TMI Blog1977 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 the petition and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India, the Supreme Court is satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it is sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending petitions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lted from the replacement 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 or other instrument made under such Act: The word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disputed by Mr. Seervai. In support of the contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 infraction or violation of constitutional, non-fundamental or other legal rights is hardly a proper concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 house should be occupied by a 'tenant', and this house was not so occupied. 12. In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Clause (c). The phrase illegality in any proceedings need' not be restricted only to procedural illegality in the course of the proceedings and while, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 provided for by any law nor provided for under any other law . In other words, according to Mr. Seervai, unless remedy of a suit is found to be expressly provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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, in which case, according to the learned Counsel, so far as that individual is concerned, there is no remedy though a remedy is expressly provided by or under the law as for that individual the remedy will be il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Amendment) Bill, 1976. The relevant part which deals with the first three clauses of Article 226 in the Notes on clauses is in Clause 38. it is stated therein that the jurisdiction vested in the High Court is now a restricted jurisdiction, and They can exercise jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impugned action if a suit is not barred. But once such a remedy and a forum is made available by or under the relevant law, the fact that on account of certain circumstances the forum becomes unavailable by virtue of circumstances peculiar to the litigant himself does not make the forum or the remedy non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 change even under the new Article because the writs which the High Court was entitled to issue under the original Article 226 can also be issued even under the new Article 226. All that has happened now is that certain restriction with regard to matters in respect of which the writ jurisdiction can be exercised have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 functions discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice then it appears to me that the court can and must interfere. (Italics ours.) 30. That the existence of an alternative and equally efficacious remedy to a litigant did not affect the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rol 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 claimed that the agency has no jurisdiction in the particular case: 'an agency possessing authority over the general subject matter is entitled to proceed to a conclusion without judicial interference, If in the end it has mistaken its authority or jurisdiction, correction must come by way of judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 , as an American judge has said. It is a question of the legality of the government's conduct. Admittedly, futile disputes over jurisdiction could be a serious impediment to the work of administration if they were frequent. But administrative usurpations could equally be a serious thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 instance is so patent loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 or efficacious. The words other remedy or alternative remedy in the context of the exercise of writ jurisdiction of the High Court had become terms of art and had acquired a definite connotation and had always been understood to mean that the remedy should be adequate and equally eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end 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 to refer in detail to two unreported decisions of this Court relied upon by Mr. Singhavi. In Mahindra Owen Limited v. Shri V.W. Pandit (1968) Special Civil Application No. 1720 of 1966 and in Maganlal D. Radia v. The Municipal Corporation of Greater Bombay (1970) Special Civil Application No. 1255 of 1970, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 jurisdiction cannot be invoked to challenge the notice of the kind challenged by the petitioner in Miscellaneous Petition No. 529 of 1976. It is contended that the question with regard to the validity of notice can be adequately raised by the assessee in appeals provided under the Income Tax Act not only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 provided by or under any other law . 43. There is, however, serious dispute between the parties on the question whether the words any other remedy for such redress is provided by or under any other law for the time being in force includes a suit. 44. Mr. Seervai contends that there are certain statutes which expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 which was introduced in this country and followed, law in force within the meaning of Article 372(1)? If it is, then by virtue of Article 372(1) itself, the same law would continue to be in force until it is validly altered, repealed or amended. After referring to the earlier decision of the Supreme Court in Director of R. D. v. Corporation of Calcutta 1960Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability 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 Section 45, Sub-clause (d), Specific Relief Act. Mr. Munshi has strenuously contended that the specific remedy must be a remedy given by a statute and not merely a remedy by way of a suit. I see no reason to restrict the meaning of the expression 'specific and adequate legal remedy' to merely a remedy given by a statute and not an ordinary right of sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Jowitt in his Dictionary while referring to common law has observed as follows (p. 426): It is sometimes used in contradistinction to statute law, and then denotes the unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the will of the legislature.... It depends for its authority upon the recognition