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TMI Blog1995 (10) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... Lok Sabha by the Minister of State in the Ministry of Chemical and Fertilisers regarding decontrol of molasses and alochol which was followed by Notifications dated 10-6-1993 by which the Molasses Control Order 1961 and Ethyl Alcohol (Price Control) Order 1971 issued under Section 18G of the Industries (Development and Regulation) Act 1951 (hereinafter referred to as the Act) have been rescinded. On 11th of June, 1993 a circular letter addressed to the State Government by the Secretary to the Government, Department of Chemical and Petrochemicals, Ministry of Fertilisers Union of India was also sent giving the reasons for rescinding the aforesaid two control orders and further suggesting steps to be taken by the State Government to prevent the undue diversion of molasses to potable alcohol Sector. 2. Before answering the question referred to us it would be appropriate to notice legislative development in resepct of production, use and control of molasses in the State of Uttar Pradesh. 3. In the year 1932 in response to the policy formulated by the Government of India for protection of sugar factories, large number of sugar factories came into existence resulting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles relatable to the sugar industries became occupied by the parliament having evinced its clear intention and thus, the State Legislature thereafter was decied to make a law on the subject matter in List II or List III of Seventh Schedule. In other words, the argument is that power to legislate on the, matter relating to the control, supply distribution, price etc. of article relatable to sugar industries is covered by Entry 52 of List 1 of Seventh Schedule of the Constitution of India and not under Entry Nos. 33 and 34 of List III of the Seventh Schedule of the Constitution. Sri Shanti Bhushan, learned counsel also referred to Art 246 of the Constitution and argued that employment of the expressions 'not-withstanding' 'subject to' and 'with respect to' in Article 246 of the Constitution clearly shows the supremacy, of parliament and once the Parliament makes a law. on certain subject falling within the scope of any entry in List I, the intention of Parliament is clear that it Intends to cover that field and said field becomes a occupied field and the Legislature of the State is denied to make any law in that field. Learned counsel for the petitioner re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislation in-construing a statute. However, by passage of time this injunction has been very much relaxed. 9. In the case of R.S. Nayak v. A.R. Antulay (AIR, 1984 SC 684) it was held as thus: Report of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the real intention of the Parliament why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment existing State of Law, the environment necessitating enactment of legislation and the object sought to be achieved be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enactment of the legislation. Such denial would deprive the Court of a substantial and illuminating aid to constructions. The modern approach has to a considerable extent eroded the exclusionary rule even in England. Similar view was taken in the case of C.P. Berrar Sales of Motors Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he industries specified by law, irrespective of whether any of these aspect is covered by the State List ? There is also an overlap between Item 5 and 64 and it is suggested that the two be amalgamated to read as follows: The regulation of industries, where such regulation under the control of the Union is declared by Parliament by law to be necessary or expedient in the public interest. The word necessary has been included above to bring out the compelling need of the Union control, for example in the event of war. For effective implementation by the Union Government of the industrial policy announced by the Government of India on April 6, 1948, and for other reasons, it is necessary to invest the Union Government with certain powers over trade and commerce in respect of, and the production, supply, price and distribution of the goods produced by the industries to be brought under central regulation and certain other goods such as wholly imported articles or agricultural products. The following additional item is, therefore, suggested: Regulation of trade and commerce in and of the production, supply, price and distribution- (a) of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, if the proposal to insert this additional item is accepted, the following amendment will be necessary: After Entry 64 in List I of the Seventh Schedule, the following entry be inserted: 64-A. Regulation of trade and commerce in, and the production, supply and distribution of- (a) goods which are the products of the industries whose regulation under the control of the Union is declared by Parliament by law to be expedient in the public interest. (b) any other goods where such regulation under the control of the Union is declared by Parliament by law to be expedient in the public interest. Price control will be covered by the regulation of production, supply and distribution and it does not seem to be necessary to refer to it specifically. 