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TMI Blog1977 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... rs under Article 226 of the Constitution of India including matters in which interim orders have been made by this Court, the urgency arising out1 of the rather drastic provisions with regard to abatement and vacating of the interim orders made in pending petitions in Section 58 of the Amending Act. 2. It is not necessary to refer in detail to the facts out of which each of these thirteen petitions arose, but it is sufficient to point out that in some of these petitions, either a Central Act or a State Act or some provisions thereof or a rule framed thereunder, or some action taken by the statutory authorities has been challenged. In Miscellaneous Petition No. 407 of 1967, which arises out of an order of the Collector of Customs, Bombay, assessing customs duty on the import of rough emeralds under the provisions of the) Customs Act, 1962, and the Customs Valuation Rules, 1963, the provisions of Rule 8 of the Customs Valuation Rules have been challenged as violative of Articles 14 and 19(1)(f) and (g) of the Constitution. Rule 8 is also challenged as being violative of the previsions of Section 14 of the Customs Act, 1962. There are also other grounds on which the order of the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amending Act includes an appeal against a decision which finally decided a petition under Article 226 of the Constitution of India before the appointed day. 3. When these petitions were taken up for hearing parties naturally wanted a rather full and comprehensive discussion on the scope and the impact of the provisions of Article 226 of the Constitution of India as amended (hereinafter referred to as "the new Article 226"), but having regard to the urgency of the situation arising out of the provisions of Section 58 of the Amending Act in the matter of abatement and the vacating of the interim orders, it did not become possible to hear arguments on all the questions which were sought to be canvassed by the learned Counsel on both sides in these petitions. We have, therefore, decided to take up for consideration only the following questions for the purposes of these petitions: (1) Whether interim orders made before the appointed day after hearing the parties against whom such interim orders were made or after opportunity had been given to such parties of being heard in the matter, which opportunity may or may not have been availed of and in respect of which copies of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court shall not consider the constitutional validity of any State law in any proceedings under that article unless the constitutional validity of any central law is also in issue in such proceedings. Article 131A which was introduced by Section 23 of the Amending Act reads as follows: 131A. Exclusive jurisdiction of the Supreme Court in regard to questions as to Constitutional validity of Central laws.-(1) Notwithstanding anything contained in any other provision of the Constitution, the Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine all questions relating to the constitutional validity of any Central law. (2) Where a High Court is satisfied- (a) that a case pending before it or before a court subordinate to it involves questions as to the constitutional validity of any Central law or, as the case may be, of both Central and State laws; and (b) that the determination of such questions is necessary for the disposal of the case, the High Court shall refer the questions for the decision of the Supreme Court. (3) Without prejudice to the provisions of Clause (2), where, on an application made by the Attorney-General of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in Article arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (I) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. (4) No interim order whether by way of injunction or stay or in any other manner, shall be made on, or in any proceedings relating to, a petition under Clause (1) unless- (a) copies of such petition and of all documents in support of the plea for such interim order are furnished to the party against whom such petition is filed or proposed to be filed; and (b) opportunity is given to such party to be heard in the matter. (5) The High Court may dispense with the requirements of Sub-clauses (a) and (b) of Clause (4) and make an interim order as an exceptional measure if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question. (4) A State law shall not be declared to be constitutionally invalid by the High Court unless- (a) where the High Court consists of five Judges or more, not less than two-thirds of the Judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid; and (b) where the High Court consists of less than five Judges, all the Judges of the High Court sitting for the purpose hold it to be constitutionally invalid. (5) The provisions of this article shall have effect notwithstanding anything contained in this Part. Explanation.-In computing the number of Judges of a High Court for the purposes of this article, a Judge who is disqualified by reason of personal or pecuniary bias shall be excluded. Article 228A once again refers to the bar of jurisdiction of the High Court to declare any Central law to be constitutionally invalid and enables the High Court, subject to the provisions of Article 131A, to determine all questions relating to the constitutional validity of any State law. It also prescribes that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions under Article 226.-(1) Notwithstanding anything contained in the Constitution, every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 38. (2) In particular, and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated: Provided that nothing contained in this sub-section shall affect the right of the petitioner to seek relief under any other law for the time bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacement of the original Article 226 by the new Article 226 in the Constitution of India. So far as the original Article 226 was concerned, in Sub-clause (1) power was given to the High Court, notwithstanding anything in Article 32, to issue to any person or authority, including in appropriate cases any Government, within the territories in relation to which the High Court exercised its jurisdiction, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Consequent upon the enactment of Article 131A which exclusively vests the jurisdiction to determine all questions relating to the constitutional validity of any Central law in the Supreme Court, the powers under Article 226 were made subject to the provisions of Article 131A. Article 226A appears to us to be a mere consequential provision necessitated by addition of Article 131A, and its object appears to be to make it expressly clear that the High Court shall not consider the constitutional validity of any Central law in any proceeding under Article 226. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther instrument made thereunder. The contravention contemplated by Clause (b) is, apart from the contravention of a constitutional provision, a contravention of some legal provision which may be contained in an Act or an Ordinance or in any subordinate legislation made in exercise of a statutory or constitutional power. The words "made thereunder" qualify the entire set of words "any order, rule, regulation, bye-law or other instrument" and it refers to the words "Constitution, enactment or Ordinance" mentioned earlier in the same clause. The words "order, rule, regulation, bye-law or other instrument" are found in the definition of Indian law in the General Clauses Act in Section 3(29). The definition of "Indian law" reads as follows: 'Indian Law' shall mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a charter or a record or other writing of a formal nature. But in the context of the General Clauses Act, it has to be understood as including reference to a formal legal writing like an order made under a statute or subordinate legislation or any document of a formal character made under constitutional or statutory authority. Thus in the context in which the word 'instrument' has been used following the words "order, rule, regulation, bye-law", in our view, the 'instrument' has reference to a subordinate legislation or something which has the force of law made in the exercise of some authority under the Constitution or any enactment or an Ordinance. Two things must, therefore, be shown before a litigant can invoke the jurisdiction of the High Court under new Article 226(1)(b). There must be a contravention of either any provision of the Constitution or any law ordinance or any subordinate legislation or any instrument having the force of law and that contravention must result in an injury of a substantial nature. 