any malafides again st Parliament and rightly
130B C  ORIGINAL JURISDICTION Writ Petition No 162 of 1977
Under Article 32 of the Constitution of India  Jitendra Sharma for the Petitioners
TVSN Chari for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This application under article 32 of the Constitution is by two petitioners petitioner No 1 a private company and the other a Director thereof
The pet i tioners have challenged the vires of the Sick Textile Unde r takings Nationalisation Act 1974 57 of 1974 and ha ve asked for a direction to the respondents to restore t he Mills to the petitioners in the same condition as it was on 3110197 1 when it was initially taken over
Petitioners have alleged that the spinning mills prev i ously belonged to one SR Narasimhachari and three other section Mahalingam Chettiar husband of the second petitione r purchased the said Mills in 1965
He was not at all aquain t ed with the working of spinning mills and soon found th at the affairs of the Mills were far from satisfactory a nd realised that he had acquired a non viable asset
In Dece m ber 1967 Mahalingam issued notice of closure to be effe c tive from 311968 but as a fact by a subsequent noti ce dated December 22 1967 the Mill was closed down wi th immediate effect
According to the petitioners the Mill h ad ceased to be a textile undertaking by January 1968 t he workmen by numerous claim petitions in the Labour Court of Madurai pressed for their various demands they took posse s sion of the Mills and even obstructed Mahalingam s ent ry into the premises
At one stage during that period Mahali n gam had applied for a loan of Rs 10 lakhs from the Gover n ment of India with the hope of restarting the Mills aft er replacement of the machinery but that did not work out
T he establishment had thus closed down and according to 129 the petitioners the textile undertaking had complete ly disappeared by 1969 and the Act did not apply to it
Agai n the 1974 Act was ultra vires the Constitution
The Sick Textile Undertakings Taking Over of Manag e ment Ordinance 9 of 1972 became operative from 3110197 2
Item 41 of the First Schedule to the Ordinance mention ed petitioner No 1 as one of the textile undertakings who se management was to be taken over and possession was ther e fore taken by respondent No 2 in terms of the provisio ns of section 41 thereof
The Ordinance was replaced bY Act 72 of 1972 which received Presidential assent on 23121972 b ut was deemed to be in force from 31101972
The petitione rs had challenged the validity of the Act by filing a wr it petition before the High Court of Madras but during t he pendency of the writ petition the Sick Textile Undertaki ng Nationalisation Ordinance 12 of 1974 came into for ce from 141974 and petitioner No 1 featured as Item 96 in the Schedule to the Ordinance
The pending writ petitio n therefore became infructuous and the petitioners filed a fresh writ petition challenging the validity of the Ord i nance of 1974
The Ordinance was duly replaced by the N a tionalisation Act 57 of 1974
During the pendency of t he writ petition Emergency was proclaimed and the writ petiti on was permitted to be withdrawn in December 1976 with liber ty to approach the Court again
That is how the present appl i cation has been filed
Section 2j defines a sick textile undertaking to mean a textile undertaking specified in the First Schedule t he management of which has before the appointed day be en taken over by the Central Government under the Industri es Development and Regulation Act 195 1 or as the case m ay be vested in the Central Government under the Sick Texti le Undertakings Taking Over of Management Act 1972
 It is not disputed that management of petitioner No 1 h ad been taken over under the 1972 Act and petitioner No 1 therefore came within the definition
Section 3 provides 31 On the appointed day every sick textile undertaki ng and the right title and interest of the owner in relati on to 130 every such sick textile undertaking shall stand transfer red to and shall vest absolutely in the Central Govern ment
2 Every sick textile undertaking which stands vested in the Central Government by virtue of Sub section 1 shall  immediately after it has so vested stand transferr ed to and vested in the National Textile Corporation
 The First Schedule to the Act against Entry 96 shows t he petitioner s Mills There is a legislative determinati on that petitioner No 1 came Within the definition of si ck textile undertaking  as provided in section 2j of the Act
T he petitioners have not alleged any mala fides against Parli a ment and in our opinion rightly
It is relevant to notice at this stage that the Central Act 57 of 1974 has been put in to the 9th Schedule of the Constitution by the 39th Amendme nt and therefore has come under the umbrella of protecti on provided under article 31 B of the Constitution
In the case of Minerva Mills Ltd  Ors
vs Union of India  Ors
  challenge was raised against the vires of this Ac t
The Court dealt with the effect of the inclusion of the A ct in the 9th Schedule by referring to the ratio in Waman R ao vs Union of India  and upheld its vire section Similar was the view of the Court in the case of Panip at Woollen and General Mills Company Ltd  Anr
vs Union of India  Ors
  There is no force in the two contentions raised on behalf of the petitioners and the writ petition is ther e fore dismissed
