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Union of India (Uoi) and ors. Vs. Bholanath Karmakar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 252 of 1977
Judge
Reported inAIR1977Cal386
ActsConstitution of India - Article 226; ;Constitution (Forty-second Amendment) Act, 1976 - Section 58
AppellantUnion of India (Uoi) and ors.
RespondentBholanath Karmakar
Appellant AdvocateNoni Coomar Chakraborty and ;Surathi Mohan Sanyal, Advs.
Respondent AdvocateNalin Chandra Banerjee and ;Binode Behari Giri, Advs.
DispositionAppeal allowed
Cases ReferredWest Bengal v. Sumanlal Parekh
Excerpt:
- .....applicability of section 58 read with section 38 of the constitution 42nd amendment act, 1976 to pending appeals. the act received the assent of the president on december 18. 1976.2. by reason of the provisions of section 1 (2) of the act, sections 38 and 58 came into force on february 1, 1977. section 58 contains special provisions as to pending petitions under article 226 of the constitution. it provides as follows:'58 (i) notwithstanding anything contained in the constitution, every petition under article 226 of the constitution before the appointed day and pending before any high court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of any injunction or stay or any other manner) made on, or in.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This matter has been referred to the Special Division Bench under Rule 1 (ii) of Chapter II of the Appellate Side Rules of this Court by Sabyasachi Mukharji and M. M. Dutt, JJ. The principal contention before the Division Bench centred round the applicability of Section 58 read with Section 38 of the Constitution 42nd Amendment Act, 1976 to pending appeals. The Act received the assent of the President on December 18. 1976.

2. By reason of the provisions of Section 1 (2) of the Act, Sections 38 and 58 came into force on February 1, 1977. Section 58 contains special provisions as to pending petitions under Article 226 of the Constitution. It provides as follows:

'58 (i) Notwithstanding anything contained in the Constitution, every petition under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of any injunction or stay or any other manner) made on, or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 of the Constitution as substituted by Section 38.

Sub-section (2): In particular, and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38, if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to such petition shall stand vacated........'

2-A. The dispute before the Division Bench was whether the above provisions applied to appeals pending in this Court on the appointed day in respect of Article 226 of the Constitution.

3. Mr. Noni Coomar Chakraborty, learned Advocate appearing on behalf of the Union of India states that his instruc--tions are to submit to this Court that Section 58 has no application to appeals pending in the Court on the appointed day, We need not therefore decide the dispute that arose before the Division Bench, And we proceed on the basis of the above concession that appeals pending in this Court under Article 226 of the Constitution are not affected by the provisions of Section 58 read with Section 38 of the Constitution 42nd Amendment Act, 1976.

4. As the entire appeal has been referred to us we have to express our opinion on other issues in this appeal. The Union of India is entitled to succeed in view of the judgment of this Court in Collector of Central Excise and Customs, West Bengal v. Sumanlal Parekh, reported in 1974 Tax LR 2380 (Cal). This was also a case under the Gold Control Act, 1968. This Court has held that in cases, where alternative remedies have been provided for, in the absence of sufficient grounds to show why those remedies should not or could not be availed of, a petition under Article 226 of the Constitution ought not to be encouraged.

5. In the instant case there are admittedly alternative remedies. There is no indication in the petition under Article 226 as to why those alternative remedies could not be pursued to seek appropriate reliefs. In the circumstances, the application under Article 226 of the Constitution was not maintainable and should have been dismissed.

6. In the result, the appeal is allowed. The cross-objection is dismissed. The Rule granted under Article 226 of the Constitution is discharged. The interim orders, if any, are vacated.

7. There will be no order as to costs.

8. We make it clear that we express no opinion on the merits of the case of the petitioner under Article 226 which the petitioner would be entitled to urge, if so advised, before the appropriate authorities. We also express no opinion on the scope, effect or validity of Section 58 read with Section 38 of the Constitution 42nd Amendment Act, 1976.

Sabyasachi Mukharji, J.

9. I agree.

S.K. Datta, J.

10. I agree.


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