9. Mr. Singhavi has, however, contended that Clause (b) would take in its sweep even an executive order, a proposition which was seriously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions referred to in Clause (b), there is an unlawful infringement or privation of a right of a person. One of the dictionary meanings of the word 'substantial' is 'real'. See Chamber's Twentieth Century Dictionary. It appears to us that when Article 226(1)(b) contemplated that the Court's jurisdiction should be exercised in case a substantial injury has resulted by contravention of the provisions enumerated therein, it was intended that the words "substantial injury" were used in the sense of a real injury. Whether in a given case the injury or the infraction is of such nature that having regard to the extraordinary nature of the remedy and the extraordinary nature of the writ jurisdiction under Article 226 of the Constitution, the High Court will interfere or not and grant relief to the litigant is a matter which will have to be decided on the facts of each case. The remedy provided under Article 226 is of an extraordinary nature and, in our view, use of the word 'substantial' to qualify the word 'injury' is intended to highlight this extraordinary nature of the remedy. In our view, the concept of monstrosity in the context of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be removed by the decision of this Court in De Rothschild v. Wing Rural District Council [1967] 1 W.L.R. 470 : [1967] 1 All E.R. 597. In the case of De Rothschild relied upon in Harrington's case cited supra a similar improvement notice under Section 27 of the Housing Act, 1964, was found to be invalid on the ground that the person in occupation of the premises was not a tenant and the improvement notice could be served only when the person in occupation of the premises was a tenant. The improvement notice could not be issued under law in respect of an empty house or an owner-occupied house or in respect of a house where the tenancy had come to an end. The County Court Judge rejected the contention that the notice had substantially prejudiced the owner. Reversing this decision in the Court of Appeal, Lord Denning observed (p. 472): I can sympathise with the judge's point of view, but I am afraid I cannot agree with it. It seems to me plain that Mr. de Rothschild's interests have been prejudiced. He has been directed to do a lot of work on this house, when it is plain that the Act never intended that he should be liable. One of the statutory conditions is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Clauses (c). What is, however, necessary is that the proceeding must be under any of the provisions of the Constitution or other law referred to in Clause (b) and illegality in such proceedings should have resulted in substantial failure of justice. Here again the words used are "substantial failure of justice" which highlight the fact that the jurisdiction which is exercised by the High Court is not of an ordinary nature, but it is an extraordinary jurisdiction exercised in order to further the ends of justice. Where justice is denied, there will be failure of justice, but again it will be for the High Court in the exercise of its discretion to decide whether there is real failure of justice which necessitates its interference in a given case. Failure of justice necessarily contemplates that some injury is caused to the person complaining thereof. The scheme of both Clauses (b) and (c) clearly indicates that it is only the person whose rights have been violated or who is adversely affected by the illegality in any proceedings contemplated by Clauses (b) and (c) who can complain of the contravention referred to in Clause (b) or the failure of justice contemplated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law for the time being in force. The bar against entertaining a petition is expressly restricted to a case which falls only in Sub-clause (b) or Sub-clause (c) of Clause (1) which is referred to as Clause (1). The bar operates if any other remedy for the redress of injury referred to in Clauses (b) or (c) is provided for by or under any other law for the time being in force. 19. According to the learned Counsel for the petitioners the mere fact that there is a remedy provided for the redress of an injury which is contemplated by Clauses (b) and (c) is not sufficient to deprive the High Court of its jurisdiction to entertain the petition. According to Mr. Seervai, who was appearing for the petitioners, it is not enough to merely find that there is a remedy provided but that the remedy must be adequate, efficacious, beneficial and convenient and it is only in such cases where the alternative remedy is found to be adequate and efficacious that the bar provided for in Clause (3) could be attracted. Mr. Seervai also contended that a suit cannot be considered as "any other remedy" for the purposes of Clause (5) because, according to the learned Counsel, the suit is neither pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise its writ jurisdiction and it is this rule of self-limitation, as it is sometimes called, that has now been codified into a rule going to the jurisdiction of the High Court. The learned Counsel contends that under the original provisions of Article 226 of the Constitution in a given case even where the litigants had an alternative adequate remedy, it was open to the High Court to exercise its discretion in favour of the litigant but what Article 226 now does is that this jurisdiction which was exercised by the High Court to issue writs even in a case where there was alternative adequate remedy, has been taken away by the introduction of Article 226(3). 21. Mr. Dhanuka, who appears on behalf of the Union of India, contended that having regard to the provisions of Article 226(3), it is not now necessary that the alternative remedy should be equally efficacious. According to him, the change made in Article 226(3) is a deliberate one. At the same time he contended that the remedy should not be illusory, e.g., according to the learned Counsel, there may be a case where conditions precedent to invoking the alternative remedy may be incapable of compliance qua a particular individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the redress which a party is seeking. He contended that the words used in Clause (3) are "any other remedy for such redress", the reference being to the redress contemplated by Clauses (b) and (c), and if in a given case the redress which is sought in the petition is not available by taking recourse to the alternative remedy, then the bar in Clause (3) will not apply. Giving an illustration the learned Counsel contended that if immediate relief necessary at the interim stage is not possible in a suit, then the remedy of a suit is not available for such redress and the petition could be entertained by the High Court. 23. Elaborate arguments were also advanced by Mr. Singhavi and by Mr. Dhanuka on the question whether a suit is an alternative remedy to which we shall refer a little later. 