given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plitude 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 to be decided on the facts of each case. 53. Mr. Seervai then going back to Article 226(1) contended that an illegality contemplated by Article 226(1)(c) would cover an ultra vires action, a mala fide action or an action in violation of the principle of natural justice and the duty to act fairly, for, according to him, in certain situations the duty to act fairly applies also to administrative action. The illegality will also include, according to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed 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 justice in a trial body is not cured by any subsequent fair hearing by an appellate body. It is on the basis of these observations that it is contended by Mr. Seervai that in a case where the principles of natural justice are violated and the decision is a void decision, merely by taking recourse to the remedy provided by the relevant law, the deficiency of the natural justice which vitiated the decision cannot be cured in the proceedings in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural 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 does not cure the deficiency of natural justice in the trial body as being one of general application. The two rules of natural justice, namely, that no man should be condemned unheard and that every Judge must be free from bias, as they are often put in the Latin maxim audi alteram partem and nemo index in re sua have been treated as fundamental requirements not merely in the administration of justice in Courts in the strict sense but even in the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 have a notice of the proceeding against him whether he chooses to appear or not. What is the nature of the hearing which is required to be given will vary according to the relevant rules applicable in each case, It is true that natural justice requires that no man shall be condemned unheard , but in finding out whether a breach of this rule has been committed or not, the scope of the enquiry has always been only whether the person concerned has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter dealt with again will mean that the decision could not be treated as a nullity. The concept that an appellate decision is also void in a case where the trial decision is void will hold good, in our view, only where there is inherent lack of jurisdiction in the trial tribunal which cannot be cured in appeal. It is not, therefore, possible for us to agree with the broad proposition made by Megarry J. that the deficiency of natural justice in the trial body co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 outcome could not have been different had natural justice been fully observed. Several illustrations in support of this have been cited at footnote No. 25 including the decision of the Privy Council in Durayappah v. Fernando [1967] 2 A.C. 337 . Though the learned author has found it difficult to reconcile this view with the view that breach of the audi alteram partem rule makes the decision void, the use of the words perhaps rightly is significant and he has hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the field of public law, a view with which, with respect, we entirely agree. 65. The controversy with regard to void and voidable orders was noticed by the Supreme Court in Nawabkhan v. State of Gujarat 1974CriLJ1054 . An externment order under Section 56 of the Bombay Police Act was passed against Nawabkhan who was prosecuted under Section 142 but was acquitted. This order of acquittal was set aside by the High Court and it was held that the accused had re-entered the forbidden area during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clearly lay down that in cases where fundamental rights are not concerned, an order in violation of natural justice cannot be treated as void ab initio but that it is liable to be avoided in an appropriate proceeding. 67. Mr. Seervai, no doubt, contended that the decision of the Supreme Court in Nawabkhan's case cannot be taken to be an authority in respect of cases dealing with rights other than fundamental rights. As we have already pointed out above, the observations that orders passed in violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations 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 authorising Gujarat State Textile Corporation to take over the management of the whole of the company for a period of five years. This action was challenged before the Delhi High Court inter alia on the ground that though the investigating committee had submitted a report to the Government of India in January 1970, the Government did not furnish the management of the company with the contents of the report and Government should not only have supplied a copy of the report to the company be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem 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 opportunity of presenting his case and the administrative authority should act fairly, impartially and reasonably. The Supreme Court thus applied the test of prejudice in a case where a grievance of a violation of natural justice was made. It is true, as Mr. Seervai contended, that on facts it was found that there was no prejudice because the Government was found to have given the Mills ample opportunity to reopen and run the Mills and they just did not have the necessary resources to do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resenting 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, for it was much discussed in that case. Lord Reid (at page 81) reached the conclusion that the committee's decision was void and not merely voidable, and he relied on the decision in Wood v. Word (1874) L.R. 9 Ex. 190. Their lordships deprecate the use of the word void in distinction to the word voidable in the field of law with which their lordships are concerned because, as Lord Evershed pointed out in Ridge v. Baldwin [1963] 2 All E.R. 66 , letter I quoting from Sir Fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 briefly notice the argument which was founded mainly on the provisions relating to the powers of the Appellate Assistant Commissioner under Section 251 of the Income Tax Act, 1961, and provisions of Section 255(6) which deal with the powers of the Income Tax Appellate Tribunal. Mr. Joshi has drawn our