BRIJ GOPAL DENGA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution, one of the points raised is that Section 19 (c) (2) of the Madhya Pradesh Cooperative Societies Act, 1960, is ultra vires for two reasons: First, that it offends Article 19 (1) (c) of the constitution; and secondly, that it suffers from excessive delegation. When the petition came up for admission before a Division Bench (K. K. Dubey and R. K. Tankha, JJ.), the learned Judges referred the petition to a Bench of five Judges. It was also impliedly indicated that the Bench of five Judges would first consider the question whether, when in a petition the constitutional validity of a State law is raised, the petition can be placed before a Bench of two Judges for purposes of admission in view of Article 228-A of the Constitution. It is on this question that we have heard arguments and it is this question which. I proceed to decide by this order.

(2.) UNDER the rules of the High Court made in exercise of the powers conferred by Article 225 of the Constitution and Clause 27 of the Letters Patent, a petition under Article 226 is laid before a Division Bench for motion hearing. At the time of motion hearing, the Court may either summarily dismiss the petition or order a rule nisi to be issued against the opposite party. The purpose of motion hearing is to find out whether the petition raises arguable points. If the Bench hearing the petition at the admission stage finds that no arguable points are raised, the petition is dismissed. But if the Bench finds that arguable points are made out, the petition is admitted and rule nisi is issued. Before Article 228-A was inserted in the Constitution by the Constitution (Forty-second Amendment)Act, 1976, a petition challenging the validity of any State law could be admitted by a Division Bench and could also be rejected by it at the time of motion hearing. The question is as to how far this practice should stand modified in view of Article 228-A which reads as follows:

(3.) ARTICLE 228-A does not specifically provide that a petition under Article 226 raising a point as to the constitutional validity of any State law cannot be heard by a Division Bench at the admission stage. The provision in Article 228-A is 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 shall be five and that a State law shall not be declared to be constitutionally invalid unless two-thirds of the Judges sitting for the purpose of determining the validity of such law hold it to be constitutionally invalid. When a petition raising a point as to the constitutional validity of a State law comes up before a division Bench for motion hearing, the Bench will naturally consider whether the point as to the constitutional validity is arguable or not. If the Bench conies to the conclusion that the point is arguable, the petition would be admitted. Up to this stage there is no difficulty, for it cannot be said that the Bench by admitting a petition determines any question as to the constitutional validity and thereby violates Article 228-A. The real question is: whether, when the division Bench hearing the petition at the admission stage comes to the conclusion that the point as to the constitutional validity is unarguable, can it summarily dismiss the petition ?