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Ranadeb Choudhuri Vs. Land Acquisition Judge, 24-parganas and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2835 of 1967
Judge
Reported inAIR1971Cal368,75CWN375
ActsConstitution of India - Articles 14, 31, 31A, 31B and 228; ;West Bengal Land Development Act, 1955 - Section 8(1); ;Code of Civil Procedure (CPC) , 1908 - Section 113; ;Calcutta High Court Appellate Side Rules - Rule 14A
AppellantRanadeb Choudhuri
RespondentLand Acquisition Judge, 24-parganas and ors.
Appellant AdvocateSomendra Chandra Bose, ;Bikash Chandra Sen and ;Bhagabati Prasad Banerjee, Advs.
Respondent AdvocateS.G. Das Gupta, Sr. Govt. Pleader and ;D.K. Chowdhury, Adv.
Cases ReferredDr. Samarendra Kumar Das v. Khalilur Rahaman
Excerpt:
- p.b. mukharji, c.j. 1. this rule under article 228 of the constitution of india raises an interesting question about the meaning and scope of the expression, 'a substantial question of law as to the interpretation of this constitution.' 2. the facts giving rise to this rule are as follows:-- the petitioner is ranadeb choudhuri. the respondents are the land acquisition judge. 24-parganas, the land acquisition collector, 24-parganas, and the state of west bengal through the secretary, land and land revenue department. the petitioner's mother sm. sarasi bala devi (now deceased) was the owner of about 10 bighas (3.30 acres) of land in jadavpur, police station tollygunge within the municipal jurisdiction of calcutta municipality. this land is said to be valuable. by notification no. 13982 l......
Judgment:

P.B. Mukharji, C.J.

1. This Rule under Article 228 of the Constitution of India raises an interesting question about the meaning and scope of the expression, 'a substantial question of law as to the Interpretation of this Constitution.'

2. The facts giving rise to this Rule are as follows:--

The petitioner is Ranadeb Choudhuri. The respondents are the Land Acquisition Judge. 24-Parganas, the Land Acquisition Collector, 24-Parganas, and the State of West Bengal through the Secretary, Land and Land Revenue Department. The petitioner's mother Sm. Sarasi Bala Devi (now deceased) was the owner of about 10 bighas (3.30 acres) of land in Jadavpur, Police station Tollygunge within the municipal jurisdiction of Calcutta Municipality. This land is said to be valuable. By Notification No. 13982 L. Dev, dated the 22nd July 1955, published in the Calcutta Gazette dated the 11th August, 1955, these lands were notified under Section 4 of the West Bengal Land Development and Planning Act (Act XXI of 1948) for settlement of immigrants who have migrated into the State of West Bengal. By a further declaration No. 10848 L. Dev, dated the 15th June, 1957, published in the Calcutta Gazette dated the 4th July, 1957, these lands were acquired under Section 6 of the said Act.

3. The Governor of West Bengal on the 8th April, 1955, promulgated the West Bengal Land Development and Planning (Amendment) Ordinance of 1955, by Section 2 whereof Section 8 of the main Act was amended in the following terms:

'2. Notwithstanding anything contained in the West Bengal Land Development and Planning Act 1948 the conditions mentioned at the end of Clause (b) of the proviso to Section 8 thereof shall not apply and shall be deemed to have never applied in relation to land which is or has been acquired in pursuance of the said Act for any public purpose other than the purposes specified in Sub-clause (i) of Clause (d) of Section 2 thereof.' This was followed by the West Bengal Act XXIII of 1955 which came into force on the 21st September, 1955. Section 8 of the West Bengal Land Development and Planning Act (Act XXI of 1948) was amended. The amendment inter alia provided as follows:--

'(1) in Sub-section (1) of that section, as so re-numbered-

(a) for the words 'A declaration under Section 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and after making such declaration' the words 'After making a declaration under Section 6' shall be substituted;

(b) in Clause (a) of the proviso for the words 'any other waste or arable land' the words 'any waste or arable land' shall be substituted;

