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Andhra Pradesh High Court
Judges : A.GANGADHARA RAO, A.SAMBASIVA RAO, K.MADHAVA REDDY
Government of India - Appellant
Versus
National Tobacco Co.of India Ltd., Calcutta - Respondent
Decided On : 03-11-77
The Court examined the scope and ambit of Article 226 of the Constitution of India as amended by the 42nd Amendment. The Court held that the new Article 226 substituted the old Article 226 and introduced new provisions, including Article 131-A and 226-A. The Court clarified that the power under Article 226 is not obstante to the right to move the Supreme Court for the enforcement of fundamental rights under Article 32. However, the jurisdiction of the High Court under Article 226 is now subject to the provisions of Article 131-A and 226-A. The Court explained that Article 131-A restricts the High Court's jurisdiction in regard to questions of constitutional validity of Central laws and empowers the Supreme Court to transfer cases involving the same or substantially the same questions of law to itself or to any other High Court. Article 226-A reiterates the bar on the High Court's jurisdiction to consider the constitutional validity of Central laws. The Court emphasized that the Parliament deliberately omitted the words "for any other purpose" from the new Article 226, thereby intending to specify the grounds on which a writ, direction, or order can be issued. The Court clarified that the grounds are now limited to contravention of a provision of the Constitution or any law, rule, regulation, bye-law, or other instrument made thereunder, or illegality in proceedings before authorities. The Court interpreted the expression "any order" to mean statutory orders made under the Constitution, any enactment, or Ordinance. However, the Court held that administrative instructions given by the executive authority cannot be considered as instructions made under Article 73 or 162 of the Constitution. The Court further explained the concept of "illegality" under Article 226(c) and held that it refers to illegalities in proceedings before authorities, including the final adjudication of such proceedings. The Court clarified that the bar contained in Article 226(3) does not apply to petitions seeking enforcement of fundamental rights. The Court also interpreted Section 58 of the 42nd Amendment Act, which provides special provisions for pending petitions under Article 226. The Court held that Section 58 applies to writ petitions and interim orders pending on the appointed day, but it does not apply to writ appeals or applications for leave to appeal to the Supreme Court. The Court emphasized that the Parliament did not intend to include writ appeals within the scope of Section 58. The Court concluded by directing that the matters before it be posted before the appropriate Division Bench or learned Single Judge for disposal in light of the principles laid down in the judgment.
Fact of the Case:
None
Finding of the Court:
None
Issues: None
Ratio Decidendi: 1. The new Article 226 substituted the old Article 226 and introduced new provisions, including Article 131-A and 226-A. 2. The power under Article 226 is not obstante to the right to move the Supreme Court for the enforcement of fundamental rights under Article 32. 3. The jurisdiction of the High Court under Article 226 is now subject to the provisions of Article 131-A and 226-A. 4. Article 131-A restricts the High Court's jurisdiction in regard to questions of constitutional validity of Central laws and empowers the Supreme Court to transfer cases involving the same or substantially the same questions of law to itself or to any other High Court. 5. Article 226-A reiterates the bar on the High Court's jurisdiction to consider the constitutional validity of Central laws. 6. The Parliament deliberately omitted the words "for any other purpose" from the new Article 226, thereby intending to specify the grounds on which a writ, direction, or order can be issued. 7. The grounds are now limited to contravention of a provision of the Constitution or any law, rule, regulation, bye-law, or other instrument made thereunder, or illegality in proceedings before authorities. 8. The expression "any order" means statutory orders made under the Constitution, any enactment, or Ordinance. 9. Administrative instructions given by the executive authority cannot be considered as instructions made under Article 73 or 162 of the Constitution. 10. "Illegality" under Article 226(c) refers to illegalities in proceedings before authorities, including the final adjudication of such proceedings. 11. The bar contained in Article 226(3) does not apply to petitions seeking enforcement of fundamental rights. 12. Section 58 of the 42nd Amendment Act applies to writ petitions and interim orders pending on the appointed day, but it does not apply to writ appeals or applications for leave to appeal to the Supreme Court. 13. The Parliament did not intend to include writ appeals within the scope of Section 58.
Final Decision: None
( 1 ) ALL these matters are placed before a Full Bench in view of the 42nd Amendment to the Constitution of India. There are writ petitions, writ appeals and a Supreme Court leave petition amongst them. These cases cover the entire gamut of Article. 226. which is newly substituted by the 42nd Amendment, the scope and amplitude of Section 58 of the Amendment Act and its impact on pending writ petitions, writ appeals and interlocutory petitions therein as well as petitions seeking leave for appeal to the Supreme Court. More than one Division Bench have referred several of the above cases seeking an authoritative pronouncement of a Full Bench on all these aspects, with the result that we will have to consider now in this judgment the full scope of Article. 226, as substituted by the 42nd Amendment and of Section 58 of that Amendment Act.
( 2 ) WE may also point out that none of the above cases is under Article. 227 and so much so, no arguments have been advanced on the scope of Article. 227 of the 42nd Amendment. We are not, therefore, expressing any opinion on that particular provision.
( 3 ) IT must be noted at the outset that the 42nd Amendment Act has not merely added to Article. 226 a new clause here or deleted an old clause there. Instead, by virtue of Section 38 of the Act a new Article. 226 is substituted. Further, some new articles have also been added which have great impact on the scope of Article. 226. Section 58 of the Amendment Act is not made a part of Constitution but has been enacted by the Parliament as a separate provision for pending petitions under Article. 226. Patently it is transitory provision laying down the guidelines according to which petitions pending on the appointed day viz. , 1/02/1977 should be disposed of. The new Article. 226 Clause (1) starts with a non-obstante clause. It says that"notwithstanding anything in Article. 32 but subject to the provisions of Article. 131-A and Article. 226-A", every High Court shall have power to exercise the jurisdiction thereunder in the manner specified later in the Article. . Therefore, this power under Article. 226 can be exercised by every High Court notwithstanding anything contained in Article. 32 which provides for the right to move the Supreme Court for the enforcement of the rights conferred by part III of the Constitution. For the enforcement of any of the rights conferred by the provisions of Part III a High Court also can be moved by virtue of sub-cl. (a) of Clause (1) of Article. 226. That is why Clause (1) of Article. . 226 says as old Article. 226 has also done that the power thereunder can be exercised notwithstanding anything in Article. 32. At the same time, the power of the High Court under the Article. is now subject to the provisions of Article. 131-A and 226-A.
( 4 ) A new Article. 131-A was introduced by Section 23 of the 42nd Amendment which lays down that the Supreme Court alone has exclusive jurisdiction in regard to questions as to constitutional validity of Central laws. In this regard the jurisdiction of any other Court is specifically excluded. However, under Clause (2) of Article. 131-A, duty is cast on the High Court to refer certain questions for the decision of the Supreme Court when it is satisfied 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 that the determination of such questions is necessary for the disposal of the case. Under Clause (3) of Article. 131-A, power is conferred on the Supreme Court to require the High Court to refer such questions to it for its decision on an application made by the Attorney-General of India in this behalf. At the same time, the newly introduced Article. 32-A precludes the Supreme Court from considering the constitutional validity of any State law in any proceedings under Article. 32, unless the constitutional validit
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