WAHAB Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) IN all these petitions, a preliminary objection is required to be decided regarding the maintainability of the writ petitions filed against the orders of the Administrative Tribunal admittedly passed before 18th March, 1997, the day on which the seven judges' Bench of the Supreme Court decided L. Chandra Kumar v Union of India and Others. Another redeeming feature in these petitions is that all the petitioners had moved the Tribunal under Section 22 (3) (f) of the Administrative Tribunals Act for review of its earlier order or for initiating contempt proceedings of the alleged violation of its orders passed before 18-3-1997 and their applications were admittedly rejected after the judgment of the Supreme Court in Chandra Kumar's case. Prior to the judgment of the Apex Court in Chandra Kumar's case, supra, no writ petition with respect to a matter covered by the provisions of the Administrative Tribunals Act was maintainable in this court in view of provisions of Section 28 of the Administrative tribunals Act and Articles 323-A and 323-B of the Constitution of India. The constitutional validity of Articles 323-A and 323-B of the Constitution and Section 28 of the Administrative tribunals Act were challenged before the Apex Court in chandra Kumar's case. The Supreme Court held the aforesaid provisions to be unconstitutional being against the basic features of the Constitution holding it to eclipse the power a judicial review vested in the High Court under Articles 226 and 227 of the Constitution. The Supreme Court concluded: in view of the reasoning adopted by us, we hold that clause 2 (d) of Article 323-A and Clause 3 (d) of Article 323-B, to the extent they exclude the jurisdiction of the high Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular tribunal is challenged) by over looking the jurisdiction of the concerned Tribunal. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

(2.) THE quashing of the offending provisions of the Constitution and the Administrative Tribunals Act meant to declare that this Court had always the jurisdiction with respect to matters specified to be tried by the Administrative Tribunal under the Administrative Tribunals Act. However, the Apex court found that, despite setting aside of the aforesaid provision, the Tribunals shall continue to be possessing competence to test the constitutional validity of the statutory provisions and rules and they shall continue to act like the Courts of first instance in respect of matters for which they had been constituted and that it will not be open to the litigant to directly approach the High court even in cases where the question of vires of the statutory legislation is under challenge. The Apex Court further directed that the litigants approaching the Tribunals would be entitled to approach this Court under Article 226/227 of the Constitution and as and when such a petition is filed, the same shall be heard and disposed of by a Division Bench of that High Court within whose jurisdiction the concerned Tribunal fell. In other words, the exercise of jurisdiction by the High Court has been regulated by the Supreme Court presumably in exercise of the power vesting in it under Article 142 of the Constitution.

(3.) ANOTHER aspect of the matter is that the Supreme Court in its discretion concluded that the operation of its judgment was to be prospective in nature and not retrospective. In the absence of a direction to the contrary, this Court was deemed to have been having jurisdiction to entertain petition under Articles 226 and 227 of the Constitution subject to the condition imposed by the supreme Court vide para 94 of its judgment. However, the supreme Court categorically held: the Directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a division Bench of the respective High Courts will, however, come into effect prospectively i. e. , will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered.