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Chhaganlal Devehand Etc. Vs. Navalkunwar Talakchand and anr. Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Applns. Nos. 425 of 1972, 983 and 1579 of 1975 and 1088 of 1976
Judge
Reported in(1977)1GLR652
ActsConstitution of India - Articles 226 and 227; Constitution (Amendment) Act, 1976
AppellantChhaganlal Devehand Etc.
RespondentNavalkunwar Talakchand and anr. Etc.
Appellant Advocate C.T. Daru and; R.N. Shah, Advs. for; J.L Hathi, Adv.
Respondent Advocate J.R. Nanavati, Adv. in Spl. C.A. No. 425/72,; S.J. Joshi, Adv. in SPI. C.A. No. 983/75,;
Cases ReferredIn State of U. P. v. Mohammad Nooh
Excerpt:
- - 29(2) of the bombay rents,hotel and lodging house rates control act was amended and under the amended provisions, the high court was given power of revision if it was satisfied that a decision in appeal was not according to law. it clearly......power of judicial review over decisions of the tribunals is now with drawn in view of the amended provisions of art. 227. thus there is a major change in the substantive provisions of the constitution. the rule of interpretation is that the substantive provisions of law are always prospective operation unless there is an express provision giving a retrospective effect or there is anything in them which necessarily indicates a retrospective effect thereof vide jose dacosta v. bascora sadashiva sinai narcornin, air 1975 sc 1843.in keshavlal jethalal shah v. mohanlal bhagwandas, 9 guj lr 868: (air 1968 sc 1336), the facts were that a decree of ejection under the bombay rents, hotel and lodging house rates control act was passed by the trial court and confirmed in appeal.the party.....
Judgment:

A.D. Desai, J.

1. All these writ petitions are directed against the decisions of Tribunals and the question before me sitting singly, was whether this Court has now jurisdiction over the decisions of the Tribunals in view of the amendment to art. 227 of the Constitution. The question of general importance was thus raised before me and, therefore, following reference was made:

'Referred to a larger Bench for decision whether the amended Art. 227 has retrospective effect so as to affect pending matters under Art. 227 (unamended) either admitted, or filed before the amendment and pending admission, against the decisions of Tribunals'.Unamended Art. 227 of the Constitution provided so far relevant that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Thus the Article conferred on High Courts a power of judicial review over the decisions of Courts and Tribunals. Article 227 as amended so far relevant reads as follows: '227 (a): Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.' The power of judicial review In view of the amended provision is limited and there under decisions of the Courts subordinate to the appellate jurisdiction of the High Court can only be revised. The question is whether the High Court can exercise power of judicial review in respect of decisions of Tribunals passed prior to February 1, 1977 against which the writ petitions are pending In the High Court on that day, that is, when the amended Art. 227 came into force.

2. Now Arts. 226 and 227 as they originally stood provided constitutional remedies to an individual. The provisions of both the Articles were substantive provisions of law and not one relating to procedure. The amended Arts. 226 and 227 are also substantive provisions of law; they are Constitutional provisions empowering judicial review, The earlier substantial power of judicial review over decisions of the Tribunals Is now with drawn in view of the amended provisions of Art. 227. Thus there is a major change in the substantive provisions of the Constitution. The rule of Interpretation is that the substantive provisions of law are always prospective operation Unless there is an express provision giving a retrospective effect or there is anything in them which necessarily indicates a retrospective effect thereof vide Jose DaCosta v. Bascora Sadashiva Sinai Narcornin, AIR 1975 SC 1843.In Keshavlal Jethalal Shah v. Mohanlal Bhagwandas, 9 Guj LR 868: (AIR 1968 SC 1336), the facts were that a decree of ejection under the Bombay Rents, Hotel and Lodging House Rates Control Act was passed by the trial Court and confirmed in appeal.The party aggrieved by the order filed civil revision application under S. 115 of the civil P.C. and the same was admited by the High court. Pending final hearing of the revision application, Section. 29(2) of the Bombay Rents,hotel and Lodging House Rates Control Act was amended and under the amended Provisions, the High Court was given Power of revision if it was satisfied that a decision in appeal was not according to law. Thus by the amendment the revisional power of the High Court was enlarged. The Courthad to consider, when the provisions of S. 29(2) as amend-ed governed the pending cases. Tenfold contentions are advanced before the Supreme Court. The lint contention was.that the right of revision, that is, right to move the superior court, attached to a litigation when it commenced and it could not b3 affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment. The second contention was that the order -of the appellate Court which had acquired finality subject to the exercise of the limited jurisdiction by the High Court under S. 115 of the Civil P. C. could not, in absence of a provision in the Amending Act, making the Amendment expressly or by necessary implication retrospective be set aside in exercise of power conferred upon the High Court under S. 29(2) of the Amend ed Act enacted after the date on which was delivered. The Supreme Court left the first contention open and decided the second contention observing:

