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Hemalatha Textiles, Guntur Represented by Its Director M. Sudersanam and ors. Vs. State of Andhra Pradesh Represented by Its Secy. Public Works Dept., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberS.C. Civil Misc. Petn. Nos. 3671 to 4633 of 1959
Judge
Reported inAIR1960AP628
ActsConstitution of India - Articles 14, 132, 133 and 133(3)
AppellantHemalatha Textiles, Guntur Represented by Its Director M. Sudersanam and ors.
RespondentState of Andhra Pradesh Represented by Its Secy. Public Works Dept., Hyderabad
Appellant AdvocateK. Srinivasamurthi, ;V. Venkata Narayana Gupta, ;P.R. Ramachandra Rao, ;E. Venkatesam and ;P. Kodanda Ramayya, Advs. and ;E. Subrahmanyam, Adv. for ;T.S. Narsinga Rad, Adv.
Respondent AdvocateM.S. Ramachandra Rao, Second Govt. Pleader
Excerpt:
civil - leave to appeal - article 132 and 133 (3) of constitution of india - writ petition dismissed by single judge of high court following earlier decision of division bench of same high court - special leave cannot be granted by virtue of section 133 (c) - certificate can be granted under article 132. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with..........court against the judgment and decrees of satyanarayana raju, which following the decision of a division bench of thishigh court in secy. to government public worksand transport dept. v. adoni ginning factory, writappeals nos. 121 to 138, 140 and 141 of 1957 : : air1959ap538 dismissed several writ petitions filed by these appellants. they purport to beunder article 132 as well as under article 133 of theconstitution. ' '2. the subject-matter of the writ petitions is the same as that concerned in those before the division bench. the state government issued order's enhancing the rates for supply of electrical energy to the consumers irrespective of the agreements entered into by the government with the consumers. the aid of section 3 of the madras act xxix of 1949 as amended by act xiii.....
Judgment:
ORDER

Munikanniah, J.

1. These application are filed for leaveto appeal to the Supreme Court against the judgment and decrees of Satyanarayana Raju, which following the decision of a Division Bench of thisHigh Court in Secy. to Government Public Worksand Transport Dept. v. Adoni Ginning Factory, WritAppeals Nos. 121 to 138, 140 and 141 of 1957 : : AIR1959AP538 dismissed several writ petitions filed by these appellants. They purport to beunder Article 132 as well as under Article 133 of theConstitution. ' '

2. The subject-matter of the writ petitions is the same as that concerned in those before the Division Bench. The State Government issued order's enhancing the rates for supply of electrical energy to the consumers irrespective of the agreements entered into by the Government with the consumers. The aid of Section 3 of the Madras Act XXIX of 1949 as amended by Act XIII of 1952 and also the provisions of Andhra Act I of 1955 are sought in support of the action of the Government. The consumers questioned the right to increase the rate under the guise of controlling the price using the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act and the Andhra Amendment Act, 1955.

They raised before the Division Bench the questions as to the nature and content of the powers available to the Government under Section 3 of the Madras Act XXIX of 1949 and also other points such as, whether there has been violation of provisions of Clause 1(1) of Article 19 and those of Article 14, as well as the ambit and scope of the executive power of the State under Article 298 with reference to the carrying on of trade or business by the State, and also the incidental question arising under Article 299 in respect of the effect of the contracts on the parties thereto, even when the Government is one of the contracting parties.

The Division Bench has indeed interpreted Section 3 of Madras Act XXIX of 1949 as empowering the State Government to enhance the rates and alter the tariffs in regard to the charges for the supply of current; but in respect of the other arguments which indeed refer to the vires of the statute or to the operation of the particular provisions of the statute irrespective of the provisions as to the limitations laid down or guarantees made or fundamental rights conceded under the Constitution, it held that they lack in substance. However, the Division Bench has chosen to give leave to appeal to the unsuccessful consumers concerned in the appeals before it, and in doing so it purported to act under Article 133 of the Constitution.

Alter the disposal of the appeals by the Division Bench in the above manner, the writ petitions filed by the present applicants came up for hearing before Satyanarayaria Raju J. and they were dismissed as the learned Judge had no other alternative than to follow the decision of the Division Bench. The present applications are therefore tiled for leave to appeal to the Supreme Court. Here it may be mentioned that the appeals preferred to the Supreme Court in pursuance of the leave obtained by the consumers, have been declared on 28-4-1959 to have been duly admitted.

