A. Sambasiva Rao, Ag.C.J.
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., 1st February 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. 226A', 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 validity of any Central law is also in issue in such proceedings. Immediately after Article. 226. A new Article. Art. 226-A has been introduced by virtue of Section 39 of the Amendment Act. It says:
'Notwithstanding anything in Article. 226, the High Court shall not consider the Constitutional validity of any Central law in any proceedings under that Article..'
It may be immediately noticed that Article. 226-A reiterates what is provided under Article. 131-A. These are the specific exclusions from the High Court's jurisdiction under Article. 226.
5. Further, two new Articles - Article. 323-A and Article. 323-B - are introduced in the Constitution by Section 46 of the Amendment Act. Article. 323-A provides for the Constitution of Administrative Tribunal and enables the Parliament to make laws providing for the adjudication of service matters by Administrative Tribunals. Likewise, the appropriate legislature is empowered under Article. 323-B to make laws providing for adjudication or trial by Tribunals of disputes, complaints or offences with respect to all or any of the matters specified in Clause (2) thereof. If and when such laws are made Clause 2(d) of Article. 323-A and Clause 3(d) of Article. 323-B enable the Parliament or appropriate legislature to provide for the exclusion of the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article. 136, with respect to the disputes or complaints referred to in Clause (1). If and when such laws are made containing the provision for exclusion of jurisdiction of all Courts excepting that of the Supreme Court under Article. 136, then the High Court will not have jurisdiction under Article. 226 to adjudicate upon such matters as are contained in those two Article.. Until such laws are made containing the exclusion clause, the High Court will continue to have jurisdiction to entertain matters relating to these subject under Article. 226. It should, however, be mentioned that by virtue of Article. 371-D inserted by the Constitution 32nd Amendment Act. 1973, an Administrative Tribunal for the State of Andhra Pradesh has been constituted. Clause (7) of Article. 371-D has provided that the High Court of the State shall not have any powers of superintendence over Administrative Tribunal and no Court other than the Supreme Court or Tribunal shall exercise any jurisdiction power or authority in respect of any matter subject to the jurisdiction, power or authority of or in relation to the Administrative Tribunal.
6. We may also incidentally refer to Article. 139-A newly introduced by Section 24 of the 42nd Amendment which provides for transfer of cases, if the Supreme Court is satisfied, on an application made by the Attorney-General of India that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance. Likewise, under Clause (2) of Article. 139-A the Supreme Court is conferred with power to transfer any case, appeal or other proceeding pending before any High Court to any other High Court, if it deems it expedient so to do for the ends of justice. This provision does not affect the power of the High Court to entertain writ petitions under Article. 226. But cases which come under the ambit of Article. 139-A may be withdrawn by the Supreme Court to itself or may be transferred to any other High Court.
7. It appears convenient to examine Clause by Clause in order to find out the true ambit of Article. 226. Adopting this method, we will first take up Clause (1) along with sub-cl. (a). This particular part of the new Article. is different from Clause (1) along with sub-cl. (a). This particular part of the new Article. is different from Clause (1) of old Article. 226 only in two respects. The first is in regard to the feature that the power under Article. 226 is now subject to the provisions of Article. 131-A and Article. 226-A, to which aspect we have already adverted. The second point of departure is that the words 'and for any other purpose' in former Clause (1) are now absent in Clause (1) or for that matter, in the entirety of the Article.. Excepting in these two respects, Clause (1)(a) is the same as the old Clause (1) word by word. Therefore, it is not necessary to decide the nature of the writs, directions or orders which can be issued and against whom or which authorities they can be issued. The Parliament evidently intended to retain the law as it has stood and, as it has been construed and laid down by the Supreme Court and several High Courts in this behalf.
8. The main point of departure from the old Article. is the inclusion of sub-cls. (b) and (c) in Clause (1). They have been obviously introduced in the place of the words 'for any other purpose'. It is manifest that by introducing sub-cls. (b) and (c) the Parliament decided to specify the delineate regions of jurisdiction under Article. 226 in the place of the previous Article. 226 in the place of the previous expression 'any other purpose'. Some learned counsel appearing for the petitioners and appellants have argued before us that the wide language employed in sub-cls. (b) and (c) would have the effect of maintaining the writ jurisdiction of this Court as wide as before. Some learned counsel have gone a step further and contended that though in the objects and reasons and the notes appended thereto the object was declared to abridge the jurisdiction under Article. 226, in actuality sub-cls. (b) and (c) expand the frontiers of the pre-existing jurisdiction under Article. 226. It has been argued for instance that on account of the use of the word 'bye-law' in sub-cl. (b) writs can be issued now even against a co-operative society if it has contravened any bye-law made in regard to it. Another submission in this behalf is that the word 'any order' occurring in sub-cl. (b) is so wide that it can take in within its amplitude even administrative directions and instructions, so that the Court can now issue writs, directions or orders if it is satisfied that there is a contravention of any such administrative directions or instructions. Another point that has been made in this behalf is that what has been a discretionary relief is now made a matter of right in the aggrieved person to seek and secure a writ, direction or order if there is any contravention of law, rule etc., mentioned in sub-cl. (b). Another argument is that Article. 226 should be construed from the broader perspective of the preamble to the Constitution and if so construed, the scope of Article. 226 becomes as wide as the Constitution itself. It was pointed out that the word 'injury' now occurring in Article. 226 is wider than right and therefore it is not now necessary that an aggrieved person should have a right to seek redressal from the High Court under Article. 226; it would be sufficient if he has been subjected to an injury of a substantial nature. Another aspect, which was sought to be projected, is that construction which favours the citizen and which sustains and even enlarges the power of the High Court should be preferred. Another point of view which is worthy of note placed before us by the learned counsel for the petitioners and appellants is that the several aspects contained in sub-cls. (a), (b)and (c) of Clause (1) do not cover the entire arena of the jurisdiction under Article. 226. What is stated in those sub-cl. is only illustrative of the power under Article. 226. This idea is illustrated by pointing out that aspects like violation of natural justice, any order being ultra vires, or any order suffering from lack of jurisdiction or being vitiated by error apparent on the face of the record are not mentioned anywhere in Article. 226. These omissions do not mean that the High Court cannot exercise writ jurisdiction under Article. 226 if any proceedings are vitiated by any of the features stated above. It has been consequently urged that none of the principles of writ jurisdiction have been given up by the Parliament. That is why the Parliament deliberately chose to retain the power of the High Court to issue all kinds of writs, directions and orders which were being issued so far. The word 'illegality' occurring in sub-cl. (c), it was stressed before us, is capable of taking in all that was contained in the words 'for any other purpose'. It has even been argued that despite Article. 37 writs can be sought and issued even to enforce directive principles. In support of this proposition, reliance is placed on Wade's Administrative Law (Third Edition) at p. 128, 129, 138 and 139, S. A. Defendant Smith's Judicial Review of Administrative Action (Third Edition) at p. 368 and 369 and the decisions of the Supreme Court of India in Venkateswara Rao v. Government of Andhra Pradesh, : 2SCR172 , Dwaraka Nath v. I. T. Officer, : 57ITR349(SC) and M. S. Jain v. State of Haryana, : 2SCR361 .
9. All these arguments do not really help in the decision of the questions canvassed before us. What we are now concerned with is to find out the jurisdiction of the High Court under Article. 226 as it has been amended by the Constitution 42nd Amendment. We have already noted the fact, which is very significant, that the Parliament has not merely added a clause here or deleted a clause there, to the pre-existing article. It has substituted altogether a new complete provision. In order to find out the scope and ambit of the provision, we will have to rely on the language employed in the article itself. It is dangerous and in some cases unnecessary to rely upon the old precedents which were decided on the basis of the law as it then existed. The old ideas and rulings would become relevant only to the extent that the provisions of the old Article. are retained and maintained. We have already pointed it out while dealing with Clause (1) and sub-cl. (a) of the Article.. But the same considerations do not and shall not apply when we come to sub-cls. (b) and (c) of Clause (1) and other newly introduced provisions. The Parliament has deliberately omitted the words 'for any other purpose' and instead, introduced sub-cls. (b) and (c). It is, therefore clear that in addition to the enforcement of fundamental rights, a writ can now be issued if the case comes within the purview of sub-cls. (b) and (c). It is, therefore, necessary to understand that ambit with the aid of the language used in those two sub-clauses. Cases which have considered the amplitude of the expression 'for any other purpose' cannot be of much assistance of this context.'