13. Framing of the Constitution by B. Shiva Rao. The suggestion of the Ministry of Industries and Supply and the views of the Drafting Committee were then placed before the Drafting Committee when there was a meeting of Drafting Committee, consisting of Premiers of the provinces and certain Ministries of Government of India on 21st July, 1949. The minutes of the said meeting show t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Shyama Prasad Mukherjee suggested that the subject of trade, commerce and production, supply and distribution of the controlled industries should be matter of Union List. However, it was not agreed upon and the subject of trade, commerce and production, supply and distribution of the product, of the controlled industries was transferred as Entry 33 of List III of Seventh Schedule and price control of such commodities was placed exclusive in the field Of Entry 34 of List III of Seventh Schedule. From this it is clear that the subject matter relating to trade, commerce and production, supply and 'distribution of the product of the controlled industries and fixation of price is not subject matter of Entry 52 of List I but it is in the field of Entry 33 and Entry 34 of List III of Seventh Schedule. 16. This aspect can be examined from another angle namely seeing the history of the legislative development of enactment on the subject trade commerce and production, supply and distribution of the product. Under the Government of India Act 1935, trade and commerce and production, supply and distribution of goods was within the competence of the State. On the out- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther there is an apparent evidence to the effect that Section 18G of the Act is referable to Entry 33 of List III of the Seventh Schedule. The explanation appended to Section 18G of the Act shows that shows that Section 18G relates to imported Articles also. Entry 52 of List I does not provide making law on imported articles. However, Entry 33(a) of List III provides for regulation of imported goods akin to the product of the controlled industries. This shows that Section 18G of the Act is referable to Entry 33(a) of List III of the Seventh Schedule. Thus, seeing the history of the legislative developments in respect of production, trade and commerce, supply and distribution of the product of the controlled industries, it is clear that prior to coming into force of Government of India Act it was State subject and subsequently after enforcement of the Constitution it became a concurrent subject empowering the Parliament as well as State legislature to enact law on the subject. 17. The argument of Sri Shanti Bhushan, Senior Advocate can be examined from other angle also, namely in the light of structure/ design and inter relationship of various Entries in List I, II and III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said contention is born out from the perusal of Entry 52 and the other Entries of List II and III of Seventh Schedule. 18. It is well accepted that the provisions of Constitution must be interpreted in the light of the basic feature of the Constitution. Federaliam has been accepted as one of the basic features of our Constitution. In S. R. Bommai v. Union of India, (AIR 1994 SC 1918) it was held as thus: Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article I of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Arts. 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by the Parliament. Neither the relative importance of the legislative entries in Schedule VII, List I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Arts. 245 to 254 of the Constitution. The status quo the Constitution is federal in structure and independent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts II and III of Seventh Schedule and has held as thus:-- 18. Production, supply and distribution of goods was no doubt within the exclusive sphere of the State Legislature but it was subject to the provisions of Entry 33 of List III which gave concurrent powers of legislation to the Union as well as the States in the matter of trade and commerce in, and the production, supply and distribution of, the products of industries where the control of such industries by the Union was declared by Parliament by law to be expedient in the public interest. The controlled industries were relegated to Entry 52 of List I which was the exclusive province of Parliament leaving the other industries within Entry 24 of List 2 which was the exclusive province of the State Legislature. The products of industries which were comprised in Entry 24 of List 2 were dealt with by the State Legislatures which had under Entry 27 of that list. Power to legislate in regard to the production, supply and distribution of goods, goods according to the definition contained in Art. 366(12) including all raw materials, commodities and articles. When, however, it came to the products of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osal of the finished products of that industry. 24.... Industry in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry. The raw materials would be goods which would be comprised in Entry 27 of List 2. The process of manufacture or production would be comprised in Entry 24 of the List 2 except where the industry was a controlled industry when it would fall within Entry 52 of List 1 and the products of the industry would also be comprised in Entry 27 of List 2 except where they were the products of the controlled industries when they would fall within Entry 33 of List 3. This being the position, it cannot be said that the legislation which was enacted by the Centre in regard to sugar and sugarcane would fall within Entry 52 of List I. Before sugar industry became a controlled industry, both sugar and sugarcane fell within Entry 27 of List 2 but after a declaration was made by Parliament in 1951 by Act 65 of 1951, sugar industry became a controlled industry and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The next contention of the learned counsel for the appellant was that the Parliament had no competence to enact any law relating to the control of sugarcane as that subject is within the exclusive legislative jurisdiction of the State, the same being part of agriculture. This contention is again unsustainable in view of Entry 33 of List III of the Constitution which empowers the Parliament to legislate in respect of production, supply and distribution of food-stuffs. It is not disputed that the Parliament had declared by law that it is expedient in the public interest that it should exercise control over food stuffs. That being so it was well within the competence of Parliament to enact the Act and hence the power conferred on the Government under Section 3 of the Act cannot be challenged as invalid. 