3. The learned Government Pleader has contended is the first instance that the entertainment of any application for leave to appeal to the Supreme Court is incompetent under Article 133 by virtue of Clause 3 of that Article, which is in the following terms:

'Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court'. There is, therefore, little doubt that any leave that may be granted cannot be on the ground that these are fit cases for appeal to the Supreme Court as is provided under Sub-clause (c) of Clause (1) of Article 133; and the mere fact that there has been an order of Division Bench granting leave to appeal under Article 133 will not entitle the present applicants ipso facto to an order in their favour.

4. The questions therefore which arise in the present circumstances are whether there is a bar for granting a certificate under Article 132 when the judgment, decree or final order is of one Judge of a High Court, and, if the answer is in the negative; what are the requirements with which the Court has to be satisfied before granting the certificate.

5. A certain attempt has been made for raising the contention that the principle underlying Clause (3) of Article 133 may also be made applicable even to cases arising under Article 132. But it is needless to point out that the absence of any specific provision restricting the question of leave to appeal to the Supreme Court to cases other than the judgment, decree or final order of one Judge of a High Court in Article 132 itself makes it amply clear that this limitation cannot be read into Article 132.

Secondly on a plain reading of the two relevant articles it is clear that only when the certificate is granted under Article 133, i.e., either because the subject-matter of the dispute hi appeal is not less than twenty thousand rupees or that it involves directly or indirectly some claim or question respecting property of like amount or that the case is a tit one for appeal to the Supreme Court -- the judgment against which the leave is granted should not be one of a single Judge of a High Court.

But where the ground for granting the certificate is that a substantial question of law as to Interpretation of Constitution is involved, the consideration that the High Court itself on appeal is competent to consider the judgment and decree of the single Judge could not be construed as a fetter, because the importance of the problem, in such a case, outweighs all other considerations relating to formalities pertaining to procedure. There is also nothing in the Constitution to the effect that the availability of other remedies such as appeals under the. Letters Patent could operate to limit the exercise of the powers under Article 132; but it should, on the other hand, however be stressed that it is far from the Scheme of the Constitution to make a question pertaining to the interpretation of the Constitution to trod slowly and wearily along the accustomed usual path before it reaches the highest authority for a final and effective adjudication or determination.

That a similar object is sought to be achieved by deliberate omission of prohibition of appeal against the decision of a single Judge in Article 132 is I consider not altogether an illegitimate inference, when especially the purpose underlying the provision, such as Article 228 of the Constitution, is also discerned. For a similar reason which has for its objective the speedy, effective and authoritative disposal of a question relating to the interpretation of the Constitution, the course of taking the matters direct to the Supreme Court without having recourse to an appeal to the High Court itself as against the decision of a single Judge, is, hi my view, therefore warranted. It follows that the answer as regards the first point should be in the negative.

6. Then, before the exact requirements mentioned in Article 132 are considered, the point raised in regard to the unavailability of a certificate under Article 132, when leave has already been given under Article 133 may be taken up.

The argument is two-fold: Firstly, the grant of leave by the Division Bench only under Article 138 implies refusal to grant a certificate under Article 132; and secondly, that no substantial question of law as to interpretation of the Constitution would therefore again arise or be considered. But the first contention is, in my view, wholly unsustainable; for, white the grant of a certificate is only under Article 132, the rejection of the application under Article 133 may become implicit as in such a case it is possible to urge that the grant of leave for a special purpose indicated in Article 132 excludes the possibility of leave as one generally lit under Article 133; but the same is not the case with the contrary.

A plain reading of these two articles places this view beyond the pale of doubt, since Article 132 could be said to be restrictive in scope while Article 133 is inclusive of the consideration arising under the former. It thus becomes clear that where more questions than the interpretation of the Constitution arise, the resort to Article 133 becomes necessary, for the latter is sweeping in its ambit or operation and also is comprehensive in its character so as to serve also the object comprised in Article 132. This is made further manifest or obvious by the presence of clause 2 of Article 133 which states:

'Notwithstanding anything in Article 132, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided'.

Therefore even on appeal taken to the Supreme Court on the ground that it is a fit one or the value of it has been such where leave to appeal could not be refused, the point that it involves a substantial question of law as to the interpretation of the Constitution would still be a matter which can be agitated in that appeal before the Supreme Court. While so, the view that the mere grant of a certificate on the ground that it is a fit case, far from barring the raising of this question relating to the interpretation of the Constitution, really makes it, on the other hand, a relevant proposition which can be brought within the purview of the scrutiny of the Supreme Court, is perforce irresistible.

