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2001 DIGILAW 228 (DEL)

SARAMMANINAN v. NINAN JOHN

2001-02-19

ARIJIT PASAYAT, D.K.JAIN

body2001
Arijit Pasayat ( 1 ) THIS matter was placed before this Bench because of the following order passed by learned Single Judge on 11/12/2000: "since the constitutional validity of a statute is involved, list the matter before an appropriate Division Bench, subject to the orders of Hon ble the chief Justice, on 9/01/2001. " ( 2 ) WHEN the matter was taken up we wanted to find out from the learned counsel appearing for the petitioner as to how vires of certain provisions of Indian Divorce act, 1869 (in short the act ) can be decided in an original petition filed under Section 10 of the Act. Learned counsel for the petitioner referred to Order XXVIIA of the code of Civil Procedure, 1908 (in short the code ) and Section 113 thereof. Refer- ence was also made to Article 228 of the Constitution of India, 1950 (in short the constitution ). Reference was also made to a decision of the Apex Court in Ganga pratap v. Allahabad Bank Ltd. , AIR 1958 SC 293 , to contend that it is not impermissible to decide the vires in the proceedings at hand. Reference was also made to decisions of kerala and Bombay High Court in Ammini EJ. v. Union of India, AIR 1995 Ker 252 and Pragati Varghes and Ors. v. Cyril Varghes and Ors; (II) J997dmc 407respectively to urge that vires questions were considered and decided in similar proceedings. ( 3 ) THE. provisions referred to by learned counsel for the petitioner read as fol- lows: order XXVIIA,civil Procedure Code suits involving a substantial question of law as to the interpretation of the constitution or as to the validity of any statutory instrument. 1. Notice to the Attorney General or the Advocate Generalin any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132, read with Article 147 of the Constitution, is in- volved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate General of the state if the question of law concerns a State Government. 1a. 1a. Procedure in suits involving validity of any statutory instrumentin any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved, the Court shall not proceed to determine that question except after giving notice :- (a) to the Government pleader, if the question concerns the Government, or (b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government. 2. Court may add Government aand party-The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as is referred to in clause (1) of Article 132, read with Article 147, of the Con- stitution, if the Attorney General for India or the Advocate-General of the state, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such ad- dition is necessary or desirable for the satisfactory determination of the question of law involved. 2a. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrumentthe Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule 1a, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader ap- pearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under rule 1a or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question. 3. Costswhere, under rule 2 or rule 2a the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate general, or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addi- tion unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders. 4. 4. Application of Order to appealsin the application of this Order to ap- peals the word "defendant" shall be held to include a respondent and the word "suit" an appeal. Section 113,civil Procedure Code "113. Reference to High Court: Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order there- on as it thinks fit: provided that where the Court is satisfied that a case pending before it in- volves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the deter- mination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is sub- ordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the high Court. " ARTICLE 228, Constitution of India "228. Transfer of certain cases of High Court: If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial ques- tion of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may: (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dis- pose of the case in conformity with such judgment. " ( 4 ) ON a bare perusal of the provisions it is crystal clear that the aforesaid provisions have no application to the facts of the present case. First of all learned single Judge is not a "court subordinate" to the Division Bench. There is in fact no ref- erence made in terms of provisions in question. Since constitutional validity of a statute has been questioned, the matter was directed to be placed before a Division bench. First of all learned single Judge is not a "court subordinate" to the Division Bench. There is in fact no ref- erence made in terms of provisions in question. Since constitutional validity of a statute has been questioned, the matter was directed to be placed before a Division bench. Additionally, Order XXVIIA of the Code refers to the matters relating to Ar- ticle 132 and 147 of the Constitution. Admittedly the provisions which are impugned to be ultra vires do not fall in any of those two provisions of the Constitution. Similarly section 113 deals with a reference to the High