CHHAGANLAL DEVCHAND Vs. NAVALKUNVAR TALAKCH

JUDGEMENT

(1.) All these writ petitions are directed against the decisions of Tribunals and the question before me sitting singly was whether this Court has now jurisdiction over the decisions of the Tribunals in view of the amendment to Article 227 of the Constitution. The question of general importance was thus raised before me and therefore following reference was made: Referred to a larger Bench for decision whether the amended Article 227 has retrospective effect so as to effect pending matters under Article 227 (unamended) either admitted or filed before the amendment and pending admission against the decisions of Tribunals.

(2.) Now Articles 226 and 227 as they originally stood provided Constitutional remedies to an individual The provisions of both the Articles were substantive provisions of law and not one relating to procedure. The amended Articles 226 and 227 are also substantive provisions of law; they are Constitutional provisions empowering judicial review. The earlier substantial power of judicial review over decisions of the Tribunals is now withdrawn in view of the amended provisions of Article 227 Thus there is a major change in the substantive provisions of the Constitution The rule of interpretation is that the substantive provisions of law are always prospective in operation unless there is an express provision giving a retrospective effect or there is anything in them which necessarily indicates a retrospective effect thereof vide JOSE DE COSTA AND ANOTHER V. BASCORA SADASHIVA SINAI NARCORNIN AND OTHERS A.I.R. 1975 SC 1843. In KESHAV LAL JETHALAL SHAH V. MOHANLAL BHAGWANDAS AND ANOTHER 9 G.L.R. 868 the facts were that a decree of ejection under the Bombay Rents Hotel and Lodging House Rates Control Act was passed by the trial Court and confirmed in appeal. The party aggrieved by the order filed civil revision application under sec. 115 of the Civil Procedure Code and the same was admitted by the High Court. Pending final hearing of the revision application sec. 29 of the Bombay Rents Hotel and Lodging House Rates Control Act was amended and under the amended provisions the High Court was given power of revision if it was satisfied that a decision in appeal was not according to law. thus by the amendment the revisional power of the High Court was enlarged. The Court had to consider whether the provisions of sec. 2g(2) as amended governed the pending cases. Two fold contentions were advanced before the Supreme Court. The first contention was that the fight of revision that is right to move the superior court attached to a litigation when it commenced and it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment. The second contention was that the order of the appellate Court which had acquired finality subject to the exercise of the limited jurisdiction by the align Court under sec. 115 of the Code of Civil Procedure coup not in absence of a provision in the Amending Act making the Amendment expressly or by necessary implication retrospective be set aside in exercise of power conferred upon the High Court under sec. 29(2) of the Amendment Act enacted after the date on which the judgment of the appellate Court was delivered. The Supreme Court left the first contention open and decided the second contention observing:

(3.) It is also necessary to note that by Constitution (Forty second Amendment) Act 1976 both Articles 226 and 227 are amended and while effecting an amendment in Article 226 the Amending Constitution Act by sec. 58 has made special provisions giving retrospective effect to the amended Article 226 in respect of certain pending matters. No provision giving retrospective effect to the amended provisions of Article 227 is made. Moreover under sec. 46 of the Constitution (Forty-second Amendment) Act 1976 Part XIV A has been added which includes Articles 323 and 323-B. Sub-clause (1) of Article 323-A thus added provides so far relevant that Parliament may by law provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. Sub-clause (a) of clause (2) of Article 323 provides that a law made under clause (1) may provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment. Article 323-B(1) provides that appropriate Legislature may by law provide for the adjudication or trial of any dispute complaints or Offenses with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws. Clause (2) of the Article sets out the matter and sub-clause (e) of clause (2) of Article 323-A provides for transfer to such tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment. It clearly appears therefore that the Parliament was aware that the provisions of Articles 226 and 227 which it was amending were substantive constitutional provisions and therefore the amended provisions could have only prospective effect. It was because of this awareness and knowledge that special provisions are made by sec. 58 of the Constitution (Forty- second Amendment) Act giving retrospective effect to amended Article 226 in respect of certain pending cases. There is no dispute before us that there is no express or implied provision in the Amending Constitutional Act or under the amended Article 227 giving the Article a retrospective effect so as to affect the pending proceedings filed under unamended Article 227. It is therefore obvious that amended Article 227 cannot affect or govern the writ Partitions which were filed under unamended Article 227 and were pending before the High Court.