Lakshmi Narain v. First Additional District :Judge, Allahabad

Sinha, C. J. were the respondents in the main appeal, have not

entered appearance and apparently arc not interested in the result of this appeal.

.ln order to bring out the points in controvery between the parties it is necessary to state the follow-ing facts. The appellant, as plaintiff, instituted suit Ko. I of I 949 in the Court of the Civil Judge, .\lathura, for possession of certain properties, on .January 26, 1949, against respondents two and three. That suit stood dismissed on November 27, 1951. The unsuccessful plaintiff preferred a first appeal to the High Court of Judicature at Allahabad, and it was numbered First Appeal No. 37 of 1952. The First Appeal aforesaid remained pending in the High Court from February 8, 1952, when it was instituted, unul April 23, '1952, when it was notified to the parties that the appeal had been tramferrcd to the Court of the District Judge, Allahabad, for hearing. This order was passed by the learned Chief Justice in Chambers, under s. 2-1 (I) (a) of the Code of Civil Procedure, on his own motion without notice to the parties concerned. The order of the Chief Justice is in these terms :

"It is hereby ordered that first appeals men-tioned in the list annexed hereto transferred under orders of this Court to the Court of the District .Judge Allahabad, are now transferred from that Court to the Court of the !st Additional District Judge at Allahabad." In the list annexed is the appeal now in question, alongwith a number of other appeals. This order of the learned Chief J usticc appears to have been passed in view of the recent legislation, the Act aforesaid, which amended a large number of statutes, one of 1962 them being the Bengal, Agra and Assam Civil Court L.Jrshmi .. Narain Act (XII ofl887). Section 21, cl. (a) of sub-s. (1) was amended so as to substitute 'ten thousand rupees' First Additional District Judge, for 'five thousand rupees', thus enabling District Allahabad Courts to entertain first appeals up to a valuation of Sinha, C, J. ten thousand rupees. The appellant appeared before that Court and raised a preliminary objection as to the jurisdiction of that Court to hear the appeal.

The Court overruled the preliminary objection as to its jurisdiction, by its order dated May 31, 1962, observing that it could not contravene the orders of the High Court and that the remedy of the appellant, if any, lay in the High Court itself. Thereupon the appellant moved the High Court under Arts. 226 and 227 of the Constitution for a writ of certiorari for calling for the records of the appeal, and for a writ of prohibition restraining the first respondent from hearing the appeal. The writ petition was placer before a single Judge of that Court (Dwivedi, J.), who by his order dated July 11, 1962, dismissed the ,petition in view of a Division Bench ruling of the same Court in a judgment dated November 14, 1961, in the case of Sarjudei v. Rampati Kunwari ('). The learned Single Judge rightly pointed out that he could not go behind the decision of the Division Bench, even though it was pressed upon him that the decision required reconsideration. The appellant then preferred an appeal from the order of the learned Single Judge, dismissing the appeal in limine.

The appeal being Special Civil Appeal No. 82 of 1962, was dismissed summarily on July 20, 1962, on the ground that the question raised in the appeal was concluded by the decision of the Division Bench aforesaid. The Division Bench refused to refer the question to a larger bench and preferred to follow that decision. The·appellant moved the High Court for special leave to appeal to this court which was granted, and that is how the appeal has come to this Court. The Division Bench pointed out that though

(I) 1962 All. L,J. 544.

1962 the question had "been exhaustively dealt with by Laks'1mi Nt11ain this Court in the case of Sn1}ndei v. Rampati

v. Kunwriri" {'),the case involved a substantial question Fi11l Atltiili011al of law and was one of general importance as a large Dis1ric1 JurJ.r,t,

Allailabad number of such cases were pending. In view of Sinha, C. J, those considerations, the Court granted the certificate

under Art. 1:rn {l) {c) of the Constitution. Curiouslv enough the Court granted costs to the appellant against the First Additional District .Judge, Allahabad, who was the opposite p<1rty Xo. I in the High Court in those procerdings.