24. In the case of Harakchand Ratan Chand Banthia v. Union of India (AIR 1970 SC 1463) the competence of Parliament to enact Gold Control Act was challenged. The Supreme Court following the decision in Tika Ramji case (supra) held as under: 7....But we are satisfied in the present case that the manufacture of Gold ornaments by goldsmiths in India is a proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'industries'. As observed by this Court in Ch. Tika Ramji v. State of U.P., 1956 SCR 393 at p. 420 : (AIR 1956 SC 676 at p. 695) 'industry: in the wide sense of the term would be capable of comprising three different aspect: (1) raw materials which are an intergral part of the industrial process, (2) the process of manufacture or products of the industry. But raw materials are dealt with by Entry 27 of List II, the process of manufacture or production by Entry 24 of List II except where the industry is a controlled industry when it would fall under Entry 52 of List I and the products of the industry would fall under Entry 27 of List II except where they are products of controlled industry when they would fall under Entry 33 of List III. 28. In B. Viswanathian and Company v. State of Karnataka (1991 (3) SCC 358) Karnataka Silk Act (Amendment), 1974 was challenged on the ground that the impugned Act is beyond the legislative competence of the State. The Supreme Court following its earlier decision in the cases of Tika Ramji, Harak Chand, Ganga Sugar, Kannan Devan and Calcutta Gas Company (supra) held as thus: The present legislation, as a result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol of such industry by the Union is declared by Parliament by law to expedient in the public interest and imported goods, of the same kind as such products. Therefore, the Parliament as well as the State Legislature have been given the power to enact a law regulating trade and commerce in and production, supply and distribution of the product of any industry obviously dealt with under Entry 52 of the Union List. The question involved in this case is identical to the question before me and this decision in my opinion, settle the contraversy in the present case. 32. Applying the principles propounded by the appex Court in the cases mentioned above, it is apparent that the State Legislature is competent to make law in respect of the subject industries under Entry 24 of the List II subject to Entries 7 and 52 of List I of the Seventh Schedule and is further competent to enact law on the subject trade and commerce within the State and Production, supply and distribution of goods, under Entry 26 and Entry 27 of List II subject to Entry 33 of List III of Seventh Schedule of the Constitution. But on declaration under Entry 52 of List I by Parliament in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to Sri Sudhir Chandra since Entry 52 of List I and Entry 33 of List III are overlapping entries and if this interpretation is not given, then nothing would be left under Entry 52 of List I for Parliament to legislate excepting the provision for granting licence to the sugar industries. Sri Sudhir Chandra relied upon decisions in the cases of A.L.S.P.P.L. Sabhrahmanyan Chettier v. Muttuswami Gounden (AIR 1941 FC 47), Attorney General of Alberta v. Attorney General of Canada (AIR 1943 PC 76), Governor General in Council v. Province of Madras (AIR 1945 PC 98), The Attorney General of Saskatchewan v. Attorney General of Canada (AIR 1949 PC 190), Indu Bhusan Bose v. Rama Sundari Debi (AIR 1970 SC 228) and Bharat Cooking v. State of Bihar (1990 IV SCC 557). 36. On the other hand, Sri Rakesh Dwivadi learned Addl. Government Advocate General while maintaining the supremacy of the Parliament argued that expressions notwithstanding , with respeft to and subject to used in Article 246 of the Constitution can only be pressed into service when there is a real conflict between the Legislations under Entry in List I of the Seventh Schedule on one hand and List II and List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 100(8) Subject to the two preceding sub-sections. Their Lord-ships do not doubt that the effect of these words is that, if the legislative powers of the Federal and Provicial Legislatures, which are enumerated in List I and List 2 of Sch. 7, cannot fairly be reconciled, the latter must give way to the former. 39. In the case of Attorney General of Saskatchewan v. A. G. of Canada, AIR 1949 PC 190 (supra) the passage relied upon is as under: Where the Dominion has an exclusive power to legislate in respect of Interest, a provincial statute which varies the stipulation in a contract as to the rate of interest to be exacted would not be consonant with the existence and exercise of the exclusive Dominion power to legislate in respect of interest. The Dominion power would likewise be invaded if the provincial enactment was directed to postponing the contractual date for the payment of interest without altering the rate for this would equally be legislating in respect of interest. 