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Brij Gopal Denga and ors. Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 342 of 1977
Judge
Reported inAIR1978MP122
ActsConstitution of India - Articles 226, 228A and 228A(3)
AppellantBrij Gopal Denga and ors.
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateY.S. Dharmadhikari and ;Gulab Gupta, Advs.
Respondent AdvocateS.L. Garg, Adv. General
Cases Referred and State of U.P. v. Ram Chandra Trivedi
Excerpt:
- - the object behind article 228a is not defeated or is in no way impaired if a division bench of the high court at the motion hearing stage rejects a point as to the constitutional validity by holding that it is unarguable and that it raises no question for determination by a bench of five judges. the high courts, it is well-known, are already flooded with cases and it is not possible to cope with the arrears even by sitting in single benches and division benches. it is a well-settled principle of construction of the constitution that when two constructions are possible, the court must adopt that which will ensure smooth and harmonious working of the constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established.....g.p. singh, j. 1. in this petition under article 226 of the constitution, one of the points raised is that section 19 (c) (2) of the madhya pradesh cooperative societies act, 1960, is ultra vires for two reasons: first, that it offends article 19(1)(c) of the constitution; and secondly, that it suffers from excessive delegation. when the petition came up for admission before a division bench (k. k. dubey and r. k. tankha, jj.), the learned judges referred the petition to a bench of five judges. it was also impliedly indicated that the bench of five judges would first consider the question whether, when in a petition the constitutional validity of a state law is raised, the petition can be placed before a bench of two judges for purposes of admission in view of article 228a of the.....
Judgment:

G.P. Singh, J.

1. In this petition under Article 226 of the Constitution, one of the points raised is that Section 19 (c) (2) of the Madhya Pradesh Cooperative Societies Act, 1960, is ultra vires for two reasons: First, that it offends Article 19(1)(c) of the Constitution; and secondly, that it suffers from excessive delegation. When the petition came up for admission before a Division Bench (K. K. Dubey and R. K. Tankha, JJ.), the learned Judges referred the petition to a Bench of five Judges. It was also impliedly indicated that the Bench of five Judges would first consider the question whether, when in a petition the constitutional validity of a State law is raised, the petition can be placed before a Bench of two Judges for purposes of admission in view of Article 228A of the Constitution. It is on this question that we have heard arguments and it is this question which. I proceed to decide by this order.

2. Under the rules of the High Court made in exercise of the powers conferred by Article 225 of the Constitution and Clause 27 of the Letters Patent, a petition under Article 226 is laid before a Division Bench for motion hearing. At the time of motion hearing, the Court may either summarily dismiss the petition or order a rule nisi to be issued against the opposite party. The purpose of motion hearing is to find out whether the petition raises arguable points. If the Bench hearing the petition at the admission stage finds that no arguable points are raised, the petition is dismissed. But if the Bench finds that arguable points are made out, the petition is admitted and rule nisi is issued. Before Article 228A was inserted in the Constitution by the Constitution (Forty-second Amendment) Act, 1976, a petition challenging the validity of any State law could be admitted by a Division Bench and could also be rejected by it at the time of motion hearing. The question is as to how far this practice should stand modified in view of Article 228A which reads as follows:

'228-A. (1) No High Court shall have jurisdiction to, declare any Central law to be constitutionally invalid.

(2) Subject to the provisions of Article 131A, the High Court may determine questions as to the constitutional validity of any State law.

(3) The minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law shall be five:

Provided that where the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question.

(4) A State law shall not be declared to be constitutionally invalid by the High Court unless-

(a) where the High Court consists of five Judges or more, not less than two thirds of the Judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid and

(b) where the High Court consists of less than five Judges, all the Judges of the High Court sitting for the purpose hold it to be constitutionally invalid.

(5) The provisions of this Article shall have effect notwithstanding anything contained in this part.

Explanation: In computing the number of Judges of a High Court for the purpose of this article, a Judge who is disqualified by reason of personal or pecuniary bias shall be excluded.'

3. Article 228A does not specifically provide that a petition under Article 226 raising a point as to the constitutional validity of any State law cannot be heard by a Division Bench at the admission stage. The provision in Article 228A is that the minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law shall be five and that a State law shall not be declared to be constitutionally invalid unless two-thirds of the Judges sitting for the purpose of determining the validity of such law hold it to be constitutionally invalid. When a petition raising a point as to the constitutional validity of a State law comes up before a Division Bench for motion hearing, the Bench will naturally consider whether the point as to the constitutional validity is arguable or not. If the Bench conies to the conclusion that the point is arguable, the petition would be admitted. Up to this stage there is no difficulty, for it cannot be said that the Bench by admitting a petition determines any question as to the constitutional validity and thereby violates Article 228A. The real question is: whether, when the Division Bench hearing the petition at the admission stage comes to the conclusion that the point as to the constitutional validity is unarguable, can it summarily dismiss the petition

4. Now the requirement in Clause (3) of Article 228A that five Judges must sit is only for 'the purpose of determining any question as to the constitutional validity of any State law'. Clause (3) comes into play only when there is a question as to the constitutional validity of any State law as it presupposes the existence of such a question. The enquiry whether there is any question as to the constitutional validity involved in a case is outside Clause (3). Therefore, this enquiry can be undertaken by a Division Bench at the admission stage. What would be the ambit of this enquiry will depend upon the meaning of the word 'question' in the context of Article 228A. The dictionary meaning of the word 'question' is as follows:

'Interrogative statement of some point to be investigated or discussed; a problem; hence a matter forming, or capable of forming, the basis of a problem; a subject involving more or less difficulty or uncertainty (Shorter Oxford English Dictionary, Vol. 2, p. 1639).'

In the context of Article 228A, every point raised as to the constitutional validity of any State law cannot be understood to be a question. If the point raised requires investigation or discussion, if it presents a problem, if it involves difficulty or uncertainty, then and then alone the point raised can be described to be a question. If the point raised is wholly unarguable or unsubstantial, or when the answer is self-evident, it cannot be said that any question is raised requiring determination under Article 228A. The point raised must form or be capable of forming a problem or a subject needing investigation, or discussion at the High Court level. For example, if a petition says that the Madhya Pradesh State Legislature had no legislative competence to enact the Madhya Pradesh Land Revenue Code as a whole, the point so raised cannot be taken to be a question requiring any discussion and deliberation because it is known to everyone at the High Court level that the State Legislature has jurisdiction under Entries 18 and 45 of the State List to legislate on the topics of land and land revenue. Similarly, if a point as to the constitutional validity of a law is concluded by a Supreme Court decision or by an authoritative decision of the High Court, it would not be possible to say that the point is a question because in such a case the point would not need any further deliberation or discussion. The words 'any question' as used in Clause (3) of Article 228A, in my opinion, must mean any real question, A point as to the constitutional validity which cannot be supported by any reasonable argument or which is authoritatively concluded cannot be said to raise a question for determination under Clause (3). When there is no room for dispute or doubt as to the constitutional validity of the relevant State law, or in other words, when its constitutional validity is beyond question, a case challenging the constitutional validity cannot be said to raise a real question and need not be heard by a Bench of five Judges.

5. The use of the word 'determination' in Clause (3) also points to the same conclusion. The word 'determination' as explained by the Supreme Court in Divisional Personnel Officer, Southern Rly. v. T. R. Challapan : (1976)ILLJ68SC is wider than the word 'consider'. The former, according to this decision, embraces a wider enquiry than what is contemplated by the word 'consider' which connotes a summary enquiry. The question falling under Clause (3) of Article 228A must be such which requires a detailed treatment than a summary enquiry which is held at the admission stage in deciding whether a petition raises arguable points. When a point as to the constitutional validity can be rejected summarily on the ground that there is no reasonable argument in its support, it cannot be said that the petition raises any question requiring determination within the meaning of Article 228A(3).

6. In dealing with Section 66 of the Income-tax Act, 1922, it has been held that the Tribunal is not bound to refer a question of law to the High Court for decision if it is concluded by a judgment of the highest Court. The reason is obvious. When a question is concluded by the opinion of the highest Court, it ceases to be a question as it needs no deliberation or discussion and becomes purely academic: (Mathura Prasad v. Commr. of Income-tax : [1966]60ITR428(SC) ). Similarly, when the question raised cannot be supported by reasonable arguments, or when it is not substantial, or when its answer is self-evident, the High Court does not require the Tribunal to refer the question; (Commr. of Income-tax. Ernakulam v. Managing Trustee, Jalkhabai Trust : [1967]66ITR619(SC) ; Commr. of Income-tax v. Chander Bhan Harbhajan : [1966]60ITR188(SC) ). The principle behind all these cases is the same that when the point raised is not a real question at all, it would be an exercise in futility to require a Tribunal to refer it for decision of the High Court.

