LexHARBHAJAN SINGH DHALLA versus UNION OF INDIA
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A HARBHAJAN SINGH DHALLA V. UNION OF INDIA NOVEMBER 5, 1986 B [SABYASACHI MUKHARJI AND K.N. SINGH, JJ.] Suit against an ambassador of a foreign state-Doctrine of immunity and the maxim Par in Parem N-on habet jurisdictionem- Central Government refusing to grant permission to sue Jhe Embassy "on political grounds"-Propriety of the order-Code of Civil Proce- ( C dure, 1908, Sections 86 and 87 scope and nature of-Administrative~ orders and Principle of Natural Justice, following of-Right of a citizen ' to carry on the work of maintenance and repairs and Court's duty to safeguard his right. The appeUant, an Indian national who had undertaken general D maintenance work and repairs ·at the Embassy of Algeria and at the residence of the then ambassador in New Delhi hi the year 1976, in order to recover certain alleged payments due from the Embassy sought the consent of the Central Government under section 86(4)(aa) of the Code of Civil Procedure which was refused on "political grounds" . Hence the writ petition by the aggrieved citizen. E ADowing the petition, the Court, HELD: I.I Immunity of foreign States to be sued in the domestic forum of another State was and still is part of the general international law and international order. In India where the rule of law prevails, the F foreign State ought to be entitled to such immunities but to no more as are enjoyed by the domestic state before its own Tribunal. [I 19E, 120H] ~ Mirza Ali Akbar Kashani v. United Arab Republic and Anr., [1966] 1SCR319, foUowed. G Cristina 1938 A.C. 485 at 498; and Rahimtoo/a v. Nizam of H Hyderabad and Anr., 1958 Appeal Cases 379 at 418, quoted with approval. Mirza Ali Akbar Kashani v. Unired Arab Republic and Anr., AIR 1960 Calcutta 768, approved. 114 H.S. DHALLA v. UNION OF INDIA ll5 \ 1.2 Indian Constitution guarantees· .. tbe right ofa citizen to carry A OD bis business and carry OD trade freely mbject to certain limitations as contained in the relevant· provisions of the Constitution. In the in- stant case, the petitioner bad the right to be paid bis reasonable rem; muneration or dues in accordance with the law subject to the bargain between the parties and subject further to any reasonable prohibitions or restrictions under the law of the country. Tbe disputes that bas B ·'! arisen have to be resolved both under the principles of Lex Loci Con- tractus and lex Situs. Since the disputes have ·not been judicially de- termined nor the claim held frivolous, a foreign State in this country if J.... it fulfills tbe conditions stipulated in sub-section (2) of section 86 of the ' J ·.Code of Civil Procedure would be liable to be sued. That would be in conformity with the Principles of international law as recognised as part C of our domestic law and in accordance with the Indian Constitution and -f human rights. [118G-119B, 122G] 1.3 It is true that the provisions both of sectioni; 86 and 87 of the Code of Civil Procedure are intended to save the foreign states from harassment which would be caused by the institution of a suit but except D in· cases where the claim appears to be frivolous patently, the Central Government should normally accord consent or give sanction against foreign states unless there are cogent poUtical and other reasons. Nor- mally, however, it is not the function of tbe Central Government to attempt to adjudicate upon the merits of the case intended to be made by the litigants in their proposed suits. It is the function of the courts of E competent jurisdiction and the Central Government cannot under sec- tion 86 of the Code usurp that function. Tbe power given to the Central Government must be exercised in accordance wiJb the principles of natural justice and in consonance witb'tbe principle that reasons must appear from tbe order. [123H-124C] Maharaj .Kumar Tokendra Bir Singh v. Secretary, to the Govern- ment of India, Ministry of Home Affairs and Anr., AIR 1964 SC 1663, followed. 1.4 There is no provision of any appeal from the order of the Central Government in either granting or refusing to grant sanction under section 86 of the Code. This sanction or laCk of sanction may, however, be questioned in the appropriate proceedinp in court but inasmuch as there is DO provision Of appeal, it is neces.1i11ry that there should be an objective evaluation and examination by the appropriate authority of relevant and material factors in exercising its juri
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