10. Sub-cl. (b) and (c) are in the following terms:-
'(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law, or other instrument made thereunder, or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-cl. (b) where such illegality has resulted in substantial failure of justice.'
In addition to the enforcement of any fundamental right, these are the grounds on which a writ, direction or order can now be issued. These grounds other than the enforcement of any of the fundamental rights are classified into two divisions, the first one being covered by sub-cl. (b) and the second one by sub-cl. (c). The broad classification under the two sub-cl. appears to be that sub-cl. (b) applies where there is a contravention of a provision of a substantive law while sub-cl. (c) applied where there is an illegality in proceedings before authorities. However, mere contravention of a provision of substantive law and an illegality in any proceedings by themselves are not sufficient for the issuance of a writ. Only those contraventions of law which have caused to a person, an injury of a substantial nature could provide basis for issuing a writ, direction or order. Similarly, occurrence of illegality in any proceeding does not warrant the issuance of a writ, direction or order. Such illegality must have resulted in substantial failure of justice, before the Court exercises its extraordinary jurisdiction.
11. Some debate took place before us as to the connotation of the expressions 'injury of a substantial nature' and 'substantial failure of justice'. It was said that a mere threat to cause injury cannot be construed as an injury of a substantial nature. This argument was sought to be illustrated by citing the example of a show cause notice for taking punitive action against an individual under any statute or other provision of law. It was also said that a mere imaginary grievance or injury could not be brought to the Court under Article. 226. Likewise, if there is some irregularity in the conduct of a proceeding, it cannot be said to be an illegality which has resulted in the substantial failure of justice.
12. An observation by Das Gupta, J. in State of Madhya Pradesh v. Bhailal Bhai, : 6SCR261 in para 15 was relied on. There, the learned Judge observed:
'Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed, an application under Article. 226 would lie and the Courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the Court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the Court must still refuse, where the right had been actually invaded to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.'
Whether even a threat, for instance held out through a show cause notice to a person, has caused an injury of substantial nature will naturally depend upon the circumstances of each case. In such matters, it would be impossible, at any rate unwise to lay down hard and fast guidelines. If the Court finds, on an examination of the threat, held out or notice issued, that causing of substantial injury is certain to follow or is imminent, then certainly it would be a case where injury of a substantial nature existed. Let us illustrate this by referring to a notice to a Co-operative Society managing Committee to show cause why it should not be superseded. If on an examination of the contents of the notice and the circumstances attending on the issuance of such notice the Court is satisfied that the supersession has been practically decided upon and that the notice was merely a formal compliance with the statutory requirement, then clearly the Court can treat it as a case of substantial injury. Needless to observe that a writ petition can be entertained and a writ can be issued only of the other requirements of Art. 226 are satisfied. What we are trying to point out at this juncture is that a mere threat should not always be excluded from the category of 'injury of excluded from the category of injury of a substantial nature'. The Court will have to examine each case in the light of its circumstances and facts.
13. Even in regard to procedural requirements which come under the ambit of sub-cl. (c) some of them may be so important that they could be held to be mandatory:
'An administrative authority which fails to comply with a statutory duty to give prior notice or hold a hearing or make a due inquiry or consider objections in the course of exercising discretionary powers affecting individual rights will seldom find the Courts casting an indulgent eye upon its omission. Non-compliance or inadequate compliance with an express duty to give particulars of rights of appeal may render an administrative determination invalid. A provision requiring consultation with named bodies before a statutory power is exercised is before a statutory power is exercised is also likely to be construed as mandatory', (Vide pages 124 and 125 of Judicial Review of Administration Action by S. A. Defendant Smith).
The Courts will have to examine in each case, before it proposes to exercise it extraordinary jurisdiction under Article 226, whether the lapse on the part of the authority to comply with the procedural requirements has resulted in substantial failure of justice.
14. What is 'injury of a substantial nature' and what is 'substantial failure of justice' have been considered by the Supreme Court and different High Courts in several cases in the context of the grievances placed before them. Whether there was an injury of a substantial nature or whether there was substantial failure of justice will have to be decided on the facts of each case. It is neither possible nor desirable to define these expressions.
15. It is utmost importance to make it clear that injury of a substantial nature or substantial failure of justice must be in relation to the aggrieved person. The injury complained of may appear to the Court has always to examine whether the injury complained of by a person is substantial to him or not. Let us illustrate. A person of a very humble station in life, who is having only a hut, may complain that he is being deprived by some authority of that hut of his. That hut may not be of much value. But for the aggrieved person that may be a valuable asset to him. To remove or expropriate that hut would be causing injury of a substantial nature. So while examining whether there was an injury of a substantial nature of whether there substantial failure of justice, it must be looked at from the perspective and interests of the aggrieved person. These are considerations common to both sub-cls. (b) and (c).
16. Then taking up sub-cl. (b) it applies when there has been a contravention of any provision of Constitution other than the provision in Part III thereof (this exclusion in sub-cl.(b) of the contravention of the provisions in Part III is because that is already provided in sub-cl. (a) or any provision of any enactment or Ordinance, or any order, rule, regulation, bye law or other instrument made thereunder. Lengthy arguments have been addressed before us in regard to the scope of the words 'any order'. It was said that since the word 'any' precedes the word 'order' they should be construed as taking in within their sphere not merely statutory orders but also executive orders or instructions. A number of decisions of the Supreme Court and the High Courts have been placed before us to show that on several occasions the Courts have exercised their extraordinary jurisdiction when there has been contravention of executive orders or directions. Dharakast rules and rules relating to admission into colleges etc., have been cited as illustrations in regard to which Courts have interfered under them causing injury to a person. It is unnecessary to refer to those decisions because they were all rendered when Article 226 contained only the provision 'for any other purpose'. Those decisions may not help in understanding the scope of the new sub-cl. (b) because the very purpose behind sub-cl. (b) and (c) is to fix the frontiers of the writ jurisdiction in the place of the clause 'for any other purpose'.
17. The clue to the understanding of the scope of the words 'any order' lies in the words 'made thereunder' occurring at the end of sub-cl. (b). Since these two words immediately succeed the words 'or other instrument' it was argued then proceeded that since the words 'made thereunder', govern only the words' other instrument' it would mean that a writ petition would lie if there is any contravention of any instrument made under the provision of the Constitution or enactment or Ordinance or any order, rule, regulation or bye-law in which event the words 'any order, rule, regulation, bye-law' would have unlimited connotation taking in their sweep 'any order whether a statutory or administrative'. If such a construction were to be accepted, it is true it would follow the words 'any order' would have a very wide ambit. But to us, it does not appear to be the true meaning of sub-cl. (b). Reading sub-cl. (b) as a whole and also in conjunction with sub-cl. (c), it is manifest that it deals with contravention of provisions of the Constitution or any other substantive law. That intention is clearly brought out by narration of the different varieties of laws in sequence starting with 'any other provision of the Constitution' and then coming to any provision of enactment or Ordinance'. The natural and reasonable construction of sub-cl. (b) would be that the words 'made thereunder' occurring at its end govern from 'any order' onwards. Sub-cl. (b) postulates the issuance of writs when there is not only contravention of the provisions of the Constitution or of any enactment or Ordinance, but also the provisions of orders, rules, regulations, bye-laws or other instruments made under the Constitution, any enactment or Ordinance. That is so because orders, rules, regulations, bye-laws and other instruments which have been made under the Constitution, any enactment or Ordinance have the force of law. It is, therefore, reasonable to understand that the words 'made thereunder' govern not merely the words 'other instrument' immediately preceding them, but also any order, rule, regulation and bye-law'. If they are made under the Constitution or any enactment or Ordinance and if there is a contravention of them resulting in substantial injury, then it would be a ground for issuing a writ. Otherwise, the Parliament would not have used the word 'other' before the expression 'instrument made thereunder'. That word brings out the intention of the Parliament that any order, rule, regulation, bye-law are in the nature of instruments made under the Constitution any enactment or Ordinance. Since all of them belong to one genus the word 'other' has been used before the expression 'instrument'. That is to say, an order, rule, regulation or bye-law made under the Constitution any enactment or Ordinance are in the nature of instruments.