7. So far I have considered the mean-ins of Clause (3) of Article 228A from its language alone without reference to its object. The object behind the Article may now be seen to ascertain if the meaning arrived at above by me in any way goes counter to the object. The object behind Article 228A and the corresponding Article 144A, as stated in the object and reasons appended to the Bill, is as follows:

'It is proposed to strengthen the presumption in favour of the constitutionality of legislation enacted by Parliament and State Legislatures by providing for a requirement as to the minimum number of Judges for determining questions as to the constitutionality of laws and for special majority of not less than two-thirds for declaring any law to be constitutionally invalid,'

The same point was stressed by Shri Swaran Singh in his speech in Parliament on 26th Oct. 1976 when the Bill was being considered. When a Legislature makes a law it is presumed to act within the framework of the Constitution and, therefore, the law enacted is presumed to be valid. Parliament by enacting Article 228A wanted to strengthen this presumption so that a State enactment may not be declared invalid by less than two-thirds majority of a Bench of five Judges of the High Court. The object behind Article 228A is not defeated or is in no way impaired if a Division Bench of the High Court at the motion hearing stage rejects a point as to the constitutional validity by holding that it is unarguable and that it raises no question for determination by a Bench of five Judges.

8. I have earlier stated that the word 'question' as it occurs in Clause (3) of Article 228A can only mean a real question, i.e. an arguable question. But assuming that the word 'question' is capable of embracing in some context even a point which is unarguable, I am of opinion that in the context of Article 228A the word 'question' can only mean a real question. If the point as to the constitutional validity is unarguable, it would be an exercise in futility to constitute a Bench of five Judges for hearing such a point. If the word 'question' is given a construction to embrace even such a point, it will lead to ridiculous and highly inconvenient results in the working of the High Court. The High Courts, it is well-known, are already flooded with cases and it is not possible to cope with the arrears even by sitting in Single Benches and Division Benches. The construction that all points as to the constitutional validity of a State law whether arguable or not must be heard even at the admission stage by a Bench of five Judges will put a heavy burden on the High Courts as a Bench of five Judges will always have to be in readiness for motion hearing of writ petitions Involving such points, more so because the expression 'State law' is defined to include not only Acts of the Legislature but also any notification, order, Scheme, rule, etc. having the force of law. Even a question which has already been determined by the Supreme Court or by an authoritative pronouncement of the High Court will have to be placed for hearing in motion before a Bench of five Judges. A perusal of the object and reasons of the Bill will show that the Parliament was alive to the accumulating arrears in the High Courts and it could not have intended to use the relevant words in Article 228A(3) in the sense which leads to these results when it in no way promotes the object of strengthening the presumption of the constitutional validity. It is a well-settled principle of construction of the Constitution that when two constructions are possible, the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of law nugatory : (Chandra Mohan v. State of U.P. AIR 1966 SC 1987). It is no doubt true that when the language is express and no alternative construction is open, the Court must give effect to the language irrespective of its consequences. But as was well said by Lord Reid, 'such cases are rare because the English language is a flexible instrument' : (Ballrooms v. Zenith Investments, (1970) 2 All ER 871). The Courts are, therefore, not readily prepared to concede as plain language which involves absurdity or practical inconvenience : (Maxwell, 11th Edition, p. 6). The real role that is played by the consideration of consequences in the process of construction is correctly appreciated by Max Radin as follows:

'It is ... ... ... ... true that the consideration of the consequences of a decision has at all times been a controlling factor in the judicial process. Those Courts who declare vigorously that they are completely indifferent to the consequences of what they decide, and would decide as they do though the heaven fell, merely mean that they do not really believe that the consequences will be seriously harmful. If they meant what they said, and acted on it, they would be taking a long step towards the destruction of our judicial system.' (33 Calif. L. Rev. 219, p. 228). If Clause (3) of Article 228A had used the words 'any question, whether arguable or not' there would have been no room for construction. However, as the words used are only 'any question', they have to be understood as meaning any real question or any arguable question to avoid the ridiculous result and practical inconvenience which would flow from holding that the expression is wide enough to include even questions which are unreal or unarguable.

9. The conclusion reached by me above is strongly supported by the Supreme Court ruling in State of W. B. v. Manmal : 1977CriLJ1164 . The respondent in Manmal's case challenged before the Supreme Court the constitutional validity of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. It was submitted that the provisions of the Bengal Act, particularly the proviso to Section 4(1) of the Act, offended Article 14(1) of the Constitution on the ground that a person who ceases to be a public servant could not be treated differently from a person who is a public servant in office. An application was made under Article 144A, as inserted by the Forty-second Amendment, that the appeal be heard by a Bench of seven Judges. A Division Bench consisting of Goswami and Fazal Ali, JJ. held that because a particular section is not applicable to a public servant after he ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. The Court further referred to the proviso to Section 4(1) of the Bengal Act and said that it was difficult to imagine how such a provision could attract Article 14 of the Constitution. Holding that there was no substance in the contention that the West Bengal Act offended Article 14 of the Constitution and was, therefore, constitutionally invalid, the Court refused to refer the case to a larger Bench. The case is thus a clear authority for the proposition that if a question raised is not a real question and is not reasonably arguable it is not necessary that the same should be heard under Article 144A by a Bench of seven Judges of the Supreme Court. As Article 228A, is in pari materia with Article 144A, the aforesaid ruling of the Supreme Court in Manmal's case fully applies for its construction. On a parity of reasoning, if a point raised as to the constitutional validity of a State law is without any substance and is not reasonably arguable, the same will not attract the applicability of Clause (3) of Article 228A and it need not be determined by a Bench of five Judges.

10. It was, however, argued on the authority of Misrilal Jain v. State of Orissa AIR 1977 SC 1386 that even an unarguable point as to the constitutional validity of a law has to be determined by a Bench of seven Judges of the Supreme Court. Misrilal's case was a civil appeal on special leave involving the constitutional validity of Orissa Taxation (On Goods Carried by Roads or Inland Waterways) Act. The grant of special leave means that the point raised is arguable; (V. K. Kamble v. State of Maharashtra : AIR1977SC1615 ). After the grant of special leave, the civil appeal was bound to be heard by a Bench of seven Judges in view of Article 144A. No question arose in that case whether a case involving a point as to the constitutional validity of a law can be heard by a Bench consisting of less than seven Judges at the admission stage. In passing, however, their Lordships observed that Article 144A should engage the prompt attention of Parliament so that it may, by general consensus, be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case. In that context, the Court said 'a Court which has large arrears to contend with has now to undertake an un-necessary burden by seven of its members assembling to decide all sorts of constitutional questions, no matter what their weight or worth'. In my opinion these observations do not form part of the ratio decidendi of the case. Article 144A did not come up for construction in Misrilal's case. All that these observations mean is that all cases involving a question as to the constitutionality of a law should not even at the final stage be heard by a Bench of seven Judges and, therefore, Article 144A should be suitably amended leaving the Court itself the duty to decide how large a Bench should decide a particular case. It is interesting to notice that Manmal's case : 1977CriLJ1164 to which reference has already been made was decided only three days after the decision in Misrilal's case. Fazal Ali, J., is a party to. both the cases. If Misrilal's case had really decided that even a question as to the constitutionality, which is unsubstantial or unarguable, should be heard at the preliminary stage by a Bench of seven Judges, Manmal's case would have been decided differently. From the very fact that a Bench of the Supreme Court three days later in Manmal's case, to which one of the Judges sitting in Misrilal's case was a party, decided otherwise, it follows that Misrilal's case is not an authority for a contrary proposition. It is well settled that a ruling of the Supreme Court is not to be construed as a statutory enactment: (Rajeswar Prasad v. State of W. B., AIR 1965 SC 1887 ). It is difficult to regard every observation in a judgment of the Supreme Court, divorced from its context, as containing an exposition of the law on a point of law when the point did not even fall to be answered in that judgment. A decision is only an authority for what it actually decides, and generality of the expressions used must be read and qualified by the particular facts of the case found or assumed to exist: (Madhav Rao Scindia v. Union of India : [1971]3SCR9 ). Assuming that even an obiter dictum of the Supreme Court is binding, every observation is not a dictum and cannot be held to be binding. As earlier pointed out, in the context of the facts of Misrilal's case, the observations relating to Article 144A cannot be held to be an authoritative statement as to its construction. Our attention was also drawn to the case of Trustees for the Improvement of Calcutta v. C. S. Mallick : [1978]1SCR136 ). In this case, observations similar to those made in Misrilal's case were made by the Supreme Court. The Court drew the attention of Parliament to the paralysing impact on the highest Court and the long term cause of justice flowing from the numerical rigidity prescribed by Article 144A. This was an appeal on certificate from a judgment of the Calcutta High Court which struck down Sections 78-B and 78-C of the Calcutta Improvement Act, 1911, as ultra vires and invalid. As the High Court had struck down the aforesaid sections of the Act, prima facie, the appeal involved a question as to the constitutionality of a State law and had to be heard by a Bench of seven Judges. The observations regarding Article 144A in this case stand on the same footing as made in Misrilal's case. In this case also, Fazal Ali, J., was a party. The case was decided a day after the decision in Manmal's case without any reference to it. It cannot be assumed that by drawing the attention of Parliament to the inconvenient plurality brought in by Article 144A, the Court overruled the decision in Manmal's case. This case also, therefore, cannot be taken to be decisive of the interpretation of Article 144A. As earlier pointed out, the question as to construction of Article 144A directly arose in Manmal's case and it is the ruling in that case which holds the field.

