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Hotha Sitarama Sastry Being Minor by Mother and Guardian Hotha Kameshwaramma Vs. the State of Andhra Pradesh Represented by Collector West Godavari District at Eluru - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberS.C.C.M.P. Nos. 1378 and 1390 of 1958
Judge
Reported inAIR1959AP359
ActsConstitution of India - Articles 132, 133, 133(1), 134, 225, 372 and 374(2); Government of India Act - Sections 5 and 92
AppellantHotha Sitarama Sastry Being Minor by Mother and Guardian Hotha Kameshwaramma
RespondentThe State of Andhra Pradesh Represented by Collector West Godavari District at Eluru
Appellant AdvocateB.V. Subrahmanyam, Adv.
Respondent AdvocateD. Narasaraju, Adv. General
Excerpt:
.....- petitioners sought certificate of fitness from high court for appeal before supreme court as substantial question of law involved in case - substantial question of law already interpreted by federal court - contention of petitioner that question of law needs fresh interpretation because federal court no longer exists - issue whether it still remains substantial question of law requiring fitness certificate to approach supreme court for fresh interpretation - articles 225, 372 and 374 (2) make law declared by federal court applicable even after commencement of constitution of india unless supreme court alters it - court observed under such circumstances it cannot be said that substantial question of law still involved - interpretation of law by federal court continues to hold -..........main plea advanced by the petitioners is that inasmuch as both the above contentions raise substantial questions of law and that the first contention in particular involves a substantial question as to the interpretation of the constitution within the meaning of article 132 of the constitution of india, this is a fit and proper case for a certificate under both the articles 132 and 133 of the constitution of india.it is no doubt true that the first contention turns upon the interpretation of section 5 of the fifth schedule of the constitution of india, and that such a question not only directly arises in the case for determination but also is of some substance, but as discussed in the judgment, the corresponding provisions of the government of india act embodied in section 92.....
Judgment:

Kumarayya, J.

1. These are two separate petitions for leave to appeal to Supreme Court under Sections 109 and 110, C. P. C., and Articles 132 and 133 of the Constitution of India. They are directed against the final orders passed in W. A. Nos. 149 and 150 of 1957 whereby the contentions of the petitioners that Regulation IV of 1951 made by the Governor of Madras purporting to act under Section 5(2) of the Fifth Schedule of the Constitution was ultra vires the powers of the Governor and is a colourable legislation and that the notification issued by the Government of Madras thereafter under Section 1(4) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, XXVI of 1948 fixing a particular date for taking over the estates of Gangolu A and C estates is invalid and liable to be quashed, have been discountenanced and the order passed in W. P. Nos. 28 and 29 of 1953 has been upheld.

The main plea advanced by the petitioners is that inasmuch as both the above contentions raise substantial questions of law and that the first contention in particular involves a substantial question as to the interpretation of the Constitution within the meaning of Article 132 of the Constitution of India, this is a fit and proper case for a certificate under both the Articles 132 and 133 of the Constitution of India.

It is no doubt true that the first contention turns upon the interpretation of Section 5 of the Fifth Schedule of the Constitution of India, and that such a question not only directly arises in the case for determination but also is of some substance, but as discussed in the judgment, the corresponding provisions of the Government of India Act embodied in Section 92 have been authoritatively interpreted by the then highest Court of the land i. e., the Federal Court. The question, therefore, is whether the point of law involved can still be deemed to be a substantial question in view of the authoritative pronouncement of that Court. As to the meaning of the term 'substantial question' our attention has been invited to a Full Bench decision of tho Madras High Court in Subba Rao v. Veerraju : AIR1951Mad969 . The learned Judges therein while discussing the term 'substantial question of law' observed as follows.

'When a question of law is fairly arguable, when there is room for difference of opinion on it, then such a question will be a substantial question of law..... But when a point of law is practically covered by the decision of the highest court say like the Privy Council or the Supreme Court, it will not be a substantial question.'

In the instant case, no doubt, the provisions of the Constitution of India and not the Government of India Act were for consideration. It is also clear that there is no direct authority of the Supreme Court on this point, and further that as observed in the State of Bihar v. Abdul Majid, : (1954)IILLJ678SC , the Supreme Court is not bound by the decisions of either the Federal Court or the Privy Council.

The question, therefore, is whether, in the absence of any pronouncement of the Supreme Court, the pronouncement made by the Federal Court on any such points of law can attect the substantiality of the point for purposes of leave to appeal under Articles 132, 133 and 134. This takes us to the question of the force and authority of the Federal Court's decisions as recognised by the Constitution of India. On a perusal of the various provisions of the Constitution, it would appear that the law settled by tho Federal Court will continue to be applicable even after the advent of the Constitution till it is altered by the Supreme Court or by a competent authority. That is what is contemplated by Articles 372 and 225 and also Article 374(2) which provides inter alia that the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and el feet as if they had been delivered or made by the Supreme Court. It is on this basis that the Madras High. Court in Arumugam v. State of Madras, : AIR1951Mad115 , observed that the decisions of the Federal Court on points of law given prior to 26-1-1950 are binding on all the Courts within the territory of India after that date.

Having regard to the fact that the provisions of Section 5 of the Fifth Schedule are substantially the same as of Section 92 of the Government of India Act on which there is authoritative pronouncement of the Federal Court in Chatturam v. Commr. of Income Tat Bihar, 1947-2 Mad L J. 432: (AIR 1947 FC 32) and Jatindra Nath Gupta v. Province of Bihar, 1949-2 Mad LJ 356: (AIR 1949 FC 75), we are of the opinion that the question of law as to the interpretation of the Constitution involved in the case can no longer be regarded .is substantial as to warrant the grant of leave under Article 132.

2. It is next contended that inasmuch as the notification related to an estate partly and not wholly situated in the scheduled area it raises a point of law as to its validity substantial enough to warrant grant of leave under Article 133(c). We are not convinced that the point raised is of substance having regard to the language of the enactment. It must be remembered that the term 'certify' used in the Article is a strong term. The High Court must be convinced of the substantiality of the point or of the fitness of the case before it can certify under Article 133. It is only when there are some complexities of law involved in the case requiring an authoritative interpretation by the Supreme Court that a certificate of fitness should be ordinarily granted. The point of law involved should be one of difficulty or of great importance. Having regard to the circumstances of the case this Court felt no such difficulty nor was there a doubt entertained on the point. The notification in question under the circumstances was held to be valid. In such circumstances we do not feel justified in granting a certificate on the mere ground that there is a question of law involved even though for tho reasons shown above it is not substantial.

3. We, therefore, reject both the petitions. No order as to costs.


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