24. Mr. Singhavi also read to us certain passages from a treatise on "Legal Control of Government" by Bernard Schwartz and H.W.R. Wade to show that in the United States exhaustion of alternative remedy is the rule before a person seeks a public law remedy. Mr. Singhavi has also drawn our attention to the Notes on clauses attached to the Constitution (Forty-fourth Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Another illustration given was that where an authority threatened to take some action but if that action is to be challenged, a notice of prescribed number of days is to be given before a suit can be riled, the urgency of the matter may be such that the aggrieved person would be entitled to approach the High Court under Article 226 notwithstanding the fact that an alternative remedy is provided by or under the relevant law. These illustrations themselves show that the learned Counsel for the State Government and the Union of India did not seriously canvass for a literal construction of Article 226(3). The obvious reason why, according to the learned Counsel, the bar of Article 226(3) did not operate in the illustrations given by them was that the other remedy was not adequate. Strictly speaking, if Article 226(3) has to be literally construed, then whether there is another remedy available to a litigant or not must be determined solely with reference to the relevant legal provision providing for such a remedy enabling a party to challenge an impugned action in a forum which is provided by that law or with reference to the right to file a suit in a civil Court to challenge the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. 28. The nature of the writ jurisdiction to reach and remedy injustice propounded by the Supreme Court has not undergone any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the superior Court will readily issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction.... Likewise in Khurshed Mody v. Rent Controller AIR1947Bom49 , it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. (Italics ours.) The observations of Harries C.J., in Asst. Collector of Customs v. Soorajmull AIR1952Cal656 , were quoted with approval. These observations are as follows (p. 665): There can I think be no doubt that a court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appears to me that there can be cases where the court can and should issue a certiorari even where such alternative remedies are available. Where a court or tribunal which is called upon to exercise judicial or quasi-judicial functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 was intended to be codified as a rule of law or whether it was intended to deprive the High Court of its jurisdiction on the mere existence of an alternative remedy being established. In the passage relied upon by Mr. Singhavi appearing on behalf of the respondents in some cases from Legal Control of Government by Bernard Schwartz and H.W.R. Wade it is observed by the learned authors (p. 278): Closely connected with the doctrine of primary administrative jurisdiction is the rule that available administrative remedies must be exhausted before resort may be had to the courts. The affected individual is expected to take advantage of all remedies within the administrative process before he can seek any judicial relief. Hence, if there is an administrative appeals procedure provided by statute or regulation, it must be resorted to, and it is only after he has gone through such appellate procedure that the individual concerned can, seek judicial review on the usual grounds, for example that the findings are not supported by substantial evidence. At page 279 the learned authors have pointed out: The exhaustion of administrative remedies is thus required even where it is claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al the parties would be spared the vexation of a useless hearing. (p. 82). British law, in so far as it is comparable, entirely supports Chief Justice Vanderbilt's reasoning. This passage will, therefore, show that the rule of exhaustion of alternative remedies has not been accepted totally even in the United States. The Myers case was again commented upon by the learned authors at page 285 in the following words: Justice Brandeis's reasoning the Myers case would seem open to serious criticism, which indeed it has duly received in Ward v. Keenan and elsewhere. It fails to make the important distinction as to the nature of an appeal to an administrative authority and an appeal to the court. The administrative appeal is concerned with the merits, expediency, policy of the action in question. Judicial review is concerned with its legality. No decision on an administrative appeal can give the authorities more jurisdiction than they possess in law, and their jurisdiction can be determined only by the court. If an issue of jurisdiction is raised at the outset, it needs decision at the outset. It is not a question of 'the orderly conduct of the government's business&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs going on before the original tribunals before the proceedings are completed. In such a case, the only alternative for the aggrieved person is to ask for a writ of prohibition. If he awaits the completion of the proceeding, he has no occasion to ask for a writ of prohibition, though the invalidity of the final decision may be open to challenge on the ground of want of or illegal assumption of jurisdiction and a writ of certiorari can be asked for. We may with advantage recall some of the observations of the Supreme Court in Mohd. Nooh's case where it was pointed out that in a case where an inferior Court or a tribunal acts wholly without jurisdiction or conducts itself in a manner which is contrary to all accepted rules of natural justice, the Court must interfere even if a remedy of an appeal was available but was not availed of. Those observations in para. 11 of the judgment in Mohd. Nooh's case are as follows (p. 94): On the authorities referred to above it appears to us that there may conceivably be cases-and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iorari if the order can be shown to be vitiated by want of jurisdiction or on any of the grounds referred to in the observations in Mohd. Nooh's case quoted above. Indeed such a case is expressly contemplated by Clause (c). Clause (c) refers to an illegality in any proceedings. We have already held earlier that the operation of Clause (c) is not restricted merely to the final order which is passed in a proceeding, but it will also cover the earlier stages of the proceedings which will lead to the finality or conclusion of that proceeding. The several clauses of Article 226 and especially Clauses (1) and (3) have to be read harmoniously because Clause (5) expressly deals with cases falling under Sub-clause (b) and (c) of Clause (1). Sub-clause (c) of Clause (7), in our view, itself contemplates an illegality in a proceeding resulting in substantial failure of justice being challenged even at a stage prior to the termination of the proceeding and it will be no answer in such a case that the petitioner should await the final conclusion of the proceedings. In the kind of cases above referred to it is obvious that the remedies prescribed by the appropriate law will not be adequate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven case a remedy is an adequate and efficacious remedy will depend on several circumstances and will have to be decided on the facts and circumstances of each case as will appear from the instances which were quoted in the course of arguments and referred to earlier by Mr. Dhanuka and Mr. Singhavi. It will depend on the nature of the injury; it will depend on the quality of the redress available by the alternative remedy; the time element involved; the urgency for the relief; the ability or otherwise of the litigant to comply with conditions required to be satisfied before alternative remedy can be resorted to and various other factors all of which it will not be possible nor feasible to enumerate. It will, therefore, be futile to attempt to lay down any guidelines applicable in all cases as to when a remedy can be said to be adequate and efficacious. We are reluctant to place a literal construction on the provisions of Clause (3) and we must reject the argument that wherever and whenever a remedy exists, the jurisdiction of the High Court to entertain a petition under Article 226 in matters covered by Sub-clause (b) and (c) of Clause (1) is taken away. 37. It is not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entertainment of a petition under Article 226, there must be something more in a case, something going to the root of the jurisdiction of the Sales Tax officer, something which would show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. Therefore, even in a tax matter the Supreme Court did take the view that there may be certain cases where asking the assessee to adopt the remedies provided by the Act would amount to palpable injustice to the assessee and if there is something which goes to the root of the jurisdiction of the Taxing Officer, the assessee will be entitled to invoke the jurisdiction of the High Court under Article 226 without taking recourse to the statutory remedies. 40. We must also notice an argument advanced by Mr. R.J. Joshi appearing in Miscellaneous Petition No. 529 of 1976 which is directed against a notice under Section 148 of the Indian Income Tax Act, 1961. Mr. Joshi, who adopted the arguments of Mr. Singhavi, contended that in view of the provisions of Article 226(3), in a case where an alternative adequate remedy is provided under the provisions of the; Income Tax Act, the writ ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court observed as follows (p. 281): 'By' an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom. The words 'under the Act' would, in that context signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done; in other words, bye-laws made by a Subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by the Act. Vide Hubli Electricity Co. Ld. v. Province of Bombay (1948) L.R. 76 I.A. 57 : 51 Bom. L.R. 551 and Narayanaswamy v. Krishnamurthi [1958] Mad. 513 : S.C. AIR [1958] Mad. 343. There is thus no dispute that "other law" referred to in Article 226(3) includes a statutory enactment and a remedy provided by any statutory enactment or by any subordinate legislation made in the exercise of the rule-making power or other statutory power under the parent enactment would be a remedy p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (I) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. In Builders Supply Corporation v. Union of India, the Supreme Court was concerned with the doctrine of priority of State debts, a doctrine which flowed from the common law and the question was whether the common law can be said to be "law in force immediately before the commencement of the Constitution" so as to enable the State to claim priority in respect of its debts over the debts of other persons. While answering that question the Supreme Court in para. 16 has observed as follows (p. 1067): ...The question which arises is whether this doctrine of priority which is based on common law and which was recognised by our High Courts prior to 1950, can be said to constitute 'law in force' in the territory of India at the relevant time. In other words, is this doctrine of common law wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of appeal it was observed as follows (p. 1129): ...There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. In Dinbai Petit v. M.S. Noronha, a suit was considered as an alternative remedy contemplated by Clause (d) of the proviso to Section 45, Specific Relief Act, 1877. Chagla J., as he then was, while considering the requirement of Clause (d) of the proviso to Section 45 of the Specific Relief Act, 1877, made the following observations (p. 422): The other important and interesting question which arises in this appeal is whether the right of a suit is a specific remedy contemplated by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of suit is thus based on a fundamental principle of law that where there is a right, there is a remedy jus ibi remedium. Accordingly, a litigant having a grievance of a civil nature has independently of any statute a right to institute a suit under the common law in some Court or the other unless its cognizance is either expressly or impliedly barred. 49. Mr. Seervai has referred in his argument to the meaning of "common law" given in Jowitt's Dictionary of English Law and it is contended that since according to Jowitt, common law was unwritten law as opposed to enacted law and its origin was to be found in customary rules followed by all the people in the realm as opposed to the custom peculiar to certain localities and, therefore, if the right to file an action was intended to be included as a common law right, it was necessary to add in Article 226(3) the words "or recognised by any custom or usage having the force of law." In contradistinction with the provisions of Article 226(3) it is pointed out that where it was intended that law should include custom or usage having the force of law, a provision to that effect was made in Article 13(3)(a). Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to in Clause (b) of Article 226(1). The words "any other law for the time being in force" are words of the widest amplitude. The words "any other law" were used to indicate that reference was being made to law other than Article 226 of the Constitution. If it was intended to restrict the operation of Article 226(3) only to a remedy to the provisions referred to in Clauses (b) and (c) of Article 226(1), the words of the widest amplitude used in Article 226(3) would not have been so used. 52. It was argued that at the time of the institution of the suit Court-fees as prescribed by the Court-fees Act have to be paid and remedy by way of suit cannot be treated as an adequate remedy. As already pointed out, the question whether a remedy whether it be by way of a suit or a remedy in any other form, is an adequate remedy or not has to be decided on the facts of each case. In many cases a suit has been considered to be an adequate alternative remedy. See Seervai's Constitutional Law of India, 2nd edn. vol. II, para. 16.116, footnote No. 56. So also, the question whether the remedy is onerous, and therefore not adequate and equally efficacious will also have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecent judicial decisions to the effect that breach of the audi alteram partem rule goes to jurisdiction (or is akin to a jurisdictional defect) and renders an order or determination void. That this is the better opinion is indicated by the following propositions : formulae purporting to exclude judicial review are ineffective to oust review of determinations tainted by breach of the rule; a determination thus tainted can be collaterally impeached by mandamus; recourse to administrative or domestic appellate procedures is not a necessary preliminary to impugning the determination in the courts; prior recourse to such procedures is not to be construed as a waiver of the breach; nor can an appeal in the strict sense cure the vice of the original determination, for one cannot appeal against a nullity and the appellate proceedings should also be treated as void. The other observations relied upon by Mr. Seervai are at p. 132 where the learned author has observed: As has been, indicated, courts sometimes refuse to hear appeals against void decisions inasmuch as there is nothing to appeal against. 56. In Leary's case, it was held by Megarry J. that the deficiency of natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m membership of the union and from office as area organiser was ultra vires, null and void. The question which arose in the action was whether the breach of natural justice by the branch committee was cured by complete rehearing of the plaintiff's case by the Appeals Council and it was held by Megarry J. that whilst a complete hearing by an original tribunal or by some other body competent to decide the issue which might satisfy the requirement of natural justice, a plaintiff, where there was a right of appeal from an original decision, was entitled to natural justice both before the original tribunal and the appellate tribunal. While so holding, the learned Judge made the following observations (p. 53): ...I therefore hold that the deficiency of natural justice in the trial body has not been cured by any subsequent fair hearing by an appellate body. The decision of the branch committee was bad, and has not been cured, even if it was curable; nor has it been replaced by any decision of the NEC or appeals council. 