11. The conclusion reached by me is also supported by a ruling of the Allahabad High Court in Chandra Kanta v. State : AIR1977All270 . In that case, a Bench of five Judges of the Allahabad High Court held that Article 228A was not a bar to a Division Bench hearing a writ petition at the admission stage even if the petition raised a point as to the constitutional validity of any State law. The Court observed that the purpose of an admission hearing is to screen cases in order to see whether triable or arguable points arise; and, if a Division Bench is of opinion that the question as to the constitutional validity of the State law has no prima facie substance, it can dismiss the petition. I am in respectful agreement with this view.

12. It was argued at the bar that if a Division Bench rejects a petition by observing that a point as to the constitutional validity of a State law is not reasonably arguable or that it has no substance, it would be determining the question as to the constitutional validity which Clause (3) of Article 228A requires to be determined by a Bench of five Judges. In my opinion, as explained earlier, the Division Bench in holding that the point is not arguable or that it has no prima facie substance only comes to the conclusion that there is no real question which could attract the operation of Clause (3). There is a distinction between determining a question and determining whether a question at all arises. Although the Division Bench cannot determine a question as to the constitutional validity of a State law, it can determine whether such a question really arises. As earlier stated, when a Division Bench rejects a petition holding that no arguable point is made out as to the constitutional validity of a State law, it only determines that no question as to the constitutional validity arises for determination under Clause (3). By way of analogy, I may here refer to the decision of the Supreme Court in Cox & Kings (Agents Ltd.) v. Their Workmen : (1977)ILLJ471SC in which it was pointed out that the determination of the question, whether or not an industrial dispute exists, is not a determination of the industrial dispute or any question relating thereto within Section 2(b) of the Industrial Disputes Act, 1947.

13. During the course of arguments at the bar, some reference was made by Shri Dharmadhikari to the propriety of enacting Article 228A. It was also said that the Forty-second Amendment was hastily passed by Parliament. Indeed, the learned Advocate-General, who, appeared for the State, stated at the outset that the Government is committed to see that the Forty-second Amendment is repealed. This is, however, only one side of the picture. In a so-called All India Judicial Officers' Conference, held in Jan. 1977 under the Presidentship of the Chief Justice of a State and inaugurated by the then Union Law Minister, the latter was acclaimed as a man of genius who gave the Constitution a proper shape. A Judge of a High Court is reported to have said at another occasion that 'the original Constitution was a handiwork of cheap imitators of the West and the Forty-second Amendment, on the other hand, was a result of the deliberations of the Swaran Singh Committee composed of all illustrious men who have distinguished themselves and who held a public debate.' In an, article written by a High Court Judge the principle of plurality and the requirement of two-thirds majority enacted in Article 228A were commended as 'just and proper'. It is now a matter of history that the 'man of genius' and the 'illustrious men' and most of those who were concerned with the Forty-second Amendment were thrown out at the hustings. The party which in its manifesto promised to repeal the Forty-second Amendment was elected with thumping majority. If the philosophy which was advocated by the Government, after the Fundamental rights' case, is to guide me, I must notice the wind of change to 'help the Government' and condemn the Forty-second Amendment as an entirely ill-advised legislation, or at least construe it in such a manner as to make its provisions look ridiculous or absurd. The present situation, which was not envisioned when the above philosophy of 'the forward looking Judge' was advocated demonstrates its utter hollowness. The true principle is that 'the Court has no reason for existence if it merely represents the pressures of the day'. The question as to the utility of the Forty-second Amendment Act and whether the Act as a whole or certain of its provisions should be retained or repealed is one to be considered by the politicians and Parliament and not by the Court Even assuming that certain of the provisions of the Forty-second Amendment were not well-conceived, the task of the Court still remains to construe the provisions of the Act according to normal canons of construction. In so far as the words of the Act are express they must be obeyed irrespective of consequences. For example, whether we like it or not, a case involving the constitutional validity of even a Statutory order must be heard at the final hearing stage by a Bench of five Judges and the order cannot be struck down on the ground that it violates the Constitution except by a two-thirds majority. The words of Article 228A are express and explicit in that matter and must be obeyed. But where the words are general or open to more than one meaning, they have to be reasonably and objectively construed and effort has to be made to avoid practical inconvenience and ridiculous results. The presumption that Parliament never intends to create practical inconvenience and ridiculous consequences is also applicable while construing the Forty-second Amendment. The much criticised Act cannot be made to look worse by judicial construction.

14. Reference was also made during arguments to Articles 32A, 131A and 226A which were also inserted in the Constitution by the Forty-second Amendment. These Articles do not directly arise for consideration in the present case and as I do not get much assistance from them in the construction of Article 228A, I do not want to discuss them any further.

15. For the reasons stated above, I am of the opinion that a Division Bench can, at the stage of motion hearing, see whether a point as to the constitutional validity of a State law raised in a petition under Article 226 is arguable; and, if it reaches the conclusion that the point is not reasonably arguable or that it has prima facie no substance, it can reject the petition. However, if the Division Bench comes to the conclusion that the petition raises an arguable point, having prima facie substance, it has to admit the petition and then the question as to the constitutional validity can be determined only by a Bench of five Judges.

Shiv Dayal, C.J.

16. When this writ petition was placed before a Division Bench for admission, it directed that it be placed before a Bench of five Judges because a question of constitutional validity of Section 19-C (2) of the M. P. Co-operative Societies Act, 1960, has to be determined.

17. When the matter came up before this Bench, a preliminary question was raised whether a Bench of less than five Judges can, at the admission stage, dismiss a petition which raises any question as to the constitutional validity of any State law.

18. Under Clause (1) of Article 228A of the Constitution jurisdiction of the High Court to declare any Central law to be constitutionally invalid has been taken away. Under Clause (2) of that Article, jurisdiction has been retained in the High Court to. 'determine any question' relating to the 'constitutional validity' of any State law. Clause (3) prescribes the minimum number of Judges who shall sit for that purpose. Clause (4) prescribes the minimum majority of two-thirds of the Judges sitting under Clause (3) to declare any State law to be constitutionally invalid. Article 228A reads thus:--

'228-A (1) No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid.

(2) Subject to the provisions of Article 131A the High Court may determine all questions relating to the constitutional validity of any State law.

(3) The minimum number of Judges who shall sit for the purpose of determining any question as to. the constitutional validity of any State law shall be five:

Provided that where the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question.

(4) A State law shall not be declared to be constitutionally invalid by the High Court, unless-

(a) where the High Court consists of five Judges or more, not less than two-thirds of the Judges sitting for the purpose of determining the validity of such law, hold it to be constitutionally invalid; and

(b) where the High Court consists of less than five Judges, all the Judges of the High Court sitting for the purpose hold it to be constitutionally invalid.

(5) The provisions of this Article shall have effect notwithstanding anything contained in this Part.'

19. Shri Gulab Gupta argued that it is not necessary for five Judges to hear a petition at the admission stage, although the petitioner may have raised any question as to the constitutional validity of any State law. His argument was that at the admission stage, the Court does not determine a question; it is only after the petition is admitted and both parties are heard that the question is 'determined.'