18. We may here usefully refer to what the learned author Craies has said in his book on Statute Law (seventh edition) at pages 302 and 303:
'Statutory instruments are either (1) orders in Council or (2) other instruments which are variously described as orders, rules, regulations, schemes, warrants, licences, instruments etc.'
These orders, rules, regulations, bye-laws can be understood as instruments made under the Constitution, any enactment or Ordinance. If in addition to this category of instruments, schemes, warrants, licences etc., are also made under the Constitution or any enactment or Ordinance, they would also be instruments. Obviously to cover such categories the words 'other instrument' are used in sub-cl. (b). The words 'made thereunder' can therefore be understood as applying not only to the words 'other instrument' but also any order, rule, regulation, bye-law. Thus understood only orders made under the Constitution or any enactment or Ordinance would come within the purview of sub-cl. (b). To put it in other words 'any order' would mean an order made under the Constitution or statute or Ordinance, that is to say, statutory orders. Likewise the words 'rule, regulation, bye-law or other instrument' must be understood as those made under the Constitution, any enactment or Ordinance.
19. In this connection we must take note of another argument based on the words 'made thereunder'. It was attempted to argue that by virtue of Art. 73 of the Constitution the executive power of the Union extends to all the matters with respect to which Parliament has power to make laws and likewise by virtue of Art. 162 the executive power of a State extends to the matters with respect to which the state Legislature has power to make laws. Therefore, in the light of the well established law, the executive of the Union or the executive of a State has been issuing orders, directions and instructions in exercise of these powers in matters which are not covered by any law or a statute or a rule made by the Parliament or the State Legislature. That means the Union or a State has been only exercising its powers under Art. 73 or Art. 162 as the case may be, while issuing these instructions. No instructions, directions or orders can be issued excepting under the authority of the law. Therefore, these administrative instructions, directions or orders must also be taken as instructions directions or orders made under the Constitution. We are afraid we cannot accept this contention. The words used 'made thereunder' and not 'made in exercise of the powers conferred by the Constitution'. The natural meaning of the words 'made thereunder' is that any order, rule, regulation, bye-law or instrument, should be one which it made directly under the Constitution any enactment or Ordinance. For example a control order issued under the Essential Commodities Act is an 'order' made under an enactment. Likewise, rules, regulations, bye-laws made by the rule-making authority clearly under the provisions and for the purposes of the enactment are rules, regulations, bye-laws made under the Constitution. That is why it is called 'delegated legislation' and the orders, rules, regulations, bye-laws made in that fashion are also given the status of law. It would be doing violence to the language, if administrative instructions given by the executive authority are considered as instructions 'made under' Art. 73 or Art. 162 of the Constitution.
20. There are many instances where the Supreme Court has explained the scope of the power under Arts. 73 and 162 of the Constitution. We would do well to refer to one such case reported in G.J. Fernandez v. State of Mysore, : 3SCR636 . At p. 1757 Wanchoo, C.J. in his judgment for the Court said this about the nature of the power under Art. 162:
'We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State, the State can give administrative instructions to its servants how to act in certain circumstances, but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor.'
Proceeding as we have already indicated Art. 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and scope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Art. 162 the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Art. 162 by itself does not confer any rule-making power on the State Government in that behalf.'
Such being the well defined limit of the power of the executive under Arts. 73 and 162 it is not possible to construe the words 'any order ........... made thereunder' as taking in within their sphere executive instructions given by the State in exercise of the power under Arts. 73 and 162. Therefore, sub-cl. (b) comes into play only when there is contravention of a provision of the Constitution or a provision of any enactment or Ordinance or any provision of any statutory order, rule, regulation, bye-law or other instrument, that is to say, those which are made under the Constitution or any enactment or Ordinance.
21. However, this is not to say that an action when it contravenes any administrative instructions, cannot under any circumstances be challenged under Art. 226 of the Constitution. When such acts are in violation of fundamental rights or in contravention of any other provision of the Constitution or any provision of any statute or Ordinance, they can certainly be questioned. But then, that challenge would come under sub-cl. (a) or the first limb of sub-cl. (b) because an action thereon would be for enforcement of a fundamental right or on a complaint of contravention of any other provision of the Constitution or a provision of any enactment or Ordinance.
22. Now coming to sub-cl. (c). broadly stated, it would apply to illegalities in proceedings. The words 'under any provision referred to in sub-cl. (b). occurring therein refer and govern 'proceedings by or before any authority'. That is to say, the illegality will have to occur in any proceeding by or before any authority provided under any provision of the Constitution, any enactment, Ordinance or under any order, rule, regulation, bye-law made under the Constitution or enactment or Ordinance. If a particular proceeding before a certain authority is provided by any provision referred to in sub-cl. (b)and if any illegality resulting in substantial failure of justice occurs therein, the matter comes under sub-cl. (c). The illegality in order to attract sub-cl.(c) need not necessarily be in the course of the proceedings before the concerned authority. Even if the order, decision or adjudication given by the authority in such proceeding is vitiated by any illegality, then also it comes within the ambit of sub-cl. (c). Thus, illegalities not only in the course of the proceedings but also in the final adjudication of the proceedings contemplated by any provision referred to in sub-cl. (b) would attract sub-cl. (c). However, before a writ petition is entertained under this sub-cl. it must be alleged and shown that the alleged illegality has resulted in substantial failure of justice causing injury to the aggrieved person.
23. Here we must consider the nature of the 'illegality' postulated by sub-cl. (c). A contention has been raised by the standing counsel for the Central Government and one of the Government Pleaders that 'illegality' in sub-cl. (c) has a very limited connotation. Reliance was placed in this connection on Hari Vishnu v. Ahmad Ishaque, : 1SCR1104 and Union of India v. J. N. Sinha, : (1970)IILLJ284SC . It was argued that it could be said that there would be illegality only when there is any contravention of any of the provisions referred to in sub-cl. (b) and in no other circumstances it could be said that the proceedings are vitiated by illegality. It was further argued that in any case the violation of principles of natural justice cannot be considered as an illegality in the context of sub-cl. (c). We cannot accede to this very narrow construction of the term 'illegality'. In the first place, it should be noted that the Parliament has itself given liberal connotation to it by using the word 'any' before 'illegality'. Further, it is a futile argument to say that only when there is contravention of any of the provisions referred to in sub-cl. (b) it can be said that there is any illegality. If that were the intention of the Parliament, we see no need or justification for having sub-cl. (c) separately. If the learned Government Pleaders' point of view were to be accepted, sub-cl. (c) would become redundant and otiose. The words 'under any provision referred to in sub-cl. (b)', as we have already said, refer to 'proceedings by or before any authority' and not to 'illegality'. Any illegality which vitiates such proceedings and which results in substantial failure of justice would attract sub-cl. (c). If there is illegality of any nature in the proceeding it comes under this sub-cl. Further, if in the proceedings the principles of natural justice have been violated, that could also be 'illegality' provided the particular statute under which the proceedings have been taken by the authority concerned specifically excludes the application of the principles of natural justice. Unless there is such express exclusion or exclusion by necessary intendment, it must be taken that the principles of natural justice would apply to all proceedings before authority. Several times if these principles are violated it would result in grave miscarriage of justice causing substantial injury to persons. Therefore, it can be safely concluded that unless a particular statute or provision of law specifically or by necessary implication excludes the application of the principles of natural justice, it would be 'illegality' if in the proceedings any principle of natural justice has been violated and if it has resulted in substantial failure of justice. Needless to say that each case will have to be tested in the light of its own facts.
24. Clause (2) of the new Article. 226 is verbatim the same as Clause 1 (A) of the earlier Article.. In this behalf the old law continues totally.
25. Clause (3), however, introduces a new feature in the exercise of the writ jurisdiction by the High Courts. It lays down a bar to entertain writ petitions. It reads:
'No petition for the redress of any injury referred to in sub-cl. (b) or sub-cl. (c) of Clause (1) 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.'
Before proceeding further it must be immediately noted that the bar contained in this clause does not apply to petitions which are filed for enforcement of any of the rights conferred by the provisions of Part III of the Constitution Evidently the Parliament placed on a high pedestal and beyond any bars or exclusions, the enforcement of fundamental rights. The bar placed by Clause (3) applies only to petitions which seek redressal of injuries referred to in sub-cl. (b) and sub-cl. (c) alone. For the petitioners and the appellants it was contended that the bar, which is contemplated by Clause (3), arises only when there is another remedy which is equally speedy, efficacious and adequate as the remedy that is provided under sub-cl. (b) or sub-cl. (c). Emphasis was laid on the words 'such redress' and it was urged that these words bring out the intention that only an equally effective remedy as could be given by the Court under sub-cl. (b) and sub-cl. (c) of Article. 226 could be a bar to the entertainment of a writ petition. It was also urged that when any law in force specifically provides a remedy for such redressal like a Tribunal, it could be said that a writ petition cannot be entertained. Suit in no circumstances could be the 'other remedy' because filing of a suit for enforcing any right or redressal of any grievance is not provided under any statute. Section 9 of the Civil Procedure Code is only an enabling provision and by itself it does not provide a remedy. Therefore, a suit cannot be 'other remedy' mentioned in Article. 226. In fact suits can be filed for enforcement of any civil right and therefore if a suit is to be considered as the 'other remedy' within the meaning of Clause (3), in no case excepting for the enforcement of fundamental rights, a writ petition would be maintainable. Some other counsel have pointed out that Section 9 of the Civil Procedure Code does not create a right but lays down only a procedure and therefore a suit could not be said to be 'other remedy' provided under any other law. It was also sought to be pointed out that a suit is not a public law remedy while Article. 226 deals only with public law remedy. Even if a suit is considered to be another remedy available to the aggrieved person, the Court cannot straightway refuse to entertain a writ petition if any itself the material facts can be found and decided by the High Court. The decision of the Supreme Court in Century Spinning & . v. Ulhasnagar Municipality, : 3SCR854 was mentioned in this connection. It was also pointed out that the word 'remedy' by itself postulates that it should be adequate and efficacious. 'Remedy' was said to be a particular relief sought, while redress is general in connotation. Therefore the 'other remedy' should be real and not illusory. 'Law' means only statutory law and if a statute itself provides for filing a suit to get a redress, that could become 'other remedy', since it is provided under the law in force. Another argument was that injury is wider than right. The old laws are preserved by Article. 372 of the Constitution. Therefore, common law continues to be in force in the country. But a suit has never been recognised as a remedy in equity. Reliance was placed in this connection on a passage at page 108 of Halsbury's Laws of England, Third Edition, Vol. 11. In the matter of industrial disputes reference by the Government to the Industrial Tribunal or Court under Section 10 of the Industrial Disputes Act cannot be treated as the 'other remedy', because it is in the discretion of the Government to refer the dispute or not. It was urged that even without waiting for the reference by the Government a writ petition could be filed. It was argued relying on First Income-tax Officer, Salem v. Short Bros. (P.) Ltd., : 60ITR83(SC) and Secretary of State v. Mask & Co., AIR 1940 PC 105 that even if efficacious remedy was available it would not prevent the Court from entertaining a writ petition. Likewise, if a Tribunal, whose decision has caused the grievance, has acted without jurisdiction or has acted contrary to the fundamental provisions of the statute, a writ petition can be entertained. In support of this proposition reliance was placed on Firm I. S. Chetty & Sons v. State of Andhra Pradesh, : 50ITR93(SC) . Venkataramana & Co. v. State of Madras, and Baburam v. Zilla Parishad, : 1SCR518 . Article. 226, it was sought to be pointed out, confers wide range of discretion on the Court and therefore the Court can decline to entertain a writ petition only if it is satisfied on the examination of the whole case that another remedy can give equally effective redress. From this it was sought to be inferred that the same considerations as have been in force upto the amendment should continue to apply. When two remedies are available, one under Article. 226 and the other under any other law, that which is inexpensive, adequate and efficacious should be availed of.
26. On the other hand, it was maintained by the learned standing counsel for the Central Government that if there was another remedy provided for the redress, the mere existence of such a remedy would be a bar to the maintainability of a writ petition. Such remedy need not be efficacious, and Clause (3) does not contemplate that such a remedy should be an efficacious one. He also submitted that suit in certain cases could be another remedy. When the statute, the breach of which is complained of, itself provides for another remedy, a writ petition is barred. He referred to the decisions of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai : 6SCR261 (supra), Orient Paper Mills v. Union of India, : 1973ECR1(SC) and that of the Madras High Court in In re Thippaswami, : AIR1952Mad112 . Learned standing counsel also contended that the Government could object to the maintainability of the writ petition even at the stage of final disposal since it could not intervene at the admission stage. Learned Advocate-General appearing for the State endeavoured to construe the word 'such redress' as the redress postulated by Clause (b) or (c). He pointed out that the concept of sufficiency, efficacy and speediness does not come into the picture in view of new Clause (3). The mere existence of a remedy is sufficient. The objection to the maintainability of the writ petition can be raised at any stage of the writ petition. Suit is not ruled out as an alternative remedy. Law in force takes in common law also.
27. Having noticed all these contentions raised on both sides, we must once again point out that the position as to the bar to the maintainability of writ petitions will have to be examined and stated only on the basis of the language of Clause (3) . It is a new innovation introduced by the Parliament under the 42nd Amendment. It evidently wanted to lay an embargo on entertainment of writ petitions contemplated by sub-cl. (b) and (c) of Clause (1), if there is another remedy provided under any law in force. If the contention advanced by the petitioners and the appellants that the same old position as existed earlier would continue is accepted, we see no point in the Parliament enacting Clause (3). Earlier, what happened was that the High Courts had imposed upon themselves certain limitations and restrictions in the exercise of the jurisdiction under Article. 226 in the absence of any guidelines in the Article. itself. Now that situation does not continue in view of the specific provision contained in Clause (3).
28. Clause (3) specifically states that for redressal of any injury referred to in sub-cl. (b) and sub-cl. (c) no writ petition 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. Therefore, the 'other remedy' contemplated by Clause (b) need not necessarily be one which is provided under any statute, Ordinance, order, rule, regulation, bye law etc., the breach of which is complained of. It would be sufficient if that other remedy is provided for by or under any other law for the time being in force. Undoubtedly law in force takes in common law as well. Vide Director of Rationing and Distribution v. Corporation of Calcutta, : 1960CriLJ1684 , Builders Supply Corporation v. Union of India, : 56ITR91(SC) and Daulabhai v. State of M. P., : 3SCR662 . Therefore, if another remedy is provided either by the law, the breach of which is complained of in the writ petition, or under way other law in force, it would be a bar to the maintainability of the writ petition. But at the same time it should be remembered that the 'other remedy' must be capable of affording such redress, as is postulated under sub-cl. (b) and sub-cl. (c). If the other remedy is not capable of giving to the aggrieved person similar redress as is contemplated by sub-cl. (b) and sub-cl. (c), then it cannot be considered to be a bar. A suit by itself cannot be ruled out as another remedy available. The 'other remedy' stated in Clause (3) is a remedy provided for by or under any other law for the time being in force. A suit cannot be excluded from this wide amplitude of the 'other remedy'. We seek support to this view from State of Madhya Pradesh v. Bhailal Bhai ( : 6SCR261 ) (supra), Thamsingh v. Superintendent of Taxes, : 6SCR654 and Tata Engineering and Locomotive Co., Ltd, v. Asst. Commissioner of Commercial Taxes, : 2SCR751 .
29. Care must be taken to clarify another aspect. Mere existence of what is called 'another remedy' provided under the same law for the time being in force cannot always be said to be a remedy which is capable of giving such redress as is provided under sub-cl. (b) or sub-cl. (c). The other remedy provided under other law shall not be illusory. That should be real. We may give an example to bring home this aspect. Supposing there is an appeal provided against the decision of a particular authority under a statute, the breach of which is complained of. But if it is manifest from the record that the primary authority has acted under the instructions or directions of the higher authority, which is also the appellate authority, then there is no point in saying that a writ petition would not be available because there is the other remedy of appeal provided under a statute or law. In such an event the appeal before the appellate authority would be meaningless and illusory, because the appellate authority has already expressed an opinion on the point. To refuse to entertain a writ petition on this ground would be opposed to the very spirit of the present Article. 226 in general and sub-cl. (b) and sub-cl. (c) of Clause (3) in particular. The words 'any other remedy for such redress' are significant and meaningful and they clearly bring out the intention of the Parliament that only that other remedy which is truly and really capable of giving such redress as is postulated in sub-cl. (b) and sub-cl. (c) would be a bar to the maintainability of the writ petition. Needless to say that in order to find out whether there is such a bar to the entertainment of a writ petition, the Court will have to examine the facts and circumstances of each case and the redressal that is sought and the nature of the other remedy that may be available under any other law for the time being in force. It is impossible and undesirable to lay hard and fast rules in this behalf.