59. With respect, we find it difficult to accept the broad proposition enunciated in Megarry J.'s judgment that a subsequent fair hearing by an appellate body d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the person concerned should have a reasonable opportunity of presenting his case. The Supreme Court also quoted with approval the observations of Harman J. in Byrne v. Kinematograph Renters Society [1958] 2 All E.R. 579, where the learned Judge observed thus (p. 599): What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. Thus where a breach of the principles of natural justice is alleged, the question must firstly be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the Legislature. Secondly, when there are no such rules or the rules, if any, are silent, there must be a minimum requirement which must be satisfied consisting of the person concerned being given an opportunity of making a representation or statement in respect of the charge against him to allay the suspicions of the authority competent to take action and thirdly, the person concerned must hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view, if a decision which, it is contended, is vitiated by a violation of the principle of audi alteram partem could be subjected to scrutiny by the appellate tribunal, it cannot be equated with a void decision as a decision without jurisdiction is. In appellate proceedings even an inherent want or lack of jurisdiction of the trial tribunal is permissible as a ground of appeal on which the decision of the trial tribunal or Court can always be asked to be set aside. We are not, therefore, inclined to hold that the statement of the law made by the learned author Mr. S.A. de Smith reproduced by us earlier that "courts sometimes refuse to hear appeals against void decisions inasmuch as there is nothing to appeal against" is applicable in this country. No decision has been shown to us where an appeal Court has declined to entertain an appeal on the ground that the decision appealed against is a void decision. In a given case if the defect cannot be cured in the appellate tribunal, the appellate tribunal can well set aside the decision and direct the trial tribunal to decide the matter afresh. The very fact that the appellate tribunal can set aside the decision and have the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not, as the learned author has put, be an "affirm ness of the original invalid decision". As already pointed out by us, the analogy cannot be made applicable in the case of a decision by an administrative tribunal which is challenged on the ground that there is a breach of audi alteram partem rule. 62. The learned author has himself referred to the view that in all cases the breach of the audi alteram partem rule will not make a decision void. At page 211 the learned author has observed as follows: ...But on the whole the judges have declined, perhaps rightly, to commit themselves unequivocally to the proposition that they will hold decisions to be void for breach of the audi alteram partemrule when they are satisfied that the party aggrieved could not have influenced the outcome at all had he been accorded natural justice. (Italics ours). In support of this view the learned author has cited the decision in Ridge v. Baldwin [1964] A.C. 40 , Maradana Mosque Trustees v. Mahmud [1967] 1 A.C. 13 and Malloch v. Aberdeen Corporation. Earlier on page 211 the learned author has observed that "In some cases the Courts have refused to interfere when satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction. These are concepts developed in the private law of contract which are ill-adapted to the field of public law. All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question. 64. It is, no doubt true, as Mr. Seervai contends, that the decision does not establish that "an order ultra vires for violating natural justice could not be directly challenged as ultra vires or if the prosecution was one of the remedies, it could not be challenged when the party who contends that the law is ultra vires is prosecuted." We have, however, referred to the above quoted observations of Lord Diplock to indicate that the concepts of void and voidable are, as Lord Diplock put it, "concepts developed in the field of private law of contract and did not fit well in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes 'infallible in error' a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible. The legal chaos on this branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force. (Italics ours.) 66. The observations underlined above are binding on us and, in our view, they clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with the reasoning of Spence J. which turned upon the construction of the provisions of the University Act having regard to which he took the view that if there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the appeal committee because, as we have already pointed out, whether the breach complained of could be remedied in appeal was a matter which must be determined in the light of the relevant provisions or regulations dealing with the remedies and their scope open to a person who is affected by the decision complained of. 72. Mr. Singhavi has drawn our attention to at least three decisions of the Supreme Court where the test of prejudice was applied when a complaint was made that the principles of natural justice were violated. 73. In Kesava Mills Co. v. Union of India [1973]3SCR22 , the Government of India passed an order appointing a committee for investigating into the affairs of the Kesava Mills Co. under Section 15 of the Industries Development and Regulation Act, 1951. The investigating committee completed its enquiry and the Government of India passed an order under Section 18A of the Act au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. (Italics ours). On facts the Supreme Court found that the Mills had received a fair treatment and all reasonable opportunities to make out their own case before Government and "they cannot be allowed to make any grievance of the fact that they were not given a formal notice calling upon them to show cause why their undertaking should not be taken over or that they had not been furnished with a copy of the report.'" In conclusion it was observed by the Supreme Court in para. 21 (p. 399): ...We have no doubt that in the instant case non-disclosure of the report of the Investigating Committee has not caused any prejudice whatsoever to the appellants. (Italics ours.) The Supreme Court thus took the view that no definite standard applicable to all cases in the matter of observance of principles of natural justice could be laid down and it was laid down that while passing an administrative order, all that is essential is that the person concerned should have a reasonable oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een given the opportunity of being heard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person should have the right to interfere. To take a simple example to which their lordships will have to advert in some detail presently, if in the case of Ridge v. Baldwin [1963] 2 All E.R. 66, the appellant Ridge, who had been wrongly dismissed because he was not given the opportunity of presenting his defence, had preferred to abandon the point and accept the view that he had been properly dismissed, their lordships can see no reason why any other person, such, for example, as a ratepayer of Brighton should have any right to contend that Mr. Ridge was still the chief constable of Brighton. As a matter of ordinary common sense, with all respect to other opinions that have been expressed, if a person in the position of Mr. Ridge had not felt sufficiently aggrieved to take any action by reason of the failure to afford him his strict right to put forward a defence, the order of the watch committee should stand and no one else should have any right to complain. The matter is not free of authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the existence of jurisdiction and not on the irregularity in the exercise of jurisdiction. An irregularity in the exercise of jurisdiction does not, therefore, vitiate the decision as long as it is made within jurisdiction. Such a decision can be set aside only in direct proceedings and could not be disregarded or impeached collaterally as a decision without jurisdiction can be. 75. It is, therefore, difficult to hold that an order which the aggrieved person claims as being vitiated on account of violation of the principles of natural justice should be considered to be void so as to enable the aggrieved person to approach this Court under Article 226 without taking recourse to the alternative remedy. This is, of course, subject to the view which we have earlier taken that in case the petitioner so approaches the Court, he will have to satisfy the Court that the other remedies are not adequate. 