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Allahbad High Court
D.S.MATHUR,A.K.KIRTI,GOPINATH
Hakim Singh - Appellant
Versus
Shiv Sagar - Respondent
Decided On : 04/13/1973
Constitution Bench - Constitution of India, 1950 - Article 226 - Article 227 - Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 (U.P. Act No. XIV of 1962) - Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972 (U.P. Ordinance No. 12 of 1972) - Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 (U.P. Act No. 18 of 1972) - Validity - Whether the Amending Ordinance and the Amending Act are ultra vires and beyond the competence of the State Legislature - Whether they are violative of Article 14 of the Constitution of India - Whether the Principal Act is beyond the competence of the State Legislature and is hit by Article 14 of the Constitution - Whether an Act amending an invalid enactment can have any legal effect - Held, the Amending Ordinance and the Amending Act are ultra vires and beyond the competence of the State Legislature - The Principal Act is not beyond the competence of the State Legislature and is not hit by Article 14 of the Constitution - An Act amending an invalid enactment can have no legal effect.
Fact of the Case:
The appellant challenged the constitutionality of the Amending Ordinance and the Amending Act on two grounds: firstly, that the provisions thereof are ultra vires and beyond the competence of the State Legislature; and secondly, that they are violative of Article 14 of the Constitution of India. In this connection it is also contended that the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, (U.P. Act No. XIV of 1962) (hereinafter referred to as the "Principal Act") was also beyond the competence of the State Legislature and was hit by Article 14 of the Constitution and, therefore, an Act amending an invalid enactment can have no legal effect.
Finding of the Court:
The Amending Ordinance and the Amending Act are ultra vires and beyond the competence of the State Legislature - The Principal Act is not beyond the competence of the State Legislature and is not hit by Article 14 of the Constitution - An Act amending an invalid enactment can have no legal effect.
Issues: 1. Whether the Amending Ordinance and the Amending Act are ultra vires and beyond the competence of the State Legislature? 2. Whether the Principal Act is beyond the competence of the State Legislature and is hit by Article 14 of the Constitution? 3. Whether an Act amending an invalid enactment can have any legal effect?
Ratio Decidendi: 1. The entries of the Seventh Schedule of the Government of India Act, 1935 were being considered in AIR 1951 SC 69 and the law laid down in AIR 1968 SC 888, these entries relate to special jurisdiction and powers of all the courts except the Supreme Court conferred by the Parliament or the State Legislature. They are special provisions relating to particular subjects referred to in the Lists. In pursuance of these provisions the State Legislature can enlarge, reduce or rescind the jurisdiction and powers generally conferred on the Courts of law including the High Court, or create special Courts or Tribunals, and the Parliament can, similarly create special Courts or restrict, enlarge, or rescind the general jurisdiction, of such Courts. The three entries can, therefore be said to relate "to special" jurisdiction and powers of all the Courts except the Supreme Court, including the High Courts established under the Constitution and constituted and organised by the Parliament in accordance with the Constitution. Any legislation in this respect shall be by a competent legislature, that is by the Parliament with respect to the matters enumerated in Lists I and III, and the State Legislature with respect to the matters in List II and with the assent of the President to matters in List III. 2. The scope of these expressions is now to be considered in the light of these entries existing in different legislative lists, so far as the High Courts are concerned. "Administration of justice" is included in Entry 3 of State List II. The State Legislature has the exclusive power to make laws in respect of "administration of justice." "Constitution and organization of all courts except the Supreme Court and High Courts" has also been included in Entry 3, but "constitution and organization of High Courts" finds place in Entry 78 of Union List I, which lays down the exclusive field of legislation of the Parliament. "Jurisdiction and powers of all courts except the Supreme Court" finds place in Entry 95 of Union List I, Entry 65 of State List II and Entry 45 of the Concurrent List III. These Entries restrict the scope of "jurisdiction and powers" to the matters enumerated in the Lists. The Parliament can, therefore, make laws as to the jurisdiction and powers of all the courts with respect to the matters in Lists I and III, while the State Legislature can make laws as to the jurisdiction and powers of all courts except the Supreme Court with respect to the matters in List II and with the assent of the President with respect to any of the matters in List III. When similar subjects have been included in different legislative lists, the real question arises as to how these entries have to be construed? 3. In the case of two competing or overlapping entries existing in different Lists, both not being within the legislative competence of the same legislature, each entry must be given its widest amplitude, consistent with the reservation of a field of legislation for another entry, and the width of such interpretation be not such as to make either of the entries a nullity, or to unreasonably cut down the amplitude thereof. In the case of such competing entries the field of legislation for an entry which can be regarded as special and not general, shall exclude the field of a general entry and in order not to make any of the entries futile or otiose, such amplitude may be given to the special entry as not to unduly reduce the scope of the general entry. The scope of the special entry can be restricted to matters which must be comprehended therein. It shall thereby be possible to maintain the scope of a general entry which must be given the widest amplitude and at the same time the special entry shall cover matters which must be included in such entry. 4. In this view of the matter "jurisdiction and powers" covered by Entry 95 of List I, Entry 65 of List II and Entry 46 of List III of the Seventh Schedule of the Constitution of India will form a special group as compared to "administration of justice" and "constitution and organization". While considering the latter two entries "administration of justice", which is or can be used in a wider sense, can be regarded as a general entry while "constitution and organization" as a special entry. Consequently, Entries 95, 65 and 46 of the three Lists shall exclude "administration of justice" in Entry 3 of List II and "constitution and organization of High Courts" in Entry 78 of List I ; and in case of High Courts, Entry 78 of List I shall exclude Entry 3 of List II.