20. It is undoubted that when a petition or any other case which, under the Rules of the High Court, is first to be admitted comes before the Court for admission and it is admitted, there is no determination of any question. When a Bench admits a petition under Article 226 or any other case for that matter, it merely means that it has been entertained for hearing parties. It cannot be said that by admitting a case the Court has determined the question raised in it in favour of the first party.

21. But the position is quite different when a case is dismissed at the admission stage. The practice in this High Court 'is to give a hearing to the first party at the admission stage and if it is to be dismissed, the Court gives its reasons for not accepting the ground raised by the petitioner. When a case is dismissed in this manner, the questions raised are determined so far as this Court is concerned. Dismissal at the admission stage has the same force and effect as dismissal after hearing parties. In either case, it is binding on the parties. It operates as res judicata. Thus, the dismissal of a petition or an appeal or revision at the admission stage or after hearing parties makes no difference so far as its effect is concerned. It cannot then be said that a case is dismissed at the admission stage without determining the question raised in it.

22. When the Court hears a question, applies its mind to it and holds that it cannot be accepted, it is clearly determination of the question. The term 'determination' may properly, and according to the legal use as well as according to its derivation, signify the coming to an end in any way whatever; end or expiration; more specifically the final result of a proceeding (26-A C. J. Section 885). When a case is dismissed at the admission stage by any Bench of this Court, after considering the question raised, and holding that the contention cannot be accepted, it must be said that the question has been determined conclusively by this Court, with its effective expression of opinion which ends the controversy or the dispute so far as this Court is concerned.

23. It is not the length of the reasons given in the order which will make it 'determination'. For instance, if in a case where both parties have been heard and the Court decides the question in two or three sentences only, it is all the same 'determination' of the question. Therefore, the test is whether the effect of the order is to end the controversy or dispute so far as this Court is concerned. This view is in accord with their Lordships' decision in Jaswant Sugar Mills Ltd., Meerut v. Laxmichand : (1963)ILLJ524SC , where Mr. Justice J. C. Shah, speaking for the Court, succinctly pointed out:--

'The expression 'determination' in the context in which it occurs in Article 136 signifies an effective expression of opinion which ends a controversy or dispute by some authority to whom it is submitted under a valid law for disposal.' If I may say so with respect, this is succinct and precise definition of 'determination'. This test is satisfied when a writ petition or any other case for that matter is dismissed at the admission stage. Can the party again approach the Court by saying that the question was determined at the admission stage so that it may be reheard? Can it plead before the subordinate Court that the question was not determined just because it was negatived at the admission stage

24. In Divisional Personnel Officer v. T. R. Challapan : (1976)ILLJ68SC , their Lordships laid down thus:--

'The word 'consider' merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge.'

25. Therefore, I am of the undoubted view that when a question is decided against the first party at the admission stage, the question raised by him is 'determined' within the meaning of Article 228A. It cannot be said that the question was not determined merely because the petition, or the appeal, as the case may be, was dismissed at the motion hearing stage, because then it will have to be said that the question remained undetermined. And, if the question remained undetermined, a second petition will lie. In other words, the difference does not lie in the stage at which the question is determined. If it satisfies the test laid down in Jaswant Sugar Mills' case : (1963)ILLJ524SC (supra), it is determination. That test is satisfied when, in any proceeding, be it a petition or an appeal or a revision, the question is decided whether before notice is issued to the second party or after hearing both parties, and irrespective of the length of the reasons given by the Bench deciding the question.

26. For the reasons I have stated above, I am unable to agree with the Full Bench of the Allahabad High Court in Chandrakanta v. State : AIR1977All270 .

27. It was then suggested that the word 'question' should be given such interpretation as may allow dismissal at the admission stage and that this can be done if the word 'question' be interpreted, to mean 'real question' or 'substantial question' and not any question of whatever weight or worth. It was suggested that this must necessarily be done; otherwise, there will be a flood of cases in which parties will raise any futile or frivolous question as to the constitutional validity of any State law. It will entail waste of time of the Court because every now and then five Judges will have to assemble. This High Court, so far, has not been confronted with such a situation and there is no reason to look at the Bar with that suspicion. However, I shall deal with the point of administrative inconvenience a little later. I shall understand the word 'question' according to well settled rules of interpretation of statutes. Now, the expression used is 'any question'. There is no qualifying word like 'substantial' or 'difficult', which words are well known and have been freely used by Parliament. For instance, in Article 133 of the Constitution, the word 'substantial' is employed. Here also, Clause (3) of Article 228A could be differently worded by Parliament. For instance, it could have used an expression, such as 'any substantial question' or 'any question', which, in the opinion of the Bench hearing it, needs to be decided by a Bench of five Judges. Prefixing the word 'question' by the word 'any' makes the expression emphatic and comprehensive enough to include any question whatever, provided it relates to the constitutional validity of any State law. 'Question' is 'a subject or point of investigation, examination, or debate; theme of inquiry; problem; matter to be enquired into; as a delicate or doubtful question; a proposition; something in controversy; or which may be the subject of controversy; including every issue capable of judicial determination'. 74 CJ8 4. Similarly, the word 'any' when used as an adjective, means 'all' and excludes limitation or qualification, as per the meaning given in Stroud's Judicial Dictionary, 3rd Edn. P. 150. It means 'whichever, no matter which'. In the Oxford Dictionary also, 'any' has been taken to mean 'all'.

28. When the learned Advocate General was asked the distinction between 'point' and 'question' has promptly replied that a point, when raised and argued, becomes a question. In my opinion, he is right.

29. 'In Nalinakhva v. Shyam Sunder : [1953]4SCR533 , Mr. Justice S. R. Das, as his Lordship then was, laid down thus:--

'It must always be borne in mind, as said by Lord Halsbury in Commr. for Special Purposes of Income Tax v. Pemsel, 1891 AC 531, that it is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature, the Court cannot, as pointed out in Crawford v. Spooner, (1846) 6 MI A 1 (PC), aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun Mussorie Electric Tramway Co. Ltd., , for others than the Courts to remedy the defect.'

30. It is not permissible to add words to a statute. In Shriram Ramnarayan v. State of Bombay : AIR1959SC459 , Mr. Justice N. H. Bhagwati laid down thus :--

'If the language of the enactment is clear and unambiguous, it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out supposed intention of the legislature. The intention of the legislature is to be gathered only from the words used by it and no such liberties can be taken by the Court for effectuating a supposed intention of the legislature. There is no warrant at all, in our opinion, for adding these words in the plain terms of Article 31A(1)(a) and the words 'extinguishment or modification of any such rights' must be understood in their plain, grammatical sense without any limitation of the type suggested by the petitioners.'

That case was decided by a Bench of five Judges, presided over by S. E. Das, C. J. On that high authority and on parity of reasons it must be held that, under the garb of interpretation, no limitation can be imposed on the expression 'any question' by adding the word 'substantial' or 'real.'

31. I shall presently cite a few, out of numerous cases decided by the Supreme Court, where it has been laid down, time without number, that hardship or inconvenience is no ground to reject the plain meaning and that considerations of propriety of justice, as understood by the Court, cannot be availed at the stake of ordinary meaning of the statute. However, we would first of all quote Lord Brougham in Gwynne v. Burnell, (1840) 7 C1 & F 572 :

'If we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43 Geo 3 C 99), we do not in truth construe the Act but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it.' These observations are quoted in New Savan Sugar and Gur Refining Co. Ltd. v. Commr. of Income Tax, Calcutta : [1969]74ITR7(SC) .

32. In Kamalaranjan v. Secy. of State , it was held:--

'The Court cannot put into the Act words which are not expressed, and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the Province of the Court. It is said that it is reasonable that the holder of the estate from time to time who gets the benefit of the survey should have to bear the cost till it is entirely discharged and also that in practice this principle has been assumed and acted upon. That may well be so. But the question having been raised must be decided on legal principles and on the relevant statutes. If these do not give any such powers as the respondent claims, the difficulty can only be remedied by a change in the law.'

33. In R. G. Jacob v. Republic of India : [1963]3SCR800 , it was urged that the word 'subordinate' in section 165 of the Penal Code be read as subordinate in respect of those very official functions with which the business of transaction has connection. Their Lordships said:--

'By the use of the word 'subordinate' without any qualifying words, the legislature has expressed its legislative intention of making punishable such subordinates also who have no connection with the functions with which the business or transaction is concerned. To limit the meaning of 'subordinate' in the section by adding the words would be defeating that legislative intention and laying down a different legislative policy. This the Court has no power to do. The argument that 'subordinate' means something more than 'administratively subordinate' must, therefore, be rejected.'

