9911796707
TMI Blog2019 (12) TMI 1674X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have to be entertained and decided. Such a provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature, as argued by the learned Attorney General. Article 200 as observed does not and cannot validate an ultra vires enactment, which the concerned Legislature lacked competence to enact. Article 138(2) of the Constitution provides that the Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court - A special agreement means, an independent agreement arrived at between the Government of India and the Government of a State through deliberations and negotiations and not just an approval of legislation by the President on the aid and advice of the Council of Ministers. In any case, the Supreme Court may exercise further jurisdiction pursuant to a special agreement between the Government of India and the State Government on any particular issue, provided Parliament by law provides for the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed manner within the prescribed time to the Rent Control Tribunal. (2) Appeal against an order of the Rent Control Tribunal shall lie with the Supreme Court. 3. By an order dated 18.4.2016, a Bench of this Court expressed serious doubts about the maintainability of the appeal, observing that the State of Chhattisgarh prima facie lacked legislative competence to enact law providing for statutory appeals directly to the Supreme Court, from the orders of a Tribunal. Notice was, accordingly, directed to be issued to the Attorney General for India and the Advocate General for the State of Chhattisgarh. 4. On 19.4.2017, another Bench of this Court heard amongst others, the Advocate General for the State of Chhattisgarh. The Advocate General, inter alia, argued that the Rent Control Act having received the assent of the President of India, Section 13(2) thereof was protected by Article 138(2) read with Article 200 of the Constitution of India and was valid and enforceable. 5. After hearing Counsel and the learned Advocate General for the State of Chhattisgarh, the Bench was of the view that the appeal involved a substantial question of law as to the interpretation of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the interpretation of this Constitution. (2) ....... omitted w.e.f. 1.8.1979 (3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. Explanation.-For the purpose of this article, the expression final order includes an order deciding an issue which, if decided in favour of the Appellant, would be sufficient for the final disposal of the case. 133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.- (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies Under Article 134A (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law. 136. Special leave to appeal by the Supreme Court.- (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. 137. Review of judgments or orders by the Supreme Court.- Subject to the provisions of any law made by Parliament or any Rules made Under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. 138. Enlargement of the jurisdiction of the Supreme Court.- (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer (2) The Supreme Court shall have such further jurisdiction and powers with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. 143. Power of President to consult Supreme Court.- (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. (2) The President may, notwithstanding anythi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration. xxx xxx xxx 245. Extent of laws made by Parliament and by the Legislatures of States.- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. 246. Subject-matter of laws made by Parliament and by the Legislatures of States.-(1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). (2) Notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, Regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language. (2) Notwithstanding anything in Sub-clause (a) of Clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State: Provided that nothing in this Clause shall apply to any judgment, decree or order passed or made by such High Court. 8. Learned Counsel appearing on behalf of the Appellant submitted that the Rent Control Act has been enacted by the Chhattisgarh State Legislature, in exercise of legislative power conferred by Entry 18 of List II, that is, the State List in the Seventh Schedule to the Constitution of India. 9. Counsel argued that Entry 77 of List I, that is, the Union List, confers exclusive power to the Union Legislature, to legislate with regard to the constitution, organisation, juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture can restrict the appellate power of the High Court by providing for direct appeals to the Supreme Court. 17. Counsel argued that a comparative reading of Articles 138(2) and Article 200 show that the State can make a law conferring appellate jurisdiction on the Supreme Court in the following two conditions: (i) When Government of India and Government of any State agree to confer jurisdiction and power on the Supreme Court [Article 138(2)]; (ii) When the President assents to the Bill forwarded by the Governor of the State [second proviso to Article 200] 18. Learned Counsel submitted that in this case, the conditions of Article 138(2) and the Second proviso to Article 200 have both been complied with. The President has, on reference by the Governor, assented to the Bill, which has resulted in a new enactment. 19. Learned Counsel argued that, as per Article 74 of the Constitution, the President is to act as per the aid and advice of the Council of Ministers. To strengthen his argument that the President cannot act independently, but can only act on the aid and advice of his Council of Ministers, Counsel cited Samsher Singh v. the State of Punjab and Anr. AIR 1974 SC 2192 : (1974) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court as to endanger the position which that Court by this Constitution, is designed to fill in the last part of the second proviso to Article 200 alludes to derogation of the inherent powers of the High Court Under Articles 226 and Article 227 of the Constitution of India. The Rent Control Act does not touch the power of the High Courts, of judicial review Under Articles 226 and 227 of the Constitution of India. Section 13(2) of the Rent Control Act only confers appellate jurisdiction on the Supreme Court of India, which is not prohibited or barred under the Constitution. 25. Counsel emphatically reiterated his argument that the Rent Control Act has not conferred any jurisdiction on the Supreme Court, which it did not earlier possess. Article 136 provides for appeal to the Supreme Court against any order of any Court or Tribunal. Section 13(2) of the Rent Control Act is only in consonance with or may be an extension of the powers of the Supreme Court Under Article 136. 26. The learned Attorney General for India, on the other hand, submitted that Section 13(2) of the Rent Control Act which provides for direct appeal to the Supreme Court of India, from any order passed by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Constitution. 32. The learned Attorney General referred to the decision of this Court in K.K. Poonacha v. State of Karnataka and Ors. reported in (2010) 9 SCC 671, which interprets, inter alia, Article 31(3) of the Constitution, as it stood prior to its repeal. Article 31 pertained to the compulsory acquisition of property, and Clause (3) thereof stated that No such law as stated in Clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent . In K.K. Poonacha (supra), this Court opined: What was implicit in the language of Article 31(3) was that the particular law was within the legislative competence of the State and such law did not violate the provisions contained in Part III or any other provision of the Constitution. The assent given by the President in terms of Article 31(3) of the Constitution to a law enacted by the legislature of a State did not mean that the particular enactment acquired immunity from challenge even though the same was not within the legislative competence of the State or was otherwise violative of any constitutional provision. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws with respect to any of the matters enumerated in List III in the Seventh Schedule, that is, the Concurrent List. 38. While Parliament has exclusive power Under Article 246(1) of the Constitution to make laws with respect to the matters enumerated in the Union List, the State Legislature has exclusive power to make laws with respect to matters enumerated in the State List, subject to Clauses (1) and (2) of Article 246. Along with the Union Legislature, the State Legislature is also competent to enact laws in respect of the matters enumerated in the Concurrent List, subject to the provisions of Article 246(1). 39. The entries in the three lists, relevant to the issues referred to this Bench, that is, Entry 77 of the Union List, Entries 18 and 65 of the State List and Entry 46 of the Concurrent List are set out hereinbelow for convenience: List I-Union List 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court. List II-State List 18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insert Clause (h), thereby enabling the appropriate legislature to make law, providing for adjudication or trial by Tribunals of any disputes, complaints or offences, in respect of issues relating to tenancy and rent, including Regulation and control of rent. 45. The Explanation appended to Section (sic) Article 323B of the Constitution explains appropriate legislature in Article 323B to mean Parliament, or as the case may be, a State Legislature, competent to make laws with respect to the matter in accordance with the provisions of Part XI of the Constitution of India, which includes Articles 245 and 246. 46. On a conjoint reading of Article 323B and Articles 245 and 246 of the Constitution of India with Entry 18 of the State List in the Seventh Schedule, there can be no doubt that the State Legislature was competent to enact law to provide for adjudication and trial of all disputes, complaints and offences relating to tenancy and rent, by a Tribunal. 47. The Chhattisgarh State Legislature was thus competent to enact the Rent Control Act, to the extent that it provides for the adjudication of original disputes relating to tenancy and rent by the Rent Controller, and creates a Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislate with regard to landlord tenant relationship, collection of rents etc. This Entry does not enable the State Legislature to circumvent Entry 64 of the State List or Entry 46 of the Concurrent List which enable the State Legislature to enact laws with respect to the jurisdiction and powers of Courts, except the Supreme Court, or to render otiose, Entry 77 of the Union List, which expressly confers law making power in respect of the jurisdiction of the Supreme Court, exclusively to Parliament. 