40. In the case of Indu Bhusan v. Rama Sundari, AIR 1970 SC 228 (supra) the passage relied upon is as follows: The General power of legislating in respect of rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 59) it was held as thus: .... Exclusive power to legislate conferred upon Parliament is exercisablc, notwithstanding anything contained in Cls. (2) and (3), that is made more emphatic by providing in Clause (3) that the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule but subject to Cls. (1) and (2). Exclusive power of the State Legislature has therefore, to be exercised subject to clause (1) i.e. the exclusive power which the Parliament has in respect of the matter enumerated in List I. Assuming that there is a conflict between Entry 86, List I and Entry 49, List II which is not capable of reconciliation, the power of Parliament to legislate in respect of a matter which is exclusively entrusted to it must supersede pro tanto the exercise of power of the State Legislature. The problem viewed from any angle is incapable of a decision in favour of the assessee. 46. In the case of Harakchand Ratanchand Banthia v. Union of India (AIR 1970 SC 1453) it was held as under: ..... It is well established that the widest amplitude should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict between the Entries in the Union and State Lists. In the case of a seeming conflict between the Entries in the two Lists, the Entries should be read together without giving a narrow and restricted sense to either of them. Secondly, an attempt should be made to see whether the two entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non-obstante clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of 'pith and substance' appears to fall exclusively under one List, and the encroachment upon another list is only incidental. 48. On perusal of decisions referred to above the principle that flow are these: Firstly, the words notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List III. In this background, if we apply the principle deduced from the decisions cited by the learned counsel for the parties it would be found that Section 18G of the I.D.R. Act is referable to Entry 33 of List III. It is no more in doubt now that various provisions of the Act may be referable to different entries and not necessarily confined to a particular entry. Section 18G, a provision being of concurrent list, no question of any conflict between the Parliamentary Act and the Adhiniyam of 1964 enacted by U. P. Legislature arises. The Adhiniyam of 1964 enacted by U.P. Legislature is in pith and substance a legislation under Entry 33 of List III which is a concurrent list and the assent of President having been obtained, the State Act shall prevail over the Act of Parliament. The legislation by the U. P. State Legislature is in pith and substance not a legislation on occupied field and, therefore, the expressions notwithstanding anything contained and subject to occurring in Article 246 are of no assistance to the payment of the learned counsel for the petitioner. 50. The expressions notwithstanding and subject to employed in Article 246 cannot be construed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the field of control occupied by I.D.R. Act would be taken away...... 23.......The power of the State Legislature to legislate for acquisition of property remains intact and untrammelled except to the extent whereon assumption of control of an industry by a declaration as envisaged in Entry 52 of List I, further power of acquisition is taken over by specific legislation. 52. On the strength of these passages, the learned counsel for the petitioner argued that if there had been specific provision in the I.D.R. Act providing for acquisition, then Entry 42, List III would not have been available to the State Legislature and the judgment in Ishwari Khetan's case would have been otherwise. Meaning thereby that since there is a specific legislation like Section 18G in the I.D.R. Act the power of the State Legislature to enact the Adhiniyam of 1964 under Entry 33 of List III is not available and as such, there is a conflict between the State and Union enactments. Ishwari Khetan Sugar Mill, AIR 1980 SC 1955 (supra) was a case where the validity of the U. P. Sugar Undertaking Acquisition Act was challenged on the ground of lack of competence by the U. P. State Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnancy between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. Subject to the provisions of List 1 the power of the State to enact Legislation on the topic of mines and mineral development is plenary. To the extent to which the Union Government had taken under its control the regulation and development of minerals under Entry 54 of List I so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 of List II and legislation of the State which had rested on the existence of power under that entry would, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Orissa Cess Act was challenged as beyond legislative competence of the State Legislature and it was held that the levy of cess was invalid. 56. The cases referred to above relate to grant of leases, imposition of cess and royalty and collection of fee in respect of mineral rights under the Mines and Minerals (Regulation and Development) Act. 57. No doubt, these cases at the first sight support the contentions of learned counsel for the petitioner but on scrutiny of the relevant Entries of the Schedule VII show that the cases relied upon by the learned counsel for the petitioner are of no assistance for the proposition of law advanced by him. The cases referred to above relate to Entry 54 of List I and Entry 23 of List II of Seventh Schedule. A perusal of Entries 23 and 24 would show that Entry 23 of List II is entirely different in its content than Entry 24 of List II, Entry 23 of List II deals with the regulations of mines and minerals subject to provisions of List I with respect to regulation and development under the control of the Union where as Entry 24 of List II relates to industry subject to Entry 7 and 52 of List I. On comparison it will be fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sages strongly relied upon by the learned counsel for the