30. Clause (4) to (6) are concerned with interim orders. A new feature is introduced under Clause (4) to the effect that no interim order shall be made unless copies of the 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 an opportunity is given to such party to be heard in the matters. A practice has been obtaining in this Court and there is also a rule made in this behalf that material papers should be served on the concerned learned Government Pleader or the standing counsel as the case may be, before this Court is moved in a writ petition and for an interim order. Learned counsel for the petitioners and the appellants have argued that Clause (4) lays down nothing but the same procedure. If copies of the petition and material documents are furnished to the learned Government Pleader and he is present in Court and is given an opportunity to be heard, that is sufficient compliance with Clause (4) . It was also pointed out that under the Civil Procedure Code Government Pleader is constituted an agent of the Government and therefore service of the papers on the Government Pleader is service on the party. But this position no more obtains in view of the recent amendment to the Civil Procedure Code which also came into force on 1-2-1977. Section 141 Civil Procedure Code says that the procedure provided in the code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. Now by virtue of the new amendment to the Civil Procedure Code, an explanation is added to this Section which says that any proceeding under Article. 226 of the Constitution does not come within the meaning of the word 'proceedings' occurring in Section 141. Therefore, it is no more possible to say, relying on the procedure of the Civil Procedure Code, that service on the learned Government Pleader is service on the Government which is generally the party against whom a writ petition is filed.
31. Furthermore Clause (4) patently seeks to introduce a rule that interim orders shall not be passed unless material papers are furnished to the party and it is given an opportunity to be heard in the matter. This newly introduced requirement is in all probability based on the apprehension expressed several times that before interim orders are passed, the party, against whom such petition is filed or proposed to be filed, is not heard and thus a grave inconvenience and disturbance to administration is being caused. Therefore, this new clause has been introduced insisting on furnishing to the party concerned all material papers and also on giving the party an opportunity to be heard. The expression 'party' occurring in Clause (4) undoubtedly means the party who is ranged as a respondent in the writ petition and not his standing counsel in the High Court. Several times it happens that the Government Pleader or the standing counsel does not have any material on the basis of which he can represent his client's point of view at the time of the passing of the interim order. In order to obviate that difficulty it is now insisted on the furnishing of all the material papers to the party himself. If the Government is a party against whom a writ petition is filed, the Secretary to the appropriate Government Department or the head of the appropriate department, which is made a party will have to be furnished with these material papers. That is why even advance furnishing of the papers to the party concerned is postulated by Clause (4) by using the words 'proposed to be filed'. Therefore, any aggrieved person, who seeks an interim order against a party against whom the petition is proposed to be filed, can furnish the papers to that party, even in advance. If the concerned party after having had a reasonable opportunity to appear before the Court does not appear, it will not stand in the way of the Court passing an interim order. What the Court should be satisfied before it passes an interim order under Clause (4) is that the party against whom a petition is filed has been furnished with all the material documents and has been afforded a reasonable opportunity to appear before Court at the time of the interim order. If the party, though furnished with the papers and has been given a reasonable time and opportunity does not avail himself of the opportunity, then it does not stand in the way of the Court passing the interim order.
32. It is true that in some writ petitions not only the Government authority or authorities constituted under the law are parties, but also private persons are impleaded as respondents, for instance, motor transport cases, village officers cases. If a writ petition is filed against them also, they must also have been furnished with the material papers and have been afforded an opportunity to be heard in the matter. It was argued that such private persons are not parties against whom a writ is sought and therefore they need not be furnished with copies. We are unable to accept this contention in an unqualified manner. We have already referred to motor transport cases, village officers cases etc. In such matters the relief really is against the private person and not the Government, though in pursuance of the order given by the High Court a public authority will have to conduct itself. But the really affected party on account of such interim order in such cases would be the private person. Therefore, such persons, whose rights and positions would be affected by an interim order, would be parties who should also be furnished with material documents before any interim order is passed. But that does not mean that necessarily all the respondents should have been furnished with such copies. If the Court is satisfied that a particular respondent is a formal one and that he will not be in any way affected by any interim order that may be passed, then furnishing of material documents to him or affording an opportunity to be heard need not be insisted on.
33. It was faintly submitted that the provisions of Clause (4) are not mandatory but only recommendatory. We cannot accept this submission. The language employed in Clause (4) leaves no doubt that it is a mandatory requirement, for it says that no interim order shall be made unless the two requirements mentioned in sub-cl. (a) and sub-cl. (b) are complied with. The intention of the Parliament that an interim order shall not be generally passed without affording an opportunity to the party against whom a petition is filed is manifest. Indeed, reading Article. 226 as a whole. Clause (4) to (6) therein seem to have been purposefully introduced to restrict the power of granting interim orders, and that too without giving an opportunity to the party against whom the petition is filed. We have, therefore, no hesitation in holding that the requirements of Clause (4) are mandatory.
34. This view of ours is further reinforced by what is contained in Clause (5). Under that clause, power is conferred on the High Court to dispense with the requirements of sub-cl. (a) and sub-cl. (b) of Clause (4) and make an interim order in exceptional cases. While the manner of passing interim orders as per Clause (4) is the general rule the power conferred under Clause (5) is only an exception thereto. Even that power is circumscribed by certain requirements. Before passing such an order the Court must be satisfied, for reasons which are required to be recorded in writing, that it is necessary for preventing any loss being caused to the petitioner which cannot be adequately compensated in money. Further, such an order, exceptional measure as it is, will cease to have effect on the expiry of a period of fourteen days from the date on which it has been made, unless the requirements of sub-cl. (b) and sub-cl. (c) of Clause (4) have been complied with in the meanwhile. Moreover, the compliance with the requirements of sub-cl. (b) and sub-cl. (c) of Clause (4) before the expiry of fourteen days would not automatically continue the operation of the interim order. The Court must further, before the expiry of a period of fourteen days, pass another order continuing the operation of the earlier interim order. Clause (5) thus demonstrates not only that the requirements of sub-cl. (b) and sub-cl. (c) of Clause (4) are mandatory, but also that the power of passing interim orders in writ petitions is now very much circumscribed. Hypothetical questions were raised by some learned counsel as to what should happen if the party against whom the petition has been filed, cannot be served before the expiry of the fourteen days or if he evades to take notice. It was also suggested that such difficulties could be got over by filing fresh applications seeking an exceptional order under Clause (5) . It is not necessary to adjudicate upon all these hypothetical contingencies which may arise before Courts. The Court will and shall deal with the situations as they arise in the light of these provisions of Article. 226. Suffice it to say that even though the requirements of Clause (4) are not satisfied the Court can still pass an interim order as an exceptional measure, if it is satisfied that the loss that would be otherwise caused to the petitioner cannot be adequately compensate in money, and that such an order would be in force only for fourteen days. It may be granted if the other requirements are satisfied.
35. Clause (6) is another restrictive provision relating to interim orders. It lays an embargo against passing any order which has the effect of delaying any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work or project of public utility or the acquisition of any property for such execution, by the Government or any Corporation owned or controlled by the Government. Patently this further restriction in regard to interim orders has been imposed with the intention of preventing any delays in proceedings or works of public importance and public utility. However, that does not prevent the Court from passing other orders which do not have these effects, provided the provisions of Clause (4) and (5) are satisfied. We would also like to make it clear that the word 'enquiry' employed in Clause (6) does not include 'trial'. Had the intention of the Parliament been to extend the scope of Clause (6) to trials also, it would have said so when it has clearly referred to the stages of investigation and inquiry.
36. Thus, Clauses (4) to (6) have introduced new restrictions on the manner of passing interim orders by High Courts while exercising jurisdiction under Article. 226.
37. There was no discussion before us on Clause (7) which is the last provision under Article. 226. It merely says that the power of the High Court under this article shall not derogate from the power conferred on the Supreme Court under Article. 32(2).
