dedol-hf/india-case-legal-rag huggingface dataset:
respondents thereupon filed the petitions before the  Orissa
High Court praying for writs or directions in the nature  of
mandamus  against  the  State of Orissa  directing  them  to
withdraw the notices dated the 8th of June and 3rd of  July,
1951,  and to forbear from acting upon or giving  effect  to
the same.
    The  Court, after noticing the rival contentions of  the
parties  and  rejecting  the contention that  the  State  of
Orissa had cancelled the permits and were attempting to take
possession  as an act of State, posed the question  "whether
the law of annulment relied upon by the State was applicable
to  the mining leases granted to the petitioners, or in  the
alternative,  whether  the  State had any right  in  law  to
cancel  the  leases before the  period  mentioned  therein."
Referring  to  the contention of the State  rounded  on  the
acceptance  by the respondents of the temporary permits  and
the  estoppel  arising therefrom, Ray C.J. in  his  judgment
stated  as follows :--"In determining the validity  of  this
contention  (relating to the temporary permit  and  estoppel
arising  therefrom)  the  circumstances  under  which  these
applications  were made and the legal implications  of  such
applications and the permissions granted under
31
them  will  have  to be considered. It is  remote  from  our
intention to express any opinion in this summary  proceeding
as  to the respective merits of the rival contentions. I  am
however  satisfied that in the context of events and in  the
logic of circumstances attending thereto there is a case  to
be  tried."  He  next considered the scope of  the  writ  of
mandamus and came to the conclusion that "at the moment" the
respondents had no alternative legal remedy, equally conven-
ient, beneficial and effectual because the respondents could
not file a suit till after the expiry of the period of sixty
days required for the purpose under section 80 of the  Civil
Procedure  Code and he thought that unless protected by  the
Court in the meanwhile the respondents would undergo irrepa-
rable  and  irremediable loss of possession  of  the  mining
leases involving a huge waste of labour, machinery and other
resources  of equipments of immense value hardly capable  of
being  remedied by payments of money as  compensation.   The
Bench  therefore passed an order dated 2nd August, 1951,  as
follows  :--"We direct that till three months from today  or
one  week  after  the institution  of  their  (respondents')
contemplated  suit, whichever is earlier, the Government  of
the  State  of  Orissa should refrain  from  disturbing  the
petitioners'  possession over the mining areas  in  question
and  that thereafter this order will cease to have  effect."
They gave further directions as to how the mines were to  be
worked during the aforesaid period.  Towards the end of  the
judgment  it was stated, "In the result, the  petitions  are
allowed  in  part to the limited  extent  indicated  above."
Narasimham J. agreed with the order set out in the  judgment
of the Chief Justice although his judgment shows the concur-
rence  to be very halting.  He stated that although  he  was
reluctant  to exercise the powers under article 226  because
the present respondents could file a suit, yet as in view of
section  80  of the Civil Procedure Code there would  be  an
unavoidable  delay  resulting  in irreparable  loss  to  the
respondents  he  agreed that the order should be  passed  as
mentioned in the judgment of the Chief Justice,
32
Towards  the end of his judgment he stated  as  follows:-"It
should  however be clearly emphasized that the  observations
contained in this judgment should not be taken as  pre-judg-
ing  any question which may.arise for the  consideration  of
the  Civil  Court in the event of the petitioners  filing  a
regular  suit and seeking interim relief from that Court  by
way  of  temporary injunction, appointment  of  receiver  or
otherwise.  If such an application is made, the questions as
to whether the petitioners have a prima facie case for trial
or  whether such a suit is maintainable or whether the  bal-
ance  of convenience requires that they should be  permitted
to  remain in possession of the leasehold property till  the
termination of the suit and other allied matters should  all
be  dealt with by the Court concerned without  being  influ-
enced  in  any  way by the observations  contained  in  this
judgment.  Those observations have been made for the limited
purpose  of granting temporary relief under article 226  and
are  not intended to embarrass either party or the Court  in
future litigation."
    It  appears that thereafter an application was  made  to
stay the operation of this order to enable the Government of
Orissa  to  appeal against the order of the 2nd  of  August.
The same Judges on the 6th of August stayed the operation of
the  order for fifteen days and observed as follows  :--"The
effect  of  the order (of 2nd August, 1951) is  that  except
giving  them  (respondents in these  appeals)  some  interim
measure of relief for the period during which the  petition-
ers were without remedy, we were not inclined to accept  the
petition  and  issue a writ in the nature  of  mandamus,  as
prayed  for."  The State of Orissa has come on appeal to  us
and after hearing the arguments on both sides we came to the
conclusion  that  the order of the High Court could  not  be
sustained.  We accordingly passed the following order on the
15th  of  October: "These five appeals are allowed  and  the
order  of the High Court is set aside in each case.  As  the
High Court has passed no other orders on the petitions.  and
indeed has stated that the Court was not prepared to
33
pass any ,other orders on the petitions, the petitions stand
dismissed.   The respondents will pay the costs of  the  ap-
peals.  We shall give our reasons later on." Our reasons are
these:
    Article  ,226 of the Constitution of India runs as  fol-
lows:--
    226.  (1)"Notwithstanding anything in article 32,  every
High  Court shall have power, throughout the territories  in
relation to which it exercises jurisdiction, to issue to any
person  or  authority, including in  appropriate  cases  any
Government,  within those territories directions, orders  or
writs,  including  writs  in the nature  of  habeas  corpus,
mandamus,  prohibition, quo warranto and certiorari, or  any
of them, for the enforcement of any of the rights  conferred
by Part III and for any other purpose.