attention to some decisions of the Supreme Court on the authority of which it is contended that the powers of the Appellate Assistant Commissioner of Income Tax are co-extensive w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mative 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 petitioner to the same said authority would be a matter of mere formality or a matter of ritual. The learned Judges of the division Bench seem to have taken the view that where preconceived or mala fide actions are brought before the Court, the petitioner may be able to satisfy the Court that a given remedy is not available to him. These observations are, in our view, clearly contrary to the earlier observations of the learned Judges where it was held that once the existence of a legal remedy is esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 sufficient to fasten the fetter of Clause (3) on the jurisdiction of the High Court. If we may say so, even the division Bench to a certain extent was inclined to take the view that in some cases depending upon the real availability or proper availability of the remedy, the bar of Clause (3) would not apply. 78. We would also like to point out that having regard to the nature of the claim, which was a monetary claim, pure and simple, it was really not necessary for the division Bench to go into an elaborate discussion on the content of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether 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 (4), it is stated that this power to make an interim order without furnishing copies of the petition and the relevant documents and giving opportunity to the other side to be heard is to be exercised by way of an exceptional measure. The Court has to be satisfied that in a given case it is necessary to make an interim order without complying with the provisions of Clause (4) and the Court has to record reasons showing that an interim order, as an exceptional measure, is required to be passed for preventing any loss being caused to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olled 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 that the provisions of Clauses (4) to (6) must be so construed as not to apply to petitions under Article 226(1)(a). The argument is that such a construction is likely to lead to absurd results. The first absurd result, according to the learned Counsel, is that no similar fetter having been put on the power of the Supreme Court under Article 32 of the Constitution and Supreme Court's power under Article 32 to make an interim order in a writ petition for purposes of enforcement of fundamental rights being unaffected, a litigant will be forced to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), (5) and (6), they applied equally to all petitions whether falling under Sub-clause (a), (b) or (c) of Clause (1) of Article 226. 89. Mr. Singhavi appearing on behalf of the Bombay Municipal Corporation and the State contended that even the powers of the Supreme Court have been curtailed to a limited extent because the Supreme Court has been deprived of its jurisdiction under Article 32A in the matter of considering the constitutional validity of any State law in any proceeding under Article 32 unless the constitutional validity of any Central law is also in iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Legislature clearly declares its intent in the scheme and language of the statute, it is the duty of the Court to give full effect to the scheme without scanning its wisdom or policy and without engrafting, adding or implying anything which is not congenial to or consistent with such express intention of the Legislature. See S.T. Commr. U.P. v. Parson Tools Plants, Kanpur [1975]3SCR743 . 92. In Craies on Statute Law, Seventh edn., at p. 64, it is observed: ...Strictly speaking, there is no place for interpretation or construction except where the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 to a nullity by the draftsman's unskilful ness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity, or the absolute intractability of the language used.' (p. 634). Bearing these principles in mind, the first thing that we must consider is whether there is any ambiguity in the words used in Clauses (4) and (6). When it is said that an ambiguity arises by giving the words their plain meaning, it means that the words, if they are construed in a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed 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 or project is of public utility and in the fourth category of cases whether the acquisition of the property is for the execution of a work or project of public utility. It is obvious that it will be for the respondent who seeks to invoke the bar created in Clause (6) to satisfy the Court when hearing is given as required by Article 226(4) that the facts on which the bar is sought to be invoked exist. 96. There is one important circumstance which also negatives the argument of Mr. Seervai that the operation of Clause (6) must; be restricted only to cases covered by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, therefore, not be possible to accept the argument of Mr. Seervai that the applicability of Clauses (4) to (6) should be restricted only to a petition which does not relate to fundamental rights. 97. The fact that the Supreme Court was capable of granting an interim order in a given case will not result in any absurdity if the positive intention of the Parliament was to restrict the powers of the High Court. 98. The retention of the original Article 226(1A) in the form of Clause (2) is also of no assistance in construing the provisions of Clauses (4) to (6) the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccur. 