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Gujarat High Court
Judgename :B.K.MEHTA, D.A.DESAI, J.B.MEHTA, P.D.DESAI
CHHAGANLAL DEVCHAND - Appellant
Versus
NAVALKUNVAR TALAKCHAND - Respondent
S.C.A. 425 of 1972
Decided On : 04/13/1977
Bombay Rents Hotel and Lodging House Rates Control Act – Section 29 - Eviction – Jurisdiction of Court - whether this Court has jurisdiction over decisions of Tribunals in view of the amendment to Article of e Constitution - Whether amended Article has retrospective effect so as to effect pending matters Article either admitted or filed before amendment and pending admission against decisions of Tribunals - Unlamented Constitution provided so far relevant that every High Court shall have superintendence over all courts and tribunals throughout territories in relation to which it exercises jurisdiction - Thus Article conferred on High Courts a power of judicial review over decisions of Courts and Tribunals - Article as amended so far relevant reads as follows - Every High Court shall have superintendence over all courts subject to its appellate jurisdiction - power of judicial review in view of the amended provision is limited and there under decisions of the Courts subordinate to the appellate jurisdiction of the High Court can only be revised - Question is whether the High Court can exercise power of judicial review in respect of decisions of Tribunals passed prior to against which the writ petitions are pending in High Court on that day that is when the amended Article came into force – Held, Government - Article provides that a law made may provide for the transfer to each such administrative - It is also necessary to note that by Constitution both Articles are amended and while effecting an amendment in Article Amending Constitution Act by has made special provisions giving retrospective effect to amended Article in respect of certain pending matters - No provision giving retrospective effect to amended provisions of Articles made - Moreover Constitution Act - A has been added which includes Articles - Thus added provides so far relevant that Parliament may by law provide for adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of Union or of any State or of any local or other authority within territory of India or the control of Government of India or of any corporation owned or controlled tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment - Article provides that appropriate Legislature may by law provide for adjudication or trial of any dispute complaints or Offenses with respect to all or any of the matters specified in with respect to which such Legislature has power to make laws - Article sets out matter -A provides for transfer to such tribunal of any cases pending before any court or other authority immediately before establishment of such tribunal as would have been within the jurisdiction of such tribunal if causes of action on which such suits or proceedings are based had arisen after such establishment government - Provides that a law made may provide for the transfer to each such administrative IT is also necessary to note that by Constitution Act both are amended and while effecting an amendment in article amending constitution Act has made special provisions giving retrospective effect to amended Article in respect of certain pending matters - No provision giving retrospective effect to amended provisions of Article is made - Moreover Constitution Act Part has been added which includes Articles - A thus added provides so far relevant that Parliament may by law provide for adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of Union or of any State or of any local or other authority within territory of India or under control of Government of India or of any corporation owned or controlled tribunal of any cases pending before any court or other authority immediately before establishment of such tribunal as would have been within jurisdiction of such tribunal if causes of action on which such suits or proceedings are based had arisen after such establishment - Article provides that appropriate Legislature may by law provide for adjudication or trial of any dispute complaints or Offenses with respect to all or any of matters specified in with respect to which such Legislature has power to make laws - Article sets out matter provides for transfer to such tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if causes of action on which such suits or proceedings are based had arisen after such establishment- Order accordingly
( 1 ) ALL these writ petitions are directed against the decisions of Tribunals and the question before me sitting singly was whether this Court has now jurisdiction over the decisions of the Tribunals in view of the amendment to Article 227 of the Constitution. The question of general importance was thus raised before me and therefore following reference was made: referred to a larger Bench for decision whether the amended Article 227 has retrospective effect so as to effect pending matters under Article 227 (unamended) either admitted or filed before the amendment and pending admission against the decisions of Tribunals. UNAMENDED Article 227 of the Constitution provided so far relevant that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Thus the Article conferred on High Courts a power of judicial review over the decisions of Courts and Tribunals. Article 227 as amended so far relevant reads as follows:227 Every High Court shall have superintendence over all courts subject to its appellate jurisdiction. The power of judicial review in view of the amended provision is limited and thereunder decisions of the Courts subordinate to the appellate jurisdiction of the High Court can only be revised. The question is whether the High Court can exercise power of judicial review in respect of decisions of Tribunals passed prior to February 1 1977 against which the writ petitions are pending in the High Court on that day that is when the amended Article 227 came into force.
( 2 ) NOW Articles 226 and 227 as they originally stood provided Constitutional remedies to an individual The provisions of both the Articles were substantive provisions of law and not one relating to procedure. The amended Articles 226 and 227 are also substantive provisions of law; they are Constitutional provisions empowering judicial review. The earlier substantial power of judicial review over decisions of the Tribunals is now withdrawn in view of the amended provisions of Article 227 Thus there is a major change in the substantive provisions of the Constitution The rule of interpretation is that the substantive provisions of law are always prospective in operation unless there is an express provision giving a retrospective effect or there is anything in them which necessarily indicates a retrospective effect thereof vide JOSE DE COSTA AND ANOTHER V. BASCORA SADASHIVA SINAI NARCORNIN AND OTHERS A. I. R. 1975 SC 1843. In KESHAV LAL JETHALAL SHAH V. MOHANLAL BHAGWANDAS AND ANOTHER 9 G. L. R. 868 the facts were that a decree of ejection under the Bombay Rents Hotel and Lodging House Rates Control Act was passed by the trial Court and confirmed in appeal. The party aggrieved by the order filed civil revision application under sec. 115 of the Civil Procedure Code and the same was admitted by the High Court. Pending final hearing of the revision application sec. 29 of the Bombay Rents Hotel and Lodging House Rates Control Act was amended and under the amended provisions the High Court was given power of revision if it was satisfied that a decision in appeal was not according to law. thus by the amendment the revisional power of the High Court was enlarged. The Court had to consider whether the provisions of sec. 2g (2) as amended governed the pending cases. Two fold contentions were advanced before the Supreme Court. The first contention was that the fight of revision that is right to move the superior court attached to a litigation when it commenced and it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment. The second contention was that the order of the appellate Court which had acquired finality subject to the exercise of the limited jurisdiction by the align Court under sec. 115 of the Code of Civil Procedure coup not in absence of a provision in the Amending Act mak
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