'But when the revision application was entertained under S. 115 of the Civil P. C. the High Court assumed to itself a limited jurisdiction conferred by that section,and in the -absence of any express providing made in the amending Act, the juridiction conferred by that section could not be extended. The question Whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate Court was not a matter of procedure. The order of the appellate Court, subject to scrutiny by the High Court within the limited field permitted by S. 115 of the Civil P. C., was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate Court was according to law, the Legislature did not attempt to legislate in the matter of procedure the Wislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.'

It is thus clear that the provisions relating to revision under S. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act were held by the Supreme Court to be of substantive nature and not one relating to procedure. In State of U. P. v. Mohammad Nooh, AIR1958 SC 86, the question that arose before the Supreme Court was whether a quasi-judicial order passed before coming into force of the Constitution and consequently Art. 226 of the Constitution, was open to challenge by resort to the provisions of the said article. The Supreme Court held that Art. 226 had no retrospective operation. It is thus obvious that the -provisions of amended Art. 227 can have only prospective operation as they are substantive constitutional provisions and there is nothing in the amended provision to give them retrospective effect.

3. It is also necessary to note that, by Constitutional (Forty-second Amendment) Act, 1976 both Arts. 226 and 227 are amended and while effecting an amendment in Art. 226, the Amending Constitution Act by S. 58 has made special provisions giving retrospective effect to the amended Art. 226 in respect of certain pending matters. No provision giving retrospective effect to the amended provisions of Art. 227 is made. Moreover, under S. 46 of the Constitutional (Forty second Amendment) Act, Y976 Part XIVA has been added which includes Arts. 323-A and 323-B. Subclause (1) of Art. 323-A thus added provides, so far relevant, that Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. Sub-clause (e) of Clause (2) of Art. 323-A provides that a law made under Clause (1) may provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment. Article 323-B (1) provides that appropriate - Legislature may, by law, provide for the adjudication or trial of any dispute, complaints offences with respect to all or any of the matters specified in Clause (2) with respect to which such Legislature has power to make laws. Clause (2) of the Article sets out the matter and sub-clause (e) of Clause (2) of Art. 323-A provides for transfer to such tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment. It clearly. appears, therefore, that the Parliament was aware that the provisions of Arts. 226 and 227 which it was amending were substantive constitutional provisions and, therefore the amended provisions could have only prospective effect. It was because of this awareness and knowledge that special Party provisions are made by S. 58 of the Constitution (Forty second Amendment) Act giving retrospective effect to amended art- 226 in respect of certain pending There is no dispute before us that. is no express or implied provision in the Amending Constitutional Act or under the amended Art. 227 giving the Article a retrospective effect, so as to affect the pending proceedings filed under unamended Art. 227. It is, therefore, obvarious that amended Art. 227 cannot affect or govern the writ petitions which were filed under unamended Art. 227 and were pending before the High Court.

4. The answer to the question referred to, therefore, is that the amended Art. 227 has no retrospective effect so as to affect pending matters under Art. 227 unamended) either admitted, or filed be fore the amendment and Pending admision, against the decisions of Tribunals

5. Order accordingly.

6. Reference answered accordingly.


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