(c) the explanation to Clause (a) of the proviso shall be omitted;

(d) in the condition mentioned at the end of Clause (b) of the proviso, after the words 'if such market value' the words 'in relation to land acquired for the public purpose specified in Sub-clause (i) of Clause (d) of Section 2' shall be inserted and shall be deemed always to have been inserted; and

(2) after Sub-section (1) of the said section, as so re-numbered, the following sub-section shall be added, namely:

'(2) When the amount of compensation has been determined under Sub-section (1), the Collector shall make an award in accordance with the principles set out in Section 11 of the said Act, but no amount referred to in Sub-section (2) of Section 23 of the said Act shall be included in the award'.'

4. It is the allegation in the petition that as a result of the amendment there has been a denial of equality within the meaning of Article 14 of the Constitutlon of India. The petitioner's case is that the same land may be acquired under the said Act but if the purpose of the acquisition which is immaterial to the owner is for the purpose other than settlement of immigrants, the owner is entitled to get compensation at the market value of the land on the date of the publication of the Notification under Section 4. But if such land is acquired for the purpose of settlement of immigrants, he is entitled to get compensation only at the rate prevailing on December 31, 1946. This difference in compensation, according to the party to the acquisition, is the main ground on which the challenge is thrown that this amendment of the statute violates equality of law and equal protection of law as provided in Article 14 of the Constitution of India. According to the petitioner, it has a very severe practical effect, because the land value in Jadavpur where these lands are situated has increased enormously from 1946, far exceeding the value prevailing in December 31, 1946. Therefore, the petitioner contends that compensation at the prevailing rate on December 31, 1946, is discriminatory and ultra vires the Article 14 of the Constitution of India.

5. The Land Acquisition Collector, 24-Parganas, acting under the said Act made an award on the 2nd February, 1959, fixing compensation at the rate of Rs. 225 per cottah for land and Rs. 112 per cottah for tanks. The petitioner naturally now challenges that award. Being aggrieved by the award, the petitioner made an application for reference before the Special Land Acquisition Judge, 24-Parganas, Alipore, being L. R. A. Case No. 55/63 (V) which is pending. It is this case which is pending that is intended to be transferred to this Court and for that purpose the present application was made under Article 228 of the Constitution of India and a Rule was issued.

6. Sometime in 1964, an application was made before the Special Land Acquisition Judge, 24-Parganas, for referring that pending case to this High Court under Section 113 of the Code of Civil Procedure. By judgment and order dated July 10, 1964, the Land Acquisition Judge dismissed the petitioner's application.

7. It is also the contention of the petitioner in this Rule that the decision of the Supreme Court in Union of India v. The Metal Corporation of India Ltd., : [1967]1SCR255 , lays down that the true construction of Article 31(2) of the Constitution of India is that compensation based on some recognised principles of determination of value of the land or its 'just equivalent'. (See the observation of the Supreme Court at p. 640 of the Report.) The petitioner submits that validity of Section 7 (1) (d) of the Amending Act XXIII of 1955 could be judged only in terms of the said Act and not in the light of the West Bengal Ordinance 4 of 1955 which came into force on April 8, 1955. The petitioner also relies on the decision of the Supreme Court in P. Vajravelu Mudaliar v. The Spl. Dy. Collector for Land Acquisition, West Madras, : [1965]1SCR614 , which decided the point about the interpretation of Article 14, for construction of Section 7(d) of the Land; Development and Planning Act (Bengal Act XXIII of 1955) and also referred to the decision in : [1967]1SCR255 . Vajravelu's case considered the question that although the consideration of adequacy of compensation was excluded from the jurisdiction of the Court under the Fourth Amendment of Article 31(2) of the Constitution, the matter where the compensation itself was illusory or made on principles irrelevant to the value of the property still remained justiciable by Court.