34. In S. T. Commr., U.P. v. Parson Tools and Plants, Kanpur : [1975]3SCR743 , their Lordships said (at pp. 1043 & 1044 of AIR):

'If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature, the primary function of a Court of law being jus dicere et non jus dare.'

Again, in S. T. Commr., U.P. v. Mangal Sen : AIR1975SC1106 .

'A statute is supposed to be an authentic repository of the legislative will and the function of a Court is to interpret it 'according to the intent of them that made it'. From that function the Court is not to resile. It has to abide by the maxim ut res magis valeat quam pereat lest the intention of the legislature may go in vain or be left to evaporate into thin air.'

35. In Umed v. Rajsingh : [1975]1SCR918 , Lord Watson in Solomon v. Solomon, 1897 AC 22, has been cited, where it was observed (at pp. 63-64 of AIR):

'The intention of the Legislature is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature would probably have meant, although there has been an omission to enact it. In a Court of law or equity, what the legislature intended to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.'' Their Lordships observed (at p. 64 of AIR):

'The function of the Court is to gather the intention of the legislature from the words used by it and it would not be right for the Court to attribute an intention to the legislature, which though not justified by the language used by it, accords with what the Court conceives to be reason and good sense and then bend the language of the enactment so as to carry out such presumed intention of the legislature. For the Court to do so would be to overstep its limits.'

36. In State of Rajasthan v. Leela Jain : [1965]1SCR276 , their Lordships said:--

'Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court.' In a still earlier case, Commr. of Agricultural Tax v. Keshab Chandra : [1950]18ITR569(SC) , it was held that hardship or inconvenience cannot alter the meaning of the language employed by the legislature, if such meaning is clear on the face of the statute or the rules. In Martin Burn Co. Ltd. v. Calcutta Corporation : [1966]1SCR543 , the Supreme Court said :--

'The result flowing from a statutory provision is never an evil. A Court has no power to, ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.'

In the celebrated case of Bengal Immunity Co. v. State of Bihar : [1955]2SCR603 , their Lordships laid down thus:--

'Why should the Court be called upon to discard the cardinal rule of interpretation for mitigating a hardship which after all may be entirely fanciful, when the Constitution itself has expressly provided for another authority more competent to evaluate the correct position to do the needful?'

37. In State of M. P. v. Vishnu Prasad Sharma : [1966]3SCR557 , the Supreme Court said that the supposed difficulty would not provide any justification for accepting an interpretation against an ordinary meaning of the language used in it. In Bhikraj v. Union of India : [1962]2SCR880 , it was held that hardship is no ground for changing the nature of the statute. So also in Mysore State Electricity Board v. Bangalore Woollen Cotton and Silk Mills : AIR1963SC1128 , it was held that inconvenience is not the decisive factor in interpreting a statute. In Commr. of Income-tax, West Bengal v. Vegetable Product Ltd., : [1973]88ITR192(SC) , it was observed: (At p. 928)

'There is no doubt that the acceptance of one or the other interpretations sought to be placed on Section 271(1)(a)(i) by the parties would lead to some inconvenient result, but the duty of the Court is to read the section, understand its language and give effect to the same.'

38. In Ramanjaya Singh v. Baijnath Singh : [1955]1SCR671 , the Supreme Court held:--

'The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to this Court.'

It is not necessary to multiply authorities. There are several other decisions of the Supreme Court, where the same thing has been held.

39. From this discussion it follows that the expression 'any question', as employed in Article 228A(3) of the Constitution is of widest connotation so as to embrace every question relating to constitutional validity, irrespective of its worth or weight. Further, there is nothing in the express language of that provision or to infer by necessary implication, that it conies into play only after a case is admitted but not at the admission stage, so as to make it permissible that a Bench of less than five Judges can determine the question of constitutional validity and dismiss a petition in limine.

40. It is quite true that the provisions contained in Article 228A(3) give rise to unnecessary waste of time. In this High Court, all these years, Benches of two. Judges only have been hearing and determining questions of constitutional validity. Questions, which, in the opinion of a Division Bench, need to. be determined by a larger Bench, are freely referred to the Chief Justice for constituting larger Benches. If it had been left to me to draft Article 228A, in all probability, I would not have enacted Clause (3), particularly when any error committed by the High Court can be corrected by the Supreme Court If the High Court erroneously strikes down a provision as to constitutional validity, it can be corrected by the Supreme Court. Even Clause (4) of Article 228A does not confer an absolute finality to the decision of two-thirds majority, although the Bench may be of 5 Judges or 7 Judges. Now, two questions arise : (1) Whether it is given to the Court to rewrite the law by substituting its own wisdom for that which is expressed by Parliament in the words used by it. (2) Whether in the garb of interpretation, we should assume a different intention than what is expressed by the words used in the Constitution and then recast the provision in such a way as to give effect to such supposed intention. In our opinion, neither course is permissible. As regards the first, legislation is not the function of the Court The Court cannot arrogate to itself the function of Parliament. Aristotle was perhaps the first to trisect the functions of the State into legislature, executive and judiciary. In our country, the Constitution is supreme. The three limbs of the State, i.e. the legislature, the executive and the judiciary, are independent in their respective spheres. One cannot entrench upon the province of another. The second course also is not open. It is a celebrated rule of interpretation of statutes that the Court must interpret provisions of law according to the intention of those who made it, and that the words of the statute are repository of such intention. It is not given to the Court to imagine another secret intention and then to add words to or subtract words from, or otherwise alter the words of a statute so as to bring it in conformity with such supposed or secret intention, or so as to make it expressive of what the Court thinks the law should be.

41. If, in the garb of interpretation we have to rewrite the law, we will have to add the word 'substantial' or 'real' between the words 'any' and 'question'. Furthermore, the words, such as 'at the stage of hearing parties' will have to be added at the end of the clause, after the words 'shall sit.'

42. It may also be mentioned that so far this High Court has not been faced with the situation where the whole of the M. P. Land Revenue Code, or the M. P. Accommodation Control Act, or the M. P. Co-operative Societies Act, has been challenged as constitutionally invalid. Therefore, such apprehension as raised by Shri Dharmadhikari is hypothetical. However, if such an extreme question is raised (and it will be reasonable to suppose that it would be raised once in a blue moon), the remedy lies in rejecting the question within a couple of minutes. There is no evidence before us that the Members of the M. P. Bar would be so unreasonable as to raise such question and thereby make themselves a laughing stock.

43. Nor is the rule of absurdity attracted. Administrative inconvenience is not the same as absurdity.

44. In two recent decisions of the Supreme Court, their Lordships have expressed themselves very strongly against the corresponding provisions contained in Article 144A of the Constitution and have pointed out the inconvenience entailed and the unreasonableness of those provisions. But, it must be seen that their Lordships did not strike down the provisions as absurd, nor did they add any words to, the Article so as to give it any effect other than the one conveyed by the plain words.

45. In Misrilal Jain v. State of Orissa : AIR1977SC1686 , Mr. Justice Chandrachud, made the following observations (at p. 1690):--

'We may take this opportunity to dwell upon the inconvenience resulting from the enactment of Article 144A which was introduced by the 42nd Amendment to. the Constitution. That Article reads thus:

'144A. Special provisions as to disposal of questions relating to constitutional validity of laws:-- (1) The minium number of Judges of the Supreme Court who shall sit for the purposes of determining any question as to the constitutional validity of any Central law or State law shall be seven.

(2) A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid.' The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr. Gokhale who appear for the appellants could say nothing in support of their contentions beyond barely stating them. Were , it not for the valiant, though vain, attempt of Mr. Govind Das to pursue his points, the appeals would have taken lesser time to dispose of than for a Court of seven to assemble. Article 13(3) of the Constitution defines 'law' to include any Ordinance, Order, by-law, rule, regulation, notification, etc. having the force of law with the result that seven Judges of this Court may have to sit for determining any and every question as to the constitutional validity of even orders and notifications issued by the Government which have the force of law. A Court which has large arrears to contend with has now to undertake an unnecessary burden by seven of its members assembling to decide all sorts of constitutional questions, no matter what their weight or worth. It is hoped that Article 144A will engage the prompt attention of the Parliament so that it may, by general consensus, be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case'.