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 pending on February 1, 1977. In terms, Section 58 provides that every petition under the original Article 226 of the Constitution made before the appointed day, which is February 1, 1977, and pending before the High Court immediately before that day and any interim order made in that petition shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 38. Thus the provisions of amended Article 226 have now fastened themselves on petitions which were pending on February 1, 1977 having been filed prior to that date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 force on the appointed day, unless before the appointed day copies of such pending petition and of documents in support of the plea for such interim order had been furnished to the party against whom such interim order was made and an opportunity had been given to such party to be heard in the matter, such interim order ceases to have effect on the expiry of the periods which are separately mentioned in Clauses (a) and (b). In simple language, the effect of Sub-section (3) is that in a petition which does not abate under Section 58(2) if there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 is something which is required to be adjudicated upon as contemplated by the earlier part of Sub-section (2) read with the provisions in Sub-section (1). Only those petitions abate under Sub-section (2) of Section 58 which would not have been admitted by the High Court under the provisions of new Article 226. It is difficult to accept the extreme argument advanced by Mr. Singhavi that it is for the litigant to decide whether his petition would be admitted under the provisions of new Article 226. Admission of a petition is an act of the Court and it is difficult to see h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 be excluded. Where the Parliament wanted to specify the period after which the interim order was automatically to become inoperative, it has expressly said so in Clauses (a) and (b) of Sub-section (5). There the period of one month under Clause (a) and period of four months under Clause (b) has been expressly provided. Such period is to commence from February 1, 1977 which is the appointed day. The absence of any such express provision either in Sub-section (2) of Section 58 or the proviso thereto also indicates that the use of the words stand vacated did not evince an intention on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 against an order passed under original Article 226 before February 1, 1977. The argument is that what is pending in appeal is really the petition under Article 226 and, therefore, Section 58 will in terms be attracted to such an appeal. The foundation of this argument is primarily the decision of the Supreme Court in Dayawati v. Inderjit [1966]3SCR275 and the decision in Garikapati v. Subbiah Choudhry [1957]1SCR488 . Now, it cannot be seriously disputed that an appeal has been often described as a continuation of the suit and re-hearing of the suit. But in cases where a change in law during the penden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 contains words which manifest an intention to affect rights which become vested in parties as a result of a decision of a petition under Article 226. We may refer to the decision of the Supreme Court in Dewaji v. Ganpatlal [1969] M. L.J. 495 : 71 Bom. L.R. 693, where the question was whether a provision, requiring the civil Court to refer a question whether a transaction between a landholder and a person claiming to be a lessee is a lease within the meaning of the Berar Regulation of Agricultural Leases Act was applicable to pending appeals against the decision of the civil Court. Section 16A of the said Act read as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 required to be made dealing with a pending appeal, a reference to such pending appeal or cross appeal was expressly made in the Constitution. It, therefore, appears to us that if the Parliament wanted to make provisions of Section 58 applicable in the case of pending appeals, a clear and express reference to a pending appeal would have been made therein. 110. The decision in Dayawati's case turned on the applicability of a provision relating to reopening of money-lending transactions which provided that where the Court has reason to believe that the interest is excessive, the transactions shall be reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terminated and that decision cannot, therefore, be of any assistance for the construction of Section 58. 111. The observations in Garikapati's case on which Mr. Singhavi has placed reliance are contained in the first principle deduced in para. 23 of the judgment where it was observed (p. 553): ...That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. These observations are also of hardly any assistance. Though the Supreme Court has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither 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 constitutional validity of any Central law. Article 131A reserves exclusive jurisdiction to the Supreme Court to the exclusion of any other Court to determine all questions relating to the constitutional validity of any Central law. Clause (2) of Article 131A reads as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. When Article 226A uses the words shall not consider the constitutional validity , it is obvious that those words have been used with a view to provide that the High Court shall not decide on the validity of the Central law and not with a view to even bar the determination of the question whether a reference is necessary to be made to the Supreme Court. 117. In Kuldeep Singh v. Union of India [1975] 1 S.L.R. 792, the concept of the word 'consider' was stated by a division Bench as follows (p. 803): ...The word 'consider' or the process of consideration has wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. The importance of this aspect has been greatly increased by the tendency of modern legislation to submit the determination of such questions to tribunals other than the ordinary courts of law, and to Ministers and other official persons and bodies. Where (as is frequently the case) no right of appeal to the courts exists, the three orders here under consideration form the principal means by which the determinations of these tribunals and other persons and bodies ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notice the distinction between the said two categories of acts. The relevant criteria have been laid down with clarity by Atkin, L.J., in Rex v. Electricity Commissioners : London Electricity Joint Committee Co. (1920), Ex parte [1924] 1 K.B. 171 elaborated by Lord Justice Scrutton in Rex v. The London County Council : The Entertainments Protection Association, Ex parte [1931] 2 K.B. 215 and authoritatively restated in Province of Bombay v. K.S. Advani [1950]1SCR621 . The said decisions laid down the following conditions to be complied with : (1) The body of persons must ..... X X X X Extracts X X X X X X X X Extracts X X X X
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