Case: Ganesh Prasad Dube Vs. State Of Bihar And Others

or without substance should not throw it out in limine if a prima facie case for investigation is made out. The High Court can reject a petition in limine if it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination which could not be properly adjudicated upon in a proceeding under Article 226 of the Constitution." Similarly in Gyan Chand and Others v. State of Haryana and Others (1970(3) SCC 270, C.A. No. 64 of 1970, decided on August 21, 1970.) where allegations of mala fides have been made and a writ petition was dismissed in limine by the High Court, this Court set aside the order and remanded the matter for a fresh consideration after calling upon the authorities concerned to file a return. 13. The above decisions are of no assistance to the appellant as the orders of remand were passed in those appeals which came to this Court either on a proper certificate issued by the High Court or on special leave granted by this Court. In all those cases there was a proper appeal pending before this court in which merits of the points raised for decision in the appeal were gone into and suitable directions were given therein. 14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct. In this context Dr. Singhvi relied on the decisions of this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal ((1965) 2 SCR 751.) and Satyanarain Prasad v. State of Bihar ((1970) 2 SCC 275.) regarding the test to be applied for the purpose of granting a certificate under clause (a) or (b) of Article 133(1). Dr. Singhvi also relied on the first of the above references in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed. 15. Mr. S. T. Desai, learned counsel for the appellant, urged that the High Court has not properly considered the claim made by the appellant for a certificate under Article 132(1) and 133(1)(b) and (c). Article 132(1) has not been considered at all nor has the High Court considered clause (c) of Article 133(1). Even with regard to clause (b), the High Court has given a very halting finding. Therefore, the counsel urged that the High Court maybe required to consider the application for grant of a certificate afresh. 16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions. [Vide Satyanarain Prasad v. State of Bihar (supra) and M/s. Shree Krishna Gyanodaya Sugar Ltd., v. The State of Bihar and Others (AIR 1970 SC 2041 ).] 17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1).

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Though the concluding part of the order granting the certificate states that it has been granted under Article 133(1), in the circumstances mentioned above, it is clear that the certificate has been granted only under article 133(1)(b). This is on the ground that the appellant claimed his right to the office of the Director, public Instruction, which would have brought him the emoluments referred to by him for a period of 3 years and three months, if the impugned order had not been passed. This method of valuation for the purpose of clause (b) is not correct12. We are not inclined to agree with Mr. Desai that if the certificate granted by the High Court is not valid, in this Court can proceed to hear the appeal on merits. Mr. Desai relied on the decision of this Court reported in Century Spinning and manufacturing Company Ltd., and Another v. Ulhasnagar Municipal Council and Another (1970 (1) SCC 582.)  in support of his contention that the High Court was not justified in dismissing the writ petition summarily. It is no doubt true that in the above decision it has been held that though the High Court has a discretion to decline to exercise its extraordinary jurisdiction under Article 226, nevertheless, the discretion is to be judicially exercised and if the petitioner makes a claim which is frivolous, vexatious or prima facie unjust, the High Court may decline to entertain the petition. But if a party claims to be aggrieved by the unlawful, arbitrary or unjust order of a public body or authority, he is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition on limine14. If the certificate granted by the High Court, as contended by Dr. Singhvi, is invalid, then the appeal before us is an incompetent appeal and no direction on merits can be given by this Court on such an incompetent appeal. There can be no controversy that if the certificate is not valid, the only course open to this Court will be to dismiss the appeal. Dr. Singhvi urged that the grant of certificate under Article 133(1)(b) in this case is not justified because the method of valuation adopted by the High Court is not correct16. It is not necessary at this stage to consider whether correct principles have been applied by the High Court in granting the certificate under Article 133(1)(b). As we have pointed out earlier, it has expressed doubts here and there and it has granted the certificate under that clause on the ground that the Patna High Court has granted certificate under similar circumstances. As the High Court is being required to consider this matter afresh, we do not him it necessary to express any opinion on this aspect. Admittedly the High Court has not considered the question whether the appellant will be entitled to a certificate under Article 132(1) or Article 133(1)(c). It was pointed out to us on behalf of the respondents that the High Court did not consider the grant of a certificate under clause (c) of Article 133(1) as no argument was advanced by the appellant that the case involves a substantial question of law as to the interpretation of the Constitution. No doubt there is such a passing remark in the order of the High Court; but as the matter has to be reconsidered by the High Court, it is desirable that the claim of the appellant under this clause is also considered by the High Court. We have already referred to the fact that even clause (b) has been considered only in a very halting manner by the High Court. Therefore, the position is that the certificate as granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent. But the matter does not rest there. In cases where the claim for certificate made on other clauses or under other Articles have not been considered at all, this court has directed the High Court to consider the question whether a case has been made out for issue of a certificate under such other provisions17. As the High Court has not properly considered the application filed by the appellant, that is Supreme Court Appeal No. 42 of 1969, before the High Court for grant of the certificate, the application will be taken up by the High Court afresh. The High Court will consider whether the appellant is able to satisfy the Court that he is eligible to get a certificate under Article 132(1) or under Article 133(1)(b) or (c) of the Constitution. It is not granted under clause (a) of Article 133(1) as that question is already concluded against the appellant in its order, dated March 13, 1969. The High Court in the fresh order to be passed must clearly indicate under what particular Article or clauses of the Article, the certificate is granted. We are constrained to make this remark because in the present order the High Court has merely stated that the certificate is used under Article 133(1).