53. Entry 18 of the State List, which only enables the State Legislature to legislate with regard to land, land tenures, landlord tenant relationship, collection of rents etc. does not enable the State Legislature to enact law conferring appellate jurisdiction to the Supreme Court in respect of orders passed by an Appellate Rent Control Tribunal, constituted under a state law. 54. In view of Entry 77 of the Union List, only Parliament has the legislative competence to legislate with respect to the constitution, organization, jurisdiction or powers of the Supreme Court. Entry 64 of the State List and Entry 46 of the Concurrent List enable the State Legislature to enact law with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re with concurrent findings of fact Under Article 136. If the concurrent findings are based on accepted oral or documentary evidence, there is no interference Under Article 136 of the Constitution. 61. While exercising power Under Article 136 of the Constitution, the Supreme Court does not re-appreciate evidence which has been appreciated by the Trial Court and the High Courts, unless extraordinary circumstances exist. It is only where the High Court has completely missed the real point requiring adjudication or has missed or ignored the relevant material, would the Supreme Court be justified in getting into evidence for the purpose of preventing grave injustice to a party. 62. An appeal, on the other hand, is a continuation of the original proceedings. Where there is a statutory appeal from an appellate order of the Tribunal, the appellate court is obliged to rehear the case, re-appreciate and re-analyze the evidence on record, adjudicate the correctness of the order impugned and correct errors both of fact and of law, that the Tribunal may have made. 63. Article 200 of the Constitution relating to the passage of Bills except money Bills, requires Bills passed by the Legislative A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rent Control Act, since it does not derogate from any power of the High Court. It is well settled that there is no inherent right of appeal. Right of appeal is conferred by Statute. A Statute is not invalid only because it has no provision of appeal to the High Court. 70. For the purpose of this reference, it is not necessary for us to go into the question of which curtailments of the power of the High Court would threaten the position which the High Court is required by the Constitution to fill. 71. The amplitude of power conferred by Clauses 1 and 2 of Article 246, makes the Parliament competent to make a law enlarging the jurisdiction of the Supreme Court with respect to any of the matters enumerated in List I and III, even though such enlargement may not be contemplated by the various Articles of Chapter IV of Part V of the Constitution. 72. By virtue of the power conferred by Article 248 of the Constitution of India, the Parliament has, subject to Article 246A of the Constitution, exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. The residuary power of legislation thus rests with Parliament. 73. Suffice it to note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature, the competence and/or power to enact law affecting the jurisdiction of the Supreme Court. 78. A law made Under Article 323B(1) of the Constitution may exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court Under Article 136 with respect to the matters falling within the jurisdiction of the said Tribunals. However, as observed above, Article 323B(2) (d) or any other provision of the Constitution does not enable the State Legislature to enact law which provides for statutory appeals to the Supreme Court. 79. Section 13(2) of the Rent Control Act purports to confer a right of statutory Second Appeal to the Supreme Court. Even in case of concurrent findings of the Rent Controller and Rent Control Tribunal, where no serious question of law were involved, an appeal would have to be entertained and decided. Such a provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature, as argued by the learned Attorney General. Article 200 as observed above does not and cannot validate an ultra vires enactment, which the concerned Legislature lacked competence to enact. 80. Article 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction Under Article 227 cannot be exercised in the cloak of an appeal in disguise . 87. In exercise of its extraordinary power of superintendence and/or judicial review Under Article 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-assess or re-analyze the evidence and/or materials on record. Whether the High Court would exercise its writ jurisdiction to test a decision of the Rent Control Tribunal would depend on the facts and circumstances of the case. The writ jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of law. 88. In L Chandrakumar (supra) the Supreme Court in effect held that the power of the High Court Under Article 226/227 of the Constitution, being an inviolable basic feature of the Constitution such powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