Before we cleal with the main point in contro-versy, it is necessary to point out that this Act had come up for consideration before a Division Bench {Agarwala and !\folla, JJ.) in First Appeal No. no of of l !l5:), and its judgment dated February 18, I f!f1ii, is reported in the case of Cyril Spcnrcr v. M. IJ. Spnce.r. ('). The learned Judges held that the right of appeal was no! merely a matter of procedure but a matter of substantive right and the right of appeal from the decision of an inferior tribunal to a superior tribunal becomes a vested right at the date of the institution of the suit. They also relied upon the provisions of s. :i of the Act, which will hecein-after be dealt with, and came to the conclusion that the right of coming up in appeal to the High Court having become vcstecl before the Act came into force could not be affected by the provisions of the Act, and that, therefore, all appeals which lay to the High Court under the pre·existing law would still continue to lie in the High Court if the suit had been instituted prior to the coming into effect of the Act. In the result they allowed the appeal to be filed in the High Court. That c~e is a clear autho-rity for the proposition that the Act, by s. 3 {I), had saved pending appeals in the High Court from the operation of the Act. But it appears that in view of the pendency of a large number of first appeals involving valuations of ten thousand rupees or less, (I) 1962 All. L. J. 544. (2) 1955 All. L.J. 307.

the High Court was inclined to reconsider the matter, and, therefore, gave notice to the parties in a number of pending first appeals and he.ird the Lalcsluni Narain v; matter afresh. The judgment of the Court, by a First Additional Division Bench consisting of Desai, C . .J., and District Judg1, Allaliabad Ramabhadran, J., is reported in 8urjudei v. Rampati Kunwari (1). This time. the Bench came to a con-Sinha J, clusion different from that of previous Diyision Bench of the same High Court. It is the correctness of this decision which is challenged before us.

Turning to the merits of the decision, it appears that the High C:ourt recognised the legal position · thai the Act had no restrospective operation, and that the right to appeal to a superior tribunal is a vested right which is determined at the date of the institution of the suit or proceeding. The High Court, in that view of the matter, · accepted the po>ition that in spite of the Act the pending appeal in that Court could be disposed of by it. But it tool;

the view that the Act did ·not have the effect of amending the provisions of s. 24 of the Code of Civil Procedure, under which "the right of a litigant to an appeal is always subject to the right of the High Court to transfer it under s. 24." The High Court further took the view that this overriding power of the High Court to transfer a case to a competent Court was in supersession of the party's right to have the ca~e tried by a particular Court.

The High Court rightly raised the question whether District Judges or Additional District Judges were competent to dispose of cases like the one before them. Tqe question thus rightly posed has been wrongly answered by reliance upon the doctrine that the right of the High Court to transfer a case from itself to another Court or from one Court to another overrides the right of a party to have its case determined by a particular Court. In effect, the High Court took the view that after the enforce-ment of the Act, appeals involving valuations 1.1p to

(I) 1962 All. L.J. 5ff,

1962 ten thousand rupees could be dealt with by District

Judges or Additional District Judges, and, therefore, UJahmi /{araitt

v, they were competent to deal with them, though First Adaition>Jl such appeals could not have been entertained by DiJtrict Judgt

1 those Courts on the date on which they were prefe-Al/oho bad

rred, having in view the date of the decision of the Sinha, C. J. suit. The Court further held that it was irrelevant

to consider whether or not the Act had been given retrospective effect. The High Court emphasized the fact that appeals like the one before them had been transferred to the District Courts not under the provisions of the Act but under s. 24 of the Code of Civil Procedure. In this connection, the High Court proceeded to make the following observations.: "It is enough that the U. P. Amending Act contains no provision taking aw«y our power to transfer the appeals under Sec. 24, C. P. C., or no provision laying down that the District Judges are not competent to hear appeals arising out of suits instituted prior to its enforce-ment. There is nothing in the provisions of Sec. 3 of the Act to render the District] udges incompetent to hear them. Sub-Sec. (I) reserves rights acquired prior to the enforce-ment, but as we have explained earlier, if the right of the parties to the appeals is affected, it is not on account of our enforcing any provi-sion of it but on account of our exercising our power under Sec. 24, C. P. C".

\Vith all respect, the High Court has comple-tely misdirected itself in interpreting the provisions of s. :~ (I) of the Act, which must govern this case That section runs as under :

