Case: State Of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj

245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity.11. Learned counsel for the appellants seeks to get over this obvious difficulty by contending that the word "shall" may be treated as "may" so that the discretion of the High Court under Art. 226 may be maintained. Alternatively, he contends that the second part of the section comprises two parts - the first empowers an aggrieved party only to file an application, and the second imposes a statutory duty, and that the first may conveniently be severed from the second and its validity to that extent sustained. The first argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of the Code of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of the Code of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of the Code of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of the Code of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of the Code of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of the Code of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of the Code of Civil Procedure at this very late stage, in view of the foregoing reasons.

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

Explanation:
1[ds]The foregoing brief analysis of the judgments shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necessary in this case to attempt to reconcile the said decisions or to give a definition of our own, for on the facts of the present case the order of Mehrotra, J., would be a judgment within the meaning of the narrower definition of thatfor the amending Act, the order of the High Court admittedly would have become final; but, because of the amending Act there was a controversy whether the binding decision could be reopened and the rights of the parties decided in accordance with the amending Act. The decision of Mehrotra, J., dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act. We, therefore, hold that the order of Mehrotra, J., dismissing the application, filed for review of his earlier order on the ground that S. 11 of the Act did not confer any such right on the appellants was a "judgment within the meaning of cl. 10 of the Letters Patent as well as Ch. VIII R. 5 of the Rules of Court. If so, we must hold that the division Bench of the High Court went wrong in holding that no appeal lay against the order of Mehrotra,accept this argument is to rewrite the section. While the section says that the order sought to be reviewed is that made in a proceeding under the Principal Act, the argument seeks to remove the qualification attached to the proceedings and add the same to the assessment. The alternative argument, namely, that without changing the position of the words as they stand in the section, the expression "on the basis of " may be substituted for the expression "under" does not also yield the results expected by the learned counsel. It cannot be held with any justification, without doing violence to the language used, that a proceeding under Art. 226 of the Constitution as either one under the Principal Act or on the basis of the Principal Act, for it is a proceeding under Art. 226 of the Constitution to quash the order on the ground that it was made in violation of the Act. An attempt is then made to contend that a proceeding under Art. 226 of the Constitution is a continuation of the proceeding before the Additional Collector and, therefore, the said proceedings are proceedings under the Act.Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the, enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modeled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds. Before the Constitution, the chartered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to those issued by the Kings Bench Division, subject to the same limitations imposed on the said writs.There is another insurmountable difficulty in accepting the construction suggested by learned counsel. Under the second part of the section a party to the earlier proceedings may within the prescribed time apply to the court or authority for a review of the proceedings in the light of the provisions of the Act, and the court or authority to which the application is made shall review the proceedings accordingly, and make such order, if any, varying or revising the order previously made as maybe necessary to give effect to the Principal Act, as amended by S. 2 of the Act. Should it be held that this section applies to an order made by a High Court under Art. 226 of the Constitution, the statutory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally245 is, therefore, subject to Art 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Art. 226 of the Constitution. It is well settled that Art. 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Art. 226 confers a discretionary power on the High Court, the second part of S. -11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Art. 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Art. 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutionalfirst argument is contrary to the express words used and the intention of the Legislature. If we read "shall" as "may" the same discretion will have to be given even to authorities and courts other than the High Court, with the result the purpose of the section would be defeated. On the other hand, if the expression "shall" is given its natural meaning the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid. The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases. The second argument, if rewriting the section. While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature. For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under Art. 226 of the Constitution.12. Lastly it is contended that even if S. 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of theCode of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under S. 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment or to sustain the petition under Order 47 of theCode of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions. It raises the following questions: (1) whether the application treated as one made under Order 47 of theCode of Civil Procedure was within time;(2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same; (3) whether an order made by the High Court in exercise of its powers under Art. 226 of the Constitution could be reviewed under O. 47 of theCode of Civil Procedure, and, if not, under S. 151 of the said Code; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of theCode of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made; and (5) if the order of Mehrotra, J., was one made under Order 47 of theCode of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code, We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of theCode of Civil Procedure at this very late stage, in view of the foregoing reasons.