76. It is not necessary for us to deal separately with the argument which Mr. R.J. Joshi appearing for the Revenue advanced in support of the proposition that so far as tax matters are concerned, an order passed in violation of natural justice should not be treated as void. We only brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court. This intention is made clear even in the notes on clauses. The scheme of the restriction of the power of the High Court runs through the whole of the new Article 226. Erosion of the jurisdiction of the High Court is so apparent on the face of Clauses (1), (3), (4), (5) and (6) that these clauses have merely to be read to see the erosion. The division Bench described the provisions of Article 226(3) as a "negative statutory injunction" what was "originally a normative self-imposition". The division Bench held that once existence of a legal remedy is established, the consideration whether the remedy was equally efficacious or not was not permissible. However, at one stage the division Bench took the view that (p. 276): ...The petitioner in a given set of facts may be able to satisfy the Court that a given remedy is not at all available to him. It was then observed (p. 276): ...That would raise a different issue for determination. Such issues are not uncommon and have been the matters of decision when there are pre-conceived or mala fide actions brought before the Court seeking relief of certiorari or mandamus, where referring the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent with some observations made in the concluding part of the judgment where it was re-emphasised that Article 226(3) worked as a clear prohibition going to the root of the jurisdiction of the High Court. In para. 21 the division Bench has observed (p. 277): ...The language used being the sole guide to find out the intention of the Constitution, there is hardly any scope to suppose that Clause (3) was enacted only as a guiding principle in exercise of the jurisdiction under Clause (1) and not as a prohibition for exercising jurisdiction in the matters of hearing. (Italics ours.) Indeed at one stage, the division Bench has gone on to observe (p. 277): What appears to us in consequence underlying Clause (3) of Article 226 of the Constitution is a constitutional fetter upon entertainment of petitions which under Clause (1), as stated in Sub-clauses (b) and (c) thereof, would otherwise be entertain-able by the High Court. Now, while it may not be possible to disagree with the view that Clause (5) is a fetter on the jurisdiction of the High Court, we are not inclined to accept the view of the division Bench, as already pointed out, that the mere existence of a remedy is suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m order should be made ex parte. 81. The concept of opportunity of being heard is now a well-known concept. The necessary material on which an interim order is sought must be made available to the opposite side against whom the order is sought or who is going to be affected by the interim, order and sufficient opportunity and time, as is permissible in the circumstances of the case, must be given to enable the opposite party to put forth its point of view, whether it is in the form of a reply in writing, if so desired by the party concerned, or whether in the form of an oral submission, if it so desires, or both, before an order is passed. That this procedure was consistently being observed by Courts after notice of the ad interim order was issued cannot be seriously disputed. What is, however, now contemplated is that this procedure must be followed before making any order whatsoever in the form of an interim order. 82. Clause (5) is in the nature of a proviso which permits an interim order to be passed without complying with the conditions provided for in Clause (4). But when power is given to the High Court to dispense with the requirements of Sub-clause (a) and (b) of Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or in any proceedings relating to a petition under Clause (1) in a certain kind of cases. It is expressly provided that where an interim order shall have the effect of delaying an enquiry into a matter of public importance or it will have the effect of delaying any investigation or enquiry into an offence punishable with imprisonment or where it will have the effect of delaying any action for the execution of any work or project of public utility or the acquisition of any property for such execution by the Government or any corporation owned or controlled by the Government, such an order shall not be made. No discretion is, therefore, left to the High Court to make any interim order whatsoever if a case is covered by Clause (6). 84. Clauses (4), (5) and (6) have thus clearly curtailed the powers of the High Court when compared with the powers exercised by it under the original Article 226. Indeed, there can hardly be any doubt that by the amending Article 226, the power of the High Court to make an interim order was being seriously affected. 85. It was vehemently contended by Mr. Seervai in the context of the drastic restriction on the jurisdiction to grant an interim order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r power to enforce fundamental rights. According to the learned Counsel, if this was the intention of the Parliament, then, Article 226 must be so construed that the power to enforce fundamental right which was given to the High Court should not be in any way affected. 87. Another argument in order to point out what, according to the learned Counsel, was a manifest absurdity was that while restrictions were placed on the power of the High Court to issue an interim order and in some cases the power was totally taken away in a proceeding under Article 226, the powers of the civil Court are unrestricted and in a suit filed for the enforcement of a fundamental right a civil Court could validly issue an interim order ex parte even in respect of matters enumerated in Clause (6). It was pointed out that even this Court on the Original Side dealing with a suit could well grant such an order while the same Court dealing with a petition under Article 226 either on the Original Side or on the Appellate Side could not exercise the same jurisdiction in view of Article 226(4) to (6). 88. Mr. Paranjape appearing on behalf of the Union of India contended that on a plain reading of Clauses (4), ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitutional Limitations" by Cooley at p. 65 and it is contended that difficulties are not to be imported into a Constitution where none appear upon its face. 91. There is no dispute that the rules governing the constructions of statutes also apply to the construction of the provisions of the Constitution. It is the primary rule of construction of statutes that the intention of the Legislature must be found from the words used by the Legislature and if the words used by the Legislature are open only to one construction, then it is not open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The primary rule of construction of statutes requires that the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when the words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. It is only where two constructions are possible that a question of choosing the one which is in consonance with the intention of the Legislature can arise. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and hardship Craies has observed (p. 89): The argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of construction. It was later observed (p. 90): Where the language is explicit, its consequences are for Parliament, and not for the courts, to consider. In such a case the suffering citizen must appeal for relief to the lawgiver and not to the lawyer. The principle relied upon by Mr. Seervai on the basis of which he wanted to persuade us to read the words "(b) and (c)" after "Clause (1)" in Clauses (4) and (6) of Article 226 is noticed by Craies at p. 107 in the following words: The question at times arises whether, admitting a statute to have a certain intention, it must, through defective drafting or faulty expression, Jail of its intended effect or whether necessary alterations may be made by the court. The rule on this subject laid down in the Privy Council in Salmon v. Buncombe, (cited supra), is as follows : 'It is, however, a very serious matter to hold that, where the intention of a statute is clear, it shall be reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the Parliament that whether the petition relates to fundamental rights or other legal rights, provisions of Clause (6) will be attracted. The proposition that the power given to the High Court to enforce fundamental rights under Article 226(1) is being substantially taken away by making a provision in the matter of interim order in Clause (4) and Clause (6), in our view, appears to be rather widely stated. The categories of cases referred to in Clause (6) do not exhaust all fundamental rights. The provisions are to operate only within a limited, field as described in Clause (6). It is, no doubt, true that in a given case, the provisions of Clause (6) are likely to work extreme hardship and inconvenience, but that cannot be a reason for not giving effect to the plain words therein. 