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Himachal Pradesh Financial Corporation, Simla Vs. Nahan Electricals Village Ogli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Reference No. 1 of 1978
Judge
Reported inAIR1982HP49
ActsCode of Civil Procedure (CPC) , 1908 - Section 113
AppellantHimachal Pradesh Financial Corporation, Simla
RespondentNahan Electricals Village Ogli
Appellant Advocate Kailash Chand, Adv.
Respondent Advocate K.D. Sood, Adv.
Excerpt:
- v.p. gupta, j. 1. this reference has been made by the district judge, nahan, in a petition under section 31 of the state financial corporations act, 1951 (hereinafter shortly called the act).2. the petitioner filed a petition under section 31 of the act on 3rd dec., 1977 against the respondent and the respondent in reply raised various objections. after a rejoinder the learned district judge framed the following preliminary issues in view of the preliminary objection no. 2 raised by the respondent.'1. whether the provisions of section 31 of the state financial corporations act, 1951, are ultra vires to the constitution of india? o.p.r. 2. relief.' after the framing of the issues the district judge passed the following order on 5th august, 1978 :'since the objection involves the decision.....
Judgment:

V.P. Gupta, J.

1. This reference has been made by the District Judge, Nahan, in a petition under Section 31 of the State Financial Corporations Act, 1951 (hereinafter shortly called the Act).

2. The petitioner filed a petition under Section 31 of the Act on 3rd Dec., 1977 against the respondent and the respondent in reply raised various objections. After a rejoinder the learned District Judge framed the following preliminary issues in view of the preliminary objection No. 2 raised by the respondent.

'1. Whether the provisions of Section 31 of the State Financial Corporations Act, 1951, are ultra vires to the Constitution of India? O.P.R.

2. Relief.'

After the framing of the issues the District Judge passed the following order on 5th August, 1978 :

'Since the objection involves the decision of the vires of the Constitutionwhich is not within the purview of thisCourt, the matter is referred to theHon'ble High Court for decision on thepoint. The file be submitted to the Hon'bleHigh Court for appropriate orders on theabove point. Parties are advised to appear before the Hon'ble High Court on22-8-78. File be submitted to the HighCourt before that date.

Announced,

Sd/-

Dist, Judge, Sirmur,

at Nahan.'

3. We have heard the learned counsel for the parties and are of the opinion that the reference made to this Court is not maintainable and in fact there is Ho valid reference. A reference can only be made by the District Judge to the High Court under Section 113 of the Civil P. C, which reads as follows;

'113. Subject to such conditions arid 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 therefore, and refer the same for the opinion of the High Court.'

Thus the District Judge could make a reference if he had any doubt with respect to the validity of the Act, and was of the opinion that the determination of this question was necessary for the disposal of the case. Besides this, the District Judge should have been of the view that the impugned Act is ultra vires. If any of these elements was missing then the District Judge could not make any reference. Before making reference it was the duty of the District Judge to have given his opinion about the vires of the Act and he should have recorded his finding to that effect.

4. In the present case the District [Judge after framing the issues has simply referred the matter to this Court and has not given any finding or opinion in the matter. In these circumstances the said reference is not competent in view of the provisions of Section 113 of the C.P.C. The case is returned to the court of District Judge for proceeding according to law.


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