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Behramshaw Hormanshah Bharda and ors. Vs. Dastoorji Hormasdyar Kayoji Mirza and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 319 of 1979
Judge
Reported inAIR1980Guj74; (1980)GLR201
ActsCode of Civil Procedure (CPC), 1908 - Sections 113 - Order 46, Rule 1; ;Constitution of India - Articles 25, 26, 228 and 229
AppellantBehramshaw Hormanshah Bharda and ors.
RespondentDastoorji Hormasdyar Kayoji Mirza and ors.
Appellant Advocate B.R. Zaiwalla,; Deepak K. Trivedi and; Kushroo Zaiwalla
Respondent Advocate S.B. Vakil and; Jagdish M. Panchal, Advs.
Cases ReferredGanga Pratap Singh v. Allalia
Excerpt:
constitution - interpretation - section 113 and order 46 rule 1 of code of civil procedure, 1908 and article 228 of constitution of india - matter pertaining to interpretation of article 228 - three conditions to be fulfilled for applicability of article 228 - firstly there must be case pending in court subordinate to high court - secondly case must involve substantial question of law as to interpretation of constitution - thirdly determination of that question of law must be necessary for disposal of case - said conditions fulfilled in present case - case withdrawn to high court for determination of issue. - - if the high court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this constitution the.....divan, c.j.1. this special civil application is under art. 228 of the constitution and the petitioners herein pray that this court should call for the record and proceedings of spl. civil suit no. 72 of 1978 from tke court of the civil judge, senior division, valsad and dispose of the said suit or. in the alternative, that this court should determine the issue as to the interpretation of the constitution of india and the after return the said case to the court of the civil judge, senior division, valsad with a direction to dispose of the matter in the light of the judgment of this court on the said issue, the petitioners herein are some of the defendants in the suit pending in the cot-ut of the civil judge, senior division, valsad. respondents nos. 6 to 11 are also defendants in the said.....
Judgment:

Divan, C.J.

1. This special civil application is under Art. 228 of the Constitution and the petitioners herein pray that this Court should call for the record and proceedings of Spl. Civil Suit No. 72 of 1978 from tke Court of the Civil Judge, Senior Division, Valsad and dispose of the said suit or. in the alternative, that this Court should determine the issue as to the interpretation of the Constitution of India and the after return the said case to the Court of the Civil Judge, Senior Division, Valsad with a direction to dispose of the matter in the light of the judgment of this Court on the said issue, The petitioners herein are some of the defendants in the suit pending in the Cot-ut of the Civil Judge, Senior Division, Valsad. Respondents Nos. 6 to 11 are also defendants in the said suit. Respondents Nos. I to 7 in this special civil application are the plaintiffs in the said. suit. The facts leading to the present special civil application are as follows: On August 23, 1971. one Kekobad Faramrosp Sidhva executed a gift deed in respect of a plot of land situated at Udwada in Pardi Taluka of Valsad District. This land at the time of the gift was agricultural land. The donee of the gift was Minochar Nusserwanji Pundole. Petitioners Nos. 6 (a) to 6 (d) and Petitioners Nos. 7 to 9 are the heirs of Sidhva and respondents 8 to 11 are the heirs of Pundole. Petitioners 1 and 2 are Parsi priests carrying on the profession of priesthood at Udwada. Respondents I and 2 are priests, respondent No. I being the high priest at Udwada at the Chief Parsi Fire Temple called Atash Beheram at Udwada. Respondent No. 3 is an Anjuman, that is, an association of the descendants of the original nine families which settled at Udwada, and respondents Nos. 4 to 7 are also connected with Atash Beheram at Udwada in one capacity or another. On January 29, 1974, the Collector of Valsad granted permission to Pundole for building an Agiyari which is referred to as Atash Aderau, on the plot of land which had been gifted by Sidhva in 1971, on March 1, 1975, the Collector of Valsad granted permission to Pundole for converting the plot of land to non-agricultural use. In 1975, respondents Nos. 1 to 7 filed Special Civil Appln. No. 314 of 1975, challenging the two orders of the Collector of Valsad and that special civil application was ultimately rejected on March 24, 1975 by this' High Court because, according to the High Court, there was nothing illegal in the grant of permission by the Collector of Valsad. Thereafter construction work of the Agiyari~ Atash Aderau, was started on this plot of land and in due course of time the construction work was completed and according to the materials on the record Of this special civil application, the total cost of construction came to rupees three lacs. At this stage it may be pointed out that according to Parsi belief, there are thr-e types of sacred fire: Atash Beheram which is considered to be most sacred: the second in Point of sanctity is Atash Aderau which is referred to in popular parlance as Agiyari, and the third in point of sanctity is Atash Dadga, Both Atash Beheram and Atash Aderau are required to be consecrated according to Proper ceremony, more'elaborate ceremonies being required in the case of Atash Beheram, and as a matter of fact, there are four centres of Atash Beheram throughout India, namely, Udwada, Navsari, Surat and Bombay. Atash Dadgao does not require any consecration. Though it is a sacred fire, it can be established by any Parsi house-holder and it could also be kept in an Agiyari without any consecration. After the work of construction of the Agiyari On Pundole's land was completed but before the consecration of the sacred -fire had taken place, on October 25, 1976 respondents Nos. 1 to 7 filed a suit, being Special Civil Suit No. 114 of 1976, in the Court of the Civil Judge, Senior Division, Valsad at Navsari. This very suit was subsequently transferred to the Court of the Civil Judge, Senior Division, Valsad when the Court at Valsad was set up during the pendency of the suit and the suit is now numbered as Special Civil Suit No. 72 of 1978 in the Court of the Special Civil Judge, Senior Division at Valsad.