petitioner arc extracted below: 84. After 1956 amendment to the FIR Act bringing alcohol industries (fermentation industries) as item 26 of the First Schedule to IDR Act the control of this industry has vested exclusively in the Union. Thereafter, licences to manufacture both potable and non-potable alcohol is vested in the Central Government. Distilleries are manufacturing alcohol under the Central licences under IDR Act. No privilege for manufacture even if one existed has been transferred to the distilleries by the State. The State cannot itself manufacture industrial alcohol without the permission of the Central Government. The States cannot claim to pass a right which these do not possess. Nor can the States claim exclusive right to produce and manufacture under the grant of licence from the Central Government. Industrial alcohol cannot upon coming into existence under such grant be amendable to States claim of exclusive possession of privilege. The State can neither rely on Entry 8 of List II nor Entry 33 of List III as a basis for such a claim. The State cannot claim that under Entry 33 of List III, it can r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Supreme Court was as to whether the State could levy vend-fee by taking recourse to Entry 8 or 51 of List II. The Supreme Court held that the State has exclusive privilege to deal in denatured spirit as it is not fit for human consumption and as such the State is not competent to levy excise duty or vend fee either under Entry 8 or 51 of List II. It was further held that it is only the Parliament which could impose excise duty on denatured spirit or rectified spirit which is not fit for human consumption by virtue of Entry 84 of List I. 63. The observation in paragraph 84 of seven Judges judgment in second Synthetic case extracted above may be considered in the light of the contention advanced on behalf of the State of U. P. that it has exclusive privilege in respect of denatured spirit. Infact the Supreme Court had no occasion to examine Entry 33 of List III in relation to Entries 24, 26 and 27 of List II and Entry 52 of List I. The one line observation that Union has evinced clear intention to occupy the whole field was in the context of exclusive privilege claimed by the State of U. P. Infact in the said case the Supreme Court while observing that Union has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67. Besides that in view of several Constitution Bench decisions of Supreme Court which are directly on the point, it is not safe to rely upon the decision cited by the learned counsel for the petitioner. 68. For the aforesaid reasons, I am in agreement with the opinion of Hon. R.R.K. Trivedi, J. and express ray inability to share the views of Hon. Om Prakash, J. 69. The result of the aforesaid discussion is that Section 18G of the Industries (Development and Regulation) Act, 1951 enacted by the Parliament being a legislation under Entry 33 of List III has not denuded the power of State Legislature to legislate on regulating supply, distribution and price of molasses a product of sugar industry. The said legislation being on a concurrent field, the State Legislature was competent to enact Sections 7, 8 and 10 of U. P. Sheera Niyantran Adhiniyam 1964 subject to the assent of the President of India in terms of Article 254 of the Constitution. Since the Adhiniyam has assent of the President of India, Sections 7, 8 and 10 of the Adhiniyam are valid piece of legislation. 70. My answer to the question referred is as under: Answer to the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Om Prakash, J. Sd/- R.R.K. Trivedi, J. List before V. N. Khare, G. P. Mathur and S.R. Alam, J. on 31-1-1995. Sd/-S.S. Sodhi, J. When the Full Bench commenced hearing on February 16. 1995 Shri Shanti Bhushan, learned senior counsel for the petitioner submitted that the two Hon'ble Judges had delivered final judgments on January 6, 1995, one allowing the writ petitions (except writ petition No. 993 of 1993) and the other dismissing the writ petitions and after having delivered the judgments they became functus officio and thereafter they could not have passed an order formulating their points of difference for being decided by another Judge and in this view of the matter, the whole petition was open for hearing including on those points on which the two Hon'ble Judges had concurred and the Full Bench could not confine itself only to the point formulated by the Division Bench. In support of this submission reliance has been placed on two decisions of learned single Judges of this Court in Birendra Kumar Rai v. Union of India, AIR 1992 All 151 and Smt. Nirmal Swaran Singh v. Rozu-Uddin, AIR 1993 All 121- Shri Rakcsh Dwivedi, learned Addl. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. 77. The language of above quoted Rule is plain and admits of no ambiguity. If the Judges of Division Court which is composed of two Judges are equally divided in opinion, they may state the point upon which they differ and then the case shall be heard upon that point alone by one or more of the other Judges as may be nominated by the Chief Justice. The point about which a reference has been made shall then be decided according to the opinions of majority of the Judges who have heard the case including those of the. Division Court which heard it initially. The separate opinions of two Hon. Judges were read out and signed in Court on January 6, 1995 and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which they differ and record their respective opinions. When this has been done, it is on this specifically stated point that the matter is laid before the Chief Justice and the point decided by Judge (or Judges) to whom the matter has been referred. If the Judges deliver their dissenting judgments, they abdicate the process of making decision by judgments. It has been further held that upon a difference of opinion, a reference must be made while. Judges are still possessed of the case and before judgment. 