Court by any Court for its opinion. The provision does not deal with reference by a Single Judge to the Division Bench for opinion. In fact, as noted above there is no reference made to a Division Bench. Similarly, Article 228 deals with transfer of certain cases to the High Court. The same in turn relates to transfer of a case from a subordinate Court to the High Court. As in- dicated above, learned Single Judge is not a Court subordinate to the Division Bench. ( 5 ) IT is fairly well settled in law that a forum which is creature of a statute cannot adjudicate upon the constitutional validity of a provision or the vires of that statute. By a catena of decisions, for example, K. S. Venkataraman and Co. (P) Ltd. v. State of madras, (1966) 2 SCR 229 ; Commissioner of Income-tax v. Straw Products Ltd. , (1966) 60 ITR 156; C. T. Senthilnathan Chettiar v. State of Madras, (1968) 67 ITR 102; Alpha chem v. State of U. P. (1993) 89 STC 304 and C. W. T. v. Hashmatunnisa Begum, (1989) 176 ITR 98 (SC) the position has been clarified. Therefore, a forum which is created under a statute cannot adjudicate upon the vires of provisions of that statute. In Hash- malimnisa Begum s case (supra), while dealing with references under Wealth-tax Act, 1 W, Apex Court inter alia, observed as follows: "xxxxxx we, however, should not be understood to haw pronounced on the ques- tion of constitutionality. That is the task of the Court in a judicial review but the rule of preference of a particular construction amongst alternatives, in order to avoid unconstitutionality is unavoidable here. That is the task of the Court in a judicial review but the rule of preference of a particular construction amongst alternatives, in order to avoid unconstitutionality is unavoidable here. " in Alpha Chem s case (supra), Apex Court observed, inter alia, as follows: "as the Tribunal is a creature of the statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act. The question of ultra vires is. foreign to the scope of its jurisdiction. " ( 6 ) STRONG reliance has been placed by learned counsel for the petitioner on the two decisions, viz. , Ammini EJ. , s case (supra) and Pragati Varghes s case (supra) to conic nd that Full Bench of Kerala and Bombay High Courts adjudicated upon the constitutional validity of provisions. On a close reading of these two decisions, we find thai they do not in any way assist the petitioner. So far as the Kerala decision is con- cerned, paragraph 7 of the judgment makes it clear that decision was rendered on a writ petition which was taken up along with the reference made under Section 20 of the Act. So far as the Bombay decision is concerned, there is no discussion on the question as to whether the constitutional validity of a provision can be adjudicated upon by a forum created under the statute. A decision is only an authority for what it actually decides and not for what follows from it incidentally, logically or as a corol- lary. This position has been highlighted by the Apex Court in State of Orissa v. Sud- hansu Sekhar Misra, AIR 1968 SC 647 ; Sreenivasa General Traders v. State of Andhra pradesh, AIR 1983 SC 1246 and M/s. Amar Nath Om Parkash v. State of Punjab, AIR 1985 SC 218 . Observations of the Judges are not to be read as Euclid s theorems, nor as provisions of the statute. It is needless to repeat the oft quoted truism of Lord halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. (See Quinn v. Leathern, 1901 AC 495 ). In Mis. It is needless to repeat the oft quoted truism of Lord halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. (See Quinn v. Leathern, 1901 AC 495 ). In Mis. Gasket Radiators Pvt. Ltd. v. ESI Corporation, AIR 1985 SC 790 it was observed that "nor can we read a judgment on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions and facts of such ques- tions arose for consideration or not in that case. Judgments of Court are not to be treated or construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statute, they do not interpret judgments. They interpret words of statute, their words are not to be inter- preted as statutes. In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 at page 761, Lord Mac Dermot observed: "the matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and ap- plying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge. " In Home Office v. Dorset Yacht Co. , (1970) 2 ALL ER 294, Lord Reid said, "lord Atkin s speech. . . . . is not to be treated as if it was a statutory definition. It will require qualification in new circumstances. " megarry, J. in (1971) 1 WLR 1062 observed: "one must not, of course, con- strue even a reserved judgment of even Russell LJ. as if it were an Act of parliament. " And, in Henington v. British Railways Board, (1972) 2 WLR 537 lord Morris said: "there is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. " And, in Henington v. British Railways Board, (1972) 2 WLR 537 lord Morris said: "there is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. " ( 7 ) VALIDITY of the provisions as challenged in the petition under Section 10 of the act cannot be adjudicated in the said petition. In that view of the matter, we are of the view that the matter has to be placed before the learned Single Judge for disposal of the matrimonial case on 26/03/2001. Ordered accordingly.