95. It must, however, be mentioned that the power to grant an interim order is taken away only if the interim order will have the effect of delaying the processes referred to therein. In each case the Court will have to consider whether in the case of the first category of cases referred to in Article 226(6) the matter is of public importance, in the third category of cases whether the work o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concluding words of Section 58(4) and Article 226(6) are identical, such orders stand vacated. Under Section 58 it is provided that it is to operate on a petition which would have been admitted by the High Court under the amended Article 226. The petition which could be admitted under Article 226 in its amended form would be one dealing not only with other rights described in Article 226(1)(b) and (c) but also one dealing with fundamental rights as provided in Article 226(1)(a). Section 58(4) operates in respect of all such petitions and it makes no distinction between a petition dealing with fundamental rights or a petition dealing with the other rights referred to in Article 226(1)(b) and (c). It could not have been the intention of the Parliament to treat a pending petition in respect of fundamental rights differently than a similar petition filed after the appointed day merely on the ground that it came to be filed after February 1, 1977. So far as interim orders in respect of matters which are identically described in Section 58(4) of the Amending Act and Article 226(6) are concerned, the Parliament has provided for a uniform manner of dealing with them. It will, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s Construction of Statutes, 1940 edition, page 270, was quoted with approval: Where the statute's meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute. We must, therefore, reject the contention that the operation of the provisions of Clauses (4), (5) and (6) must be restricted to petitions other than those falling under fundamental rights as contended by the learned Counsel for the petitioner. 102. That brings us to the provisions of Section 58 of the Amending Act. It prescribes a procedure for dealing with petitions under Article 226 of the Constitution which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) that the interim order shall stand vacated is obviously made by way of abundant caution because normally an interim order stands exhausted when the main petition itself ceases to survive for any reason whatsoever. 103. There was some argument at the Bar as to the point of time when the abatement contemplated by Sub-section (2) occurs and as to at what point of time the interim order stands vacated. Before we deal with that, we shall refer briefly to Sub-section (5) of Section 58. 104. The scheme of Section 58(1) and (2) is firstly to make the provisions of new Article 226 applicable to pending petitions, and secondly to declare petitions which could not have been admitted under the provisions of new Article 226 to have abated. Then provision is made in Sub-section (5) with regard to interim orders which were passed in petitions which still survive as they do not abate as contemplated by the provisions of Section 58(2). Under Sub-section (3) it is provided that if an interim order which was made before February 1, 1977, that is, the appointed day, on or in relation to a pending petition, which is now clarified as not being one which has abated under Sub-section (2), is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;, Sub-section (2) uses the words "shall stand vacated". Mr. Singhavi contended that the petitions to which Sub-section (2) of Section 58 is attracted stand automatically abated with effect from February 1, 1977 and the interim orders in such petitions also stood automatically acted with effect from February 1, 1977 as the words used in Section 58(2) are "shall stand vacated", it is, however, contended on behalf of the petitioners that the vacating of the order contemplated by Sub-section (2) is a result of the abatement of the petition, and unless an order is, passed by the Court that the petition has abated, abatement cannot be said to have taken place and the abatement will become operative with effect from the date on which the order of abatement has been passed and the interim order will also stand vacated from that date. 106. It is difficult for us to accept the contention of Mr. Singhavi that the abatement under Section 58(2) takes effect automatically with effect from February 1, 1977. Abatement of the petition provided by Sub-section (2) of Section 58 is, no doubt, a statutory effect contemplated by that section, but before that effect occurs, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y pointed out, the proviso to Sub-section (2) is intended to give benefit to the litigant in the matter of exclusion of the period during which the petition was pending in the High Court before it abated under the terms of Section 58(2). Computation of the period of limitation has to be made with reference to a point of time because a period is an interval of time between two dates. The proviso does not contemplate that during the pendency of the petition and before it is decided whether it abates or not, the litigant should take recourse to the other remedy that may be open to him, because while considering the question whether the petition would have been admitted under the new Article 226, one of the questions to be considered is whether the petitioner had an adequate alternative remedy. If it was intended that the abatement was to occur statutorily from February 1, 1977 and the petitioner was to be entitled to exclude the period of pendency of the petition up to February 1, 1977 for the purposes of computing the limitation prescribed for availing of any other remedy, the proviso would have clearly made a reference to the fact that the period up to the appointed day alone would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1977 is not allowed to be excluded for the purpose of Explanation 1 to Section 153 as the prescribed period for computing the assessments would be cut short because no action has so far been taken on account of the fact that the stay orders have not been vacated so far. There is no doubt that while an interim order staying assessment proceedings is in force, there would hardly be any justification for proceeding with the assessment proceedings. However, in the view we have taken of Section 58(3), it is not necessary to consider further the submissions of Mr. Joshi. 