80. The crucial question to be considered is where two Judges constituting a Division Bench render dissenting judgments do they deliver judgments in the case or their decisions are merely opinions. What is the precise meaning of the work 'judgment' therefore, needs to be examined. Though, it is used in Letters Patent of the Charter High Courts, High Court Rules, Govt. of India Act, 1935 and in the Constitution, it is defined only in Code of Civil Procedure, 1908. Section 2(9) of the Code defines a judgment and it means the statement given by the Judge of the grounds of a decree or order. Section 2(2) of the Code defines a decree and it means the formal expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal duty or liability does or does not exist. An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some steps, question or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of Court. A passing reference may be made to some of the English cases also. According to ex parte Chinery, (1984) 12 QBD 343 (sic), a judgment a decision obtained in an action, and any other decision is an order . A 'final judgment' according to the same case is a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established. In ex parte Moore, (1885) 14 QBD 627, meaning of expression final judgment was expounded in the following words: To constitute an order a final judgment nothing more is necessary than that there should be a proper litis contestatio, and a final adjudication between the parties to it on the merits. In Onslow v. Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Re : Daya Bhai Jeevan Das, AIR 1935 Rangoon 267 (FB) a narrow interpretation was given namely that the word 'judgment' means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. But this narrow interpretation has not found favour and has been disapproved by the Supreme Court in Shah Babu Lal Khimji, AIR 1981 SC 1786 (supra). 82. The earliest judgment of the Supreme Court where Clause 15 of the Letters Patent of Calcutta High Court was considered was rendered in Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198, where it was held as follows; The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. In Shanti Kumar v. H. Insurance Co., AIR 1974 SC 1719, it was observed as follows; In finding out whether the order is judgment within the meaning of Clause 15, it has to be found out that the order affects the merits of action between the parties by determining some rights or liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Court appealed to was only consultative and that there was nothing which amounted to a judgment or order. While considering the provisions of Section 51 of Indian Income-tax Act the Privy Council in Tata Iron and Steel Co. v. Chief Revenue Authority, AIR 1923 PC 148 said that when a case is stated for the opinion of the Court, that would serve prima facie to indicate that the order made by the Court was only advisory. In Prem Chand v. State of Bihar, AIR 1951 SC 14 while considering the provisions of Bihar Sales Tax Act, it was observed as follows: It is true that the Board's order is based one what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties and the final order in the matter is the order which is passed ultimately by the Board of Revenue. These authorities show that if the decision or order does not of its own force bind or affect the rights of the parties, it will only be an opinion and not a judgment. 83. A careful examination of the standard texts and authorities referred to above shows that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, the appeal may be referred to one or more of the other Judges of the same Court, and shall be decided according to the opinion of the majority (if any) of all the Judges who have heard the appeal, including those who first heard it. When there is no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed. The opinions of Chief Justice Edge and Justice Mahmood Shaw that after Justice Brodhurst and Justice Comer Petheram had delivered their dissenting judgments, one allowing the appeal and the other dismissing it, the order of reference was drawn up. It is obvious that in view of the dissenting judgments, the decree under appeal stood automatically affirmed leading to the final decision of the case. Once a case is finally decided, no question arising in the case can again be referred to a larger bench and so the reference was held to be incompetent firstly, that is no similar provision in Chapter VIII, Rule 3 of H. C. Rules which may provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. 87. There can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismissing the same but to stale their point of difference after expressing their opinions. However, it will still be open to them to state the point upon which they have differed even if they have passed final orders. If the point of difference is not stated, it will be for the third Judge (or Judges) to whom the case is referred to ascertain the same and to give his (or their) opinion thereon. 88. There is another aspect of the matter This Full Bench has been constituted under orders of Hon'ble the Chief Justice and as per the terms of the said order, it can only hear and give opinion on the point which has been referred to it. It is not open to this Bench to travel beyond the reference and hear and give opinion on questions which have not been referred to it or to rehear the whole case de novo. In Kesho Nath Khurana v. Union of India, AIR 1982 SC 1177, it was held that where a question of law arising in a second appeal was referred by a single Judge to a Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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