2. On October 25, 1976, on the application presented by the plaintiffs in that suit the Civil Judge, Senior Division, Navsari, granted an ad interim injunction against the defendants of that suit, namely, the petitioners herein and respondents 8 to 11, restraining them from carrying out the ceremonies of consecration of the sacred fire in the Agiyari and thus setting up Atash Aderau, that is Agiyari, on Pundole's land. On November 13, 1976, the learned Civil Judge, Senior Division, Navsari vacated the ex parte injunction that had been granted earlier, and it is the case of the petitioners herein that on , November, 14, 1976, the Agiyari on Pundole's land was consecrated. Respondents I to 7 challenge that contention of the petitioners. On that very day, later in the course of the day, an appeal against order was filed by the present respondents I to 7 in this High Court and on a Civil Application filed in that appeal from order, ad interim injunction was obtained but according to the petitioners by the time the ad interim injunction could be served upon the petitioners herein and respondents 8 to 11, the ceremony of consecration in the newly built Agiyari had been completed. On November 18, 1976 this High Court passed an order permitting the sacred fire in the Agiyari to be maintained and on November 24, 1976, A. D. Desai, J. of this High Court passed an order in the appeal from order directing that status quo should be maintained. on Februarv 10, 1977 the petitioners applied to the learned Civil Judge, Senior Division, Navsari, praying that two issues should be tried as preliminary issues and on that very day, this application was rejected by the learned Judge. Subsequently the issues were framed and settled in the suit on August 8, 1978. in November 1978, the present petitioners applied by way of civil application in the appeal from order praying that an order should be passed under Article 228 of the Constitution withdrawing one issue. regarding the interpretation of Articles 25 and 26 of the Constitution to this Court and praying for reliefs under Article 228. It was pointed out that a civil application in an appeal from order was not 'the appropriate procedure for obtaining relief under Article 228 and that a substantive petition was necessary for obtaining relief under Art. 228, and thereupon, on December 20, 1978, when the civil application was placed before S. H. Sheth, J. of this High Court, the learned single Judge directed that no order should be passed in the civil Application and thereafter, on January 24, 1979, the present special civil application came to be filed.

3. In the plaint in Special Civil Suit No. 72 of 1978 in the Court of the learned Civil Judge, Senior Division, Valsad, the contention of the plaintiffs is that there is a custom which was recognised as far back as 1883 bV the leader of Parsi community, late Dadabhoy NaorojL which custom was also recognised by the then High Court of Baroda, according to which custom, only Atash Beheram at Udwada can be maintained and that without the permission of the High priest of Atash Beheram. at Udwada and others connected with that Atash Beheram, no other sacred fire can be consecrated. within certain limits of -that Atash Beheram. at Udwada, the limits in respect of which the custom is claimed is the area between Par river near Pardi and Vaitarna river near Bombay. The plaintiffs further say that in accordance with Articles 25 and 26, they have a right to maintain their religious institutions and to insist that this custom should be continued. It is on the basis of this alleged custom that the plaintiffs have filed Special Civil Suit No. 72 of 1978 and contended that since the Agiyari on Pundole's land at Udwada has been built without the requisite permission,-it should not be allowed to be conwrated and should not be allowed to be run as an Agiyari. That is the sum and substance of Special Civil Suit No. 72 of 1978. One of the contentions taken up by the defendants of that suit is that this custom is violative of the fundamental rights of the defendants under Articles 25 and 26 of the Constitution and the custom being violative of the fundamental rights is illegal and without any legal authority and there fore the plaintiffs' suit, even if such custom is established, is liable to be dismissed. In this petition under Article 29A of the Constitution, the petitioners want that this issue regarding the validity of the custom alleged by the plaintiffs in the plaint, particularly in view of the contention as to validity being required to be judged in the light of the contention of the petitioners based on Arts. 25 and 26 of the Constitution, should be examined by this Court so that, if this High Court comes to the conclusion that the alleged custom would be violative of Articles 25 and 26 and hence illegal and of no binding effect, the whole suit at Valsad could be disposed of on the finding recorded by this High Court.