8. On these facts and contentions, the petitioner submits in paragraph 13 of the petition that the three following substantial questions of law as to the interpretation of Constitution are involved in the determination of the pending case In the reference before the Special Land Ac* quisition Judge:--

(i) Whether proviso (b) to Section 8 (1) of the West Bengal Land Development and Planning Act as amended by Section 7 of the Amendment Act of 1955 is protected from any challenge on the ground of infringement of Part III of the Constitution because the main Act is included in the 9th Schedule to the Constitution;

(ii) whether on a true construction of Article 14 of the Constitution the said proviso (b) to Section 8 (1) of the said Act as amended by 7 (d) of the West Bengal Act XXIII of 1955 is discriminatory and as such Section 8 is void under Article 13 of the Constitution; and

(iii) whether on a true construction of Article 31(2) of the Constitution of India proviso (b) to Section 8 (1) of the West Bengal Act XXIII of 1955 is ultra vires Article 31(2) of the Constitution and is void under Article 13 of the Constitution.

9. Mr. Somendra Chandra Bose for the petitioner in course of his argument reframed these questions and submitted the following question as the substantial question of law as to the interpretation of Constitution involved in the pending case:--

'Whether on a proper construction of Article 31-B of the Constitution and Item 20 of the Ninth Schedule to the Constitution of India, Proviso (b) to Section 8 (1) of the West Bengal Land Development and Planning Act as amended by Section 7 (i) (d) of the West Bengal Land Development and Planning (Amendment) Act of 1955 (West Bengal Act 23 of 1955) is protected from any challenge on the ground of infringement of the Fundamental Rights of the petitioner guaranteed by Articles 14 and 31 of the Constitution? If not, whether the said provision infringes Articles 14 and 31 of the Constitution?'

10. In disposing of the application under Section 113 of the Code of Civil Procedure, the Land Acquisition Judge construed Articles 31-B and 31-A of the Constitution. He also considered the West Bengal Land Development and Planning Act included in the Ninth Schedule of the Constitution by the Constitution (Fourth Amendment) Act, 1955. He noticed the argument of the petitioner that the protection granted by inclusion of this statute in the Ninth Schedule was only available to the statute as it stood on the 27th April, 1955, at the time of its inclusion in the Ninth Schedule of the Constitution and that the contention of the petitioner was that the amended provisions of that Act subsequent to 27th April, 1955, did not enjoy that protection and immunity and therefore were subject to the scrutiny of this Court. The learned Land Acquisition Judge came to the conclusion that it cannot be said that the amendment of Section 8 of the West Bengal Land Development and Planning Act by Act 22 of 1955 was not protected and came to the conclusion that the provision was saved by Article 31-B of the Constitution. He further came to the conclusion that the particular provision providing for different rate of compensation and that at the rate prevailing at December 31, 1946, was not invalid.

11. The question now is whether these points are points of substantial law as to the interpretation of the Constitution of India.

12. Mr. Das Gupta on behalf of the State opposes this Rule on the ground that these questions are not questions of substantial law as to the interpretation of the Constitution within the meaning of Article 228 of the Constitution, His submission is that these are all questions relating to the interpretation of the West Bengal statute or its amendments. Interpretation of statutes and consideration of the questions whether such statutes are ultra vires or intra vires the Constitution do not necessarily raise, according to him, substantial questions of law as to the interpretation of the Constitution, If only questions of Interpretation of a State statute or regulation whose vires is challenged as being against the Constitution are regarded as questions relating to the interpretation of the Constitution, then flood-gates will be open for such applications because almost in every matter for any major question in any major legal area in India today, it Is the controversy of the vires of the State statute and legislations. Mr. Das Gupta for the State contends that Article 14 and Article 31 of the Constitution, which are mentioned in the petition in this case, are there and their interpretation has been settled and therefore no question of interpretation of the Constitution is involved in this controversy but only questions of the interpretation of the Act in the light of those Articles of the Constitution whose interpretation is already settled and fixed.

