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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 ..... of statement made in the 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Section 18G of the Industries (Development and Regulation) Act 1951 (hereinafter referred to as the Act) have been rescinded.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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Spirit (AIR 1939 FC 1), A.V.S. Narasimha Rao v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 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 goods which are the products of the industries whose regulation under the control of the Union is declared by Parliament by law to be necessary or expedient in the public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that it was agreed that the new Entry 64A proposed to be included in List-I by Ministry of Industries and Supply was decided to be transferred to concurrent list. The relevant extracts of the minutes of the Drafting Committee with the Premises are extracted below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred 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-break of second world-war emergency was promulgated in this country, as a result of which the subject matter relating to provincial field became the concurrent subject. After the emergency was lifted, the power to enact on subject of trade, commerce and production, supply and distribution was given to the Central legislature under India (Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 of Seventh Schedule of the Constitution. Entry 24 of List II relates to industries subject to the provisions of Entries 7 and 52 of List I. There are further entries namely Entry Nos. 26 and 27 in List II of Seventh Schedule. Entry 26 is a field for legislation on the subject of trade and commerce within the State, subject to the provisions of Entry 33 of List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the exercise of legislative and executive power. ..... The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. With the spere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controllerd industries comprised in Entry 52 of List I, trade and commerce in, and production, supply and distribution of these goods became the subject matter of Entry 33 of List 3 and both Parliament and the State Legislatures had jurisdiction to legislate in regard thereto. The amendment of Entry 33 of List 3 by the Constitution Third Amendment Act, 1954, only enlarged the scope of that Entry without in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess 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 the product of that industry, viz. sugar was comprised in Entry 33 of List 3 taking it out of Entry 27 of List 2. Even so, the Centre as well as the Provincial Legislatures had concurrent jurisdiction in regard to the same. 22. In Calcutta Gas Company Ltd. v. State of West Bengal (AIR 1962 SC 1044) the Supreme Court following the decision in Tike Ramji case (supra) held as thus: (10) The first question that occurs to one' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "process of systematic production" for trade or manufacture and so falls within the connotation of the word "industry" in the appropriate legislative entries. It follows therefore, that in enacting the impugned Act Parliament was validly exercising its legislative powers in respect of matters covered by Entry 52 of List I and Entry 33 of List III." 25. In the case of the Kannan Devan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amendments, controls the supply and distribution of the goods produced by the industry. As rightly pointed out by the High Court this is the third aspect of the industry which falls outside the purview of the control postulated under Entry 52. In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respect of the industries the control of which by the Union is by law held to be expedient in the public interest, three consequences flow. Firstly, on declaration by Parliament in respect of controlled industries the power of State Legislature to legislate under Entry 24 of List II shifts to Entry 52 of List I to the extent of control provided in the Act. The second result which follows upon declaration is that the power to enact law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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 III on the other hand and further if the conflict cannot be avoided. In support of his argument, the learned counsel relied upon a number of decisions which I shall notice hereinafter. 37. I first proceed to notice the cases referred to by Sri Sudhir Chandra, learned Senior Counsel. In the case of A.L.P.P.L. Sabhrahmanyan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47 (supra) the passage relied upon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II of Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List I, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about a harmonious construction. In in re the Central Provinces and Berar Sales of Motor Spirit and Lubricant Taxation Act, 1938, 1939 FCR 18 : (AIR 1939 FC 1) Sir Maurice Gwyer proceeded to Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "notwithstanding anything contained" in clauses (1) and (2) of Article 246 and the words "subject to" used in clauses (2) and (3) of Article 246 show the supremacy of Parliament namely when there is any conflict between the Union and the State power, the Union power enumerated in List I shall prevail over the State power mentioned in Lists II and III and in case of overlapping between Lists II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to contain a power in Parliament to override the Entries of List II and List III with respect to which the State Legislature can legislate. In fact these expressions are only resorted to when there is seeming conflict between the two entries when the two legislations cannot co-exist and cannot be reconciled. Once it is found that legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Legislature. In this case the Supreme Court, was of the view that Entry 52 of List I by itself does not spell out a field of legislation. In fact Entry 52, List 1 comes into being when there is a declaration made by the Parliament by law in respect of an industry. According to this view, the declaration by Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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, to the extent of that "control", be superseded or be rendered