4. At the hearing of this petition, various contentions based on the language of Article 228 and the decisions given under Article 228 have been canvassed and it has been contended on behalf of the respondents that no relief should be granted under Article 228 of the Constitution.

5. Article 228 &q; it stands today, after its amendment by the Constitution (44th Amendment) Act, is in these terms:

'If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof, proceed to dispose of the case in conform1tv with such judgment.'

Mr. Vakil on behalf of respondents I to 7 who are the contesting respondents has urged two preliminary objections. His first objection is that this petition is not maintainable without following the procedure under Order XXVII-A Rule I of the Code of Civil Procedure read with Article 132 of the Constitution. He contends that under Order XXVII-A Rule 1 of the Civil P. C., 'In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132 read with Article 147 of the Constitution, is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the AdvocateGeneral of the State if the question of law concerns a State Government.' When one turns to Article 132 clause (1), one finds that under that clause, the case must involve a substantial question of law as to the interpretation of the Constitution. Article 147 of the Constitution defines 'any substantial question of law' to mean any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment amending or- supplementing that Act), or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any other order made thereunder. Mr. Vakil contended that in this case there is a substantial question of law regarding the interpretation of Article 228 and therefore, notice to the Attorney General is necessary and unless notice to the Attorney General is given, the petition is not maintainable. We are unable to accept this contention of Mr. Vakil because we are not concerned with a question of law concerning the Central Government and moreover, so far as Art. 228 is concerned, as we shall point out later an in the course of this judgment, the matter is now finally settled by a decision of the Supreme Court and hence, at the present stage, there is no substantial question of law as to the interpretation of the Constitution or my of the Articles of the Constitution, but it is merely a question of application of that interpretation blaced on Article 228 by the Supreme Court.

6. The next preliminary objection of Mr.'Vakil is based on Section 113 of the Civil P. C. Under the main body of Section 113:

'Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons there for, and refer the same for the opinion of the High Court.'

By the Explanation to Section 113, 'Regulation' means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, or -in the General Clauses Act of a State. Mr. Vakil very fairly stated that the proviso to Section 113 cannot be invoked in this case but he relied upon the main part of Section 113 and contended that if in the opinion of the learned Civil Judge, Senior Division, Valsad, the question about the validity of the custom alleged by the plaintiffs in that suit requires the opinion of the High Court, it is open to the learned Civil Judge, Senior Division, Valsad to refer the same for the opinion of the High Court after setting out the case and hence the High Court should not interfere under Article 228 but leave it to the learned Civil Judge, Senior Division to refer the case for the opinion of the High Court if the learned Civil Judge so thinks fit. We are unable to accept this contention of Mr. Vakil because the opening words ot Section 113 are 'Subject to such conditions and limitations as may be prescribed'. The word 'prescribed' means prescribed by rules. Order XLVI of the Civil P. C. provides the conditions and limitations of making a reference to the High Court. Rule I of Order XLVI provides:

'Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having' the force of law arises, on which the Court. trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the, case and the point on which doubt is entertained, and refer such statement with its own opinion an the point for the decision of the High Court'.

Now it may be noted that one of the conditions for exercising the powers of reference as prescribed by 0. XLVI R. I is that the suit or the appeal at the hearing of which or in the course of which a doubt regarding any point arises must be a suit or an appeal in which the decree is not subject to appeal. An appeal always lies under the provisions oil the Civil Procedure Code to the High Court against the decree of a Civil Judge, Senior Division passed in a Special Civil Suit and therefore the power, of reference under Section 113 main part cannot be exercised in the instant case in the light of the provisions of 0. XLVI R. 1. Hence this contention of Mr. Vakil based on Section 113 main part must also be rejected.