13. In support of this argument, Mr. Das Gupta relies on the decision of the Supreme Court in State of Jammu and Kashmir v. Thakur Ganga Singh, : [1960]2SCR346 . It was a decision of five learned Judges of the Supreme Court, Subba Rao J. (as he then was) speaking for the Supreme Court observed at p. 359 as follows:--

'What does interpretation of a provision mean? Interpretation is the method by which the true sense or the meaning of the word is understood. The question of interpretation can arise only if two or more possible constructions are sought to be placed on a provision one party suggesting one construction and the other a different one. But where the parties agree on the true interpretation of a provision or do not raise any question in respect thereof it is not possible to hold that the case involves any question of law as to the interpretation of the Constitution. On an interpretation of Article 14, a series of decisions of this Court evolved the doctrine of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Article 14 or the principles governing the doctrine of classification have been questioned by either of the parties. ............ We, therefore, hold that the question raised in this case does not involve any question of law as to the interpretation of the Constitution'.

14. These observations were made not in connection with Article 228 of the Constitution with which we are concerned but under Article 132(2) of the Constitution of India which the Supreme Court was discussing. Mr. Das Gupta argued however, that the expression construed by the Supreme Court is the same as the expression that falls to be determined in the present proceeding before us. Both Article 132(2) as well as Article 228 use the expression 'involves a substantial question of law as to the interpretation of this Constitution'. Normally, unless the context indicates otherwise, the same expression in the different Articles of the Constitution and, especially, such expression as 'substantial question of law as to the interpretation of this Constitution' should receive the same meaning throughout the Constitution. Unfortunately, however, we find that another decision of the Supreme Court in Raja Ganga Pratap Singh v. Allahabad Bank Ltd., : [1958]1SCR1150 , construing the same expression under Article 228 was not even mentioned or referred to in the subsequent decision in : [1960]2SCR346 , in spite of the fact that both these decisions were decisions of a Bench consisting of five learned Judges and one of the learned members of the Bench was common in both the Benches. Mr. Bose for the petitioner naturally has made full use of this previous decision in : [1958]1SCR1150 , with the added strength in his argument that this was a decision under Article 228 and not under Article 132(2) of the Constitution as in the State of Jammu and Kashmir case. A reference therefore to this : [1958]1SCR1150 case is unavoidable and we think that it is also necessary for the purpose. The learned Judge delivering the judgment of the Supreme Court in : [1958]1SCR1150 observed as follows:--

'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 Article 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 in it while Article 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 Zamindar's 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.'

15. It would be also significant to notice the order that the Supreme Court made in Raja Ganga Pratap Singh's case, : [1958]1SCR1150 for that would indicate what the Supreme Court in that case considered to be a 'substantial question of law as to the interpretation of this Constitution', an expression with which we are concerned in the present proceeding before us. The order which the Supreme Court made in that case was as follows:--

'This appeal is hence allowed. The High Court will withdraw the case and either dispose it of itself or determine the question of the validity of the definition of a debt in the Zamindar's Debt Reduction Act and return the case to the Civil Judge, Sitapur, for disposal in accordance with its determination of the question'.

16. Plainly enough the question there was about the validity of a debt in the statute called the Zamindar's Debt Reduction Act and whether that statute Is valid or invalid under the Constitution. The ratio decidendi of this case is plainly that such a question was a question of law as to the interpretation of the Constitution. If that be so, the present question before us is undoubtedly one such question.