"Any amendment made by this Act shall not affect the validity, invalidity, effect or conse-quence of anything already done or suffered, or any right, title, obligation or liability

already acquired, accrued or incurred or any 1962 release or discharge of or from any debt, Lakshmi Narain decree, liability, or any jurisdiction already v. exercised, and any proceeding instituted or First Additional District Judge, commenced in any C.:ourt prior to the commen· Allahabad cement of this Act shall, notwithstanding any amendment herein made continue to be heard Sinha, C. J. and decided by such Court." ~· The High Court has not given effect to the words "any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made conti-nue to be heard and decided by such Court." Now, giving full effect to the words just quoted ofs. 3(1) of the Act, the High Court and the High Court alone would be competent to hear and decide the appeals pending before it. In other words, the District Courts were not competent to hear such appeals, and therefore, the High Court could not have transferred those appeals to be heard by the District Judge or Additional District Judge, inasmuch ass. 24 postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same. On the date the appeal in question was preferred in the High Court, the Digtrict Courts were not competent to hear such a case. The competency of those Courts to hear such cases arises by virtue of the amendment to s. 21 of the Civil Courts Act, aforesaid. We arc here not concerned with the question whether in the absence of a saving clause, like the one introduced bys. 3(1), the High Court would have been right in taking recourse to s. 24 of the Code of Civil Procedure.

But in the face of s. 3(1) of the Act, it is impossible to hold that the District Courts were competent to hea,r appeals of the valuation of ten thousand rupees or less in suits decided before the Act came into force, and appeals from which were pending before the High Court.

1962 The High Court wa5 led to the conclusion to t..J.·shmi which it came in view of the declared objects and

N.,ain v. reasons for the Amending Act. As a matter of fact, First Adiililrud the High Court ha5 relied upon the following extract District Jwitt, from the Statement of Objects and Reasons:

AllU.ba6 Sinlra, C. J. "In order to reduce the volume of work in the High Court and to ensure quicker disposal of appeals, the Bengal, Agra and Assam Civil Courts Act,. 1887, is proposed to be amended so that appeals in cases from Rs. 5,000/- to Rs. 10,000/- in valuation may be heard by District Judges".

It is true, as pointed out by the High Court, that the object behind the amendment in question was to give relief to the High Court.. But the High Court was in error in thinking that the legislature amended the law as "the relief was required instantaneously." The Amending Act may have given relief to the High Court in respect of appeals to be instituted after the commencement of the Act, but it did not grant the much required relief to that Court in respect of pending first appeals. On a plain reading of the provisions of s. :~(J ), it is clear that the legislature did n"t grant that very much needed instantaneous relief. If it intended to do so, it has failed to give· effect to its intentions by the words used ins. 3(1). The High Court was fully co~nizant of the legal position that District Judges could hear only such appeals, on transfer by th~ High Court, as they were competent to hear and dispose of. But its con-clusio11 that such competency was there on the date the :\Lt came into effect, suffers from the infirmity that it docs not give effect to the concluding words c.il's. :J(I).

For the reasons aforesaid, it must be held that the High Court had not taken the correct view of the legal position. The appeal is accordingly allowed and the order of the High Court transferring the 1962 appeal to the District .Judge or the Additional Lakshmi JVarain District Judge is set aside. It is directed that the v. appeal be heard by the High Court itself, in the First Atldit~nal Distlict Jutlt'" absence of any law to the contrary. There will be Allahabad no order as to costs throughout, as the ·main respon-Sinh1, C. J. dent in this Court and below was a Court itsclC and ordinarily no costs are granted against a Court.

Appeal r&/lowed.

STATE OF WEST BENGAL 1962

v. December, 21.

UNION OF INDIA

(B. P. SINHA, c. ]., .JAFER IMAM, K. SUBBA

RAo; J. C. SHAH, N. RAJAGOPALA

AYYANGAR and J. R. MuDHOL_KAR, JJ.) Land, Acqni.<ition-State property-Goal bearing areas-Acqui8ition ·by Union of lnrlia-Parliament, power to enact law-Indian Constitution, if n"ot federal-Sovereignty, if lies in StatM also-Fundamental ri!thts, whether can be claimed by States-"Perso1i" and "Properly'', Connotation of-Coal Be1tring Areas (Acquisition and Development) Act, 1957 (XX of 1957)-Gonstitution of India, Arts. 13, Jl, 7·3, 162,. 245, 246, 248, 249, 254, 294, 298, Seventh Schedule, List I Entries 52, 54, 97, List JI Entries 23, 24, List Ill Entry 42.

Under the Coal Bearing Areas (Acquisition and Develop-ment) A~t, 1957, enacted by Parliament, the Union of India propos~d to acquire certain coal bearing areas in the State of West Bengal. The State filed a suit contending that the Act -did not apply to lands vested in or owned by the State and that

if it applied to such lands the Act was beyond the legislative compcten.ce of Parliament. .

Held, (p_er Sinha C.J., Imam, Shah, Ayyangar and Mudholkar, JJ.), that upon a proper interpretation of the relevan~