7. It is true, as has been emphasized by learned counsel for both sides before us that the conditions of Article 228 must be complied with. Those conditions are that there must be a case pending in a Court subordinate to this High Court; the case must involve a substantial question of law as to the interpretation of the Constitution; and determination of that question of law must be necessay for the disposal of the case. If these conditions are satisfied, the High Court shall withdraw the case and may either dispose of the case itself or determine such question of law and return the case to the Court from which the case has been so withdrawn. So far as condition number one is concerned, it is obvious that the Court of the Civil Judge, Senior Division, Valsad. is subordinate to this High Court and Special Civil Suit No. 72 of 1978 is pending in that Court. Therefore the first condition is satisfied, The second condition is that the suit must involve a substantial question of law as to the interpretation of the Constitution. As to what is the exact meaning of the words 'substantial question of law as to the interpretation of the Constitution', it may be pointed out that apart from Article 228, this phrase 'substantial question of law as to the interpretation of the Constitution' is also to be found ba Article 132 and Art. 145(3) and there are decisions of the Supreme Court dealing with- the meaning to be attached to the words 'substantial question of law as to the interpretation of the Constitution', whether occurring in Art. 228, Article 132 or Art. 145 of the Constitution. We will consider only the decisions of the Supreme Court though there,are other decisions of several High Courts an the point. because the decisions of the Supreme Court having dealt with the point, no useful purpose will be served by discussing the decisions of the several High Courts on this point. in Raja Gangs Pratap Singh v. Allahabad . Bank Ltd., Lucknow, 1958 SCR 1150, the question befox the Supreme Court was in respect of an order passed by the Allahabad High Court under Article 228 of the Constitution. The respondent before the Supreme Court was a scheduled bank and it filed a suit in the Court of the Civil Judge, Sitapur in Uttar Pradesh, for the recovery of the amount due under an instrument of mortgage. The defendant contested the suit on several grounds, one of which was, that he was entitled to relief under the U. P. Zamindari Debt Reduction Act, 1953, being U. P. Act 15 of 1953, which reduced the amount recoverable from a debt as defined in it. This defence raised a question, as to the validity of the provisions in the Act. Hence the plaintiff in that suit, that is, the respondent before the Supreme Court, made an application to the Civil Judge, Sitapur under the proviso to Section 113 of the Civil P. C. asking him to state a case for the opinion of the High Court to which he was subordinate as to the validitV of the main portion of the definition. The learned Civil Judge took the view that the impugned portion of the definition infringed Article 14 of the Constitution as it made an arbitrary distinction between several classes of debtors and was therefore invalid. He held that it was not necessary for the disposal of the case to decide such question of invalidity because even if it was decided in favour of the appellant, the result would be to exclude the entire definition from the Act as the offending portion was not severable from the rest and the appellant would therefore be in any event left without the protection of the Act. In this view of the matter, he held that the proviso to Section 113 of the Code did not apply and dismissed the application made to him. The appellant before the High Court then applied to the High Court of Allahabad for -revision of the order of the learned Civil Judge. He at the same time made another anplication to the High Court under Article 228 of the Constitution. In the application under Article 228, the appellant before 'the Supreme Court prayed that the High Court might be pleased to withdraw the case and either dispose of it itself or determine the question of the validity of the definition of 'debt' in the Act and then return the case to the Court of Civil Judge, Sitapur for final disposal in accordance.with that determination. The High Court disposed of both the applications by one common judgment. It held that there was no dispute as to the constitutional , provision which was clear, namely, that every citizen was entitled to the equal protection of the laws and that any enactment which infringed that principle, was to that extent void, and that the only dispute was Whether the impugned portion of the definition of a 'debt' In the Act was severable from the rest and that was not a question of the interpretation of any provision of the Constitution but one of the construction of the Act itselt The High Court also held that even if any question of the interpretation of the Constitution arose, a determination of that question was not necessary for the disposal of the case. In this view of the matter, the High Court dismissed the application in revision and also the application under Article 228. The appeal before the Supreme Court was against this decision of the Allababad High Court. Speaking for the Bench of five Judges of the Supreme Court, A. K. Sarkar J., as he then was, observed at p. 1154 of the report:

'It seems clear to us that the question raised by the appellant in this case comes within the proviso to Section 113 of the Code as also Art. 228 of the Constitution. The question contemplated by the proviso to Section 113 of the Code is as to the validity of an Act or of a provision of it while Art. 228 of the Constitution has in view a question as to the interpretation of the Constitution. Now the question raised in the present case is as to the validity of a provision in the Zammdars' Debt Reduction Act. This question is, however, also a question as to the interpretation of the Constitution, for the validity of the provision is challenged on the ground that it contravenes an article of the Constitution'.