46. In Trustees for the Improvement of Calcutta v. C. S. Mallick : [1978]1SCR136 , Mr. Justice Bhagwati made the following observations (at p. 2040 of AIR) :--

'We cannot part with this case without making one final observation. The unarguably small dimension of the constitutional' question raised here is apparent from what we have said. This Court has dual responsibility to the country. It has to decide cases brought before it justly and satisfactorily and at the same time, liquidate arrears of pending cases. Both bear upon the credibility of the judicial system. But because of Article 144A brought in by the Forty Second Amendment Act, seven Judges of this Court have to sit and hear every case where the constitutionality of an Act, rule, by-law or even a small notification is challenged. Procedural pragmatism in the light of actual experience of the working of this Court will easily convince anyone that in the context of the current docket explosion and long pendency of cases, the insistence on this inconvenient plurality which requires more than half the full strength of the Court to sit to hear such cases, is decisive step in the negative direction. Many questions of constitutional importance have already been covered by the rulings of this Court so that he who runs and reads may resolve them. To require seven Judges to perform such jobs is surely supererogatory. The present appeal itself is a striking illustration. Where really important issues arise for consideration, any Bench of this Court would certainly refer, where necessary, such matters for consideration or reconsideration by a larger Bench -- less or more than seven, according to the requirement of the situation. To prescribe arithmetically is to, petrify unimaginatively. We do not say anything about the validity of Article 144A one way or the other but merely highlight the paralysing impact on the highest Court and the long-term cause of justice, flowing from the numerical rigidity newly inserted by the Forty Second Constitution Amendment Act. We hope and trust that this matter will receive urgent attention of Parliament.'

Both their Lordships in the two cases merely expressed the 'hope and trust' that the matter would receive urgent attention of Parliament. Learned Advocate General (whom we requested to appear as amicus curiae) emphasised that that is the correct path. If their Lordships did not interpret Article 144A otherwise, and did not say that the word 'question' in that Article means a real or substantial question, it was not open to the High Court to say so and thus rewrite the law as it thinks it should be. He entertained a strong hope that Parliament would undo most of the things brought about by the Constitution 42nd Amendment Act and the amendment of Articles 228A and 144A may be one of those things. However, so long as those Articles are not amended, the Courts are bound by them and cannot arrogate to themselves the functions of Parliament under the garb of interpretation. He urged that the legislature and the judiciary must function within their own spheres and not entrench upon those of each other.

47. Shri Dharmadhikari (who also addressed us as amicus curiae) strongly argued that nothing remained to be said in view of the decision in State of West Bengal v. Manmal : 1977CriLJ1164 . The argument is that in that case a Bench of two Judges of the Supreme Court determined a question as to the constitutional validity of a West Bengal law, which was attacked as violative of Article 14 of the Constitution. His argument was that if a Division Bench of the Supreme Court could determine such question, a Division Bench of the High Court also could do so at the admission stage.

48. In my opinion, the observations made by their Lordships of the Supreme Court in Manmal's case : 1977CriLJ1164 do not lay down that at the admission stage a question as to the constitutional validity can be rejected, even if it is relevant. By reading paras 14 and 15 of the aforesaid judgment, it is apparent that the plea raised before the Supreme Court was about the applicability of Article 14, on the basis of the judgment in Venkataraman's case : 1958CriLJ254 . The Supreme Court rejected the contention that the appeal should be heard by a minimum number of 7 Judges of the Supreme Court as contemplated by Article 144A of the Constitution of India, by observing that since the particular section of the Act was not applicable to the public servant, after he had ceased to be in office, the question of the Act being violative of Article 14 of the Constitution did not arise at all, and, therefore, it was held that there was no substance in the contention that the said appeal should be referred to a larger Bench of 7 Judges. The observations made by their Lordships in para 14 are as below:--

'There is some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point. In view of the decision in Venkataraman's case : 1958CriLJ254 , there is no warrant for including in one Category public servants in office and public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in Bansi's case : 1971CriLJ662 . The plea of applicability of Article 14 on the basis of the judgment in Venkataraman's case (supra) is, therefore, wholly misconceived. It cannot be argued that the decision in Venkataraman's case (supra) is violative of Article 14 of the Constitution. That decision only says that section 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the Court he ceases to be so. Because a particular section is not applicable to a public servant after the has ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. This Court has clearly placed a public servant, who has ceased to be in office, in a separate category and that classification has held the field all these years without demur. There is, therefore, no substance in the contention that this appeal should be referred to a larger Bench.'

(Underlining is mine)

49. Thus, when a question about the constitutional validity does not arise at all, being irrelevant, it is apparent that such a question, even if raised, will not be a question requiring determination for the purposes of deciding the case and, therefore, the provisions of Article 228A Sub-clause (3) will not at all be attracted.

50. Manmal's case : 1977CriLJ1164 , was decided on May 5, 1977, whereas Mishrilal's case : AIR1977SC1686 (supra), was decided 3 days earlier (2nd May), and Trustee for the Improvement of Calcutta : [1978]1SCR136 (supra), was decided a day later (6th May). The two last mentioned decisions were rendered by a Bench of five Judges. In those two decisions, there are clear observations that a Bench of prescribed number of Judges (7, under Article 144A) has to be constituted for the determination of 'questions utterly devoid of substance', 'any and every question as to the constitutional validity', 'all sorts of constitutional questions, no matter what their weight or worth', 'unarguably small dimension of constitutional questions raised.' If in Manmal's case their Lordships have taken a view that even a Bench of two Judges can determine a question as to the constitutional validity at the hearing stage, the bservations which we have quoted from Misrilal's case and Trustee's case would have been quite different, particularly when Mr. Justice Murtaza Fazal Ali was a party to all the three decisions. Clearly, the view that we take finds full support in the observations in Misrilal's case and Trustee's case.

51. Article 228A(3) is a jurisdictional provision. It has to be interpreted as it is; otherwise, the Court by the process of interpretation would confer jurisdiction to a smaller Bench, what Parliament, in its wisdom, wanted to be done by a larger Bench.

51A. However, there is no difficulty in saying at once that (i) if a question is irrelevant, it is not a question which arises for determination. For instance, if in a given case, constitutional validity of any Act is challenged, but on the facts and circumstances of the said case, the Act concerned is itself not applicable, there will be no occasion for determining the question raised. Similarly, if on the facts and in the circumstances of the case the Bench is of the opinion that the petitioner is not entitled to the relief claimed on the ground of delay, laches or suppresssion of facts, etc. it will not be necessary to determine any question, though the same might be not only relevant but also of sufficient weight and worth, (ii) Then, again, when a question as to the constitutional validity of a State law is raised before a High Court, which has already been determined by the Supreme Court, it must be said that there is no question for determination by the High Court so that it need not go before a Bench of five Judges, (iii) Similarly, when a question relating to the constitutional validity of a State law has already been determined by a Bench of at least five Judges of the High Court, such question can be rejected by a Division Bench at the admission stage, because it does not remain to be determined. However, if, in the opinion of the Division Bench the question requires reconsideration by a larger Bench, it can make a reference under the Rules of the High Court. But that situation is different and it would not be a case of the mandatory provision of Article 228A.

52. Shri Dharmadhikari strongly argued by reference to Section 113, Civil Procedure Code, and Sections 394, 395 and 396, Cr. P, C. that if a Civil Judge of the lowest grade can examine and has to form an opinion within the meaning of the first proviso whether the challenged Act, Ordinance, Regulation or provision is invalid or inoperative, why cannot a Division Bench of the High Court? Similarly, if a Magistrate has to form an opinion under the above cited provisions of the Code of Criminal Procedure, why cannot a Division Bench of the High Court? There is no substance at all in this argument. The language of the proviso to Section 113 of the Code of Civil Procedure requires all that to be done. A Civil Judge of the lowest grade or a District Judge for that matter cannot refer a case to the High Court, unless he sets out a case stating his opinion and reasons therefor. But this is because the law expressly says so. I would very much wish that the provisions like the proviso to Section 113 of the Civil P. C. were engrafted on Article 228A of the Constitution, but the legislature in its wisdom did not do so, and, in my opinion, we cannot arrogate to ourselves that function of Parliament.

53. It is not expected of the responsible profession of Advocates, and there is no evidence before us, that a question, such as the whole of the Land Revenue Code or whole of the M. P. Accommodation Control Act, is constitutionally invalid, has so far been raised in any case in this High Court.

54. I have perused the opinion of my learned brother Singh, J. I refrain from entering into political considerations because they do not afford either internal aid or external aid to interpretation of a statute.