ineffective; for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State, legislative power by the declaration which Parliament is empowered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights 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 found that Entry 23 of List II deals with mines and minerals (industry as well as its product) where as Entry 24 of List II deals with the industry only and not with the product of Industry. Since Entry 23 is subject to the provisions of List I and as such as and when the Parliament enacts any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, 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 regulate industrial alcohol as a product of the scheduled industry, because the Union, under Section 18G of the IDR Act has evinced clear intention to occupy the whole field. Even otherwise sections like Section 24-A and 24-B of the U. P. Act do not constitute any regulation in respect of the industrial alcoh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 evinced clear intention to occupy the whole field was not in relation to the production of the controlled industry and as such the observation of the Supreme Court should be understood in respect of the dispute before the Supreme Court. 64. The decision of the Supreme Court in Tikaramji's case which still holds field has neither be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 question referred to is in the negative and against the petitioners. 71. Let the papers of these cases be laid before the appropriate bench with this opinion and answer in the next week. G.P. Mathur, J. 72. I agree. S.R. Alam, J. 73. I agree. G.P. Mathur, J. 74. The Constitutional validity of U. P. Sheera Niyantran Adhiniyam (U. P. Act No. 24 of 1964) was assailed before a Division Bench, basically on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Advocate General who appeared for respondents Nos. 2 and 3 submitted that before signing the opinions and the order, learned Judges had read out their opinions in Court and after hearing counsel for the parties and examining relevant provisions of Allahabad High Court Rules, 1952 (hereinafter referred to as the H. C. Rules) and the case law on the subject, they formulated the point of law on which they were divided in opinion and then passed the order directing that the papers be laid before Hon. the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; 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 the same day they passed the order in accordance with Chapter VIII, Rule 3 of H. C. Rules by formulating the point of difference and requesting Hon. the Chief Justice for nominating another Judge to decide the aforesaid point. In the very first sentence of the order of reference, the Division Bench said as follows: Since our opinion is divided, we state the point of difference. . . ." The language used by the Bench clearly shows that what the Judges had rendered and signed were only their opinions and not final judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Section 33 of the Code provides that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall, follow. These provisions indicate that under the Code, judgment has direct correlation with decree. In Shah Babu Lal Khimji v. Jayaben, AIR 1981 SC 1786, it has been held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, England Revenue, (1890) 25 QBD 465, Lord Esher observed as follows; "I think we ought to give to the words 'final judgment' in this sub-section their strict and proper meaning, i.e. a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established, unless there is something to show an intention to use the words in a more extended sense." The word "judgment" is also used in Clause 15 of Letters Patent of the Charter High Courts and there seems to be a good deal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." In Shah Babu Lal Khimji, AIR 1981 SCI 786, it was held that the word 'judgment' in Letters Patent should receive a much wider and liberal interpretation" than the word 'judgment' used in the Code of Civil Procedure. At the same time, it could not be said that any order passed by a trial Judge would amount to a judgment. It was further observed that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. Every interlocutory order cannot be regarded as judgment but only those orders would be judgment which decide m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 even according to the wider view, leaving aside the stricter or narrower view, an adjudication, in order to constitute a judgment, must decide any question or issue in the case or any of the rights of the parties. Further the form of the adjudication or the language used is not material, what is to he seen is its effect on the suitor proceeding in which it is made. 84. If that be the real meaning of the word judgment, it follows as a corollary that there can be only one judgment in a case. Two contradictory judgments or judgments in variance with each other will not have the effect of decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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 affirming the impugned order in the event of dissenting decisions being given by the Judge constituting the Bench. Secondly, appeals against decrees are governed by the Provisions of Code of Civil Procedure and they cannot normally be challenged in Writ Proceedings under Art. 226 of the Constitution. That apart the ratio of Lal Singh v. Ghanshyam Singh, ILR 9 Ail 625 (supra) does not appear to have received complete approval of the Supreme Court in Vishwanathan v. Abdul Wajid, AIR 1963 SC 1 as will be clear from the following observations made in para 30 of the report: "Again, the principle of Lal Singh's case ILR (1887) 9 All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, the Division Bench ought to have sent the matter back to learned single Judge, after deciding the question of law referred and it could not proceed to dispose it of on merit. 89. In view of what has been stated above, I am clearly of the opinion that the decisions given by Hon'ble Om Prakash, J. and Hon'ble R. R, K. Trivedi, J. on the question of competence of the State Legislature to enact U.P. Sheera Niyantran Adhiniyam (Act No. 24 of 1964) were merely in the nature of opinion and the point of difference was rightly referred in accordance with Chapter VIII, Rule 3 of H. C. Rules. This Full Bench can only hear and decide the question which has been referred and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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