and to provide Indian expertise where needed to those countries in which India has made progress. Such an endeavour cannot be described as constitutionally improper. We have perused the Memorandum of Understanding. The Memorandum of Understanding, in our view, is mere preliminaries to secure help and expertise from qualified parties. The mere fact that such parties belong to or function from another country does not preclude the State Government from entering into agreements with such persons. All the Memorandum are merely preliminary declarations of the intention of co-operation between different authorities in the State of Andhra Pradesh and in the State of Duba. The object was to share knowledge and expertise in different branches with a view to secure mutual benefit. We may also in this context refer to certain salient details of the Memorandum of Understanding, which read thus:"a. A Memorandum of Understanding was executed between the Department of Ports and Customs, Dubai and the Department of Information Technology and Communications, Government of Andhra Pradesh. This Memorandum is intended to facilitate the provision of advisory services of the Indian Institute of Information Technology of Hyderabad in setting up a training institute at Dubai for training of the officials of Dubai in Information Technology. The expenditure for providing these advisory services would be met by the Government of Dubai and involve no expenditure for the Government of Andhra Pradesh. B. Memorandum of Understanding between Dubai Technology, Electronic Commerce and Media Free Zone. This Memorandum of Understanding is intended to provide frame work for co-operation in the field of Information Technology. It provides for evaluation and identification of opportunities available in this field, in particular in the areas of E-Government, E-Education, E-Business/commerce, E. Banking/ Insurance etc. C. Memorandum of Understanding between Department of Tourism, Government of Andhra Pradesh and the Department of Tourism of Government of Duba. The intention of this Memorandum is to promote tourism related activities between Hyderabad and Dubai and providing advisory services to each other. D. Dubai Ports International will make available its expertise to the Government of Andhra Pradesh for the development of a Minor Port at Gangavaram in Andhra Pradesh. "On a close scrutiny of the Memorandum of Understanding, it will be seen that the objectiv
Please Login To View The Full Judgment!
e of these Memorandum is to facilitate exchange of knowledge, information and expertise. Firm agreements are to be entered into latter. Then it will be ensured that such agreements will comply with all the requirements of the Constitution and if any matter touches upon List I subjects the relevant contracts will be entered into by the Government of India. In this view of matter, we are of the opinion that the objections of the petitioner are misconceived. In our opinion, the Memorandum of Understanding is intended to promote tourism related activities between Hyderabad and Dubai and for providing advisory services to each other and is also intended for the development and welfare of the State and, therefore, such Memorandum of Understanding cannot be interdicted by anyone who is interested in the welfare and progress of the State. The writ petition is devoid of any merit and is accordingly dismissed. There will be no order as to costs.