17. At this stage, some reference may be made usefully to some decision of the State High Courts. In Gulam Hussain Ahmedali and Co. v. Trustees of the Port of Trust, Bombay, : AIR1963Bom45 , a Division Bench of the Bombay High Court came to the conclusion that under Article 228 of the Constitution, the High Court had the jurisdiction to decide whether a question of law as to the interpretation of the Constitution was required to be determined for the disposal of a suit which was pending in a court subordinate to it. Thus, where the question as to the constitutional validity of a provision of an Act (Bombay Port Trust Act) was raised and it was not possible for the High Court to consider that question without appreciating its scope and effect, the High Court would determine the scope and effect of the said provision and after doing so it might decide that no question of validity of the provision was involved. This also is a case in which the validity of a statute with reference to Constitution may involve questions of law as to the interpretation of the Constitution. On the other hand, there is a decision of a learned single Judge of the Patna High Court in State of Bihar v. Shree Krishna Gyanoday Sugar Ltd., AIR 1968 Pat 414, where the learned Judge found it difficult to bring the question there -- 'Whether the Bihar Sugar Factories Control Act and the Rules framed thereunder are ultra vires and unconstitutional?' -- within the ambit of the provisions of Article 228 of the Constitution. Again, in the decision Mahmood-ul-Hussaini v. The State, AIR 1951 Bhopal 9, the learned Judicial Commissioner Sathaye in discussing whether Section 23 of the Bhopal Public Safety Act, 1947, was ultra vires Article 19(1)(a) read with Article 13 of the Constitution and whether Section 5 of the Bhopal (Administration) Order, 1949, was ultra vires and void under Article 228 of the Constitution, observed at page 10 of that report:--

'It must appear that the presence of a mere question of law under the Constitution is not enough. Firstly, the question of law must be substantial and secondly such question must relate to 'interpretation of the Constitution' and not merely 'application of the Constitution.' The distinction between 'interpretation' and 'application' is substantial and significant. 'Interpretation' Is the act of making intelligible what was before not understood, ambiguous, or not obvious. It is the method by which the meaning of language is ascertained. Resort to interpretation is never to be had where the meaning is free from doubt......

...... I am, therefore, clear that the most important essential for the application of Article 228 of the Constitution, viz., of interpretation of the Constitution is absent and as such the provisions of that Article (Article 228) of the Constitution are not applicable to the case on hand.'

18. From an analysis of these decisions and authorities, it will be plain that there are obviously two trends of thoughts. In such decisions as in : [1960]2SCR346 ; AIR 1968 Pat 414 and AIR 1951 Bhopal 9, the distinction is sought to be made between what is an interpretation of the Constitution and what is an interpretation of a statute and to suggest that the two need not necessarily be the same and that one may be there without the other. If it is a case of interpretation of a statute and its vires under the Constitution, it must necessarily be a case involving a question of law as to the interpretation of the Constitution. On the other hand, the line of decisions represented by such authorities as : [1958]1SCR1150 and : AIR1963Bom45 , appears to suggest that this distinction may be one without any difference.

19. 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 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 a question of law, that it must be substantial and that it must relate to the interpretation of the Consitution. But, what is interpretation of the Constitution? When the vires of a State statute 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 a 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 interpretation 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 inter-reaction In the Constitution. It will be unwise in our view, to draw the line more narrowly and closely than what we have done.

20. The reason why we have come to the conclusion in this case that it does involve a substantial question of law as to the interpretation of the Constitution may now be broadly stated in the light of the above proposition. In the first place, one of the main questions here is about the interpretation of Item 20 of Schedule IX of the Constitution of India, namely, 'The 'West Bengal Land Development and Planning Act, 1948 (West Bengal Act XXI of 1948), as amended by West Bengal Act XXIX of 1951'. It would be recalled that this was introduced by Article 31-B of the Constitution which provides-

'Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.'