A. K. Barkar J., further pointed out that the point that really arose in that appeal before the Supreme Court was whether it was necessary for the disposal of the case to decide the question of the validity of a portion of the definition of a debt in the Act. All other conditions necessary for an order being made under the proviso to Section 113 of the Code or Article 228 of the Constitution existed and as to that there was no serious dispute. Then follow important observations:-

'The courts below held that in either view of the question of the validity of the impugned portion of the definition of a debt, the appellant would be without the remedv which he sought, because that portion of the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of the case. We are unable to agree with this view. The question of the validity of the definition in so far as it excluded certain debts having been raised and pressed by the appellant, it had to be decided by the court. Without a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part of the definition was not severable from the rest and therefore in any view of the question as to the validity of the impugned part, the appellant would not get any relief, did not alter the position. The question as to the severability of the impugned part'of the definition from the rest would arise only after it had been decided that the im-. pugned part was invalid and so to be able to say that the impugned part of the definition was not severable from the rest, it had first to be held that that part was invalid. It could not be said that as the impugned part was not severable from the rest it was not necessary for the disposal of the case to decide the question of the validity of the impunged vartlo.

The Supreme Court therefore held that it was necessary to decide the question of validity of the impugned part of the definition to dispose of the case. It must be pointed out that this is the only decision of the Supreme Court available as regards the scope and impact of Article 228 of the Constitution. Our attention has not been drawn to any other decision of the Supreme Court under Article 228, of a Bench of five Judges or of a larger Bench though there is a decision of a Bench of three Judges of the Supreme Court in a criminal appeal where also the question of Article 228 arose. But if there is any difference between view of a Bench of five Judges and is Bench of three Judges, the view of the Bench of five Judges being a larger Bench must be accepted as correct law. (Vide Union of India v. K. S. Subrainanian : (1977)ILLJ5SC ). - Shah J., as he then was, speaking for the Supreme Court in Criminal Appeal No. 144 of 1968 decided on Oct. 10, 1968* dealt with a matter where the High Court in limine had rejected an application under Article 228 of the Constitution and the appeal before the Supreme Court was with special leave , against the decision of the High Court of Patna dismissing an application under Article 228 in limine. Shah J., as he then was, - observed'Counsel for the appellants has rightly not relied on Art. 228 of the Constitution' and the emphasis by Mr. Vakil on behalf of the respondents was an the word 'rightly'. There is no discussion on the scope of Article 228 nor on the meaning of the words 'necessary for the disposal of the case' as is to be found in the report in the case of Raja Gangs Pratap Singh v. Allahabad Bank Ltd., Lucknow (supra) and in any event, if there is any difference of opinion between the two Benches, one of three Judges and the other of five Judges, we are bound to follow the view expressed by the Bench of five Judges.

8. The other decision on the point regarding the meaning of the words 'substantial question of law as to the interpretation of the - Constitution' is to be found in State of J. and K. v. Thakur Gangs. Singh : [1960]2SCR346 . In that case the Supreme Court was concerned with the wording of Article 132 of the Constitution which requires a substantial question of law as to the interpretation of the Constitution. The Supreme Court there held. that under clause (2) of Art. 132 there is no scope for granting a special leave unless two conditions are satisfied: (1) the case should involve a question of law as to the interpretation of the Constitution, and (2) the said question should be a substantial question of law. The principle underlying the Article is that the final authority for interpreting the Constitution must rest with the Supreme Court. The Article is free from other limitations imposed by Articles 133 and 134 and the right of appeal of the widest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the , Constitution. It was further held in that case that where the parties agreed on the true interpretation of a provision or did not raise any question in respect thereof, it was not possible to hold that -the case involved any question of law as to the interpretation of the Constitution. The Supreme Court in that case pointed out that as regards the facet of Art. 14 of the Constitution which deals with the basis of classification. the law had been finally and authoritatively stated by the Supreme Court in its earlier decision and therefore no substantial question of law could be said to arise in any case so far as that aspect of Article 14 was concerned. Sl.!bba Rao J., as he then was, speaking for the Supreme Court has pointed out at page 360 of the report :

'The interpretation of Art. 14 in the context of classification has been finally settled by the highest Court of this land and under Article 141 of the Constitute on that interpretation is binding on all the Courts within the territory of India. What remained to be done bv the WO Court was only to apply that interpretation to the facts before ft. A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided by this Court'.