38. This completes our consideration of the different provisions of Article. 226.
39. Now we will go to Section 58 of the 42nd Amendment Act which is a special provision made for pending petitions under Article. 226. As we have already pointed out, it has not been made a provision of the Constitution and that it is merely a transitory provision, transitory until all the pending writ petitions are disposed of. Since considerable debate went on before us on the various provisions of Section 58, we will extract the entirety of that Section :
'58. Special provisions as to pending 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 proceeding 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 time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, for seeking such relief, the period during which the proceedings relating to such petition were pending in the High Court shall be excluded.
(3) Every interim order (whether by way of injunction or stay or in any other manner) which was made before the appointed day on, or in any proceedings relating to, a pending petition (not being a pending petition) which has abated under Sub-section (2) and which is in force on that day, shall, 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, cease to have effect (if not vacated earlier) :-
(a) on the expiry of a period of one month from the appointed day if the copies of such pending petition and the documents in support of the plea for the interim order are not furnished to such party before the expiry of the said period of one month; or
(b) on the expiry of a period of four months from the appointed day, if the copies referred to in Clause (a) have been furnished to such party within the period of one month referred to in that clause but such party has not been given an opportunity to be heard in the matter before the expiry of the said period of four months.
(4) Notwithstanding anything contained in Sub-section (3), every interim order (whether by way of injunction or stay or in any other manner) which was made before the appointed day on or in any proceedings relating to a pending petition (not being a pending petition) which has abated under Sub-section (2), and which is in force on that day, shall, if such order has the effect of delaying any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work or project of public utility, or the acquisition of any property for such execution, by the Government, or any corporation owned or controlled by the Government, stand vacated.
Explanation:- In this Section 'appointed day' means the date on which Section 38 comes into force.'
Sub-section (1) starts with a non-obstante clause that it will have effect notwithstanding anything contained in the Constitution. It provides for dealing with petitions made under Article. 226 of the Constitution before the appointed day and pending before any High Court immediately before that day. Such petitions alone are referred to as pending petitions. The explanation to the Section says that the appointed day means the day on which Section 38 comes into force. It is under Section 38 that the new Article. 226 is substituted in the place of the old one. It has been declared now that Section 38 would come into force on and from 1st February, 1977. The word used here is 'made' while the word 'admitted' is used in Sub-section (2). We have already noted that in Clause (3) of Article. 226 the bar is against 'entertainment' of a writ petition. Thus Article. 226 and Section 58, in between themselves, deal with different aspects of dealing with a writ petition. The word 'made' used in Sub-section (1) when read in contradistinction with the expressions 'admitted' and 'entertained' used in Section 58(2) and Article. 226(3) respectively, makes it manifest that even petitions which have been formally presented and not yet admitted before the appointed day would also be pending petitions within the meaning of Section 58.
40. Sub-section (1) lays down that such pending petitions and all interim orders made therein will have to be dealt with in accordance with the new Article. 226. Thus Sub-section (1) governs all the writ petitions which are right from the stage of presentation in Court upto the stage of final disposal. All such writ petitions shall be dealt with in accordance with the new Article. 226. Not merely writ petitions themselves but also interim orders made in such pending writ petitions shall also be disposed of in accordance with the provisions of the new Article. 226. The word 'made' is also used in connection with interim orders. But since the intendment of Section 58 is only to regulate the manner of disposal of pending petitions, it cannot be said that if there is an interim order, which has already been made final in a pending writ petition, that would also come within the ambit of Sub-section (1). That is for the reason that the interim order became final and the proceeding relating thereto would be no more pending. Therefore, it is reasonable to construe Sub-section (1) as referring to only ad interim orders or ex parte orders passed in proceedings in pending writ petitions and which have not yet been made final before the appointed day.
41. Then Sub-section (2) particularises the scope of Sub-section (1) without causing any prejudice to its general scope. Therefore, it is merely a continuation of the idea contained in Sub-section (1) by way of clarification. Sub-section (2) refers to pending petitions which have been admitted before the appointed day. We have already stated that Sub-section (1) provides for all writ petitions pending in the Court before the appointed day right from the stage of presentation upto the date of final disposal. Sub-section (2), in particular, refers to pending petitions which have already been admitted, that is to say, which had been presented and have also been admitted. That is why the expression 'admitted' is specifically used. It is laid down in Sub-section (2) that all the admitted writ petitions, which are still pending, would abate if they do not stand the test of the new Article. 226. While dealing with pending petitions, the Court will have to see whether the writ petitions would have been admitted under the provisions of the new Article. 226. If the Court is satisfied that they could have been admitted, it would proceed to consider the writ petition on its merits in the light of the new Article. 226. If, on the other hand, it is of the opinion that the writ petition could not have been admitted under the new Article. 226, then the writ petition would abate. When a writ petition abates, any interim order made therein would stand vacated.
42. The proviso to Sub-section (2), however, says that the abatement of a writ petition will not affect the right of the petitioner to seek the relief under any other law for the time being in force. It goes further and says that in computing the period of limitation for pursuing the other remedy, the time spent in the High Court for seeking relief under Article. 226 shall be excluded. This provision is obviously made in the interests of justice to see that the other remedies available to the petitioner are not barred because his writ petition has abated by virtue of the new Article. 226.
42-A. Sub-section (3) and Sub-section (4) are in respect of interim orders. If an interim order has already been made and it is in force on the appointed day, it will be operative only for a period of one month from the appointed day, if in the meanwhile the copies of the pending petition and the document relating to the interim order are not furnished to the party against whom the interim order has been made. If this is not complied with within one month, the interim order will cease to have effect therefrom.
43. Clause (b) of Sub-section (3) says that on the expiry of four months from the appointed day, if the material papers have been furnished to the relevant party within the period of one month but that party has not been given an opportunity to be heard in the matter, the interim order will cease to have effect. Clause (a) requires that material papers will have to be furnished to the concerned party before the period of one month from the appointed day; otherwise the interim order passed before the appointed day will cease to have effect. Clause (b) in its turn lays down that within four months from the appointed day the concerned party will have to be given an opportunity to be heard. If that opportunity is not given to the concerned party after furnishing to him the relevant documents, the interim order will cease to have effect on the expiry of the period of four months from the appointed day. Thus, the provisions of Clause (4) of Article. 226 are in a modified form introduced into Sub-section (3) in pending writ petitions. While Article. 226(4) has prospective application. Section 58(3) applies to pending writ petitions which have already been admitted. We would once again reiterate that Sub-section (3) would have no application if the interim order has already become final, the Court having heard the other side and made a final interim order before the appointed day.
44. Sub-section (4) contains the limitations provided in Article. 226(6) in the matter of passing interim orders in certain matters. If any order, which has the effect of delaying an inquiry into matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work or project of public utility or the acquisition of any property for such execution, by the Government, or any corporation owned or controlled by the Government has already been passed in a pending petition, it will stand vacated. If the pending writ petition itself has abated under Sub-section (2), then there is no need to apply the provisions of Sub-section (4).
45. There is another ticklish problem which arises in connection with Section 58. This question is whether it would apply to writ appeals pending on the appointed day or writ appeals which have been filed or will be filed challenging the orders disposing of writ petitions before the appointed day. The learned counsel for the petitioners and the appellants contended that Section 58 does not apply to such writ appeals. The provisions of Section 58 have only very limited retrospective effect confined to the petitions which have been made and are pending on the appointed day. If the writ petition has already been finally disposed of before the appointed day. Section 58 has no application since it does not make any provision in respect of such matters. On the other hand, it was argued for the Government that the provisions of Section 58 would apply to pending writ appeals as well.
