JUDGMENT S.N. Dwivedi, J. - Twelve cases have been referred to us for opinion on certain. matters. They may be divided into two groups. The first group consists of 3 second appeals Nos. 1442 of 1966, 1948 of 1966 and 2151 of 1966; the second group comprises 9 criminal revisions Nos. 1252 of 1966, 1363 of 1966, 1364 of 1966, 1365 of 1966, 1385 of 1966, 1386 of 1966, 1387 of 1966, 1388 of 1966 and 1397 of 1966. 2. Second appeal No. 2151 of 1966 is filed against the judgment and decree of Sri Indra Singh, a District Judge. Sri Indra Singh was directly appointed to the U.P. Higher Judicial Service. He was taken from the Bar. The other two appeals seek to challenge the decree and judgment of two Civil Judges passed in two first appeals. These three appeals have been referred to a larger Bench by Mr. Justice Mathur. In second appeal No. 2151 of 1966 he has referred two questions. They are : - 1. Was Sri Indra Singh validly appointed as a District Judge ? Did he have the jurisdiction to hear the appeal ? 2. Can the competency and jurisdiction of Sri Indra Singh be challenged in collateral proceedings like appeals and revisions ? 3. In the other two appeals Mr. Justice Mathur has formulated the following three questions : 1. Whether the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 notified to have been made by the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution of India, are, or can be deemed to be, under Article 234 of the Constitution of India also ? Were the Rules framed in consultation with the Public Service Commission and the State High Court as contemplated by Article 234 of the Constitution of India ? 2. Was the High Court consulted prior to the appointment of Munsifs as contemplated by Rule 21 of the U.P. Civil Service (judicial Branch) Rules 1951 ? 3. Can the appointment of Munsifs and Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules, 1951 be challenged in a collateral proceeding like appeals and revisions ? 4. It may be noticed that the second question in second appeal No. 2151 of 1966 is substantially similar to the third question in the other two second appeals. 5. 4. It may be noticed that the second question in second appeal No. 2151 of 1966 is substantially similar to the third question in the other two second appeals. 5. All the criminal revisions have been referred to us by Mr. Justice Uniyal. Criminal revisions Nos. 1364 and 1365 of 1966 are directed against the order passed by Sri O.P. Trivedi, Sessions Judge, in two criminal appeals. Criminal revisions Nos. 1252 of 1966, 1385 and 1386 of 1966 are directed against the orders of Sri Balram Agarwal, Additional Sessions Judge, passed in three criminal appeals. Criminal revision No. 1363 of 1966 is directed against the order of Sri P.S. Verma, Sessions Judge, passed in a criminal appeal. Criminal Revision No. 1387 of 1966 is directed against the order of Sri S.D.N. Singh, 1st. Temporary Sessions Judge, passed in a criminal revision. Criminal revision No. 1388 of 1966 is directed against the order of Sri G.K. Wahal, Second Temporary Sessions Judge, passed in a criminal appeal. Criminal revision No. 1397 of 1966 is directed against the order of Sri Behariji Dass, Temporary Sessions Judge, passed in a criminal appeal. Sri O.P. Trivedi and Sri Behariji Dass belong to the U.P. Higher Judicial Service. The former is promoted from the U.P. Civil Service (Judicial Branch) while the latter has been directly appointed from the Bar. All the appellate orders except one confirm the conviction and sentence of imprisonment passed by Magistrates. In Criminal Revision 1364 of 1966 the impugned order was made in appeal against the order of an Assistant Sessions Judge in a Sessions case. The applicant has been convicted and sentenced to imprisonment. The impugned order in Criminal revision 1387 of 1966 upheld the order of a Magistrate for maintenance under Section 488, Code of Criminal Procedure. While referring the criminal revisions Mr. Justice Uniyal did not formulate any specific questions for opinion of the larger Bench. But it appears from the referring order that the larger Bench should decide whether the orders of the Sessions Judges are null and void. 6. When the hearing of the cases started before the Bench it was felt that there is implicit in the third question formulated by Mr. Justice Mathur in second appeals Nos. 1948 of 1966 and 1942 of 1966 the question whether the orders of the Munsifs and Civil Judges, acting de facto, are valid. 6. When the hearing of the cases started before the Bench it was felt that there is implicit in the third question formulated by Mr. Justice Mathur in second appeals Nos. 1948 of 1966 and 1942 of 1966 the question whether the orders of the Munsifs and Civil Judges, acting de facto, are valid. Accordingly we have re framed question No. 3 as follows : 3 (a) Can the appointment of Munsifs and Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules, 1951 be challenged in a collateral proceeding like appeal and revision ? (b) If the answer to the question in clause (a) is in the affirmative, are the impugned decisions liable to be set aside merely on the ground that the appointments of the officers concerned were invalid ? 7. Question No. 2 in second appeal No. 2151 of 1966, although not expressly re framed by us, should be deemed to be re framed like question No. 3 in the other appeals. 8. Arguments were addressed to us first on the third question. In none of the cases referred to us was the appointment of the Munsifs, Civil Judges, Sessions Judges and District Judges challenged in the lower courts. It is questioned for the first time in this Court. Recently the Supreme Court has held that the appointment of certain persons in the U.P. Higher Judicial Service by the Governor was illegal because the U.P. Higher Judicial Service Rules were unconstitutional and also because there was no real and effective consultation of the High Court in respect of their appointments. See Chandra Mohan v. U.P. State, 1966 ALJ 778. After this judgment, the applicants and the appellants in the cases before us have challenged the appointments of the Munsifs, Civil Judges and Sessions Judges, some of whom are not in the Higher Judicial Service. 9. The argument of Sri Misra is that if the appointment of these judicial officers is unconstitutional they would have no jurisdiction to entertain and decide cases. A question of jurisdiction may be taken for the first time in a second appeal and revision. He has relied on Har Prasad v. Jafar Ali, (1885) ILR 7 Alld. 342, Khem Chand v. Kesar Singh, A.I.R. 1933 Alld. 403, Jeevan v. Sant Singh, A.I.R. 1936 Lahore 575, M. Dutt and Co. A question of jurisdiction may be taken for the first time in a second appeal and revision. He has relied on Har Prasad v. Jafar Ali, (1885) ILR 7 Alld. 342, Khem Chand v. Kesar Singh, A.I.R. 1933 Alld. 403, Jeevan v. Sant Singh, A.I.R. 1936 Lahore 575, M. Dutt and Co. v. U.C. Law, 68 CWN 179, Karan Singh v. Chaman Paswan, A.I.R. 1954 SC 340 and Waverly Jute Mills v. Ramon and Co., A.I.R. 1963 SC 90. He has also urged that their appointments can be challenged in an appeal and revision against their judgments, that appeal and revision are not collateral proceedings, and that as their appointments are invalid, their judgments are void. He has relied on O.E. v. Ganga Ram, (1894) ILR 16 Alld. 136 (FB), Gajadhar Lal v. Sagan Chand, A.I.R. 1958 MP 184, Shabbir v. State, A.I.R. 1965 Alld. 97 and Jyoti Prakash v. Chief Justice, (1965) 2 SCR 53 : A.I.R. 1965 SC 961. 10. The argument of Sri Ansari is similar. He has vigorously maintained that we are bound by the decision in the cases of Ganga Ram8 and Jyoti Prakashn. He has tried to lend force to his contention by invoking Articles 141 and 14-4 of the Constitution. He has further argued that at all events he can question in revision the judgment of Sri Behariji Dass, who was a party to Chandra Mohan'si case before the Supreme Court. He has referred to Sal-mend on Jurisprudence (11th edition) 223 and Himansu Kumar Bose v. Jyoti Prakash Miter, A.I.R. 1964 SC 1636 (1640). 11. Sri Keshav Sahai has built his argument on Article 21 of the Constitution. His argument is that the convicts are being deprived of their personal liberty other wise than in accordance with the procedure established by law. According to him the appointment of a Sessions Judge is a part of the criminal procedure. He has relied on In re.: Shaik Silar, A.I.R. 1941 Mad. 681, A.K. Gopalan v. State of Madras, 1950 SCR 88 and Kharag Singh v. U.P. State, A.I.R. 1963 SC 1295. According to him the appointment of a Sessions Judge is a part of the criminal procedure. He has relied on In re.: Shaik Silar, A.I.R. 1941 Mad. 681, A.K. Gopalan v. State of Madras, 1950 SCR 88 and Kharag Singh v. U.P. State, A.I.R. 1963 SC 1295. He says that as the question that a Judge is disqualified for hearing a case on account of his personal interest may be raised in an appeal or revision from his order, so the question that he has been illegally appointed should also be allowed to be raised in an appeal or revision from his order. 12. The Advocate General and Sri Jagdish Swamp have appeared as amicus curiae. Sri Bhat has appeared for the State in the criminal revisions. The Advocate General has contended that the appointment of a judge is not a matter pertaining to the jurisdiction of a court. The legality of his appointment cannot be subjected to a collateral attack in an appeal or revision from his orders for various reasons, including the reason that a party cannot question his appointment before him. The order of a de facto judge is valid and binding on the litigants and on the public till his appointment is held to be invalid in some direct proceeding such as a writ of quo-warranto or a suit to which he is a party. He has cited 49 Corpus Juris Secondum, PP 42, 809 and 821, 9 Halsbury's Laws of England (3rd edition), PP 344 and 350, Mewa Salthu v. Jhonti Singh, A.I.R. 1921 Patna 306, Ram Kinker Rai v. Tufani, A.I.R. 1931 Alld. 35 (FB), The Official Liquidator M.E. Moola Sons Ltd. v. Perin R. Burjorjee, A.I.R. 1932 PC 118, M.G. Perera v. A.V. Peiris, A.I.R. 1963 SC 1, Cooley on Constitutional Limitations, V. 2 page 1355, Scalding v. Lorant, (1851) 3 HLC 418, Rex v. Bedford Level, 6 East 356, Pulin Behari v. K.E., 15 CLJ 157 (FB), Hanuman Foundries Ltd. v. H.R. Deb, (1962) 67 CWN 437, Parameshwaran Pinta v. State Prosecutor, A.I.R. 1951 TC 45, Collector of Malabar v. Erineal Ebrahim Hajcc, 1957 SCR 970 , Friedmann's Law, in a Changing Society, P. 36 and Paton on Jurisprudence (3rd edition), PP. 195 and 197. 13. The connecting of the appointment of a person as a Judge with the jurisdiction of a judge has a plausible appearance but is fallacious. 195 and 197. 13. The connecting of the appointment of a person as a Judge with the jurisdiction of a judge has a plausible appearance but is fallacious. "A is a judge" and "A, as a judge, has jurisdiction over suits for money" these two sentences refer to two distinct legal concepts in jurisprudence. The first refers to the status or legal character of a personal; the second refers to the legal authority or power of a judge to entertain a petition or other proceeding. Jowitt : The Dictionary of English Lawn, Page 1030; Har Prasad v. Jafar Ali, ILR 7 All. 345 at p. 350 par Mahmood, J.. The status of a judge is a part of that branch of the public law which is called the Constitutional Law. Who can be appointed as a Judge, who will so appoint him and how he will be so appointed - all these matters pertain to the substantive Law of status. The "jurisdiction" of a judge, on the other hand, pertains to the law of procedure. No question of "jurisdiction" accordingly arises before us. The question before us relates to the status of a judicial officer. In Hitnansu Kumar Bose v. Jyoti Prakash Mitter, at page 1642 of A.I.R. 1964 S.C. Mr. Justice Gajendragadkar said : "As we have already indicated, the main question round which the whole controversy centres is the competence of the Home Minister to determine the question about the correct age of a judge of the High Court and this question obviously is a matter of great importance as its decision is vitally connected with the status, dignity and independence of the judiciary in this country......" 14. We think that this passage supports our view that the question of appointment of a person as a judge is connected with his status as a judge. 15. Again, even if we were to hold that the appointment of a person as a Judge relates to jurisdiction, we cannot allow this question to be agitated for the first time in a second appeal. Whether the U.P. Civil Service (Judicial Branch) Rules. 1951, were made in consultation with the High Court and the Public Service Commission and whether the officers whose judgments are impugned were appointed in consultation with the High Court are matters of fact requiring fresh enquiry. Whether the U.P. Civil Service (Judicial Branch) Rules. 1951, were made in consultation with the High Court and the Public Service Commission and whether the officers whose judgments are impugned were appointed in consultation with the High Court are matters of fact requiring fresh enquiry. A question of jurisdiction may be allowed to be raised in a second appeal if it can be decided upon the materials on record and does not involve the taking of further evidence or the sending of a case or any issue back to the lower court, for a decision of a question of fact Ram Kinker v. Toofani at page 38 of A.I.R. 1931 Alld. The cases relied on by Sri Mishra are distinguishable. In those cases the question of jurisdiction allowed to be raised was a pure question of law and did not require investigation of facts not already on record. In the case of Waverly Jute Mille, the Supreme Court did not allow the appellant to urge a point which was not raised in the High Court and which required fresh investigation of facts. 16. We shall now deal with the rule of no-collateral-challenge to the title of a judge and the rule of the acts of the de facto judge being valid as against the normal litigants. There is an inseparable inter-relation between these rules. They have an ancient ancestry in the Year Books and are a part of the common law of England. From there they were received in the U.S.A. and Canada. They have also been followed in India. 17. The first rule establishes that the acts of a de facto judge are not suffered to be questioned because of the want of valid appointment, in a collateral proceeding. His title may be challenged only in a proceeding for a writ of quo-warranto or in a suit for a declaration of his status or legal character, to which he is a party. These two proceedings are direct proceedings to challenge his title. Any other proceeding is a collateral proceeding. Accordingly, his title cannot be challenged in a proceeding before him, or in appeal or revision from his order on in a proceeding for certiorari. These two proceedings are direct proceedings to challenge his title. Any other proceeding is a collateral proceeding. Accordingly, his title cannot be challenged in a proceeding before him, or in appeal or revision from his order on in a proceeding for certiorari. The second rule establishes that the acts of a de facto judge are suffered to be valid as to the public and the litigants before him until his title is investigated and determined against him in a direct proceeding. A de facto judge is one who has the reputation of being the judge although. he is not a judge in the eye of law. Scalding v. X Loran, Rex v. Bedford Leval, Stephen Cocke v. Joseph K. Halsey, 16 Peters 71 : 10 L. ed 891, Hussey v. Smith, 9 Otto 20 : 25 L. ed. 314, Rallcounby v. Joseph M. Douglass, 15 Otto 728 : 26 L.ed. 957, Norton v. Shelby, 118 U.S. 425 : 30 L. ed. 178, State of Ohio v. Gardner, McGovney, Cases on Constitutional Law 2nd Edn. p. 125, Lang v. Mayor of Bayone, Ibid., p. 128, Marckel Co. v. Zitzow, Ibid, Supplement, 1946 Edn. p. 47, Manning v. Weeksoa, 35 L.Ed. 264, Ball v. U.S. 42, 35 L.Ed. 377, McDowell v. U.S. 42, 40 L.Ed. 271, O'Nail v. Attorney General of Canada, XXVI SCR (Canada) 122, Re Toronto R. Co. and City of Toronto, 46 DLR 547 (canda), Pulin Behari v. K.E., Hantzman Foundaries Ltd. v. H.R. Deb. Parameshwaran Pillai v. State prosecutor, Colley on Constitutional Limitations and Willoughby on the Constitution of the United States, 2nd Edn. Vol. 1. p. 13. 18. It is urged that these rules (hereinafter referred to as the twin rules) have not received the approval of this Court and the Supreme Court. In Ganga Ram's8 case he was sentenced to transportation for life. His appeal came up for hearing before a Division Bench of which Mr. Justice Burkitt was a member. An objection was raised on behalf of the appellant that Mr. Justice Burkitt, not having been validly appointed as a judge, could not bear the appeal. The Division Bench referred the question of the appointment of Mr. Justice Burkitt to a larger Bench. The larger Bench consisting of five Judges held that the appointment of Mr. Justice Burkitt had not been shown to be invalid. The learned Judges, however, said : "If Mr. The Division Bench referred the question of the appointment of Mr. Justice Burkitt to a larger Bench. The larger Bench consisting of five Judges held that the appointment of Mr. Justice Burkitt had not been shown to be invalid. The learned Judges, however, said : "If Mr. Justice Burkitt was not legally appointed, all his judgments, decrees and orders in Civil and in Criminal cases have been ultra vires and illegal, and in some cases the mischief would be now irreparable, as for instance, in capital cases." 19. This case is clearly distinguishable from the present cases. Firstly, the appointment of Mr. Justice Burkitt was challenged before he heard the appeal. Secondly, the assent of Mr. Justice Burkitt to the raising of a collateral challenge to his appointment was necessarily implied in his act of agreeing to refer that question for decision to a larger Bench. This is a fundamental distinction. Thirdly, the issue did not involve any enquiry into facts. Its decision depended simply on the interpretation of a particular statute. Fourthly, there the impact of the challenge was individualised; here it is calculated to bring to a stand still the entire subordinate judicial administration in the State. Lastly, there was no argument before the Full Bench that the rule of no-collateral challenge would preclude enquiry into the title of Mr. Justice Burkitt in the appeal. Accordingly there was no occasion for the Bench to give thought to the rule, far less to disapprove of it. A case is authority only for what it decides and not for what it has in fact never decided. 20. All or some of these distinguishing features are present in Balwant Singh v. Rani Kishorio, (1898) ILR 20 Alld. 269 (PC), Heera Singh v. Jai Singh, A.I.R. 1937 Alld. 588 (FB) and Shahbir v. State. In our judgment these decisions do not disfavour the adoption of the twin rules in this country. The last two cases were concerned not with the title of a Judge but with his functioning as a Judge. 21. Sri Ansari has strongly relied on two passages in two judgments of the Supreme Court in Himansu Kumar Bose v. Jyoti Prakash and Jyoti Prakash v. Chief Justice. The last two cases were concerned not with the title of a Judge but with his functioning as a Judge. 21. Sri Ansari has strongly relied on two passages in two judgments of the Supreme Court in Himansu Kumar Bose v. Jyoti Prakash and Jyoti Prakash v. Chief Justice. The passage in the first case reads as follows : "Apart from the Government of India, it would, prima facie be theoretically open to any litigant to raise the question about the competence of a Judge to hold his office as such on the ground that he has attained the age of 60 years, and if a serious allegation is made in that behalf, it may have to be judicially determined in a proper proceeding." 22. We think that this passage does not support the contention of Sri Ansari. The question as to what is a proper proceeding is left open. The passage in the second case is as follows : "The appellant, however, contends that pending the decision of the dispute, the judge concerned continues to be a judge and should not be required to step down from his office. As a matter of law, the appellant is right when he contends that a judge cannot cease to be a judge merely because a dispute has been raised about his age and the same is being considered by the President, but in dealing with this legal position, considerations of prudence and expediency cannot be ignored. If a dispute arises about the age of a Judge, any prudent and wise Chief Justice would naturally think of avoiding unnecessary complications by refusing to assign any work to the sitting Judge if, at the time when the dispute had been raised, it appears that the allegation is that at the relevant time the Judge in question has reached the age of superannuation. In such a case, if the decision of the President goes against the date of birth given by the appellant, a serious situation may arise because the cases which the said Judge might have determined in the meanwhile would have to be reheard, for the disability imposed by the Constitution when it provides that a Judge cannot act as a Judge after he attains the age of superannuation, will inevitably introduce a constitutional invalidity in the decisions of the said Judge, and it is plain that it would be the duty of the Chief Justice to avoid such a complication. Therefore, we do not think the appellant is entitled or justified in making a grievance of the fact that respondent No. 1 refused to assign any work to him after the 26th December, 1961." 23. In this case the dispute was raised by the Government of India. There was then an enquiry. The Chief Justice of India was consulted. Thereafter the Government of India decided that the appellant would attain the age of 60 years on December 26, 1961. This decision was taken in may, 1961. After December 26, 1961, the Chief Justice of the Calcutta High Court treated the appellant as retired and did not assign any work to him. In 1968 Article 217 of the Constitution was amended to give with retrospective effect, power to the President to determine the age of the sitting Judge. An incidental argument of the appellant was that while the dispute about his age was pending, the Chief Justice could not refuse to assign work to him. 24. The Supreme Court did not accept this argument. The passage already quoted gives approval to the course of action pursued by the Chief Justice as prudent. The passage may be authority for the proposition that if a sitting judge goes on deciding cases during the pendency of the dispute about his age before the President and if the President determines that he has already attained the age of 60 years on a date then his decisions after that date would be invalid, notwithstanding that they were made during the pendency of the dispute. It does not, in our judgment, decide that the order of a Judge may be challenged for the first time in appeal or revision merely on the ground that his appointment was invalid, nor does it appear to us to have decided that the orders of a Judge, which he had passed before a dispute was raised concerning the validity of his appointment, would be invalid if subsequently his appointment is found to be invalid. These aspects were never up for consideration before their Lordships of the Supreme Court. 25. In Shaik Silar's13 case the person was committed to the court of session for certain offences. The subordinate Judge of Masulipatam tried and convicted him. The Sessions Judge, Kishtna referred the matter of his conviction to the High Court of Madras Mr. Justice Lakslimana Rao set aside his conviction and directed that he should be retired according to law. The conviction was set aside on the ground that the subordinate Judge of Masulipatam was not appointed Assistant Sessions Judge by designation or by name. This case is clearly distinguishable from the present cases. There the appointment of the sob-ordinate judge was not questioned. The contention was that the conferment of the powers of an Assistant Sessions Judge on him was not in accordance with the procedure prescribed by law. Our remarks concerning the decisions of this Court would equally apply to this case. 26. Gajadhar Lal's case is also distinguishable. The Madhya Pradesh Government issued a Notification on February 17, 1949, appointing all Tahsildars as Magistrates of the Second Class and investing them with powers of Sub-Divisional Magistrates with jurisdiction over their respective Parganas under Section 13 of the Code of Criminal Procedure. On May 12, 1954 the Govern. merit issued another Notification under Section 13 placing some judicial Magistrates named therein in charge of the subdivisions shown against their names. One of them was Sri Rathore. He was placed in charge of Kolaras subdivision. On July 12, 1954 Suganchand filed an application under Section 145 of the Code of Criminal Procedure before Sri Sagne, Tahsildar of Kolaras. He made an interim order. His order was set aside by the High Court of Madhya Pradesh. The High Court accepted the argument that the second Notification revoked the first Notification, and that accordingly Sri Sagne, Tahsildar of Kolaras, could not act as Sub-Divisional Magistrate after the issue of the second Notification. He made an interim order. His order was set aside by the High Court of Madhya Pradesh. The High Court accepted the argument that the second Notification revoked the first Notification, and that accordingly Sri Sagne, Tahsildar of Kolaras, could not act as Sub-Divisional Magistrate after the issue of the second Notification. The Government Advocate advanced an argument that the applicant could not challenge the validity of the appointment of Sri Sagne as Sub-Divisional Magistrate in the revision. It was said that he should have challenged his appointment in an appropriate separate proceeding. He relied on the case of Parmeshwaran Pillai 27 for his argument that the right of a de facto judge to hold his office is not open to question in a collateral proceeding. Sri Justice Dixit did not accept this contention. The other learned Judge, Sri Justice Newaskar, did not express any opinion on the point. Our remarks concerning Shaik Silar's 13 case equally apply to this case. 27. It is not accurate to characterise the twin rules as wholly foreign. The principle underlying them has been applied to certain public offices in our Constitution. See Articles 71 (2), 100 (2), 103, 124 (2A) , 189 (2), 192, 217 and 329. Similar provisions are found in respect of the public offices in the local bodies in this State. In the course of arguments we put several questions to counsel for the applicants and appellants, but no effort was made to answer them. If the Governor of a State is in fact not qualified to be so appointed, what will happen to the Acts to which he has assented ? He is a part of the State legislature. As and when he is found not to be qualified for appointment as Governor, will the Acts assented to by him cease to be Acts ? Again, if a person not qualified to be appointed as a member of the Public Service Commission is so appointed and selects certain candidates for appointment to certain public posts, will those appointments fail when it is discovered that he was not qualified to be appointed ? 