This decision was again considered by the Suprenve Court in the context of Art. 145(3) of the Constitution in Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682. Subba Rao J., as he then was, referred to the earlier decision in State of J. and K. v. Thakur Ganga Singh (supra) and at page 688 of the report, he has observed:

'Under Art. 145(3) of the Constitution only a case involving a substantial question of law as to the Interpretation of the Constitution shall be heard by a Bench comprising not less than 5 Judges. This Court held in State of J. and K. v. Thakur Gangs, Singh : [1960]2SCR346 that a substantial question of interpretation of a provision of the Con. stitution cannot arise when the law on the subject has been finally and effectively decided by this Court. Two decisions of this Court have construed the provisions of Article 29(2) of the Con stitution in the context of ...... .....

In view of the said decisions of this Court, the American decisions cited at the Bar do not call for consideration. As the question raised has already been decided by this Court, what remains is only the application of the principle laid down to the facts of the present case. We cannot, therefore, hold that the question raised Involves a substantial question of law as to the interpretation of the Constitution *within the meaning of Article 145(3) of the Constitution'.

Thus, the two decisions in State of J. and K. v. Thakur Gangs. Singh (supra) and hagwan Swarup v. State of Maharashtra (supra), emphasize that where there are decisions of the Supreme court finally and conclusively settling a particular aspect regarding any Constitutional provision, then, it cannot be said that there is a substantial question of law as to the interpretation of the constitution because the law has already been stated finally and conclusively by the Supreme Court. in such an eventuality, there cannot be said to be a ~substantial question of law as to the interpretation of the Constitution any longer surviving and therefore, according to these two decisions, each of which was delivered by Subba Rao J.. as he then was, the cage would go out automatically of Article 228 of the Constitution if there is a final statement of the law on that particular provision of the Constitution in the context of which the question as to invalidity is raised, the decision being that of the Supreme Court, It is obvious that if the law is well-settled by authoritative pronouncement of the Supreme Court. there is no longer any substantial question of, law surviving and it is on that principle that these two decisions are based.

9. We may point out that a Division Bench of,the Calcutta High Court in Ranadeb Choudhuri v. Land Acquisition Judge : AIR1971Cal368 has read these -two decisions of the Supreme Court, namely, one in Raja Ganga Pratap Singh v. Allahabad Bank Ltd., Lucknow (supra) and State of J. and K. v. Thakur Gangs Singh (supra), in the manner in which we are reading these -two decisions. After considering several other decisions of High Courts, in para 19 at p. 373, P. B. Mukharji C. J., speaking for the Division Bench of the Calcutta High Court has observed:

'After a careful consideration, we are of the view and opinion that it is possible to harmonise these two trends of thoughts and these two trends of decisions. It is possible to take a view, - and that is the view that we are taking in this case - that these two lines of authorities are not in direct conflict and contradiction. The point is what is the meaning to be attached to the expression 'involves a substantial question of law as to the interpretation of this Constitution'. Plainly enough it must be a substantial question of law as to the interpretation of the Constitution which means that it must be question of law, that it must be substantial and that it must relate to the interpretation of the Constitution. But, what is interpretation of the Constitution? When the vires of a State staute is challenged as being unconstitutional and in violation of any Article of the Constitution, it cannot be dismissed by saying that it raises only a question of interpretation of the statute and not of the Constitution. That will be the line of distinction to draw.