55. The above discussion may be summed up thus :--

(1) Not to accept a question as to the constitutional invalidity of a State law and to dismiss a petition even at the admission stage amounts to 'determination' of that question within the meaning of Article 228A of the Constitution. The word 'determine' in Clause (3) of Article 228A of the Constitution must be read in its usual connotation, which means an application of the mind and expression of the conclusion. It makes no difference whether the question is determined at the stage of admission or after hearing the parties, nor does the length of reasons given for rejecting the contention matter.

(2) The duty of the Court is to interpret the law as it is and not to arrogate to itself the functions of the legislature and to rewrite the law in the garb of interpretation.

(3) The expression 'any question' as employed in Clause (3) of Article 228A is comprehensive enough to include any question which, in the opinion of the Court, may not be substantial. A question does not cease to be a 'question' because it is not of any weight or worth. The word 'any' is significant. When Parliament did not qualify the word 'question' by any word such as 'substantial', it is not given to the Courts to add words and thus rewrite the law in the guise of interpretation. The law has to be interpreted according to the intention of them who made it. The words are the authentic repository of their intention. It is not permissible to imagine a supposed or secret intention and then to add words to the provision so as to express such supposed or secret intention.

(4) The requirement of the law has to be complied with. It cannot be circumvented because, in the opinion of the Court, it will cause administrative inconvenience.

(5) A question, which is irrelevant and does not arise, need not go before a Bench of 5 Judges, not because it is not a 'question' but because it 'does not arise for determination.'

(6) A question, which has been determined by the Supreme Court, need not go before a Bench of 5 Judges because, whether it is a Bench of two Judges or five Judges or more Judges, no different view can be taken. It must be said that there remains no question 'for determination by the High Court.'

(7) Where a question relating to constitutional validity of a State law has already been determined by a Bench of at least 5 Judges of the High Court, the same question can be rejected by a Division Bench at the admission , stage and the case need not go before a Bench of five Judges, unless, in the opinion of the Division Bench, the question requires reconsideration by a larger Bench.

(8) There is no doubt that the provisions contained in Article 228A of the Constitution have created administrative inconvenience because whenever any question of constitutional validity of a State law is raised, it has to be referred to a Bench of five Judges, which otherwise would have been dealt with by a Bench of two Judges and consequently more cases could be disposed of within same time. But it is difficult to suppose that Parliament was not aware of these consequences; even then it has given the provision which is contained in Article 228A. The Courts can only point out the administrative inconvenience, but they must leave it to Parliament to rectify it. It is not permissible for the Court to arrogate to itself the role of Parliament. Confronted with such inconvenience, their Lordships of the Supreme Court have in Misrilal v. State of Orissa : AIR1977SC1686 , and again in Trustees for the Improvement of Calcutta v. C. S. Mallick : [1978]1SCR136 , made observations inviting the attention of Parliament to the administrative inconvenience and emphasised the need for early change in the law. But, their Lordships did not themselves rewrite the law. What the Supreme Court could not do, the High Court certainly cannot.

(9) In the above decisions of the Supreme Court, there are clear observations that a Bench of prescribed number of Judges has to sit for determination of 'questions utterly devoid of substance'; 'any and every question as to the constitutional validity'; and 'all sorts of constitutional questions, no matter what their weight or worth.' Similarly, in Trustees for the Improvement of Calcutta v. C. S. Mallick (supra) a Bench of 7 Judges observed that despite the question of constitutional validity having already been covered by the rulings of the Supreme Court and the fact that one who runs and read the said decisions may resolve them the provisions of the amended Constitution require 7 Judges to perform such job. Therefore, the view that I take finds support in those observations.

56. Therefore, I would answer the preliminary question thus :--

(1) A writ petition must, in the first instance, be placed before a Division Bench for admission, although a question of constitutional validity of a State law has been raised in it. A Division Bench is competent to admit it and also to grant interim relief, such as, stay, injunction, etc.

(2) A Bench of less than five Judges cannot dismiss a petition even at the admission stage where any question as to constitutional validity of a State law is to be determined, except in the following cases:--

(i) when the question is irrelevant and, therefore, does not arise for determination.

(ii) When the question has already been determined by the Supreme Court.

(iii) When the question has already been determined by a Bench of at least five Judges of the High Court, and Division Bench does not feel reconsideration of the decision by a larger Bench to be necessary.

57. We thank Shri Garg, Advocate General and Shri Y. S. Dharmadhikari, Advocate, for their useful assistance as amicus curiae.

J.P. Bajpai, J.

58. I have had the advantage of reading the valuable opinions separately recorded by Hon. brother Singh J. and Hon. the Chief Justice.

59. I am of the opinion that the specific observations made by the two Benches of 7, Judges of the Supreme Court (in Misrilal's case : AIR1977SC1686 (supra) and Trustees for the Improvement of Calcutta v. C. S. Mallick's case : [1978]1SCR136 (supra), that a Bench of the prescribed number of Judges has to be constituted for the determination of 'questions utterly devoid of substance', 'any and every question as to the constitutional validity', 'all sorts of constitutional questions no matter what their weight or worth', 'unarguable small dimensions of constitutional questions raised' etc., will prevail and cannot be overlooked even if there may be some possibility as suggested by Hon. brother Singh J. to infer otherwise by implication from the observations made by the Division Bench of the Supreme Court in Manmal's case : 1977CriLJ1164 (supra).

60. For the same reason, in view of the above quoted observations of the Supreme Court in the aforesaid two cases, decided subsequently in May 1977, it is not possible to agree with the view expressed by the Full Bench of the Allahabad High Court in Chandrakant's case : AIR1977All270 (supra), decided earlier in March 1977.

61. There is no difference of opinion in between Hon. Singh J. and Hon. the Chief Justice on the point that when the question of constitutional validity of a State law is irrelevant and accordingly does not necessarily arise for determination, or the point involved has been already concluded by a decision of the Supreme Court, there is no question which requires determination by the High Court and such contentions when raised can be dismissed even by a Division Bench or any Bench of less than 5 Judges.

62. In para 4 of his opinion, Hon. brother Singh J. has observed that if a point as to the constitutional validity of a State law is already concluded by a decision of the Supreme Court, no question at all arises requiring determination. Hon. the Chief Justice is also of the same view, but Hon. Singh J. has further observed that similar will be the position where any such question has been decided by an authoritative decision of the High Court also. In my opinion, the modification suggested by the Hon. the Chief Justice in this respect is necessary, Hon. the Chief Justice has opined that decision of a Bench of 5 Judges or more of the High Court may alone be taken as to have concluded the matter unless the Division Bench before whom a petition has been laid for hearing is of the opinion that such decision needs reconsideration by a larger Bench. This view find support from the observations made by the Supreme Court in Trustees for the Improvement of Calcutta v. C. S. Mallick : [1978]1SCR136 (supra), where the Bench of 7 Judges had observed that due to the requirement of Article 144A (which are undisputedly in pari materia with the Article 228A), many questions of constitutional importance, which have already been covered by the rulings of the Supreme Court and one, who runs and reads those decisions; can easily resolve them, a Bench of 7 Judges is still required to perform the said job.

63. So far as the observations made in Manmal's case : 1977CriLJ1164 (supra), are concerned, I am of the opinion that the ratio of the said decision is that if certain enactment itself is not applicable to the facts of a case, there is no relevancy of any question regarding the constitutional validity of such law and the question being irrelevant for deciding the petition, there is no occasion for referring the matter to a larger Bench of 7 Judges. This is clear from the observations made in para 14 of the judgment as reproduced below:

'......There is some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point. In view of the decision in Venkataraman's case : 1958CriLJ254 , there is no warrant for including in one category public servants in office and public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in Bansi's case : 1971CriLJ662 . The plea of applicability of Article 14 on the basis of the judgment in Venkataraman's case (supra) is violative of Article 14 of the Constitution. That decision only says that Section 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the Court he ceases to be so. Because a particular section is not applicable to a public servant after he has ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. This Court has clearly placed a public servant, who has ceased to be in office in a separate category and that classification has held the field all these years without demur. There is. therefore, no substance in the contention that this appeal should be referred to a larger Bench.'

(Underlining is mine).

Actually speaking, the contention claiming reference of the case to a Bench of 7 Judges in accordance with Article 144A of the Constitution was rejected by their Lordships of the Supreme Court on the aforesaid ground itself.

64. I am, therefore, of the view that the question referred to this Bench may be answered as suggested by Hon. the Chief Justice in paragraph 42 (paragraph 56 of this report) of his opinion.

M.L. Malik, J.

