F.I.Rebello, C.J. - (1.) A learned Division Bench of this Court, hearing the above writ petitions, during the summer vacation, filed for quashing the Government Order dated 31 st May, 2010, by which the lease holders of leases for excavating sand have been restrained from using machines for the purposes of excavating sand, and after noting that the impugned Government Order dated 31st May, 2010 was issued in furtherance of an interim order passed by the Lucknow Bench of this Court on 27th May, 2010 in Writ Petition No. 3879 (M/B) of 2010, Pradeep Chaudhary v. State of U.P. and others, and after considering some other aspects, was pleased to make a reference by order dated 14.6.2010 in respect of the following three questions for consideration by a larger Bench: "(1) Whether such a blanket Government Order, prohibiting use of machinery, which is against the spirit of Statutory Rules and the final and binding judgments rendered by the Division Benches of this Court at Allahabad, can be issued on the basis of an interim order passed by a Division Bench of Lucknow Bench of this Court at Lucknow, when there are already three binding, final and unchallenged judgments of the Division Benches and a judgment of learned Single Judge of this Court of Principal Seat at Allahabad on the subject? (2) Whether the interim order dated 27.5.2010, passed by the Lucknow Bench of this Court, not exercising P.I.L. Jurisdiction, and other interim orders on the basis of which Government Order dated 31.5.2010, imposing complete ban on use of machinery in mining operations on the riverbeds or nearby areas could be issued, when the Division Benches and the learned Single Judge of this Court at Allahabad have not ordered for total prohibition on the use of machines for excavation of sand? (3) Whether such interim order, which was passed without taking into account a settled legal position and not laying down any law, would be per incuriam where the controversy raised has already been settled by various judicial pronouncements of this Court at Principal Seat of the High Court at Allahabad?" Accordingly, the reference so made has been heard by this Bench.
(2.) Insofar as the first question is concerned, an order has already been issued by the State Government, in exercise of its powers of subordinate legislation. After such an exercise, whether earlier any learned Bench had passed an order directing such legislation is irrelevant. The exercise of subordinate legislation is an act independent of the judicial direction. A Court in matters pertaining to legislation, whether primary or subordinate, based on material before it, directs an authority to consider the issue as it feels the need for legislation in that area. It is for those entrusted with the duty of enacting legislation under the Constitution or the delegate of the legislature, to exercise their legislative power and undergo that legislative exercise. Once the legislative body proceeds to enact legislation, whether primary or secondary, it is immaterial as to why it enacted the legislation. The legislative body may act in public interest, based on public opinion, the felt need by pressure groups calling on the Government for a need to enact legislation or on observation by a Court, finding a vacuum in a particular area of legislation. This exercise is by the legislative body, in the plenary exercise of its powers. The Courts also, at times, in the area of environment and ecology and other matters involving Article 21 of the Constitution, considering U.N. Conventions, Directive Principles and Fundamental Duties, if can be read into Article 21, also issue directions in the absence of legislation. We are concerned here with a case where the Government, in exercise of its delegated powers of legislation, has issued the Government Order. In the Order because it has been stated that pursuant to the interim order passed by the Court, the Government has issued the Government Order, is immaterial and irrelevant. The statement would be in the nature of a preamble, as to why legislation has to be enacted. Once that be the case, the issue whether the delegate proceeded to enact subordinate legislation pursuant to an interim order, would be immaterial. All that the Court in such a case can do is to examine the validity of subordinate legislation on tests as laid down by the Supreme Court in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and others, AIR 2006 SC 1489. In our opinion, therefore, the first question, as referred, could not be the subject matter of reference to a larger Bench.
(3.) The next question is, whether a Bench conferred/assigned a particular work in terms of Chapter V of the Allahabad High Court Rules, can hear matters assigned to another Bench? Rule 1 of Chapter V of the Allahabad High Court Rules, reads as under: "1. Constitution of Benches.- Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions.";