But, while it is not unimaginable that a case may be a fit one for appeal without involving a substantial question of law as to the interpretation of the Constitution, it cannot be made axiomatic that a lit case always involves that very question arising under Article 132. But it may be that while granting a certificate under Article 133, it is also not necessary to specifically refer to the question arising under Article 132; and therefore it neither follows nor is necessarily to be inferred that the mere grant of a certificate as a fit one could be taken as a decision tantamount to a refusal of leave to appeal under Article 132.

Therefore in the circumstances in which the Division Bench granted the certificate, it is necessary to observe, that it did not feel the need to have to advert to aspects arising under Article 132. It is also not inconsequential to have therefore to note that the same Division Bench would not be precluded from granting a certificate under Article 132 in respect of the same matter, if it is once again approached, without having to consider whether it is otherwise a fit case, if only that aspect alone is the only one and no other which it has necessarily to consider on any future occasion.

Therefore, when the facts warrant it -- in a case where leave is asked for as against the judgment of a single Judge -- the use of Article 132 for that purpose is not only highly desirable but perfectly possible as being legal. It follows that the order of the Division Bench purporting to be one under Article 133 in no way imperils a fresh consideration of grant of leave to appeal, solely on the basis of the requirements specified in Article 132.

7. Now, as to the requirements under Article 132, the terms of that Article lay down that a substantial question of law as to the interpretation of Constitution should be involved in the judgment against which an appeal is preferred. It therefore becomes necessary to examine whether on the facts of this case and having regard to the questions which have been raised before the Division Bench and dealt with by it, such a question of law is involved. It is contended by the learned Government Pleader that inasmuch us many of the propositions arising under Article 14 and the other Article 19 have, off and on, already been did subject-matter of the decisions by the Supreme Court and therefore sufficient guidance in the matter is available, the application of any principle so enunciated by the Supreme Court cannot any longer be considered as still raising a substantial question of law.

He relied for this on the decision in Toomu Chandriah v. Civil Administrator, Warangal, AIR 1954 Hyd 126, and also a case reported in M/S. Bharat Board Milk Ltd. v. The Regional Provident Fund Commissioner, : AIR1957Cal702 . He further contended that the interpretation of Section 3 of the provisions of Madras Act XXIX of 1949 by itself could not be construed as pertaining to the interpretation of the Constitution, and that in any case, a vain attempt by a party merely to refer to the provisions of the Constitution in the course of the arguments would not by itself convert all such matters into those involving interpretation of Constitution.

There can be no demur to the proposition so stated in the abstract. But broad propositions of law governing discrimination prohibited by or equally adumbrated in Article 14 or the statement of tests for ascertaining reasonableness of restrictions in the interests of the general public or as incorporated in the existing law will not shut the door for considering the constitutionality of the Statute or of its provisions, especially having regard in particular to the peculiarities and special features with which the instant case bristles. Each case will have therefore to be considered on the questions which arise actually in the particular context.

In the instant case, as has already been pointed out, it is not only the nature of the authority conferred on the Government under Section 3 of' the Madras Act XXIX of 1949 that really arises for consideration, but whether that statute can be resuscitated using Article 298 in respect of item 34 of the VII Schedule. No doubt, the Division Bench expressed its view is one way; but the possibility of the same matter being considered in all its aspects by the Supreme Court, when not ruled out, supports the view that the question of law as to the interpretation of the Constitution so raised is 'substantial'.

It is particularly so when the stakes of the parties who are litigating are not only large but are' also of public importance as the decision affects the interests of a section of the public who use or consume electricity. Also having regard to the decision laid down by the Full Bench in R. Subbarao v. N. Veeraju, : AIR1951Mad969 and the tenor of decisions such as Sarayoo Prosad v. Joint Secy. to the Government of West Bengal, : AIR1951Cal424 , and Election Commission, India v. Venkata Rao, : [1953]4SCR1144 , I consider that a certificate should be issued as substantial questions of law as to interpretation of the Constitution are involved.

8. It is not altogether inappropriate to have to mention that any refusal of the certificate when the decision of the Division Bench is itself before the Supreme Court -- merely on the ground that it is a single Judge that dismissed the appeal, though based upon the ruling of the Division Bench, will be on a ground which can be considered hypertechnical. Therefore the scope for alleviation in such cases especially when a legal remedy could be made available should not be ignored. This order is, in this view, also not only desirable but called for. The certificate under Article 132 is accordingly granted.


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