In Judging the vires of a State statute -in, the light of the Constitution, there is mutual reaction between the Constitution and the statute and both have to receive interpretation, the Constitution and the statute alike, in order to see whether the one agrees with the other. No doubt Articles of the Constitution may have received interpretation, yet it can never be said that such interpretation' once received is static in the sense that its various applications to different statutes would not indicate dynamic possibilities of development of that very Article of the Constitution which is said to have received final and authoritative interpretation. Interpretation of the Constitution or any of -its Articles can never be closed at any particular point of time. That will be throttling the Constitution and denying the possibilities of its varied application to the society and the nation. Analysing this controversy a little more closely, interpretation of the Constitution certainly will be the subject where any particular Articles of the Constitution or their meaning have to- be found. There may be authorities on that subject in the past, but such authorities may have to be reviewed or may have to be extended. Secondly, in interpreting the vires of a statute in the light of the Constitution, it is quite possible that only the interpretation of the statute is involved and no particular application of the Constitution is under challenge in the sense that the particular Article of the Constitution concerned does not fall to be construed or re-interpreted in a different way or in an extended way or in a modified way. in that event, of course, it will no longer be a question of interpretation of the Constitution but only an interpretation of the statute, It is only there that the. interpretation of the Constitution can be divorced from the interpretation of the statute. But for all practical purposes, in majority of cases, an interpretation of the Constitution and the interpretation of the statute in deciding the vires or the constitutionality of the statute are inseparably linked together and any attempt to theoretically dissociate the two might mean indulging in legal nicety which will not be appropriate to -the principles of interpretation of -the Constitution of a country. Where exactly the interpretation of the statute also involves an interpretation of the Constitution and where it does not, will naturally depend on the controversy in each case and where each case will have to be independently Judged and decided. There cannot be any rigid formula in this respect. We, therefore, express the opinion on this point in the following broad proposition. Not every case of an interpretation of a statute involves interpretation of any law as to the interpietation of the Constitution. In many cases, both interpretation of the statute and of the constitution are often inseparably connected and in which case the interpretation of the statute will involve interpretation of the Constitution in some form or other. Lastly, there may be interpretation of the Constitution quite apart from and independent of any interpretation of any statute, as for instance in interpreting the different Articles of the Constitution by themselves and their mutual interrelation in the Constitution. It will be unwise in our view to draw the line more narrowly and closely than what we have done'.

For the purpose of this Judgment, all that we need point out is that we an concerned with the validity of a custom which the plaintiffs in the suit at Navsan have alleged and we relying upon. The validity of that custom has to be judged in the light of Articles 25 and 26 of the Constitution. It may be pointed out that an aftenWt had been made on behalf of the petitioners before us to contend that the custom in invalid also for the infringement of the fundamental right of the petitioners under Art, 19 (1) (g) of the Constitution. Mr. Zaiwalla for the petitioners very ftankly admitted that in the written statement as it stands, no such plea about violation of the fundamental right under Art. 19(1)(g) has been taken and no issue regarding invalidity on the ground of violation of Article 19(1)(g) has been raised in the trial Court. The only issue which is raised regarding invalidity, of the custom is issue No. 2 and that issue is in these terms -

'Whether the defendants prove that the reliefs claimed are against public policy and hence hit by Arts. 25 & 26 read with Art. 13 of the Constitution of India'.

There is no issue regarding the invalid' on the ground of alleged violation of the fundamental right under Article 19(1)(g) and we therefore do not propose to say anything about that contention of Mr. Zaiwalla. We are merely concerned with the provisions of Articles 25 and 26 of the Constitution.

10. As' was pointed out by A. K. Sarkar J., in Raja Ganga Pratap Singh v. Allahabad Bank Ltd., Lucknow (supra) the question before the Supreme Court was as to the validity of the provisions of the Zamindari Debt Reduction Act of Uttar Pradesk- but this question alsV6 raised a question as to the interpretation of the Constitution, for the validity of the provision was challenged -on the ground that it contravened an Article of the Constitution. In the same manner, before us the validity of the custom relied upon by the plaintiffs in the plaint in the plaintiffs' Special Civil Suit No. 72 of 1978 is challenged on the ground that it violates the fundamental rights of the petitioners under Arts. 25 and 26 of the Constitution. Therefore, examination of the validity of the custom would involve an examination of the scope and content and parameter of Articles 25 and 26 of the Constitution and therefore the question would involve a question as to thel interpretation of the Constitution.

11. Our attention has not been drawn to any other decisions of the Supreme Court directly an the point regarding Arts. 25 and 26 of the Constitution. Therefore, it cannot be said, as was observed in State of J. and K. v. Thakur Ganga Singh (supra) and in Bhagwan Swarup v. State of Maharashtra (supra), that in view of the decision of the Supreme Court authoritatively pronouncing the law there cannot be said to be any substantial question of law as to the interpretation of this particular aspect of the Constitution. Hence, there is a substantial question of law as to the interpretation of the Constitution before us.