Now, the substantial question of law as to the interpretation of the Constitution in the present case is whether this West Bengal statute, the West Bengal Land Development and Planning Act, 1948 as amended by West Bengal Act XXIX of 1951 under the Constitution of India includes also the subsequent amendments made after 1951 and whether such subsequent amendments enjoy the immunity and the protection granted under Article 31-B of the Constitution of India. That is plainly a question of interpretation of the Constitution which will involve the interpretation of Article 31B of the Constitution as well as the exact language of Item 20 of the Ninth Schedule to the Constitution. Secondly, the other substantial question of law as to the interpretation of Constitution involved is the interpretation of Article 31(2) read with Articles 31-A and 31-B of the Constitution regarding the adequacy of the compensation. No doubt, under Article 31(2) of the Constitution, it is now expressly provided that 'no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate', yet it cannot be said that the authorities have finally settled all the frontiers of this doctrine of adequacy of compensation. The two Supreme Court decisions to which reference has already been made by us indicate that where the question of making the compensation is illusory or making it depends on principles which are wholly irrelevant to the principles of valuation of land, then such a question would still remain justiciable. This will mean a substantial question of law as to the interpretation of the Constitution on this point. On these considerations, we are satisfied that it is a fit and proper case in which under Article 228 of the Constitution this Court shall withdraw the case pending before the Special Land Acquisition Judge for the disposal of the case, either of the whole case or of the substantial questions of law as to the interpretation of the Constitution. The Bench of this Court dealing with the case when it is withdrawn will decide whether it will dispose of the whole case or only the points of substantial questions of law as to the interpretation of the Constitution, We are satisfied that these substantial questions of law have to be decided in this case and such decision is necessary for disposal of the case within the meaning of Article 228 of the Constitution.

21. In conclusion, it remains necessary to add a few words about the procedure in this case. One such question is whether withdrawal of a case under Article 228 of the Constitution by this High Court from a court subordinate to it should be done before or after a decision has been given by the subordinate court. In this case, as already indicated, the decision by the Land Acquisition Judge was given on this point of constitutional law and this application has been made thereafter. Mr. Das Gupta for the State submits that once such a decision by the subordinate court has been given, there is no further scope for Article 228, because there are other provisions for revising it, which, he in this case states, was either an appeal under the Land Acquisition Act from either this decision or the ultimate decision that the Land Acquisition Judge may give or under Article 226 or even under Article 227 of the Constitution. There is a considerable force In that argument. We have weighed this argument carefully and have come to the conclusion that this argument really proceeds more or less on an implied assumption that, where alternative remedies are available, Article 228 should not be invoked. This assumption, in our view, is untenable, having regard to the language of Article 228 of the Constitution. The language of the Article 228 of the Constitution leaves no discretion for the Court and provides no consideration for alternative remedy. It requires that

'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 should withdraw the case.'

Once the High Court reaches that satisfaction that the pending case involves a substantial question of law as to the interpretation of the Constitution which is necessary for the disposal of the case, there is no other option for this High Court and the mandate of the Constitution is that the High Court shall withdraw the case. No doubt, the other condition in Article 228 must be satisfied and that is that the case must be pending and not disposed of. Here, in this case, there is no doubt that the case is pending, What the Land Acquisition Judge has decided was only an interlocutory application under Section 113 of the Code of Civil Procedure to make a reference and in dismissing that application under Section 113 of the Code, he has decided these constitutional questions, but even then, the question is now pending in a reference and it will have to be ultimately decided by the Special Land Acquisition Judge. The case that is now pending on reference is L. R. A. Case No. 55/ 63 (V). This reference, as indicated already, was from the award made by the Land Acquisition Collector. Left to itself, normally the procedure would be that the Special Land Acquisition Judge, 24-Parganas hearing and ultimately deciding the L. R. A. Case No. 55/63 (V) will apply the principles which he has decided in the interlocutory application dismissing the petitioner's application for reference to this Court under Section 113 of the Code of Civil Procedure. But that would not make the case any the less pending on reference before the Special Land Acquisition Judge. If there was no pending case at all, then of course one of the conditions under Article 228 of the Constitution would not be satisfied and in that event Article 228 could not be invoked. But that is not the case here on the facts as the case is pending.

22. Section 113 of the Code of Civil Procedure provides for reference to the High Court in these terms:--

'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 therefor, and refer the same for the opinion of the High Court.'