46. It should be first noted that writ appeals are filed under Clause (15) of the Letters Patent. They are always treated as a separate category from writ petitions and interlocutory petitions in writ petitions. It is impossible to say that the Parliament was not aware that writ appeals have been preferred and several of them are pending in different High Courts. Still it did not make any provision or even reference to them in Section 58, while in fact it did make a specific provision for appeals and even cross appeals in Article. 329-A, Clause (5) recently introduced under the 39th Amendment. On the other hand, it rested content with providing for petitions under Article. 226 made before the appointed day and pending before the Court immediately before that day and calling them as pending petitions. Not only that, it also chose to make a provision in regard to interim orders, thus, while the Parliament made specific reference and provision in regard to writ petitions and interim orders pending on the appointed day, it has chosen to remain silent in regard to writ appeals. Though it was fully conscious of the pendency of many writ appeals in several High Courts. This omission of any reference to writ appeals does not appear to be by inadvertence but on the other hand seems to be deliberate. Section 58 has chosen to call only those writ petitions filed under Article. 226 and pending in the Court before the appointed day as pending petitions. It appears to us that it has excluded pending writ appeals from its ambit. When every care has been taken to make specific provision in regard to interim orders in pending writ petitions, omission of any reference to pending writ appeals cannot but be deliberate. Equally significant is the feature of Section 58 that it provides for petitions pending only before High Courts. It does not make any provision for appeals pending before the Supreme Court against the decisions of the High Courts in writ petitions under Article. 226. The special provision in Section 58, in clear terms, applies only to matters pending before High Courts. Therefore, without any doubt it can be said that matters pending before the Supreme Court arising out of decisions of High Courts under Article. 226 are not touched or affected by Section 58. If the intention of the Parliament were to bring within the purview of Section 58 even pending appeals against the decisions of the High Courts under Article. 226, then it would have provided for appeals pending before the Supreme Court as well. It would be preposterous, in our opinion, to construe Section 58 as affecting writ appeals pending in the High Courts, while not affecting similar appeals pending before the Supreme Court. The same consideration would apply to applications for leave to appeal to the Supreme Court against the decisions of the High Courts under Article. 226.
47. Moreover, if it were to be construed that Sub-section (1) applies to pending writ appeals and leave applications, then it must necessarily follow that Sub-section (2) also would apply to writ appeals. In such an eventuality writ appeals arising out of writ petitions which would not have been admitted under the provisions of the new Article. 226 must be held to have abated. Such a conclusion would have a very startling result, the result of wiping out the decision of the High Court which has already been rendered in the writ petition. It is well established that no legislation can wipe out a judicial pronouncement though it may remove the defects pointed out by such pronouncements.
48. Further, there was a right to the affected person to prefer an appeal and that right has been exercised or will have to be exercised. That vested right of appeal, which is a substantive right and not merely a procedural right cannot be taken away even by the Parliament excepting by way of an express provision or by necessary intendment. Certainly there is no express provision affecting the right of appeal or affecting the writ appeals which have already been filed. The only other question is whether Section 58 by necessary intendment affects the right of appeal. For the reasons we have already mentioned, it is not possible to say that by necessary intendment the Parliament wanted to apply the provisions of Section 58 to writ appeals against orders passed in writ petitions before the appointed day, whether they may be filed before that day or whether they may be filed after that day. It follows that all such writ appeals and matters will have to be considered and disposed of in the light of Article. 226 as it existed before the appointed day and on the application of which the order was passed. The new Article. 226 cannot be applied to them. It is specifically made applicable only to pending writ petitions and the interim orders made therein.
49. We may here refer to a few decisions which give full support to the views we have expressed above. In H. K. Dada (I) Ltd. v. State of M. P., : 1983(13)ELT1277(SC) , S. R. Das, J. speaking for the Court said that the fact that the pre-existing right of appeal continues to exist must in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can be no question of the amended provision preventing the exercise of that right. This decision, therefore, is an authoritative pronouncement that a pre-existing right of appeal continues to exist and the old law continues to be applicable for the purpose of supporting the pre-existing right of appeal.
50. We may here refer to the decision of the Supreme Court in Garikapati v. Subbiah Chowdhary ( : 1SCR488 ). There a suit was filed before the Constitution. At that time an appeal was maintainable to the Federal Court if the valuation was above Rs. 10,000/-. Thereafter, the Federal Court was abolished and the Supreme Court was constituted and the necessary value for appeal was raised to Rs. 25,000. The majority of the Court held that the legal pursuit of a remedy of 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. The right of appeal is not a mere matter of procedure but is a substantive right. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. Further, S. R. Das, C. J. who delivered the majority opinion, held that in construing the articles of the Constitution Courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested right. The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. In the next place, Courts must take into account the surrounding circumstances that existed at the time when the Constitution makers framed the Constitution and for which provision had to be made by them.
51. A single Judge of the Calcutta High Court held in Srimati Dasi v. Sibani Bala Mitra (ILR 1951 (1) Cal 559) that the word 'pending' in Section 29 of the Calcutta Thicka Tenancy Act refers to such suits and proceedings for ejectment pending before a trial Court in which no decrees have yet been passed and that the Section, therefore, has no application to appeals.
52. Once again the Supreme Court held in Kasibai v. Mahadu, : AIR1965SC703 that though as a general rule alterations of law and procedure are retrospective, a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law unless provision is made expressly in that behalf or a necessary implication arises.
53. In Katikara Chintamani Dora v. Guntreddi Annam Naidu, : 2SCR655 , a question arose whether an amended law during the pendency of an action had retrospective operation and whether rights of parties had to be decided according to law as it existed when action was begun. Sarkaria, J. who rendered the judgment said that two fundamental principles have to be kept in view while interpreting such provisions. The first is, that if the legislature, acting within its legislative competence, wants to neutralize or reopen a Court's decision, it is not sufficient to declare that the decision of the Court shall not bind. In this connection, the learned Judge referred to Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, : 79ITR136(SC) where Chief Justice Hidayatullah, observed:
'If the Legislature, acting within its legislative competence, wants to neutralise or reopen a Court's decision, it is not sufficient to declare merely that the decision of the Court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.'
Proceeding further Sarkaria, J. stated:
'The first test to be applied is whether the Amending Act so radically altered the conditions on which the said decrees proceed, that they would not have been passed in the altered circumstances. The point is that the law which was the basis of the decision must be altered and then, the foundation failing, the binding value of the decision fails when the non obstante clause is superadded.'
The second principle was stated in the words of Bowen, L.J. in Reid v. Reid (1886) 31 Ch D 402 at page 408 thus:
'A section in a statute which is to a certain extent retrospective, we ought to nevertheless to bear in mind the maxim that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights) as applicable whenever we reach the line oat which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant'.
54. Now applying this principle laid down by Hidayatullah , C.J. and Bowen, L.J. and adopted by the Supreme Court in Chintamani Dora's case, : 2SCR655 , we find that S. 58 in so many words gives a very limited retrospective effect. In express terms it states that it applies to pending writ petitions and interim orders which have which have been made before and have been pending by the appointed day. It is not possible to extend the scope of this retrospective power to cases where the High Court had already rendered its decision in a writ petition which can by pending petition. We are, therefore, of the opinion that the limited retrospective operation of S. 58 cannot be extended to writ appeals against orders rendered before 1-2-1977.
55. Once again in Jose Da Costa v. Bascora, : AIR1975SC1843 the Supreme Court held that while provisions of statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The right of appeal being a substantive right, the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are, however, two exceptions to this rule viz., (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the Court to which appeal lay at the commencement of the suit stands abolished.
56. Once again in Govind Das v. Income Tax Officer, : 103ITR123(SC) the Supreme Court laid down that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matter of procedure. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. Therefore it follows that even if the other interpretation that S. 58 affects writ appeals also can be given only that interpretation which gives prospective effect only will have to be adopted.
57. However, the learned Advocate General and the learned standing counsel for the Central Government urged that after all a writ appeal is a continuation of a writ petition and what could be done in a writ appeal would be nothing but a rehearing of the petition. Therefore when S. 58 speaks of pending petitions, that expression necessarily takes in writ appeals also. This argument appears to us to be unacceptable. There is no reason why the Parliament did not refer to pending writ appeals also in S. 58, when it specifically referred to pending writ petitions and interim orders. The omission becomes more significant when the Parliament clearly referred to appeals as well as cross appeals in Cl. (5) of Article. 329-A which was introduced only very recently. A fair reading of S. 58 appears to us to show that the Parliament did not deliberately include writ appeals and the appeals before the Supreme Court. If we are to accept the contention urged on behalf of the Government that S. 58 takes within its sweep writ appeals pending in High Courts then as we have already pointed out, it would lead to preposterous result that while appeals before the Supreme Court are not affected and will have to be decided on the basis of old Art. 226, writ appeals before the High Court will have to be decided on the basis of the new Art. 226. Further, the Parliament could never have intended to make a legislation which would have the effect of destroying the writ petition and wiping out the judgment rendered by the High Court, which power it did not have. So on the basis of the language of S. 58 itself, we are unable to accept this contention put forward on behalf of the Government.
