SHANTILAL AMBALAL MEHTA Vs. M A RANGASWAMY

JUDGEMENT

(1.) There are several petitions pending in this Court filed by litigants under Article 226 of the Constitution of India as it originally stood before the Constitution of India was amended by the Constitution (Forty-second Amendment) Act, 1976, and the one question which now faces not only the litigants and the counsel but also the Court is, what is the extent of the impact of the newly introduced provisions in Articles 131A, 226, 226A and 228A of the Constitution of India read with the provisions of Sec. 58 of the Constitution (Forty-second Amendment) Act, 1976 hereinafter referred to as "The Amending Act". These thirteen petitions are, therefore, placed before this Full Bench as they raise certain questions which needed early authoritative determination and which were representative of some of the questions which arise in almost all pending matters under Article 226 of the Constitution of India including matters in which interim orders have been made by this Court, the urgency arising out1 of the rather drastic provisions with regard to abatement and vacating of the interim orders made in pending petitions in Sec. 58 of the Amending Act.

(2.) It is not necessary to refer in detail to the facts out of which each of these thirteen petitions arose, but it is sufficient to point out that in some of these petitions, either a Central Act or a State Act or some provisions thereof or a rule framed thereunder, or some action taken by the statutory authorities has been challenged. In Miscellaneous Petition No. 407 of 1967, which arises out of an order of the Collector of Customs, Bombay, assessing customs duty on the import of rough emeralds under the provisions of the) Customs Act, 1962, and the Customs Valuation Rules, 1963, the provisions of Rule 8 of the Customs Valuation Rules have been challenged as violative of Articles 14 and 19(1)(f) and (g) of the Constitution. Rule 8 is also challenged as being violative of the privisions of Sec. 14 of the Customs Act, 1962. There are also other grounds on which the order of the customs authority is challenged. No interim order has been made in this case. In the second petition, being Miscellaneous Petition No. 1273 of 1975, the provisions of Sec. 5 of the Maharashtra Ordinance XI of 1975 in the matter of fixing of rateable values is challenged on the ground that it violates Article 31(1) and Articles 265, 304(b) and 213 of the Constitution of India, In Miscellaneous Petition No. 277 of 1971, the provisions of Maharashtra Regional Town Planning Act, 1966, are challenged as being violative of Articles 19(1)(f) and 31(2) of the Constitution. In Miscellaneous Petition No. 282 of 1972, the petitioners have approached this Court on a notice being issued to them under the provisions of the Employees' State Insurance Act, 1948, threatening that action would be taken against the petitioners under the provisions of the Employees' State Insurance Act, 1948. The petition is thus directed' at some action being threatened by the authorities under the Act. Miscellaneous Petition No. 1106 of 1973 relates to a challenge to the validity of Sec. 23F of the Foreign Exchange Regulations Act, 1947, which is a Central law, and the petitioner has already obtained certain interim orders in his favour which were made after hearing the other side. Similarly in Miscellaneous Petition No. 529 of 1976, three notices issued under Sec. 148 of the Income-tax Act, 1961, and three other notices under Section 8 of the Companies (Profits) Surtax Act, 1964, have been challenged as being violative of Article 31(1) of the Constitution of India and an ex parte order of stay of further proceedings has been passed on April 2, 1976. In Miscellaneous Petition No. 771 of 1973 the petitioner has approached this Court challenging a show cause notice issued by the Superintendent of Central Excise for the recovery of excise duty and penalty under Rule 10-A and Rule 173C of the Central Excise Rules, 1944, and these notices have been challenged on the ground that they are violative of Article 31(1) of the Constitution. In this petition also an interim order has been passed after hearing the respondents. Apart from these petitions Madon and Kania JJ. who were hearing appeals arising out of petitions decided under the original Article 226 of the Constitution of India have also referred to the question whether the words "pending petition" in Section 58 of the Ameding Act includes an appeal against a decision which finally decided a petition under Article 226 of the Constitution of India before the appointed day.

(3.) When these petitions were taken up for hearing parties naturally wanted a rather full and comprehensive discussion on the scope and the impact of the provisions of Article 226 of the Constitution of India as amended (hereinafter referred to as "the new Article 226"), but having regard to the urgency of the situation arising out of the provisions of Sec. 58 of the Amending Act in the matter of abatement and the vacating of the interim orders, it did not become possible to hear arguments on all the questions which were sought to be canvassed by the learned Counsel on both sides in these petitions. We have, therefore, decided to take up for consideration only the following questions for the purposes of these petitions: