Joseph Binoy v. Union of India — 1991 DIGILAW 247 (KER)

Judgment :- Paripoornan, J. The appellant in W. A. No. 393 of 1990 is the petitioner in the Civil Miscellaneous Petitions. C.M.P. No. 2844 of 1990 is filed praying for the issue of a certificate to appeal to the Supreme Court of India against the judgment of this Court, dated 14-8-1990 rendered in W.A. No. 393 of 1990. In the writ appeal a Bench of this Court affirmed the decision rendered by a learned Single Judge in O.P. No. 3709 of 1990. The attack in the O.P. was against S.44-AC of the Income-tax Act, 1961. It was assailed as ultra vires the Constitution of India and lacking in legislative competence. There is an earlier decision of this Court in P. Kunhammed Kutty Haji v. Union of India (1989 (1) KLT 639 = (1989) 76 CTR 139 =176 ITR 481), wherein an identical challenge was repelled. The said judgment was affirmed by a Bench of this Court in Aboobacker v. Union of India (1989 (1) KLT 793 =177 ITR 358). In O.P. No. 3709 of 1990 the learned Single Judge noticed the earlier Bench decision in Aboobacker' s case (1989 (1) KLT 793) and dismissed the O.P. Review Petition 101 of 1990 filed in the said O.P. was also dismissed by order dated 23-7-1990. The Writ Appeal, W.A. No. 393 of 1990, filed against the judgment in O.P. No. 3709 of 1990, dated 4-6-1990, was, in the circumstances, dismissed, following the earlier Bench decisions referred to above, as also noticing the Bench decision of the Andhra Pradesh High Court in A. Sanyasi Rao v. Government of Andhra Pradesh (178 ITR 31). In the writ appeal the judgment was delivered on 14-8-1990. At the time when the judgment was delivered, no motion was made praying for the issue of a certificate to appeal to the Supreme Court against the Bench decision of this Court. This Court also did not on its own motion consider the desirability of granting a certificate in the. matter. At the time when the judgment was delivered, no motion was made praying for the issue of a certificate to appeal to the Supreme Court against the Bench decision of this Court. This Court also did not on its own motion consider the desirability of granting a certificate in the. matter. On 12th of September 1990, nearly a month after the pronouncement of the judgment, the appellant filed CM.P. No.2844of 1991 (numbered later since there were defects to be cured) praying for the issue of a certificate to appeal to the Supreme Court of India under Art.132 and 134A of the Constitution of India read with Rule 22 of the Kerala High Court Rules against the judgment of this Court in W.A. No. 393 of 1990. Later the appellant-has filed C.M.P. No. 4890 of 1990 on 28th October, 1990, to condone the delay of 24 days in rectifying the defects. 2. We heard counsel. The short question that arises for consideration is whether the application filed praying for the issue of certificate to appeal to the Supreme Court of India against the judgment of this Court in W.A. No. 393 of 1990 will lie. Art.134A of the Constitution reads thus: "134A. Certificate for appeal to the Supreme court.--Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article 134, (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred loin clause (I) of Article. 132, or clause (1) of Article 133 or, as the case may be, sub-clause (c) of clause (1) of Article 134, may be given in respect of that case". Article 134A of the Constitution was inserted in the Constitution by "The Constitution (Forty-Fourth) Amendment Act, 1978", which received the assent of the President on 30-4-1979. The objects and reasons for the said amendment arc stated thus in the book "Constitution Amendment in India" Lok Sabha Secretariat, New Delhi 1986 publication at page 85: "New An. Article 134A of the Constitution was inserted in the Constitution by "The Constitution (Forty-Fourth) Amendment Act, 1978", which received the assent of the President on 30-4-1979. The objects and reasons for the said amendment arc stated thus in the book "Constitution Amendment in India" Lok Sabha Secretariat, New Delhi 1986 publication at page 85: "New An. 134A provides that the High Court should consider the question of graining of a certificate of fitness for appeal to the Supreme Court under Art.132(1), Art.133(1) or Art.134(1) immediately on the delivery of the judgment, decree, final order or sentence concerned, on the basis of an oral application by a party or, if the High Court deems it fit so to do, on its own motion." It is conceded that no motion was made for the issue of a certificate to appeal to the Supreme Court immediately after the passing of. the judgment. The only question that arises for consideration is whether an application, made long after the judgment was delivered, is maintainable. We are of the view that a bare perusal of Art.134A of the Constitution of India does not contemplate the filing of a written application at all. At the time of delivering the judgment, it is open to the Court, if it deems so to do, to grant a certificate on its own motion. If any party is aggrieved by the judgment, an oral application should be made by or on behalf of the party aggrieved, immediately after the judgment is delivered. If it is not so done, any application, filed at any later point of time, is not maintainable. The said view of ours is fortified by Bench decisions of the various High Courts. - Sec Receipt and Co/man of India v. Fifth Industrial Tribunal (84 C.W,N.657 - Cu].),Kesava S. Jamkhandi v. Ramachandra S. Jamkhandi (AIR 1981 Kar.97-F.B.) (Karnataka), and State of Orissa v.Sashi Bhusan Kar (1985 Crl.L.J. 1725 (Orissa). 3. In the light of the above decisions, we hold that C.M.P. No. 2824 of 1991 is not maintainable. We dismiss the said petition. No question of condoning the delay in filing the main petition, praying for the issue of a certificate to appeal arises. We dismiss C MY No. 4890 of 1990 also. Both the C.M.Ps. are dismissed.