We direct the parties to bear their o wn costs of the proceedings
TNA Petition dismissed


Summary:
A decree in favour of the respondent husband was grant ed by the Trial Court declaring his marriage with the appella nt to be a nullity under section 121d of the Hindu Marria ge Act 1956 on the ground that the wife at the time of ma r riage was pregnant by some one other than the respondent
In the appeal filed by the appellant the respondent raised a preliminary objection contending that the appeal was n ot tenable and had been rendered infructuous because he h ad re married before the filing of the appeal
The Appella te Court allowed the preliminary objection and dismissed t he appeal and the High Court dismissed the second appeal
Before this Court it was contended on behalf of t he appellant that i the word divorce  has been used in section 15 in a broader sense and in view of the langua ge used in that section it is not possible to distingui sh between a decree of nullity under section 11 or 12 a nd decree of divorce under section 13 ii the interpretati on put by the lower courts on the basis of judgments of so me of the High Courts that section 15 will not apply to a decree under section 12 but would only apply when there is a decree under section 13 does not appear to be correct as the scope and language of section 15 coupled with the la n guage of section 28 had not been considered by any one of these courts and iii even if it is held that section 15 applies to a decree under section 12 the respondent h ad re married after the period of limitation had expired as the provisions of the will not apply in vi ew of the section 293 of that Act and therefore the period 138 for obtaining copies of the judgment excluded under secti on 12 clause will not be available to the appellant
Allowing the appeal it was HELD 1 It is no doubt true that section 12 and se c tion 13 have different phraseology
In section 12 it is sa id that the marriage may be annulled by a decree of nullit y whereas in section 13 the phraseology used is dissolved by a decree of divorce
Though in substance the meaning of t he two may be different under the circumstances and on t he facts of each case but the legal meaning or the effect is that by intervention of the court the relationship betwe en two spouses has been severed either in accordance with t he provisions of section 12 or in accordance with the prov i sions of section 13
Probably it is because of this reas on that the phrase decree of nullity  and decree of divorc e  have not been defined
143A B 2 Under the provisions of section 28 all decrees ma de by the Court in any proceeding under this Act are appea l able
In order to provide an appeal against all decre es section 28 has used a very wide terminology which includ es decrees under sections 11 12 and 13 and so far as this is concerned it could hardly be contested as the language of section 28 itself is so clear
143G H 3 If it is accepted that section 15 will not apply to cases when a decree is passed under section 11 or 12 it will mean that as soon as a decree is passed the par ty aggrieved may appeal but the other party by remarriage wou ld make the appeal infructuous and therefore the right of appeal of one of the parties to the decree under section 28 will be subject to the act of the other party in cases whe re decree is passed under section 11 or 12
But if it were s o the Legislature would have provided a separate provision f or appeal when there is a decree under section 13 and a diffe r ent provision for appeal when there is a decree under se c tion 11 or 12 as the right of appeal against a decree und er section 11 or 12 could only be a limited right subject to the desire of the other party
144H 145A B 4 The Legislature in its wisdom had enacted section 28 conferring a right of appeal which is unqualified unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under the Ac t
Hence the only interpretation which could be put on t he language of section 15 should be that which will be consis t ent with section 28
Therefore the phrase marriage h as been dissolved 139 by a decree of divorce  in section 15 will only mean whe re the relationship of marriage has been brought to an end by the process of court by a decree which will include a decree under section 11 12 or 13
The view taken by t he courts below is accordingly not sustainable
145C D 147F  Chandra Mohini Srivastava vs Avinash Prasad Srivastava Anr   Tejinder Kaur vs Gurmit Singh A IR  Vathsala vs N Manoharan AIR 1969 Madr as 405 referred to
Mohanmurari vs Srnt
Kusumkumari AIR 1965 MP 19 4 Jamboo Prasad Jain vs Smt
Malti Prabha AIR 1979 Allahab ad 260 Pramod Sharma vs Smt
Radha AIR 1976 Punjab 35 5 overruled
5 So far as clause 3 of Section 29 of the Limitati on Act is concerned the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Hindu Marriage Act is concerned but clause 3 will not govern an appeal
149E  6 To an appeal under section 28 of the Hindu Marria ge Act provisions contained in section 12 clause 2 of t he will be applicable and therefore the ti me required for obtaining copies of the judgment will have to be excluded for computing the period of limitation f or appeal
149G H Chander Dev Chadha vs Smt
Rani Bala AIR 1979 Del hi 22 Smt
Sipra Dey vs Ajit Kumar Dey AIR 1988 Cal 28 a nd Kantibai vs Kamal Singh Thakur AIR 1978 MP 245 r e ferred to