12. The other condition of Article 228 is that determination of this substantial question of law as to the interpretation of the Constitution must be necessary for the disposal of the case before the trial Court. Now the words 'necessary for the disposal of the case' have also been interpreted by the Supreme Court in R4ja Ganga Pratap Singh v. Allaliabad Bank Ltd., Lucknow (supra). The question of the validity was raised and pressed by one of the parties to the suit and hence it had to be decided by the High Court. Without & decision On that question, the case could not have been disposed of. That is how the Supreme Court, while considering the question whether it was necessary for the disposal of the case to decide the question before it, interpreted the words of Art. 228 and applied them to the facts of the case. In the instant case before us also, the question of the validity Of the custom alleged by the plaintiffs in the suit is put into the issue and certain doubts have been raised by the defendants in the suit and therefore, these contentions have to be decided by the Court. Without a decision of that question, the can cannot be disposed of and therefore, to use the language of Article 228, the determination of the question regarding the validity of the custom is necessary for the disposal of the case.

13. In this connection, we may point out that under the Civil Procedure Code as it stood prior to its amendment in 1976, 0. XIV R. 2 of the Civil P. C. permitted a Court, where issues of both law and fact arose in the same suit and the Court was of the opinion that any Part thereof might be disposed of on the issue of law only, to try those issues first and for that purpose might, if it thought fit, postpone the settlement of the issues of fact until after the issues of law had been determined. After the amendment of the Code in 1976, 0. XTV IL 2 now provides:

'(1) Notwithstanding that a case !nay be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), Pronounce judgment on all issues.

(2) Where issues . both of law and fact &rise; in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that Issue first if that issue relates to,

(a) the jurisdictjon of the Court, or

(b) a bar to the suit created by any law for the time being in force,

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue'.

Therefore, after the amendment of 1976, it is only the issue as to the jurisdiction of the Court or the issue regarding a bar to the said suit created by any law for the time being in force that can be tried as Preliminary issue~ All other issues under the amended Civil P. C. 0. NIV R. 2 have to be decided and judgment has to be pronounced on all issues. Without, therefore, deciding issue No. 2 regarding the validity of the custom, the Court cannot decide the suit and subject to the test laid down by the Supreme Court in Raja Oanga Pratap Singh's case (supra), that issue will therefore be necessary to be determined before the case can be disposed of. Considering the question from either point of view - either from the point of view of 0. XIV FL 2 or from the point of view of the test laid down by the Supreme Court in Raja Gangs. Pratap Singh's case (supra), It is clear that the question regarding the validity of the custom has to be determined before the aft can be disposed of. Hence, all the three con-1 ditims, presenbed by Article 228 of the Constitution are satisfied in the instant case.

14. It may be pointed out that Mr. Vakil for respondents Nos.. I to 7 has drawn our attention to several decisions of the Supreme Court in the context of Articles 25 and 26 of the Constitution and as to what is the scope and content of those Articles, but none of those decisions authoritativelv lays down the law so far as the aspect before us is concerned hnd hence we are not considering that aspect of the case for the present. We will have to decide when the question is withdrawn to this Court, as to what should be the answer in the light of the provisions of Articles 26 and 26 and hence we rbfraw from expressing any opinion on that aspect of the case for the present.

15.Under Arbele 228, two courses are open once we find that the threeconditions prescribed by Article 228 are satisfied. Having withdrawn the case the High Court, we may either dispose of the case or determine the question of law and return the case to the Court which the case has been with drawn, as laid down in clause (b) of Art. 228. The three conditions of Article 228 having been satisfied, we direct that Special Civil Suit No. 72 of 1978 pending in the Court of Civil Judge, Senior Division, Valsad, shall be with drawn to this Court and issue No. 2 as to the validity of the custom set up by the plaintiffs should be examined in the light of the constitution Provisions of Articles 25 and 26.,

16. This special civil application is therefore allowed. Rule is made absolute, and in terms of pars, 13 (B), it is directed that this Court will decide the issue as. to the interpretation of the Constitution of India and thereafter return the case to the Court of the Civil Judge, Senior Division, Valand, with direction to dispose of the some In the light of the judgment of this Court that may be ultimately pronounced. There will be no order ad to costs of this special civil application.

17. Mr. Panchal an behalf of respondents Nos. 1 to 7 orally applies for leave to appeal to the supreme court under Article 133 of the Constitution: Since our Judgment rests on the decisions of the Supreme Court which have settled the point before us6 we re' this oral application.

18. Rule made absolute.


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