65. I have had the advantage of reading the draft Judgments prepared by the Hon'ble the Chief Justice, Hon'ble Justice G. P. Singh and Hon'ble Justice Bajpai. I am disposed to take a somewhat different view. The controversy raised had, in my view, a better solution in referring the matter to the Rules Making Committee to frame Rules in consonance with Article 228A of the Constitution instead of setting down a practice by judicial pronouncement. We are guided at present by the Rules framed under Art 225 In the matter of proceedings under Article 226 of the Constitution. The Rules were framed when Article 228A was not in the Constitution and a question of constitutionality of a Statute could be resolved by a Bench of two Judges. Article 228A now gives a special provision for disposal of questions relating to constitutional validity of the State laws.

The High Court exercises jurisdiction under Sub-clause (2) to determine all questions relating to the constitutional validity of any State law. Sub-clause (3) provides for minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law. The forum for deciding the question is now a Bench of not less than five Judges. The Rules that were framed under Article 225 have now become obsolete insofar as proceedings to challenge the constitutionality of the State law are concerned, since they do not take note of the change brought about by Article 228A. So long no new Rules are framed. Article 228A, which prescribes the forum, must alone determine the question. When it comes to framing of Rules, I have my serious doubts if the Committee could prescribe any number less than five even for the purpose of motion hearing.

66. Why I say so is plain enough. An appropriate Bench would be a Bench of not less than five Judges. Any number less than five would raise a jurisdictional question. It is that Court alone which has jurisdiction to hear a matter which can reject a plaint for non-disclosure of cause of action. So in original proceeding in the High Court, the appropriate Bench, be that a Single Bench or a Division Bench which under Rules can hear a matter, can dismiss it in motion hearing. It seems impermissible that a Bench otherwise incompetent to decide upon a matter finally should be permitted to sit for screening the cases as to which of them should go before a Bench of five Judges and which of them ought to be dismissed for raising no triable issue. Envisage a situation when the two Judges hearing differ on the point whether or not an arguable question arises; one could argue, follow the convention that when the two Judges differed, the matter deserved admission for final hearing. But what if the counsel were to argue that the other three Judges would probably have agreed with him though the two hearing at motion stage were not inclined to agree. He would say that the opinion of the two Judges is not binding on him and will not assume finality when the law says that the matter must be heard by five Judges. His argument would be that the mandatory requirement of Article 228A could not be whittled down by Rules of administrative convenience. That provision had been given an overriding effect in Sub-clause (5) and the Rules of business formulated to regulate the sittings of the Court could not control that provision. If screening were to be permitted, would that not be introducing a provision of Reference as in the Income-tax Act or in the Sales Tax Act That was not what Article 228A contemplated. A party had a right to come straight to the High Court challenging the validity of a State law and demanding determination of all questions raised by him by a Bench 'of not less than five Judges.

67. It may be noticed that Article 228A as it is worded, is not merely procedural. It gives an authority to the High Court under Sub-clause (2) to determine all questions relating to constitutional validity of any State law prescribes a forum in Sub-clause (3) and lays down restrictions by Sub-clause (4) of numerical majority by which alone the State law could be declared invalid. Sub-clause (5) gives the provision an overriding effect. The provision is self-contained and mandatory, and has got to be strictly followed. In my view, therefore, whenever any question relating to constitutional validity of State law arises, the matter must go to a Bench of not less than five Judges.

68. The word 'any' in Sub-clause (3) qualifying the word 'question' is significant. It has to be understood in its plain dictionary meaning. 'Any' means 'no matter which' 'of whatever kind' and 'all and every'. Their Lordships of the Supreme Court have in Misrilal Jain's case (Misrilal Jain v. State of Orissa. : AIR1977SC1686 (in para. 9) and in The Trustees for the improvement of Calcutta v. Chandra Sekhar Mallick : [1978]1SCR136 ) interpreted the word 'any' to mean 'any and every', 'no matter what their weight or worth'. Their Lordships said that the provisions of Article 144A required seven Judges to sit to determine a question though utterly devoid of substance.

69. These observations have not been made as an obiter dicta. Article 144A has been fully quoted, interpreted and construed.

70. Singh, J. in his opinion has laid emphasis on the word 'question'. His Lordship says that there should be a real controversy before a Court a point of difficulty which needed to be answered, a doubt or uncertainty which required resolutions and a point which could be debated upon. If the question raised was already answered by the Supreme Court or was irrelevant, need not go before a Bench of five Judges. The two Judges hearing the matter at motion stage could dismiss such a petition. Singh, J. has relied on certain observations of the Supreme Court in Manmal's case (State of West Bengal v. Manmal Bhutoria : 1977CriLJ1164 ).

71. Bajpai, J. has, in my opinion, rightly distinguished the observations made in Manmal's case : 1977CriLJ1164 from those made in Misrilal Jain's case : AIR1977SC1686 . In the former, case, the Court declined to refer the matter to a Bench of seven Judges because the question raised was wholly irrelevant and the question of the Act being violative of Article 14 did not arise. That aside, the opinion expressed by a larger Bench and that too on a later date had to be preferred. (See: The State of U.P. v. Ram Chandra Trivedi : (1977)ILLJ200SC ).

72. For what I have said above, I am of the opinion that a writ petition involving any question of constitutional validity of the State law must go before a Bench of not less than five Judges even at the admission stage since denial of admission on that question would be a 'determination' of the question. It is settled practice, nay a requirement of law, that it is that Court alone, which can finally decide a matter on merits which can dismiss it in motion.

73. However, having regard to the administrative convenience, I would concur with what my Lord the Chief Justice said in para. 42 (para. 56 of this report). The practice would not be violative of Article 228A of the Constitution.

K.K. Dube, J.

74. Under Article 228A of the Constitution, the question of validity of a provision of State law could only be decided, as far as this High Court is concerned, by a Bench consisting of not less than five Judges. While sitting in motion hearing the Bench not only sits to consider but also decides the matter before it. There does not appear to be a difference as to the character of jurisdiction while it is sitting to decide a question after notice or when it makes a preliminary hearing at the motion stage. The jurisdiction exercised by the motion Bench is not analogous to one exercisable as in references. The latter jurisdiction to refer is expressly a creature of the Statute under certain circumstances. It is true that the Bench hearing the matter has an inherent jurisdiction to refer any question to a larger Bench under certain circumstances. But such inherent powers are used in special circumstances could not provide a basis for laying down a practice. When the Parliament by amending Article 228 required a minimum of Judges to consider and decide the constitutional validity of a State law, it cannot be said that the administrative difficulties were lost sight of and with all respects to contrary opinion of my brother, we could not carve out a jurisdiction at the time of motion hearing which it was prohibited under Article 228A of the Constitution.

75. I fully agree with the reasoning given by Hon'ble the Chief Justice as to the meaning ascribed to the word 'determination'. If the question was already settled as has been pointed out in para. 41 (para. 55 of this report) of the opinion of Hon'ble the Chief Justice, the Bench was merely applying the law and not deciding a question. In such cases, it was not necessary that the five Judges should meet. I agree with the conclusions as reached in para 41 (para 55 of this report) (1) to (9) of the opinion of Hon' We the Chief Justice.

76. But I wish to add that the plain meaning of Article 228A would not permit to arrogate to it the power to consider and decide at the motion hearing stage any matter where the question as to the validity was challenged when the Bench consisted of less than 5 Judges. This would also, appear from the decision of Supreme Court in Trustees for the Improvement of Calcutta v. C. S. Mallick, : [1978]1SCR136 and State of U.P. v. Ram Chandra Trivedi : (1977)ILLJ200SC . In my opinion, a writ petition requiring determination of any question of constitutional validity of a State law must go before a Bench of not less than 5 Judges even at the admission stage. I am also of the view that in any case, the determination of the question as to the constitutional validity could not be done in motion hearing by the Division Bench.

BY THE COURT

77. In accordance with the majority opinion, the preliminary question is answered thus:--

(1) A writ petition must, in the first instance, be placed before a Division Bench for admission, although a question of constitutional validity of a State law has been raised in it. A Division Bench is competent to admit it and also to grant interim relief, such as, stay, injunction, etc.

(2) A Bench of less than five Judges cannot dismiss a petition even at the admission stage, where any question as to constitutional validity of a State law is to be determined, except in the following cases:--

(i) When the question is irrelevant and, therefore, does not arise for determination.

(ii) When the question has already been determined by the Supreme Court.

(iii) When the question has already been determined by a Bench of at least five Judges of the High Court, and the Division Bench does not feel reconsideration of the decision by a larger Bench to be necessary.


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