28. Again, if a person not qualified to be appointed as a member of the Public Service Commission is so appointed and selects certain candidates for appointment to certain public posts, will those appointments fail when it is discovered that he was not qualified to be appointed ? 28. If a person not qualified to be appointed as an Advocate General is so appointed, will the suits under Section 92 of the Code of Civil Procedure which were instituted with his consent be liable to be dismissed when it is discovered that he was not qualified to be appointed as an Advocate General ? If the Judges whose judgments are challenged before us are in the same position as a private person, their judgments acquitting accused persons will have to be ignored and those persons will have to be retried. We have to bear in mind all these aspects in answering the third question. 29. We have already pointed out that the appointment of a person as a Judge relates to the substantive law of states and not to the law of procedure. Accordingly the applicants before us cannot successfully complain that they have been deprived of their personal liberty otherwise than in accordance with procedure established by law. It seems to us that Article 21 will not stand in the way of the impugned judgments. In Copalan's case at p. 307 of 1950 S.C. R. Sri Justice Das observed : - "The word procedure ... must be taken to signify some step or method or manner leading up to the deprivation of life or personal liberty". 30. Procedure consists of the process of bringing the parties before the court and the determination of a cause thereafter. It would, in our view, not include the appointment of a Judge. 31. We have already pointed out the distinction between the appointment of a judge and the jurisdiction of a judge to entertain a civil or criminal case. The challenge to the validity of his appointment relates to status, while "the challenge to the favour of the court" relates to his jurisdiction. A question of jurisdiction may be raised in appeal or revision from his order. It cannot be raised in a proceeding for quo warranto. 32. The Advocate General has invited us to consider the matter in another way Pulin. Bhari's case was decided as far back as 1912. A question of jurisdiction may be raised in appeal or revision from his order. It cannot be raised in a proceeding for quo warranto. 32. The Advocate General has invited us to consider the matter in another way Pulin. Bhari's case was decided as far back as 1912. There have several legislative amendments of the Code of Criminal Procedure since then, but the legislature never thought of amendment of the law for making the decision ineffective. The case has held ground for over fifty years, and the Legislature should be presumed to have tacitly approved the twin rules of the common law upheld and applied by the Calcutta High Court to this country. The Code of Criminal Procedure should accordingly be construed in the light of the twin rules of the common law. The Advocate General submits that if he is correct so far, then it would necessarily follow that the expression "Sessions Judge" under Section 409 of the Code of Criminal Procedure should be construed as meaning not only a Sessions Judge de jure but also a Sessions Judge de facto until his de facto colour is exposed. It is also construed by the Supreme Court as Legislature made law in Gopalan's14 case, in a subsequent case M.S.M. Sharma v. S.K. Sinha, (1959 Supp. (1) SCR 806, 861 The Supreme Court has held that the procedure provided for by the rules made under Article 208 of the Constitution will be 'procedure established by law'. He contends that the Supreme Court has now veered round to the view that the word 'law' in Article 21 means positive law. The Advocate General says that the twin rules of the common law being judge-made law are also positive law and are 'law' within the meaning of Article 21 In this contention he has referred us to Builders Supply Corporation v. Union of India, A.I.R. 1965 SC 1061 where the Supreme Court has held that the rule of the common law that certain debts due to the State rank prior to the debts due to others is a 'law' within the meaning of that term under Article 372. Looked at either way he argues, the twin rules of the common law as approved and applied to this country by the Calcutta High Court are 'law' and accordingly there is no abridgement of the fundamental right guaranteed by Article 21. 33. Looked at either way he argues, the twin rules of the common law as approved and applied to this country by the Calcutta High Court are 'law' and accordingly there is no abridgement of the fundamental right guaranteed by Article 21. 33. This argument is prima faicie attractive but we do not propose to express any opinion there on as we have already held that article 21 does not stand in the way. 34. Criminal Revision No. 1397 of 1966 is directed against the order of Sri Behariji Dass, Temporary session judge. He Passed this order in a criminal appeal. He belongs to the U.P. Higher Judicial Service. As he was a respondent in Chandra Mohan v. U.P. State, sri Ansari has force fully urged that his order should be allowed to be challenged n the ground that he has not been validity appointed. The matter is however not so simple as he seems to think. Sri Behariji Das was a respondent in the writ petition filed by Chandra Mohan in this Court, His appointment was questioned in the petition. This Court held that the appointment was not invalid and dismissed the petition. It may be recalled that he was a member of bar before his selection. It may also be recalled that the petitioner had challenged not only the appointment of members of the the bar but also the appointment of certain persons who were judicial officer. After the petition was dismissed, the petitioner filed an appeal in the Supreme Court against that part of the order of this court which upheld the appointment of certain judicial officers. No appeal was filled against the order of this Court upholding the appointment of Sri Behariji Das and other appointees from the Bar. Limitation for filing an appeal expired. Presumably Sri Behariji Dass was then holding the post of Temporary sessions Judge. he delivered the impugned judgement on July 13, 1966 when no case was pending against him in the supreme Court, It appears that Chandra Mohan applied for special leave to from the order of this Court upholding the appointment of members of the Bar after July, 13, and in any case not earlier than July 13, and in any case not earlier than July 19, 1966. There was an application for condoning the delay in filing the appeal. There was an application for condoning the delay in filing the appeal. The delay was condoned and leave was granted to Chandra Mohan to file an appeal against the appointment of members of the Bar. This Order was probably made in the first week of August, 1966. These facts show that Behariji Dass passed the impugned judgement after his appointment had been upheld by this Court and before it was held to be invalid by the Supreme court, We are accordingly of opinion that the twin rules would preclude a challenge to his judgment on the mere ground of the invalidity of his appointment. This result would, we think, follow notwithstanding the fact that his appointment has now been held to be invalid by the Supreme Court. 35. The way is now clear for considering the argument of the heart. The poverty and illiteracy of the want skilled Bar in the Mofassil, the jeopardy to life and personal liberty as well as to other valued rights of the litigants are all deployed on the canvas to sway the judgement in favour of a collateral challenge to the appointment of a judge. we have given anxious thought to this saddening canvas. It is over accentuated as well as one sided. It is over looks the fact that the impugned judgment may be other wise regular and right. It is one sided as it does not delineate the other side of the tragedy. The tragedy of the law has been not the clash of right and wrong, but the clash of one right with an other. There is here a direct clash between two rights. the various rights of the litigants and the right of livelihood of a judge. His right of livelihood cannot be taken away without hearing him. Articles 19(1) (g) and 311(2) of the Constitution extend that guarantee to him. and this is not the whole of the story. There are some other consideration on his side. The opening of a collateral challenge to the appointment of a judge would tend to undermine the maintenance of peace and law the respect for law and the independence of the in judiciary. It would tend to dispute the orderly administration of justice and to create confusion and insecurity in the mind of the general public and uncertainty about the binding character of orders and decrees. According to Mr. It would tend to dispute the orderly administration of justice and to create confusion and insecurity in the mind of the general public and uncertainty about the binding character of orders and decrees. According to Mr. Justice Mookerjuee, the twin rules were evolved by court as a matter of policy and necessity, to protect the interests of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its powers, on the ground of irregular existence or defective title, insubordination and disorder worst kind would be encouraged. or the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined."2 36. According to Mr. Justice Field, the rules are founded upon considerations of policy and necessity for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society, their authority is to be respected and obeyed until in some regular mode prescribed by law their title was investigated and deter-mined. It is manifest that endless confusion would result if in every proceeding before such officers their title would be called in question (at page 186 of 30L. ed.)." 37. In Scalding's case the Lord Chancellor said : "With regard to the competence of the Vestrymen who were vestrymen de facto, but not Vestrymen de jure, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands. 38. I think, therefore, that the principle laid down by the learned Judge, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office." 39. In Gardener's40 case Mr. Justice Bradbury said : "The common law in relation to de facto officers had its origin in England. It was there laid upon a foundation as broad as their necessities required ....... We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons, who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented,as they were to the conditions that the confronted the English judiciary." 40. These and other such opinions of high authority indubitably show that the twin rules are grounded on public policy and fair play. We are not satisfied that in the U.S.A. these rules grew up as a mere corollary of another rule that a writ of quo warranto could issue only at the intance of the State. In several States of the U.S.A. these writs may issue also at the instance of a private individual, as in England", and still those States have been rigidly following the twin rules. Indeed the procedural rule rigidly controlling the issue of the writ of quo warranto in some jurisdictions in the U.S.A. has also been shaped by considerations of public policy." 41. The proposition in the American Jurisprudence is professedly drawn Levitt's case and some State cases. We have carefully read the first case. It does not, in our view, support the inflexibility of the proposition. We could not get the State cases. 42. The proposition in the American Jurisprudence is professedly drawn Levitt's case and some State cases. We have carefully read the first case. It does not, in our view, support the inflexibility of the proposition. We could not get the State cases. 42. In England the writ of quo warranto did not, and in Canada it does not, issue as a matter of course at the instance of a relater. The writ is discretionary. The judicial discretion is often moulded by considerations of police. The Court in England could not issue the writ to oust the respondent to the petition if he had already acted in the office in question for the last six years before the commencement of the proceedings. Even within the period of six years the Court could refuse the writ if the petition was unduly delayed. Section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, substituted injunction for the writ in the nature of quo warranto. Rule 11 (2) of Order 59 of the Rules of the Supreme Court provides that an application under Section 9 "shall not be granted, if the respondent has acted in the office in question for the last six fears before the commencement of the proceedings..." Even within six years the Court may refuse the injunction on the ground of undue delay. The old rule regarding the issue of the writ of quo warranto and the present rule 11 (2) are evidently informed by the public policy of giving a quietus to controversies about the title of an officer who has already held office for six years. It is inconceivable that the Court could suffer a litigant to circumvent this salutary bar of limitation by opening a challenge to such officer's title in an appeal or revision from his order. What cannot be done directly cannot be suffered to be done indirectly. 43. At one stage of the constitutional history of England the Judges held office until the demise of the King. Then it often happened that same Judges, not having known of the demise of the King, went on deciding cases until they received information of his demise. It was then held by the Courts in England that such decisions of the Judges would be deemed to be valid. 44. In Queen v. The Inhabitants of St. Then it often happened that same Judges, not having known of the demise of the King, went on deciding cases until they received information of his demise. It was then held by the Courts in England that such decisions of the Judges would be deemed to be valid. 44. In Queen v. The Inhabitants of St. Clement's, (1840) 12 AD & E 177-113 ER 778 two churchwardens filed a complaint against George Christopherson for non-payment of the rate before two Justices. The Justices made an order directing him to pay the rate. Then he filed an appeal to the Sessions. In appeal it was contended on his behalf that as the complaint was made by the churchwardens de facto and not de jure, the order of the Justices was illegal. The Sessions upheld his contention and quashed the order of the Justices. The order of the Sessions was however set aside by the King's Bench Division. Lord Denman Chief Justice, said : "The whole jurisdiction depends on the right of the party complaining to receive the rate; the section takes for granted that there is such a party. The churchwardens, de facto were the proper parties to act." 45. In Scalding's, case a rate for the relief of the poor was levied on him. He did not pay the rate. Some of his goods were then seized under a distress for the rate. He started an action of replevin against the defendant who had seized the goods. Replevin is an action for the restitution of the goods wrongfully seized under distress. The seizure of goods was challenged on the ground that the vestrymen who had levied the rate were vestrymen de facto and not de jure. The action failed. We have earlier quoted a passage from the speech of the Lord Chancellor. Incidentally it is interesting to notice that while counsel for the defendant was arguing on the point that the Court could not, in an action for levying the rate, enquires into the law fullness of the title of the vestrymen de facto, the Lord Chancellor remarked to him : "You need not trouble yourself with the question whether the vestrymen de facto had power to make this rate." 45. This remark would suggest that the rule of the de facto officer's acts being valid was then so settled that the noble Lords did not require counsel for the defendant to dilate upon it,'We do not think that the phrase "instead of resorting to the ordinary legal remedies to set right anything done by the officers" in the passage quoted earlier from the speech of the Lord Chancellor was intended by the learned Lord to refer to the remedies of appeal or revision in Courts. It seems to us that it would refer to the remedies provided under the particular statute authorising the levy of the rate or providing for the impeachment of their title. 46. Certain remarks from the judgment of Lord Tindel, Chief Justice, in Penney v. Slade, (1839) 5 Bing NC 319-132 ER 1127 are quoted in the judgment of brother Satish Chandra. In that case the learned Chief Justice disallowed a collateral attack on the title of the overseers. It appears that the law provided for a direct mode of challenging the appointment of the overseers by an appeal to the Sessions or by a direct application for that purpose to the Court of the Queens Bench. There is nothing in the judgment of the Chief Justice to suggest that the appointment of the overseers could be challenged in the action of trespass filed by the plaintiff. The reference to an appeal to the Sessions is not a reference to an appeal in a Court of law from the order in the action. 47. The case of Bedford Leve124 is an authority for the proposition that the acts of an officer de facto, performed after his de facto colour has been exposed, cannot be defended. It does not decide that the acts of an officer performed before his de facto colour has been exposed can also ynpeached in a collateral proceeding. 48. Rex v. Verelst, (1813) 3 Camp. 432-170 E.R. 1435 is discussed in the judgment of brother Satish Chandra. This case no doubt decided that the title of an officer de facto may be challenged in a collateral criminal proceeding. But we apprehend that it is not a safe authority to rely upon. Firstly, neither counsel nor Lord Ellenborough has referred to the precedents establishing the twin rules. Secondly, it is a single Judge decision of Lord Ellenborough at Nist Prius. But we apprehend that it is not a safe authority to rely upon. Firstly, neither counsel nor Lord Ellenborough has referred to the precedents establishing the twin rules. Secondly, it is a single Judge decision of Lord Ellenborough at Nist Prius. He has departed from the earlier precedents, including his own decision in the case of Bedford Level. That case in our judgment impliedly establishes the twin rule, for otherwise it would not have been necessary for Lord Ellenborough to try to show elaborately that the acts of an officer de facto, if performed after his de facto colour has been exposed, would not be valid. Thirdly the surrogate whose appointment was questioned in this case was merely a ministerial officer.50 He had to receive a sworn declaration made by one of the parties to the application for the grant of a common marriage licence. Accordingly a writ in the nature of quo warranto could not issue to oust him from the office. The writ issued only to a person who had usurped a public office. As there was no direct proceeding to challenge the title of the surrogate it can hardly be said that a collateral challenge to his title was permitted by Lord Ellenborough in a criminal proceeding. If there was no civil proceeding for challenging his appointment, the criminal proceeding could not be described as a collateral proceeding. Fourthly, it may be observed that the accused was convicted for perjury committed in a divorce case in the Ecclesiastical court. The plea of the accused was that as the surrogate who had administered oath to him had not been validly appointed, he could not be convicted for perjury. The decision of Lord Ellenborough has to be read with some circumspection, because "at the end of the sixteenth and the beginning of the seventeenth centuries the common law courts began to wage war on all rival jurisdiction. The Ecclesiastical Court were hampered at every turn." 49. Verelst's case was decided by Lord Ellenborough in 1813. Six years later, in 1819, the Company of Proprietors of the Margate Pier v. George Hannam, (1819) 3 B & ALO 266-22 R.R. 378 reaffirmed the de facto doctrine. That case arose out of an action of trespass. Certain rates were levied by Hannam, acting as a Justice. He issued a warrant of distress. The other defendants executed it. Six years later, in 1819, the Company of Proprietors of the Margate Pier v. George Hannam, (1819) 3 B & ALO 266-22 R.R. 378 reaffirmed the de facto doctrine. That case arose out of an action of trespass. Certain rates were levied by Hannam, acting as a Justice. He issued a warrant of distress. The other defendants executed it. The plaintiff contended that the levy and the warrant were illegal, as they were made and issued by Hannam, without delivering a certificate or taking oath at any general session as a Justice. About, C.J., who delivered the judgment the Court, said : "We are of opinion that, notwithstanding this omission, his acts as a Justice, in the matters in question, were valid." He went on to say : "......acts done by them as Justice or in a judicial character, have in no instance been thought invalid. This distinction is well known. The interest of the public at large requires that the acts done should be sustained." (Italic is ours) 50. Woolcett's case cited in the judgment of our learned brother is also distinguishable. The decision of the Agricultural Land Tribunal which consisted of certain persons not appointed by the Minister was given protection under a statutory provision. There was accordingly no occasion to fall back or to refuse to fall back on the common law doctrine of the de facto officer's act being valid. 51. Wolton v. Gavin, (1850) 16 Q.B.R. 48 permitted a collateral challenge to the title of a de facto 'attested' soldier in a collateral criminal proceeding. It is, however, distinguishable because there was no direct proceeding to impeach his title. He .being a ministerial officer, a writ in the nature of quo. warrant could not issue to oust him from his office. 52. Our Constitution has not spoken against the twin rules. We have already noticed some of its provisions which are evidently inspired by these rules. Again under Article 226 of the Constitution this Court may, in the sound exercise of its discretion, refuse to issue a writ in the nature of quo warranto. The writ does not issue as a matter of course. 53. We have already noticed some of its provisions which are evidently inspired by these rules. Again under Article 226 of the Constitution this Court may, in the sound exercise of its discretion, refuse to issue a writ in the nature of quo warranto. The writ does not issue as a matter of course. 53. There is identity in the judicial attitude to the twin rules in England and the U.S:A. The Judges in the two countries have spoken with one voice in favour of these rules and of the basic moral values which they are designed to conserve. There is of course difference in their application in the two countries. The Judges in the U.S.A. have carried farther the application of the rules to new situations and to. new areas. This difference is explained by the differing constitutional climate and temper of that country. 54. We are untrammelled by binding authority and are free, to quote Holmes, "to exercise the sovereign prerogative of choice". To quote Holmes again : "The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalisations by the help of jurisprudence; next to discover from history how it has come to be what it is, and, finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends arc desired, what is given up to gain them, and whether they are worth the price :66 55. The empiricist Burke has also spoken in the same strain : "The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good; in compromises between good and evil; and sometime between evil and evil. Political reason (or legal reason) is a computing principle; adding, subtracting, multiplying, and dividing morally, and not metaphysically or mathematically, true moral denominations".Burke : Reflections on the Revolution in France ; Oxford University Press, 1958 Edn. p67 (The words in brackets are ours) . 56. Political reason (or legal reason) is a computing principle; adding, subtracting, multiplying, and dividing morally, and not metaphysically or mathematically, true moral denominations".Burke : Reflections on the Revolution in France ; Oxford University Press, 1958 Edn. p67 (The words in brackets are ours) . 56. Considering all the aspects and the principles and the authority supporting the twin rules, we are of opinion that they should be applied to the present cases. To the right of the individual litigant is counterpoised the right of livelihood of the judge. On the side of the latter, there are super added high considerations of public policy and fair play. These super additions will tilt the balance against the opening of a collateral challenge to the functioning of a judge. 57. Accordingly, we hold that the appointment of Munsifs and Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules, 1951, cannot be challenged in a collateral proceeding like an appeal or revision, and that even if it be assumed that the appointments of the Munsif and the Civil Judges are invalid, the impugned decisions are not liable to be set aside on that ground. inasmuch as the de facto colour under which they functioned in office had not been exposed when the impugned decisions were rendered. 58. This disposes of question No. 2 in Second Appeal No. 2151 of 1966 and question No. 3 in Second Appeals Nos. 1442 of 1966 and 1948 of 1966. In this view of the matter, we find it unnecessary to express our opinion on the remaining questions. 59. We also hold that the twin rules discussed above preclude a collateral challenge to the appointment of the Assistant Sessions Judge and the Sessions Judges who rendered the judgments impugned in the Criminal Revisions and that even if it be assumed that their appointments are invalid, the impugned judgment are not liable to be set aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the judgments were rendered. 60. Satish Chandra, J. - It is my regret, that I have come to a different conclusion. 61. 60. Satish Chandra, J. - It is my regret, that I have come to a different conclusion. 61. On August 8, 1966 the Supreme Court in the case of Chandra Mohan v. State of Uttar Pradesh held that the U.P. Higher Judicial Service Rules providing for the recruitment of District Judges, violate Article 233 of the Constitution, and, are void; and, the appointments made thereunder were illegal. At the time of the admission hearing of Second Appeal No. 2151 of 1966, which is directed against a judgment of Sri Indra Singh, District Judge, Etawah, it was contended before Hon'ble Mathur, J. that Sri Indra Singh was not validly appointed as District Judge, in view of the decision of the Supreme Court; and he had no jurisdiction to hear the appeal. In some other second appeals which Hon'ble Mathur, J. heard for admission, similar objections to the jurisdiction of Munsifs and Civil Judges to hear suits and appeals were taken on the grounds that their appointment was constitutionally void. Hon'ble Mathur, J. entertained these objections and directed the Standing Counsel to file an affidavit giving information in connection with the framing of the U.P. Civil Service (Judicial Branch) Rules. An affidavit was consequently filed. Thereupon Hon'ble Mathur, J. referred the following three questions to a larger Bench : 1. Whether the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951, notified to have been made by the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution of India, are, or can be deemed to be, under Article 234 of the Constitution of India also ? Were the Rules framed in consultation with the Public Service Commission and the State High Court as contemplated by Article 234 of the Constitution of India ? 2. Was the High Court consulted prior to the appointment of Munsifs as contemplated by rule 21 of the U.P. Civil Service (Judicial Branch) Rules, 1951 ? 3. Can the appointment of Munsifs and Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules, 1951, be challenged in a collateral proceeding like appeals and revisions ? 62. At the hearing before this Bench question No. 3 was re framed. 3. Can the appointment of Munsifs and Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules, 1951, be challenged in a collateral proceeding like appeals and revisions ? 62. At the hearing before this Bench question No. 3 was re framed. The existing question No. 3 was numbered as 3 (a) and the following added as No. 3 (b):- "If the answer to the question in clause (a) is in the affirmative, are the impugned decisions liable to be set aside merely on the ground that the appointments of the officers concerned were invalid ?" 63. Arguments have been heard only on quest ion No. 3 on the assumed footing that the appointments of the Munsifs and other Judges were constitutionally void. 64. Similar objections as to the validity of the judgments given by Civil and Sessions Judges and District and Sessions Judges were raised in some criminal revisions before Hon'ble Uniyal, J. It was urged that the orders passed by these Judges were void because they had not been validly appointed. Hon'ble Uniyal, J. considered the question as of great constitutional importance and referred it to a larger Bench. In these revisions also arguments on the preliminary question No. 3 have been heard. 65. For the appellants it is urged that an unconstitutional appointment to a court is fatal to the proceedings conducted by such an officer and the judgments rendered by such an officer are without jurisdiction and void. They also infringe Articles 21 or 31 of the Constitution, in objection on this ground can in law be taken before the officer himself and decided by him. The judgments given by such officers can be set aside or reversed in appeals or revisions by higher courts. The learned Advocate General, who appeared amicus curie, has, on the other hand, submitted that such Judges are de facto officers and in view of the de facto doctrine their judgements are valid. Their title can be adjudicated only in proceedings like quo warranto instituted for ousting such officers from the office and not collaterally, i.e. in appeals or revisions filed against their judgments. He also submitted that Articles 21 or 31 are neither attracted nor violated. 66. The points that arise 6n these submissions are : 1. What is the nature and scope of the de facto doctrine ? 2. He also submitted that Articles 21 or 31 are neither attracted nor violated. 66. The points that arise 6n these submissions are : 1. What is the nature and scope of the de facto doctrine ? 2. What is a collateral proceeding ? 3. Do such judgments infringe Articles 21 or 31 of the Constitution ? 67. The learned Advocate General has relied on the doctrine as it is prevalent in the United States and has urged that it has continued to prevail in England as well as India and is applicable to the instant cases. Before considering the true nature and character of the de facto doctrine it is feasible to know who an officer de facto is ? Cooley in "Constitutional Limitations" (Vol. II, p. 1355) says : "An officer de facto is one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact." Cooley explains how an officer gets the color of right : "His color of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated." (ibid page 1357) 68. According to Cooley the scope of the de facto doctrine is : "The acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as "though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally," (ibid, p. 1357) . So, the state alone can question the title as well as the acts of a de facto officer. 69. The American rule as to the impeachment of a de facto Judge's title is very strict. In American Jurisprudence (Vol. 30-A, page 123, Article 235) it is stated : "A de facto judge's title or right to the office can be determined only in a quo warranto proceeding or information in the nature of a quo warranto at suit of the sovereign." 70. Thus, the State alone can challenge the title of a de facto judge. The litigant public or other persons cannot question the validity of the appointment of a Judge. Since they cannot impeach the title directly, it is understandable that the doctrine precludes them from questioning the validity of their judgments on the ground that title was bad. De facto doctrine, therefore, rules : "that acts performed by a de facto judge are not invalid. A judge de facto is, to all intents and purposes, a judge de jure as to all persons except the state. Thus, the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned, and their validity may not be collaterally attacked." (American Jurisprudence Vol. 30-A, page 122, Article 234) . 71. What is a collateral attack on the title of a de facto judge is explained in Para. 235 of this book. It is stated that the title of a de facto judge "cannot be questioned in the case before him or in a collateral proceeding. 30-A, page 122, Article 234) . 71. What is a collateral attack on the title of a de facto judge is explained in Para. 235 of this book. It is stated that the title of a de facto judge "cannot be questioned in the case before him or in a collateral proceeding. Thus his title and authority cannot be questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act or in a suit to enjoin the collection of a judgment rendered by him, or in a habeas corpus proceeding to procure the release of a person convicted of crime before him. 72. Field, J. in Nortan v. Shelby Country held that the doctrine is founded on considerations of policy and necessity, Offices are created for the benefit of the public, and private parties are not permitted to enquire into the title of public officers. For the good order and peace of Societies their authority is to be respected and obeyed until in some regular mode their title is investigated and determined. 73. In 1937 Mr. Justice Black was appoint-ed to the Supreme Court of the United States. A member of the Bar of the Supreme Court of the United States petition. ed to the Supreme Court questioning the constitutional validity of the appointment. The Supreme Court dismissed the petition in limine. It ruled : "one having no interest other than as a citizen and a member of the bar of the Supreme Court of the United States may not question the validity of the appointment of a justice of such court."68 74. So long as the State does not think fit to interfere and terminate the existence of a de facto Judge, the citizen of United States is not expected to feel bothered. A Judge's title is defeasible only by the State, and so his actions cannot be questioned by anyone else in any proceedings because of any defect in title. 75. In my opinion the de facto doctrine as propounded in the United States does not prevail in England. The basic premise that the title of a de facto officer cannot. for reasons of policy and necessity, be challenged by any one except the State, though applied in ancient times, was not followed later on by English Judges. 75. In my opinion the de facto doctrine as propounded in the United States does not prevail in England. The basic premise that the title of a de facto officer cannot. for reasons of policy and necessity, be challenged by any one except the State, though applied in ancient times, was not followed later on by English Judges. In ancient times, proceedings for quo warranto could be initiated only by the Crown to protect the King against encroachment of royal prerogatives or to the right, franchise or liberties of the Crown. Later on this was replaced by an information in the nature of quo warranto to test the validity of other offices. In 1711, a statutes (Anne 9, C. 20) was passed to permit the exhibiting of an information the nature of quo warranto to be instituted, at the relation of any person or persons desiring to sue or prosecute the same. In Rex v. Speyer, (1916) Vol. 1 K.B. 595 decided in 1916, the King's Bench held that: "an information in the nature of a quo warranto will lie at the instance of a private relater."70 In this case the appointment of a person to the Privy Council was challenged by a private person. So, England grew out of the reasons of policy and necessity that prevailed in medieval times. The United States, on the other hand, still clings to it, as is apparent from the decision in Mr. Justice Black's case in 1937. 76. In T.C. Basappa v. T. Nagappan, (1955) 1 SCR 250 at p. 256 our Supreme Court ruled that we should keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting writs in the English law. If the principles governing grant of writs in the nature of quo warranto in the United States are at variance with those obtaining in England, the former will not prevail in this country. In our Court, the case of Rex v. Speyer (supra) has been followed as laying down the correct law, vide Masi Ullah Shah v. Abdul Rahman Sufi, AIR 1953 Allahabad 193. The same view has been taken by, various other High Courts. (Seen to 80). In England as well as in our country the policy is different. A citizen has been recognised to have the right to see that a public office is lawfully occupied. The same view has been taken by, various other High Courts. (Seen to 80). In England as well as in our country the policy is different. A citizen has been recognised to have the right to see that a public office is lawfully occupied. So the prime necessity for the de facto doctrine is nonexistent. 77. The doctrine as propounded in the United States that the acts of de facto officers are valid and cannot be questioned collaterally, was accepted as applicable in this country, by the Calcutta High Court in Pulin Behary, Das v. King Emperor decided in 1912. Sir Asutosh Mookerjee principally relied upon the American decisions. Referring to English law, he held at page 574: "The doctrine dates as far back as the yearbooks, and it stands confirmed, without any qualification or exception, by a long line of adjudications." 78. This case was followed in Calcutta in Shree Hanuman Foundries v. Hemranjan Deb. I, however, respectfully differ from Sir Asutosh Mookerjee in his estimate of the English decisions. He has relied upon the following decisions : Abbey of Fontaine, (1431) Y.B. 9 H. 6 Fol. 32, Knowles v. Luce, 1580 Moore (109), Lord Dacre's case, (1553) Leonard 288, Leak v. Howell, (1596) Cro Eli 533, Harris v. Fays, (1599) Cro. Eli 699, Parkar v. Kett, (1693-1701) 1 Ld. Raym. 658, Rex v. Lide, (1738) Andrews 163, Rex v. Bedford Level, Margarat v. Hannam, R. v. Herefordshires, (1819) 1 Chitty 700, R. v. Slythe, (1827) 6 B & C 240-30 R.R. 312, De Grave v. Monmouth, (1830) 4 C & P 111, R. v. Dogelly, (1838) 8 A & E 561, Penney v. Slade, R. v. St. Clement, R. v. Mayor, of Cambridge, (1840) 12 A & E 702, R. v. Cheshire, (1840) 4 Jur. 484, Scadding v. Lorant, Lancaster v. Heaton, (1858) 8 E & B 952, Waterloo v. Cull, (1858) 1 EI. 213 and Mahony v. East Holriyd, (1875) LR 7 HL 869 IR 9 CL 306. 79. The English cases decided in 14th, 15th and 16th century are understandable because quo warranto was not available to a citizen in those days. Some of the decisions are based on the position that the public had no means of examining the title or that a de facto officer was not compilable at all to give account of his title to the public. Some of the decisions are based on the position that the public had no means of examining the title or that a de facto officer was not compilable at all to give account of his title to the public. Some other cases are of peculiar facts. Other decisions lay down the proposition that de facto officers are protected from civil liability for acts done by them as de facto officers, because of convenient alternative remedy to set aside their actions directly by ordinary legal remedies, being available, the title will not be allowed to be impeached in collateral proceedings like actions seeking restitution or damages, "except on the most solid grounds". It would appear that proceedings which seek to set aside the actions are direct proceedings and that consequential proceedings like suits for restitution or damages are collateral proceedings. Thus an appeal or a revision against the order will be a direct and not a collateral proceeding. 80. Apart from the cases relied on by Sir Asutosh Mookerjee, there are a series of English decisions which show that the courts in England have acted on the principle that evidence of acting de facto is prima facie proof of good title. This presumption is rebuttable and the validity of the appointment can be questioned in proceedings taken to challenge the actions of de facto officers. 81. The most recent of the ancient cases referred to by Sir Asutosh Mookerjee is Parker v. Kett. In this Holt, C.J. held that the Deputy Steward had a valid title and authority. But he also considered the effect, assuming it was defective. He held that he was a sufficient Steward de facto and his acts were good. He relied on the decision of Manwood, J. in the case of Knowles v. Luce for the reason given by Manwood, J. "The reason is this, because the tenants are not obliged to examine the authority of the Steward, whether it be lawful or not, nor is he compilable to give account of it to them". Thus, the vital basis was that the de facto officer was not compilable to give account of his title. His title was incapable of being tested by the public in any proceeding. Naturally, the title could not be challenged in proceedings directed against the act. Thus, the vital basis was that the de facto officer was not compilable to give account of his title. His title was incapable of being tested by the public in any proceeding. Naturally, the title could not be challenged in proceedings directed against the act. This and cther cases mentioned in this case are clearly inapplicable in situations where the title is challenge-able by the Public by quo warranto or suit. In Knowles v. Luce it was said that the acts of an under steward after the death of the Steward are good. This dictum was not accepted by Elienborough, C.J. in King v. Bedford as I shall show a little later. In some of the cases relied on, the actions were not challenged but the election itself. Cases of King v. Slvthe and Rex v. Lide were of quo warranto. In Queen v. Dolgelly the election was challenged on mandamus. In the case of Queen v. Mayo' Cambridge also the validity of the action was not involved. Here the de facto officer was held to be entitled to compensation for the period he had acted as such. In Degrave v. Monmouth the suit for price of goods supplied was decreed because the Corporation had accepted and ratified the contract though the order was initially placed by the de facto mayor. In some cases the appointment or the act was held valid on an interpretation of the relevant statutes, Margarat v. Hannam, Queen v. St. Clements and Waterloo Bridge v. Cull, American Jurisprudence vo. p. 168 para 107 (last sentence). In Mahony v. East Hlyford Mining Co., American Jurisdprudence vol. 44, p. 181 para 124 there was a clause 85 of the Articles of Association validating the acts of Board of Directors, even if there was some defect in the appointment of any Director. It was held that the actions of the Board, though not duly elected, were valid and binding. The case of Queen v. The Justices of Cheshire has nothing to do with the question of de facto officers. Similarly the case of Leak v. Howell is not on this topic. The case of Margarat v. Hannam" really negative the de facto doctrine. The case of Queen v. The Justices of Cheshire has nothing to do with the question of de facto officers. Similarly the case of Leak v. Howell is not on this topic. The case of Margarat v. Hannam" really negative the de facto doctrine. In this case Abbott, C. J. observed : "Many persons, acting as Justices of the peace in virtue of offices in Corpora-tions, have been ousted of their offices from some defect in their election or appointment: and although all acts, properly corporate and official, done by such persons are void, yet acts done by them as Justices or in a judicial character have in no instance been thought invalid. This distinction is well known. The interest of the public at large requires that the acts done should be sustained." (Italics mine). 82. The de facto doctrine applies to all public officers. It makes no distinction between executive and judicial acts of the officers. Abbott, C. J. specifically held that "all acts, properly corporate and official, done by such persons are void". This observation clearly negatives the de facto doctrine. His lordship then referred to the well known distinction of treating judicial acts differently. The distinction was apparently based on the requirements of the public, but this requirement of the public applies equally, if not with greater force, to executive actions. It may be that his Lordship had in mind the doctrine of finality of judgments which is also based on public policy. 83. In Scadding v. Lorant the imposition a rate was signed by seven vestry. men, one of whom, it was alleged, was not properly elected. The rate was collected in execution of a warrant of distress. Thereafter an action of replevin was brought against the person executing the warrant, for illegally taking and detaining the plaintiff's goods. The House of Lords held that the vestrymen de facto was competent to join in the making of the rate because the public could not ascertain his title to the office at the time. If the validity of the acts of de facto officers depended upon the propriety of the election "it would create uncertainty with respect to the obedience to public officers, and it might also lead to person instead of resorting to the ordinary legal remedies to set right any-thing done by the officers, taking the law into their own hands." (Italics mine) 84. The observation that the validity of the act should not depend on the impropriety of the election, has to be considered in the context of the case. There the act, i.e. the levy of the rate, was not sought to be set aside but liability was sought to be fastened on another officer who executed the levy. The ratio seems to be that if the action is not set aside, it becomes final and binding, and those who execute or enforce them are protected. 85. But, the House of Lords, unlike the American Courts, recognised the principle that actions of de facto officers could be set right by "ordinary legal remedies." When they said ordinary legal remedies, they were not, in my opinion, referring to quo warranto. Quo warranto is a preventive remedy. It prevents a continued exercise of authority unlawfully asserted, rather than correct what has already been done under that authority. Quo warranto tests the actual right to the office, and not the validity of its use under a colour to right. It is stated that "the defendant must show a right de jure and not merely a de facto".97 That is why it has been held that "a judgment of ouster is not retroactive upon the rights acquired and liabilities incurred prior to such ouster." If in law an appeal or revision lay against the act or order, it could be set aside there, on the available grounds, including the lack of title and hence an illegal exercise of power to take the action. 86. This aspect though latent here, was made patent by Tindal, C.J. in Penny v. Slade. In this case a Mayor issued a distress warrant for enforcing the payment of the poor rate. The plaintiff brought an action of trespass against the Mayor for seizing the goods of the plaintiff under the colour of a warrant. It was alleged that the rate was void because the appointment of the overseers by whom it was made, was bad, this action failed. Tindal, C.J. held : "This appointment cannot be questioned in this collateral way on the ground of irregularity or miscarriage." He went on to observe, "We have the less hesitation in coming to this conclusion, because the law has provided appropriate methods of settling such a question. Tindal, C.J. held : "This appointment cannot be questioned in this collateral way on the ground of irregularity or miscarriage." He went on to observe, "We have the less hesitation in coming to this conclusion, because the law has provided appropriate methods of settling such a question. The appointment may be directly questioned by an appeal to the sessions, or, if there is any impropriety in the mode of the appointment, it may be set aside by a direct application for that purpose to the Court of Queen's Bench: Rex v. The Overseers of Bridgewater (Cowp. 139) : 87. It is obviously a much more convenient course that the validity of the appointment should be brought into controversy in a direct way immediately upon the appointment than that a party should lie by until a rate has been made and levied, and should then be allowed to revert back to some miscarriage in the appointment. No objection arising in such a way ought to prevail unless it rests on the most solid ground which, in our judgment, the present objection does not." (Italics mine) . 88. This case applied the rule of alternative remedy, but concedes that the title of a de facto officer can be challenged collaterally also, if it "rests on the most solid ground." On the same lines is the decision in Lancaster v. Beaton. In the present cases the ground is violation of the Constitution. It is, I feel, a most solid ground. 89 Sir Asutosh Mookerjee placed reliance on the case of King v. The Corporation of Bedford Level to show that the de facto doctrine continues to be accepted in England. An examination of this case does not show that the doctrine has been approved. There, by a proceeding of mandamus the election of Mr. Saffery as Registrar was challenged on the ground that some of Mr. Saffery's voters had their title registered by a Deputy Registrar who had no valid title. It was found that the death of the Registrar was well known and that in point of law the Deputy Registrar's title terminated on the death of the Registrar. it was held that the Deputy: Registrar's acts of registration after the date of death of the Registrar, were bad and all such votes were declared invalid. It was found that the death of the Registrar was well known and that in point of law the Deputy Registrar's title terminated on the death of the Registrar. it was held that the Deputy: Registrar's acts of registration after the date of death of the Registrar, were bad and all such votes were declared invalid. It was urged that the Deputy Registrar was, after the death of the Registrar, acting as an officer de facto and his acts were good. For this reliance was placed on the decision of Manwood, J. in Knowles v. Luce. This argument was repelled. Lord Ellenborough, C.J. referring to the decision of Manwood, J. observed at page 369: "It is said in that book, that the acts of such steward (i.e. a steward de facto) are good, because the suitors cannot examine his title; but when his authority has notoriously ceased, no such reason obtains. This doctrine of Manwood's seems no more than what was the law in the case of all judicial officers, when the interest of the officers determine on the demise of the crown; for though, in consideration of law, the commissions of the Judges, etc. immediately determined on such demise, yet their intermediate acts, between the demise of the crown and notice of it, were good". 90. This observation shows that the rule was based upon the reason that if a person had dealings with an officer under a belief that he was the rightful officer, and had no means of examining his title, the acts of the officer were good; but, if the authority had ceased in fact (and not by legal adjudication or ouster from office as is the American doctrine) no necessity remained, and the acts were not valid; that is to say, if the person dealing with the officer had or deemed to have known the truth about the officer's title, the acts of the officer would not be valid. This case also shows that the title can be successfully impeached in collateral proceedings to which the officer was not a party. 91. These are the cases relied on by Sri Asutosh Mookerjee. In my opinion, they do not establish that the American de facto doctrine is part of the English law. I will now deal with the cases which hold that evidence of acting de facto raises a rebut-able presumption of a good title. 92. 91. These are the cases relied on by Sri Asutosh Mookerjee. In my opinion, they do not establish that the American de facto doctrine is part of the English law. I will now deal with the cases which hold that evidence of acting de facto raises a rebut-able presumption of a good title. 92. The decision of Lord Ellenborough in Rex v. Verelst brings out the point clearly. There, in a divorce suit brought by his wife on the ground of adultery, Mr. Verelst gave a statement in the Ecclesiastical court, after having been administered the oath by one Mr. Parson who was the surrogate. Mr. Verelst was later hauled up for perjury, in respect of his statement on oath in the divorce proceedings. In defence Dr. Parson's due appointment to the office of surrogate was challenged. It was urged that credit is given to the Judges and Magistrates of the common law, that they are duly appointed to the offices in which they act, but this has never been extended to the Ecclesiastical courts. The counsel for the prosecution contended that Dr. Parson had acted as a surrogate for twenty years without his authority being questioned and that a Judge and Jury ought not to enquire into the manner of his appointment. Lord Ellenborough ruled: 'I think the fact of Dr. Parson having acted as surrogate, is sufficient prima facie evidence that he was duly appointed and had competent authority to administer the oath. I cannot for this purpose make any distinction between the Ecclesiastical courts and other jurisdictions. It is a general presumption of law that a person acting in a public capacity is duly authorised so to do". He further held, "1 cannot shut out evidence that Dr. Parson was not duly appointed a surrogate however long he may have acted in that capacity. The presumption arising from his acting only stands till the contrary is proved". His Lordship went into the evidence and found that Dr. Parson was appointed contrary to the cannon. He held that the allegation that Dr. Parson had competent authority to administer the oath is negatived. The defendant was thereupon acquitted. This decision of Lord Ellenborough was cited with approval in Faulkner v. Johnson, (1843) 11 M. and W. 581. 93. His Lordship went into the evidence and found that Dr. Parson was appointed contrary to the cannon. He held that the allegation that Dr. Parson had competent authority to administer the oath is negatived. The defendant was thereupon acquitted. This decision of Lord Ellenborough was cited with approval in Faulkner v. Johnson, (1843) 11 M. and W. 581. 93. This case establishes that whenever a person acts as a de facto officer, a prima fade presumption of his appointment being valid is raised; but his actions can be successfully challenged by proving that he was not appointed according to the law. Here the attack on the title of the de facto officer was collateral. Surely such an attack would be permissible in an appeal or revision. Contrast this case with the American case of Campbell v. Commonwealth, (1880) 96 Pa. 344 strongly relied on by Sir Asutosh Mookerjee in Pulin Behary's case (15 C.L.J. 515 at 574). There a convicted person was, in appeal not allowed to question the validity of the appointment of the Judge. The man had to serve out the sentence, though in quo warranto the Judges were ousted from office. Such a decision was not possible in England. This decision was rendered in 1813. Its efficacy can hardly be whittled down by the rivalry that existed towards the end of the 16th and the beginning of the 17th Century between the Ecclesiastical and Common Law Courts. Lord Ellenborough specifically ruled that on this question there was no distinction between officers of ecclesiastical courts and other jurisdictions. The surrogate did not hold office at the will and pleasure of others. He had to be appointed according to the provisions of the law. His duties were of a public character. I am not satisfied that a quo warranto would not have lain for it. Assuming, however, that no quo warranto lay, yet the challenge to the title was held permissible in a proceeding where his action was questioned and to which the officer was not a party. His duties were of a public character. I am not satisfied that a quo warranto would not have lain for it. Assuming, however, that no quo warranto lay, yet the challenge to the title was held permissible in a proceeding where his action was questioned and to which the officer was not a party. If the suggestion that such a proceeding is not collateral because a direct quo warranto was not available, is taken to its logical conclusion, it will only mean that in all such cases where quo warranto is ref-usable either because of the statutory English 6 years rule of limitation or in the discretion of the Court, an appeal or revision or any other proceeding where the action is challenged, will be treated as a direct and not a collateral proceeding. In Regine v. Newton, (1844) 1 C and K 469 (480) and Doe v. Brawn, (1821) 5 B and A 243 the principle that evidence of acting de facto was prima facie proof and raises a rebuttable presumption of a valid appointment was accepted. See also M'gahev v. Alstan, (1836) 2 M and W 206. A comparatively recent case of Woolett v. Minister of Agriculture and Fisheries is also of interest. In this case the facts were these. In accordance with Section 85 (5) of the Agriculture Act, 1947 the plaintiff required that the Minister's proposal to purchase his land should be referred to the Agricultural Land Tribunal. The reference was heard by the Tribunal which consisted of a Chairman and two nominated members. The nominated members were required to be appointed by the Minister. At the hearing before the Tribunal, with a view to show that the Tribunal, was biased in favour of the Minister, a question was raised as to who appointed the nominated members. In order to refute the suggestion, the Chairman said that he himself had selected the two members. Ultimately, the tribunal gave a report confirming the Minister's proposal. In due course, the Minister issued the required certificate and a notice to treat was served upon the plaintiff. In order to refute the suggestion, the Chairman said that he himself had selected the two members. Ultimately, the tribunal gave a report confirming the Minister's proposal. In due course, the Minister issued the required certificate and a notice to treat was served upon the plaintiff. Thereafter, the plaintiff commenced an action for declaration that the certificate and the notice to treat were void and of no effect, on the principal ground that the Tribunal was not validly constituted, because two of the members who sat on it, not having been appointed by the Minister, would be treated as if they had never been appointed at all. Evidence was led on the question as to who had made the appointment. In the Court of Appeal, Denning, L.J. on a review of the evidence held that the appointment of the nominated members was not made by the Minister and the defect was fatal; but that the same was cured by the validating provisions in the Schedule of the Act. His Lordship observed : "I cannot help remarking that it would be most unfortunate if we come to any other conclusion. The members of the land tribunals in the eastern province have been appointed in this way for several years. They have made decisions in a great many disputes and people have acted on the faith of their decisions. Indeed .........if all the decisions were now invalidated by a technical defect, it would produce great confusion and injustice. It is just the thing which Para. 20 (2) of Sched. IX to the Act of 1947 was made to avoid". If the doctrine that acts of de facto officers are valid and cannot be challenged collaterally, was prevalent in England, Lord Denning would not have mention the consequences and rested his decision merely on the validating provision. The court would not have permitted the challenge to the appointment in that suit, which was a collateral proceeding. Morris, L. J. made the following positive observation (at page 552) : "The plaintiff could have questioned the validity of the order on the ground that there was no proper tribunal constituted, that there was, accordingly no hearing, and that, as a result, there had not been satisfaction of the requirements of the Act of 1947 as to the proceedings to be taken before the giving of the certificate under Section 85 (2) ." 94. This shows that invalidity in the appointment of a member of a Tribunal. renders the Tribunal improperly constituted, and, that the validity of the order could be challenged on the ground that the appointment was illegal. The conclusion appears to me irresistible, that the American de facto doctrine does not prevail in England, and should not be held applicable in India. 95. If the de facto doctrine was so well settled in India as is sought to be made out, there was no occasion for the Constitution makers to expressly provide for and protect the acts of only some of the Constitutional officers and bodies. The Constitution makes a provision for acts of the President and Vice-President : Article 71 (2) of the Constitution says : "If the election of a person as President or Vice-President is declared void by the Supreme Court, acts done by him in the exercise and performance of the power and duties of the office of President or Vice President, as the case may be, on or before. the date of the decision of the Supreme Court shall not be invalidated by reason that declaration." Article 84 of the Constitution provides that a person shall not be qualified to he chosen to fill a seat in Parliament unless he fulfils the qualifications mentioned in that Article. Article 100 (2) of the Constitution then specifically provides : ".......... any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings". 96. An identical provision is made by Article 189 (2) of the Constitution to protect the action of the Legislature of a State. Articles 233 and 234 of the Constitution confer power on the Governor of a State to appoint District Judges, and, other persons to the judicial service of the State, subject to certain conditions precedent mentioned in them. But there is no protection clause in respect of them. It should not be imported by implication, on the basis of the de facto doctrine. In J.P. Mitter v. Chief Justice, the Supreme Court considered the effect of a High Court Judge acting as a judge after he has reached the age of superannuation. But there is no protection clause in respect of them. It should not be imported by implication, on the basis of the de facto doctrine. In J.P. Mitter v. Chief Justice, the Supreme Court considered the effect of a High Court Judge acting as a judge after he has reached the age of superannuation. It observed in paragraph 24 : "A serious situation may arise because the cases which the said Judge might have determined in the meanwhile would have to be reheard, for the disability imposed by the Constitution when it provides that a Judge cannot act as a Judge after he attains the age of superannuation, will inevitably introduce a constitutional invalidity in the decisions of the said Judge". 97. In view of this declaration of law by the Supreme Court the decision of Travancore-Cochin High Court in Parameshwaran Pillai Bhaskaran Pillai v. State Prosecutor that a High Court Judges actions after he had reached the age of superannuation are valid, cannot be accepted. In this case Koshi, J. relying upon American decisions held that the de facto doctrine was applicable. He also relied upon the Canadian case, Re. Toronto R. Co. and City of Toronto. In the Canadian case it was urged that the Board was in law a superior court and its members could only be appointed by the Governor General under Section 96 of the British North America Act. They not having been so appointed, their acts were bad. The court at page 558 held that the Board was not a Court and in any event not a superior court within the meaning of Section 96. It nevertheless went on to express an opinion on the validity of the acts of de facto judge. The observations on this point were obiter. In upholding the de facto doctrine the court relied upon American decisions. The decision is hence not of much assistance. The 1961 Travancore-Cochin case has been dissented from by the Madhya Pradesh High Court in Gajadhar Lal v. Sugar Chand. It was held that the title of a de facto magistrate can be questioned in an appeal against the judgment. 98. The decision is hence not of much assistance. The 1961 Travancore-Cochin case has been dissented from by the Madhya Pradesh High Court in Gajadhar Lal v. Sugar Chand. It was held that the title of a de facto magistrate can be questioned in an appeal against the judgment. 98. It was suggested that a very serious situation will arise if the de facto doctrine is not held applicable, because practically all the judgments given by Judicial Officers of the State in the last twelve years or so will be rendered invalid and all these officers may lose their jobs. This is an appeal to the heart rather than the head. As I have said a little later, judgments that have become final will not be affected. Secondly, the officers may lose their job in quo warranto. There the doctrine will not help him. The obvious and the legal reply to this argument is that this consideration is not enough to strain the true rule of law. In Emperor v. Benoari Lal Sharma, A.I.R. 1945 PC 48 (53) the Privy Council said : "In construing enacted words the Court is not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used". 99. The same principle is applicable in deducting the applicable rule of common law. Moreover, the remedy lies with Parliament. By appropriate measures there, the appointments may be validated and the apretended situation saved. 100. On this aspect of the case my conclusion is : Practical necessity of administration may have justified the de facto doctrine in America, yet, because its very foundation that the title of a de facto officer cannot be questioned by any person except the State, is non-existent in this country as in England. and, inasmuch as it does in fact protect an act essentially illegal, it should not be held applicable in this country. The right to challenge the title as well as the act are inseparable rules. They are the two faces of the same doctrine. In America neither the title nor the act can be questioned by the public. In England, on the other hand, both can be so questioned. In India a citizen can impeach the title. The right to challenge the title as well as the act are inseparable rules. They are the two faces of the same doctrine. In America neither the title nor the act can be questioned by the public. In England, on the other hand, both can be so questioned. In India a citizen can impeach the title. There seems to basis for splitting the twins and hold that a litigant can challenge the title but not the act, even if it takes away his life, by imposing a sentence of death. In my opinion, the applicable rule is: a de facto title is defeasible: acting de facto raises a rebuttable presumption of validity. and the title can be tested in appeal or revision against the other. 101. An objection of the present nature is like any other question of law and may or may not be permitted to be taken in appeal or revision, depending on whether the requisite facts are admitted or have been found or are allowed to be proved by the higher court. In the present case, the objection was permitted to be raised by the learned single Judges and in the second appeals, affidavits were filed. The relevant material is on record of the second appeals, and the questions relating to the validity of the appointment can be and should be heard and decided. 102. It was also suggested that such an objection cannot be allowed in an appeal because the Judge is not a party and in his absence his title to the office cannot be determined. In appeals the judge is not usually made a party; but if an objection relating to his title is raised, there is no prohibition against issuing notice to him and hearing him. In any event, the judgment in appeal binds only the parties. A decision in an appeal will not, of its own force, oust the judge from his office. It cannot, therefore, be said that as a matter of law a judgment cannot be attacked in an appeal or a revision, on the ground that the judge was illegally appointed, because, of the absence of the Judge. 103. The second aspect is as to what is a collateral proceeding. It cannot, therefore, be said that as a matter of law a judgment cannot be attacked in an appeal or a revision, on the ground that the judge was illegally appointed, because, of the absence of the Judge. 103. The second aspect is as to what is a collateral proceeding. If the law permits an appeal against a judgment, is the appeal a collateral proceeding I It has been urged that the judgments of a de facto judge are valid because of the de facto doctrine, but surely an objection that the judge has not been validly appointed can be taken before the judge himself so as to prevent him from acting. Such a plea, if taken in the written statement, will have to be determined. An appeal is a rehearing of the suit. It continues the suit and reopens all the controversies before the appellate court. The appeal, therefore, is not a collateral proceeding. It is a direct proceeding in respect of all such controversies and questions which could be raised before the trial court. 104. In respect of judicial orders the concept of collateral proceeding is intimately related to the doctrine of finality of judgments. This doctrine rules that if the judgment of a trial court is taken up in appeal and the appeal is heard and decided by a competent court and the judgment is affirmed, the judgment becomes a final and all errors herein conclude for ever interpartes. Such a judgment cannot be challenged or ignored in subsequent proceedings, as for example where the judgment is produced in support of a title or for the application of the doctrine of res judicata or proceedings in execution or proceedings in habeas corpus. 105. The reason is that the trial court's judgment merges in that of the appellate court, and, there being no defect of jurisdiction or otherwise, in the appellate court's decision, the infirmity of whatever nature in the trial court's judgment, becomes ineffective. Another principle which applies is that the appellate court will be deemed to have decided the question of jurisdiction, and the courts have jurisdiction to decide rightly as well as wrong 106. The principle of finality of judgments was applied by the Supreme Court in the case of Janardan Reddy v. The State of Hyderabad, A.I.R. 1951 SC 217. Another principle which applies is that the appellate court will be deemed to have decided the question of jurisdiction, and the courts have jurisdiction to decide rightly as well as wrong 106. The principle of finality of judgments was applied by the Supreme Court in the case of Janardan Reddy v. The State of Hyderabad, A.I.R. 1951 SC 217. In this case it was urged that the Special Tribunal which tried and convicted the appellant had no jurisdiction. Against the conviction an appeal was taken to the High Court of Hyderabad. but failed. The Supreme-Court rejected a habeas corpus application. Fazl Ali, J. speaking for the Supreme Court held: (paragraph 25) "Evidently, the appellate court in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the jurisdiction to try and convict, it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity(At is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judments which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision." 107. His Lordship observed that the appeal was properly heard and decided by the High Court, and held: "In view of this fact the deprivation of life or liberty upon which the case of the petitioners is founded, has been brought about in accordance with a procedure established by law and their present detention cannot be held to be invalid." 108. The habeas corpus proceedings in that case were a collateral proceeding in respect of the question of jurisdiction of the trial Court. The appeal to the High Court was a direct proceeding where the defect of the trial court's jurisdiction could be raised and decided. The habeas corpus proceedings in that case were a collateral proceeding in respect of the question of jurisdiction of the trial Court. The appeal to the High Court was a direct proceeding where the defect of the trial court's jurisdiction could be raised and decided. If in the present case, the objection is not allowed to be raised in appeal or revision before this Court, then, once this Court dismisses an appeal and affirms the judgment, it will become final, and the doctrine of finality of judgment will operate; because court of appeal, namely the High Court is properly constituted and is competent to hear the appeals. The High Court refuses to permit this question from being raised, but the law under the doctrine of finality of judgment will presume that the High Court has decided the question, whether rightly or wrongly. This The third aspect relates to the infringement of Article 21 or 31 of the Constitution. Article 21 of the Constitution reads: "No person shall be deprived of his life or personal liberty except according t% procedure established by law. Article 31 (1) of the Constitution states : "No person shall be deprived of his property save by authority of law." 109. Clause (1) of Article 31 after the coming into force on 27-4-1965 of the Constitution (4th Amendment) Act, 1955, is independent of the other clauses of Article 31. It deal with cases of deprivation of property otherwise than by acquisition and requisition see" and I". Under Article 21 deprivation of liberty can be only in accordance with the procedure established by law, whereas under Article 31 (I) deprivation of property has to be by the authority of law. I am not impressed by the argument that the decision of Sir Asutosh Mookerjee in Pulin Behary's case will be deemed to be part of the Criminal Procedure Code. Pulin Behary's case cannot, in my opinion, attract even the doctrine of stare decision but assuming that it did, even this doctrine does not go so far as to make the judicial pronouncement a part of the enacted law. There is no rigid bar to a judicial decision being reconsidered, even if it has stood for any length of time; but if it is treated as part of enacted law, then, not even a higher court can reconsider it or overrule it. There is no rigid bar to a judicial decision being reconsidered, even if it has stood for any length of time; but if it is treated as part of enacted law, then, not even a higher court can reconsider it or overrule it. Law, in Articles 21 and 31 (1), means enacted law and not a judicial pronouncement. Both the Criminal Procedure Code as well as Civil Procedure Code provide that cases shall be decided by courts after a hearing. (Vide Sections 244, 251A (2), 252, 409, 411A, 422 and 439(2) of Criminal Procedure Code and Order XX, Rule 1 and Order 41, Rule 30 of Civil Procedure Code) . If a person is convicted and sentenced to imprisonment without a hearing, he is deprived of his liberty contrary to the procedure established by law and hence in violation of Article 21 of the Constitution. Similarly, if the effect of a decision of a civil case by a court is to deprive a person of his property without hearing him, he is so deprived without the authority of law and in such a case Article 31 (1) of the Constitution is infringed. 110. The observations of Lord. Morris in the case of Woolett v. Minister of Agriculture and Fisheriese quoted above, show that the effect of a decision by an improperly constituted tribunal was as if there was no hearing. In that case the defect in the constitution of the Tribunal arose by reason of an invalidity in the appointment of its members. In my opinion, the observations of Lord Morris laid down the correct position. La( a court is presided by an illegally appointed judge, the court is improperly constituted.' The decision of such a court is, in the eye of law, without a hearing and violates the guarantee of Article 21 or 31 (1) as the case be. 111. It is said that the judiciary or the courts are not "the State" as defined in Article 12 of the Constitution. Reference to the Government and the Parliament of India and the Government and the Legislature of each of the States in Article 12 emphasises the fact that the judicature is intended to be excluded from the state definition. This question was specifically raised before the Supreme Court in Naresh Shridhar Mirajkar v. The State of Mohorashtra, W.P. Nos. 5, 7 to 9 of decided on 3.3.66. This question was specifically raised before the Supreme Court in Naresh Shridhar Mirajkar v. The State of Mohorashtra, W.P. Nos. 5, 7 to 9 of decided on 3.3.66. The majority decision given by Gajendragadkar, C.J. refrained from expressing any opinion on this aspect. But Hidayatullah, J. in his dissenting opinion expressed the view that the definition of "the State" in Article 12 does not exclude "courts and judges". His Lordship observed at page 30 of the Blue Print: "Again, Article 20, which speaks of convictions for offences, punishments and testimonial compulsion is addressed as much to courts as to executive and other authorities, and I venture to think that the worst offenders would be the courts if they went against this prescription. Article 22 (1) is addressed to courts where it says that no person, who is arrested, shall be denied the right to be defended by a legal practitioner of his choice. If the High Court had, for example, insisted on the defendant in a criminal case to take a counsel of its choice, the trial would have been vitiated. Why? Because of the breach of the fundamental right in Article 22 (1)." 112. At page 36 of the Blue Print his Lordship further observed; "Other cases can easily be imagined under Articles 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights 113. I am in' respectful agreement with his Lordship. Articles 21 and 31 are as much addressed to judicial tribunals as to executive or ministerial authorities. Under Article 21 or 31 no one can be deprived of his property through the agency of judicial tribunals, without it complying with the procedure established by law or without the authority of law. A judicial tribunal is, in my opinion, within the definition of "the State under Article 12 of the Constitution. Articles 21 and 31 are attracted to them. A decision rendered without hearing will violate Articles 21 and 31 (1) of the Constitution as the case be. The doctrine of de facto cannot override the fundamental rights guaranteed by the Constitution. An objection of this nature can, therefore, be taken in an appeal or revision against such a judgment. 114. Articles 21 and 31 are attracted to them. A decision rendered without hearing will violate Articles 21 and 31 (1) of the Constitution as the case be. The doctrine of de facto cannot override the fundamental rights guaranteed by the Constitution. An objection of this nature can, therefore, be taken in an appeal or revision against such a judgment. 114. In the result, my conclusion is; An appeal or revision is a direct and not a collateral proceeding; the validity of appointment of the Judge can be challenged therein, and the judgment is liable to be set aside on this ground. 115. By The Court - In view of the opinion expressed by the majority : We held that the appointment of the Munsifs and the Civil Judges purporting to have been made under the U.P. Civil Service (Judicial Branch) Rules 1951 cannot be challenged in a collateral proceeding like an appeal or revision, and that even if it be assumed that the appointments of the Munsifs and the Civil Judges are invalid, the impugned decisions are not liable to be set aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the impugned decisions were rendered. In this view of the matter we find it unnecessary to express our opinion on the remaining questions. 116. We also hold that the appointment of the Assistant Sessions Judge and the Sessions Judges who rendered the judgments impugned in the Criminal Revisions cannot be challenged in a collateral proceeding, and that even if it be assumed that their appointments are invalid, the impugned judgments are not liable to be set aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the impugned judgments were rendered. 117. The cases shall now be returned to the learned single Judges for decision in the light of our opinion.