58. In this connection reliance is placed on Lachmeshwar v. Keshwar Lal, AIR 1941 FC 5, Dayawati v. Inderjit, : 3SCR275 , Niranjan Lal v. Ram Kali, : AIR1950All396 , Raghuraj Singh v. Sobhaman, AIR 1951 All (FB) Shyam Sunder v. Shagun Chand, AIR 1967 All 214 (FB) and Mula v. Godhu (AIR 1971 SC 89).
59. In Lachmeshwar v. Keshwar Lal (AIR 1941 FC 5) (supra) during the pendency of an appeal before the Federal Court of the Money Lenders Act was repealed and was re-enacted. Under S. 7 thereof it was provided that the decrees for interest should not exceed the amount of the loan advanced and that the amount of loan advanced and that the amount of loan advanced should be taken to be that amount which has been found to have been found to have been for legal necessity. Since such a relief was granted to the debtor, it was held by the Federal Court that what it was doing in appeal before it was not passing any fresh decree but was only declaring the judgment which should be substituted for the previous judgment of the High Court and therefore it was entitled to take into account the provisions of S. 7 and declare what the new judgment of the High Court should be in accordance with Act 7 of 1989. Thus it was a case where a positive relief granted to a debtor was sought to be given effect to during the pendency of the appeal.
60. Strong reliance was placed on the Supreme Court decision in Dayavati v. Inderjit ( : 3SCR275 )(supra). As in Lachmeshwar v. Keshwar Lal (AIR 1941 FC 5)(supra) in this case also there was a new debt law affecting substantive rights retrospectively, commencing after the judgment of the trial Court, Section 6 of the Act therein conferred specific retrospective effect of the prospective effect of the provision saying that they shall apply to all suits pending on or instituted after the commencement of the Act. Hidayatullah, J. ( as he then was) held that they would apply even to matters which were pending in appeal. Learned counsel for the Government sought to seek support from the opinion of the Court that appeal was merely a continuation of the suit and therefore by analogy he argued that the writ appeal is nothing but a re-hearing of the writ petition. But there are more than one distinguishing feature in Dayavati's case ( : 3SCR275 )(supra). Section 6 of the Amending Act there was specifically made for giving retrospective effect to all matters pending and which may be instituted after the commencement of the Act. The intendment of the Legislature was patent that it should affect all pending matters. Further it conferred a valuable right to relief which was made available to all debtors and that relief was sought to be given even in appeal against a preliminary decree. Moreover, Hidayatullah, J. ( as he then was) pointed out at p. 1426:
'Matters of procedure are however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to the intention expressed and the Court of appeal may give effect to such law even after the judgment of the Court of first instance. The distinction between laws affecting vested rights does not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment.'
We have already expressed our opinion that S. 58 does not purport to take away from the appellant his right to prosecute his remedy of writ appeal under the old Art. 226.
61. The three Allahabad cases, Niranjan Lal v. Ram Kali : AIR1950All396 (supra), Raghuraj Singh v. Shobaman : AIR1951All485 (FB) (supra) , Shyam Sunder v. Shagun Chand : AIR1967All214 (FB) (supra) are of one category. No doubt in the first of the cases which is a second appeal it was held that the High Court was bound to take into account S. 15 of the Rent and Eviction Act which came into force pending the appeal. Once again it should be remembered that it was a relief and a right created in a tenant which the Court held that it should be enforced even at the stage of second appeal. The second one is a Full Bench decision of the Allahabad High Court. The U.P. Tenancy Amendment Act made an alteration in the period of limitation for suits. The Full Bench held that the new rule of limitation could be applied for deciding cases which had reached the stage of appeal. While laying down this proposition the Full Bench held that under S. 6 of the General Clauses Act, 1897, the repeal of an enactment does not prima facie affect pending actions which are to be decided as if the repealed enactment was still in force. Again, the right to sue is a vested right and, although retrospective operation may be given to rules of procedure, no such operation can normally be given to a law of limitation when it affects a right of suit which was not barred under the law existing at the date when the suit was instituted or to revive a right which had already become barred. All those rules are subject to one condition and that is that the Legislature has not shown a contrary intention either in express words or by necessary implication. The third of the cases is another Full Bench decision of the Allahabad High Court. Once again under the Control of Rent and Eviction Act a new relief was brought into existence during the pendency of an appeal and that relief was given in appeal. Again this is giving a substantive relief declared by the Legislature to a citizen even at the stage of appeal.
62. In Mula v. Godhu : 2SCR129 (supra) the amended section was held to be plain and comprehensive enough to require an appellate Court to give effect to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting premption or one refusing that relief. There, the Supreme Court was of the opinion that the language of the amended provision was plain that the appellate Court also should give effect to the substantive provisions of the Amending Act.
63. We are, therefore of the opinion that these decisions do not really detract form the view which we have expressed above. A writ appeal in a sense, may be continuation of a writ petition and involve re-hearing of the writ petition. But the question is whether the Parliament has either by express provision or by necessary intendment provided that appeals against decisions in writ proceedings rendered before the appointed day should also be governed by the provisions of S. 58 and of the new Art. 226. We have given our view that there is no such intention expressed in S. 58. Therefore, we are of the opinion that S. 58 does not affect writ appeals, which are already pending or which may be filed after 1-2-1977 against the decisions rendered before 1-2-1977 disposing of the proceedings. All such writ appeals will have to be considered and disposed on the basis of old Art. 226. Appeals filed against interim orders passed before 1-2-1977 are also not affected by anything contained in S. 58. Likewise, petitions for leave to appeal to the Supreme Court against such decisions will also have to be decided on the basis of the old Art. 226.
64. We are, however, not inclined to accept Sri B.V. Subrahmanyam's contention that the ambit of S. 58 (1) is limited only to cases which are covered by Art. 226(3). That is to say, only those writ petitions which come within the mischief of Art. 226(3) come within the scope of S. 58. He strongly relied on the word 'entertained' used in Cl. (3) of Article 226. We see no force in this contention because there is no warrant or support for that contention in the language of S. 58. Section 58 (1) applies to all writ petitions which have been 'made' under Art. 226 before the appointed day and pending before any High Court immediately before that day and also to interim orders. Section 58 (2)deals with cases out of those covered by S. 58 (1) which could not have been admitted under new Article 226. We see therefore, no justification for saying that S. 58 applies only to cases which are covered by Art. 226 (3).
65. The above discussion disposes of all the aspects of Art. 226 and S.58. Then we may briefly refer to one or two writ petitions in which some peculiar questions arose. In W.P. No. 1122 of 1975 three sets of rules made by the Central Government under Art. 309 proviso are challenged. Sri Gururaja Rao, learned counsel for the petitioner contended relying on Mohd. Yakub v. State of J. & K. , : 1968CriLJ977 that a rule is not law but has only force of law. Therefore, these rules cannot be called Central Law. We cannot agree. It is well settled that the expression 'law' embraces within its ambit 'statutory rules'. It is next contended that the rules made under the proviso to Art. 309 cannot be statutory rules. Once again the contention is untenable. It has been long accepted that the rules made by the President or the Governor under Art. 309 have the force of law and will be in force until the appropriate Parliament or Legislature makes laws in this behalf. Therefore, these rules are certainly central laws.
66. W.P. Nos. 250/77 relates to an industrial dispute. It was argued that under S. 10 the Government had discretion whether to refer a dispute or not to the Industrial Tribunal. Therefore, the possibility of a dispute being raised before the Industrial Tribunal cannot be considered to be 'other remedy' within the meaning of Cl. 3 of Art. 226. We cannot accede to this contention. The Industrial Disputes Act has provided a clear remedy for adjudication of the disputes by Labour Courts and Industrial Tribunals, once a dispute is raised and the same has been referred to them. If, in any particular case, the Government acts arbitrarily or contrary to law in refusing to refer a dispute to the Tribunal or Labour Court then such a refusal may be a ground for filing a writ petition. But one cannot postulate that the Government may not refer a dispute to the appropriate forum created by the statute and then entertain a writ petition. Therefore we cannot accept this contention.
67. Now having expressed our opinions on the different questions raised, we do not propose to go into the merits of each case posted before us. We direct that these matters shall be posted before the appropriate Division Bench or learned Single Judge for their disposal in the light of principles we have laid down above.
68. Order accordingly.