CHANDRA KANTA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) ON February 7, 1977, a Division Bench of this Court passed the following order: "By this writ petition under Art. 226 of the Constitution, the petitioners seek to challenge the validity of the U. P. ordinance No. 14 of 1976, which has since been replaced by an Act, on the ground that it contravenes Art. 29 and other provisions of the Constitution. Art. 228-A (3) of the Constitution provides that the minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law has to be five. Even if we are not inclined to accept the argument of the petitioners, it will not be possible for us to reject the writ petition, as it would amount to determination of a question on constitutional validity of the Ordinance. The object of placing a writ petition for admission obviously cannot be to compel the Division Bench to admit the writ petition whether it agrees with the arguments advanced by the petitioner or not. In the circumstances, in cases where the constitutional validity of some State law is being questioned, it will serve no useful purpose to list that petition before Division Bench. Accordingly we direct that the papers of this writ petition be placed before the Hon'ble the Chief Justice for making the appropriate orders."

(2.) THE Hon'ble the Chief Justice directed that the petition be listed before this Bench. When the hearing began, we felt that even though a petition under Art. 226 of the Constitution may raise question as to the constitutional validity of any State law, it may not be necessary for it to be heard by a Bench of five Judges for its admission. Learned counsel for the petitioner conceded that though this aspect was implicit in the reference but since such a question was not expressly referred, he may be granted time to study and make considered submissions. We accordingly adjourned the hearing.

(3.) LEARNED counsel for the petitioner urged that by cl. (3) at least five Judges have to sit for determining the question as to the constitutional validity of the State law. The word 'determining' meant settling or resolving the question. According to learned counsel a Bench of less than five Judges cannot, at the admission stage, dismiss the writ petition involving a constitutional question because by dismissal, the question as to the constitutional validity of any State law is determined, though against the petitioner. While conceding that a Bench of less than five Judges may after hearing it admit a writ petition, but they cannot validly dismiss it.