108. That brings us to another question closely connected with the operation of Section 58 of the Amending Act. The question is whether Section 58(2) also operates in respect of appeals pending in this Court against orders passed in the original petition under Article 226 of the Constitution. The questions which been referred to this Full Bench by the division Bench have already been extracted by us earlier. It is contended my Messrs. Paranjape, Singhavi and Dhanuka that Section 58 which is described as "Special provisions as to pending petitions under Article 226" will also apply to proceedings in appeal ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided on merits is hardly relevant so far as the vesting of rights is concerned. Section 58(2) refers to a petition under Article 226 pending before any High Court. The words "a petition under Article 226" have always been understood as meaning the original petition under Article 226 and not an appeal from an order in the original petition. They must be given their natural meaning and Section 58 must, therefore, be held to apply only to the pending petitions. It is important to note that there may be petitions which have been decided by the High Court before February 1, 1977 and appeals may be pending against orders in such petition in the Supreme Court. If it was intended that Section 58 was to apply to an appeal pending from an order on a petition under Article 226, as contended on behalf of some of the respondents, there could not be any valid reason for the Parliament to make the provisions of Section 58 applicable to appeals pending in the High Court and not in the Supreme Court. The correct approach, in our view, is not to find out whether "a petition" will also include an appeal against an order deciding petition but to find out whether Section 58 conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is intrinsic evidence in the Constitution itself where when the Parliament wanted to make a provision relating to a pending appeal, it has expressly referred to such a pending appeal as will be clear from the provisions of Clause (5) of Article 329A. Article 329A was introduced in the Constitution by the Constitution (Thirty-ninth Amendment) Act in which provision was made in Clause (4) making inapplicable a law relating to election petitions and matters connected therewith made by the Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in case of persons referred to in Article 329A(1) such as the Prime Minister and the Speaker of the House of the People. Clause (5) reads as follows: Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4). It is true that Clause (4) has been held to be unconstitutional by the Supreme Court, but it is sufficient for our purpose to point out that where a provision was requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights dos not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment. The decision will thus clearly show that it turned mainly on the mandatory wording of Section 3 of the Usurious Loans Act which was held to affect vested rights. One of the reasons which weighed with the Supreme Court was that the appeal in that case did not have an independent existence because the preliminary decree which would emerge from, the appeal will be the decree which could become a final decree. The intention of the Legislature was found by the Supreme Court in these words (p. 1427): ...In the present Act the intention is to give relief in respect of excessive interest in a suit which is pending and a preliminary decree in a suit of this kind does not terminate the suit. The appeal is a part of the cause because the preliminary decree which emerges from the appeal will be the decree, which can become a final decree. Such an appeal cannot have an independent existence. Thus on facts it was held that the suit really had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, therefore, not be of much use to the respondents. The petitioner could well have filed a fresh petition after Article 226(1A) was added, but this course was avoided by the division Bench by taking the view that Article 226(1A) was applicable at the appeal stage. 113. We are, therefore, of the considered view that there is nothing in Section 58(2) which necessitates that the words "petition made under Article 226 of the Constitution before the appointed day and pending before any High Court" should be given an extended meaning so as to include an appeal filed against an order either rejecting, or allowing a petition before the appointed day, that is, February 1, 1977. Such an appeal, in our view, must, therefore, be disposed of in accordance with the original Article 226. The same view has been taken by a Full Bench of the Andhra Pradesh High Court [1977] Writ Appeal No. 435 of 1976. 114. The only other important question which remains to be considered is whether Articles 131A and 226A read with the amended Article 226 of the Constitution of India exclude the jurisdiction of the High Court to admit and entertain a writ petition which raises the sole question of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court to refer questions relating to the constitutional validity of any Central law or, as the case may be, of both Central and State laws if the determination of such questions is necessary for the disposal of the case. Under Clause (4) it is provided that the High Courts shall stay all proceedings in respect of the case until the Supreme Court decides the question so referred. 115. What is contended by Mr. Paranjape is that when Article 226A provides that notwithstanding anything in Article 226, the High Court shall not consider the constitutional validity of any Central law in any proceedings under that Article, the use of the word 'consider' indicates that the High Court is prohibited from even applying its mind to the question as to whether really the question of constitutional validity of any Central law arises or not. In other words, the argument is that if a petition is filed in the High Court in which the sole question is whether a Central law is constitutionally valid or not, it cannot be entertained. 116. It is difficult for us to accept this argument. It is obvious that Article 226A is a provision consequential upon the enactment of Article 131 A. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 where the sole question raised is the constitutional validity of any Central law. There is also nothing in Article 226A which would prevent the High Court from exercising normal powers which belong to it under Article 226 in the matter of making interim orders in such a petition because the petition will still continue to be a petition in the High Court under Article 226 in which only certain questions are required to be referred to the Supreme Court under Article 131A. 119. There was some argument on the question as to whether the word 'authority' in Article 226 included a Court. It is well established that the writs of mandamus, prohibition and certiorari are used to control inferior Courts and other persons or bodies of persons having legal authority to determine questions affecting rights of subjects and having duty to act judicially. Dealing with the writs of mandamus, prohibition and certiorari, it is observed in Halsbury's Laws of England, third edn., vol. 11, at p. 53 as follows: 109. Introductory. In modern practice the most important aspect of the three orders is their use as a means of controlling inferior courts and other persons and bodies of persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rari was never in doubt, the Supreme Court observed (p. 479): ...A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. In Dwarka Nath v. I-T. Officer, it was also pointed out that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and that it could be issued to quash a quasi-judicial act of an administrative tribunal or authority. It was observed by the Supreme Court in para. 5 as follows (p. 85): ...It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi judicial act and not an administrative act. It is, therefore, necessary to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations. 121. The legal position as adumbrated above remains unaffected by the amendment of the Constitution. The new Article 226 does not make any change in respect of the persons or bodies of persons to whom the writs can be issued. 122. Having regard to the aforesaid discussion, the questions extracted by us earlier are answered by us as follows: Question No. 1: In the affirmative. Question No. 2: In the negative for the first part; the Court shall have power to make necessary interim orders. Question No. 3: In the negative, but the jurisdiction is ousted in a case where the other remedy is adequate, efficacious, convenient and beneficial having regard to the redress sought. Question No. 4: In the affirmative if the suit falls within the description of "other remedy" as, in answer to question No. 3. Question No. 5: Provisions of Article 226(4) to (6) apply to all petitions which fall in Article 226(7). Question No. 1 in appeal: In the negative. Question No. 2 in appeal: Does not arise. 123. This petitions shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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