Page 49 - GSTL_13th August 2020_Vol 39_Part 2

2020 ] BINTY v. UNION OF INDIA 135
consumers in any other account till the proper statute is not
enacted;
(j) Issue writ of certiorari to deposit consumers unclaimed
amount (in trillions) in ‘Consumer Welfare Fund’ or Suspense
account till the proper statute is not enacted;
(k) Issue a writ of mandamus directing R-13 to allow the present
Central Consumer Protection Council through its members to
donate on behalf of the consumers the said sum of Rs. 5 crores
(Rupees Five Crores only) to the Safdarjang Hospital of Delhi
to fight the coronavirus, COVID-19; and
(l) pass any other order(s) as this Hon’ble Court may deem fit
and proper in the abovementioned facts and circumstances.”
4. Learned Counsel for the petitioner contends that the respondents
cannot siphon off hard earned money of unclaimed or unrefunded amounts be-
longing to unidentifiable customers due to lack of any enactment. In support of
his contention, he relies upon judgment of the Supreme Court in Mafatlal Indus-
tries Ltd. and Others v. Union of India and Others, (1997) 5 SCC 536 = 1997 (89)
E.L.T. 247 (S.C.).
5. The Petitioner also strongly feels that legislative void to deal with the
aspects highlighted in the petition, should persuade us to accept the petition. He
profusely relies upon several vital Articles of the Constitution of India, including
but not limited to Articles 14, 19 and 21. In addition to the above, the preamble of
the Constitution is also cited in an effort to lay emphasis on the importance of the
issue sought to be canvassed in the petition.
6. However, we feel that reliance on the provisions of the Constitution
alone cannot justify the maintainability of a petition. In our view, a writ petition
is not the correct remedy to address the grievance of the petitioner. We cannot
assume the role of the Legislature and convert a ‘Bill’ proposed by the Petitioner
in a ‘Law’, no matter the same may have been pending consideration with the
Government for some time. This is one chamber of the Constitution for which we
do not have the key. It is for the Parliament or the Executive answerable to the
Parliament to decide as to how the said amounts are to be utilized and not for the
courts especially when it is not the case of the petitioner that respondents are
acting contrary to any statutory mandate. It is settled law that the Constitution
does not permit the Court to direct or advise the executive in matters of policy or
to sermonize qua any matter which under the Constitution lies within the sphere
of legislature or executive. If there is a law, the Court can certainly enforce it; but
Court cannot create a law or policy and seek to enforce it [See Suresh Seth v.
Commr., Indore Municipal Corpn. and Another, (2005) 13 SCC 287; Asif Hameed and
Others v. State of Jammu and Kashmir and Others, 1989 Supp (2) SCC 364 and Divi-
sional Manager, Aravali Golf Club and Another v. Chander Hass and Another, (2008) 1
SCC 683].
7. Consequently, this Court is of the firm view that present writ peti-
tion is untenable in law inasmuch as the petitioner has failed to appreciate that
there is a system of separation of powers under the Indian Constitution and it is
not for the courts to either legislate or convert bills/acts into rules or to disburse
amounts to certain hospitals or for certain causes, howsoever genuine they may
be.
8. Further, the judgment in Mafatlal Industries Ltd. and Others (supra)
has no application to the facts of the present case as it pertains to certain catego-
ries of refund only and it is not the case of the petitioner that the said judgment
GST LAW TIMES  13th August 2020  49