Scrutinizing this provision of the Civil Procedure Code, the following features should be emphasised. In the first place, ordinarily this power of reference belongs to the subordinate court. Secondly, such, power of reference is discretionary in the sense that in such a case the court may state a case and refer the same for the opinion of the High Court. Thirdly, the subordinate court has to be satisfied that a case pending before it involves a question as to the validity of any Act. Fourthly, the subordinate court has to be satisfied that the determination of that question of the validity of the Act is necessary for the disposal of the case. Fifthly, the subordinate court has to be of the opinion that such Act is invalid or inoperative. Sixthly, the subordinate court has to be of the opinion that such invalidity or inoperativeness has not been declared either by the High Court to which the court is subordinate or by the Supreme Court. If these conditions are satisfied, then the subordinate Court's power to refer is no longer discretionary but mandatory and the subordinate court shall state a case setting out its opinion and the reasons therefor. In this event the subordinate court will have to express its opinion whether the Act is invalid or inoperative. Unless he comes to that conclusion, the subordinate court is not bound to make a reference to the High Court. The disposal of the application in the present case under Section 113 of the Code of Civil Procedure does not dispose of the pending case before the Special Land Acquisition Judge.

23. It is necessary, however, to emphasise the fact that Section 113 of the Code is a statutory provision whereas Article 228 is a constitutional provision. At the same time, although Section 113 of the Code of Civil Procedure does not refer to any question as to the interpretation of the Constitution, yet it refers to the question of validity of any Act, Ordinance or Regulation being invalid or inoperative without stating any ground or case for which it is invalid or inoperative and it is possible therefore to consider the question of constitutional invalidity or constitutional inoperativeness of such Act, Ordinance or Regulation. Therefore, Section 113 of the Code of Civil Procedure and Article 228 of the Constitution of India may cover certain common case, but at the same time they are not coextensive. Article 228 is undoubtedly confined to substantial questions of law as to the interpretation of the Constitution and nothing else, but the point for reference under Section 113 of the Code of Civil Procedure is much wider. We have already emphasised the fact that where the High Court is satisfied that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, the High Court has no option but to withdraw that case to itself either for the decision of the points of constitutional law or the whole case as the case may be.

24. The procedure as laid down under Sub-rule (1) of Rule 14-A, Part I, Chapter II, of the High Court Appellate Side Rules must be followed with regard to the determination of these questions. Sub-rule (1) in its first part provides for all cases transferred to the High Court to be laid before the Division Bench presided over by the Chief Justice for determination whether such cases involve a substantial question of law as to the interpretation of the Constitution. That provision refers to all cases transferred to the High Court by subordinate courts under Article 228 of the Constitution. The second part of Sub-rule (1) provides that all applications under the said Article for transferring such cases before the High Court shall be moved before the Bench presided over by the Chief Justice. Sub-rule (2) proceeds thereafter to indicate that if the Court is satisfied that the case so transferred involves a substantial question of law, the case shall be laid before such Bench as the Chief Justice may direct. The details of this procedure are to be found in Sub-rules (1), (2) and (3) of Rule 14-A, Part I, Chapter II, of the High Court Appellate Side Rules. We also follow the existing Division Bench decision of this Court on this point in Dr. Samarendra Kumar Das v. Khalilur Rahaman, : AIR1970Cal481 . We, therefore, make the following order:--

25. The Rule is made absolute. We make an order of withdrawing the pending L. R. A. Case No. 55/63 (V) mentioned above for determination of the substantial questions of law as to the interpretation of the Constitution mentioned in paragraph 13 of the petition originally but now reframed in the manner set out elsewhere in this judgment. With this qualification, order is made in terms of the prayer in the petition. Under Rule 14-A, Sub-rule (2), Part I, Chapter II, of the High Court Appellate Side Rules, this Bench is constituted to hear this matter with regard to the determination of these questions.

26. Costs of this application will be costs in the case withdrawn.

27. Liberty is given to the parties to apply for early hearing of the case when the case is made ready.

28. The learned Special Land Acquisition Judge, 24-Parganas is directed to send the records of the reference case to this Court as expeditiously as possible.

B.C. Mitra, J.

29. I agree.


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