Final Decision: The Amending Ordinance and the Amending Act are ultra vires and beyond the competence of the State Legislature.
MATHUR, J. :- Special Appeal No. 499 of 1972 is by Hakim Singh, petitioner, against the order of the learned Single Judge of this Court dismissing, his Writ Petition No. 3306 of 1970, wherein the judgments and decrees of the Board of Revenue and the Additional Commissioner in a revenue suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act were challenged. This appeal was preferred even though under the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972, (U. P. Ordinance No. 12 of 1972) (hereinafter referred to as the Amending Ordinance), later replaced by the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972, (hereinafter referred to as the "Amending Act") such an appeal was not maintainable. In the Special Appeal the petitioner has challenged the constitutionality of the Amending Ordinance and the Amending Act. At the time of the hearing of the Special Appeal, at the stage of admission the Bench referred the above question, i.e. maintanability of the Special Appeal to a larger Bench which has now come up for hearing before this Full Bench. The validity of the Amending Ordinance and the Amending Act is also challenged in Special Appeal No. 455 of 1972 arising out of an order passed by the authorities under the U. P. Consolidation of Holdings Act. On an application made this Special Appeal was ordered to be listed for hearing along with the other Special Appeal.
2. The constitutionality of the Amending Ordinance and the Amending Act has been challenged on two grounds : firstly, that the provisions thereof are ultra vires and beyond the competence of the State Legislature ; and secondly, that they are violative of Article 14 of the Constitution of India. In this connection it is also contended that the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, (U. P. Act No. XIV of 1962) (hereinafter referred to as the "Principal Act") was also beyond the competence of the State Legislature and was hit by Article 14 of the Constitution and, therefore, an Act amending an invalid enactment can have no legal effect.
3. Under clause 10 of the Letters Patent dated the 17th of March, 1866, establishing the High Court of Judicature at Allahabad an appeal lay to the same High Court from the judgment of a Single Judge other than a judgment in second appeal, civil revision or in exercise of the criminal jurisdiction. An appeal from the judgment of a Single Judge passed in second appeal was maintainable only where the Judge who passed the judgment declared that the case was a fit one for appeal. On the amalgamation of the High Court at Allahabad and the Chief Court in Oudh and the Constitution of one High Court by the name of the High Court of Judicature at Allahabad (referred to in the U. P. High Courts (Amalgamation) Order, 1948 as the "new High Court"), the Letters Patent ceased to have effect except for the purpose of construing or giving effect to the provisions of the above Order, which shall, hereinafter, be referred to as the "Amalgamation Order". However, under clause 7 (1) of the Amalgamation Order the new High Court has all such original appellate and other jurisdiction as. under the law in force immediately before the appointed day was exercisable in respect of any part of that Province by either of the existing High Courts, Clause 10 of the Letters Patent thus continued to govern appeals against the judgment of a Single Judge of the High Court. Such appeals were known as Letters Patent Appeals, but they were later named as Special Appeals.
4. Special Appeals against the judgment or order of a Single Judge made in the exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the High Court were abolished under Section 3 of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962. Under the Uttar Pradesh High Court (Abolition of L
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