    (2)  The power conferred on a High Court by  clause  (1)
shall  not  be in derogation of the power conferred  on  the
Supreme Court by clause (2) of article
    The  language of the Article shows that the  issuing  of
writs or directions by the Court is not rounded only on  its
decision that a right of the aggrieved party under Part  II1
of  the   Constitution  (Fundamental Rights)  has  been  in-
fringed.  It can also issue writs or give similar directions
for any other purpose.  The concluding words of article  226
have  to be read in the context of what precedes  the  same.
Therefore  the existence of the right is the  foundation  of
the  exercise of jurisdiction of the Court under this  Arti-
cle.   The judgment of the Orissa High Court  under  appeal,
however,  shows that the Judges have decided nothing at  all
in  respect of the rights of the parties.  Indeed they  have
expressly  stated that their observations should not in  any
way  be considered as deciding any of the rights or  conten-
tions  of  the parties raised in the petitions.   The  whole
judgment shows that because of the requirement of section 80
of  the Civil Procedure Code the present  respondents  could
not  file a suit against the Government for at  least  sixty
days, the
      5
34
respondent's  position  should not in the interval  be  dis-
turbed and accordingly the Court gave the directions  in its
order  of the 2nd of August, 1951.  If there was  any  doubt
about  the nature  of the  relief  desired to be granted  by
the  order of 2nd August the same Judges have made  it  per-
fectly  clear by their order of the 6th of  August,  wherein
they have stated that except for these directions they  were
not prepared to make any other order on the petitions.   The
result therefore is that while the Judges declined to inves-
tigate  and pronounce on the rights of the parties  and  ex-
pressly  kept the determination thereof in abeyance  in  the
suit  proposed to be filed by the present respondents,  they
gave directions for interim relief till such suit was filed.
It  must be noted that with the passing of the order of  the
2nd  August,  1951, containing directions in the  nature  of
interim relief the petitions were completely disposed of and
have  not been kept pending for disposal.  Those  directions
embody  therefore  the final order passed by  the  Court  on
these  petitions.  A preliminary objection was raised  about
the  maintainability  of the appeals on the ground  that  no
final  orders were passed on the petitions.  That  objection
must  fail  in view of the fact that with these  orders  the
petitions  were  disposed  of finally  and  nothing  further
remained  to be done in respect of the petitions.  The  fact
that  the operation of the order is limited to three  months
or  a  week after the filing of the intended suit  does  not
prevent the order from being final.
   On  behalf of the appellant it was urged that  the  Court
had  no jurisdiction to pass such orders under  article  226
under  the  circumstances of the case. This is  not  a  case
where the Court before finally disposing of a petition under
article 226 gave directions in the nature of interim  relief
for the purpose of maintaining the status quo., The question
which  we  have to determine is whether  directions  in  the
nature of interim relief only could be granted under article
226, when the Court expressly stated that it refrained  from
determining the rights of the parties on which a writ
35
of mandamus or directions of a like nature could be  issued.
In  our opinion, article 226 cannot be used for the  purpose
of giving interim relief as the only and final relief on the
application  as  the High Court has purported  to  do.   The
directions  have  been  given here only  to  circumvent  the
provisions of section 80 of the Civil Procedure Code, and in
our opinion that is not within the scope of article 226.  An
interim  relief can be granted only in aid of and as  ancil-
lary to the main relief which may be available to the  party
on  final determination of his rights in a suit or  proceed-
ing.  If the Court was of opinion that there' was  no  other
convenient  or adequate remedy open to the  petitioners,  it
might  have proceeded to investigate the case on its  merits
and  come to a decision as to whether the  petitioners  suc-
ceeded in establishing that there was an infringement of any
of  their  legal  rights which entitled them to  a  writ  of
mandamus  or  any  other directions of a  like  nature;  and
pending  such  determination it might have made  a  suitable
interim order for maintaining the status quo ante.  But when
the  Court declined to decide on the rights of  the  parties
and  expressly  held that they should be  investigated  more
properly  in a civil suit, it could not, for the purpose  of
facilitating the institution of such suit, issue  directions
in the nature of temporary injunctions, under article 226 of
the  Constitution.  In our opinion, the language of  article
226  does not permit such an action.  On that  short  ground
the judgment of the Orissa High Court under appeal cannot be
upheld..
                          Appeals allowed.
    Agent for the appellant in all the appeals: P.A. Mehta.
Agent for the respondent in Case No. 300 : S.P. Varma.
    Agent  for  the respondent in Cases Nos.  301  and  304:
Ganpat Rai.
    Agent for the respondent in Cases Nos. 302 and 303: P.K.
Chatterjee.
36
PETITIONER:
SRI SANKARI PRASAD SINGH DEO
        Vs.
RESPONDENT:
UNION OF INDIA AND STATE OF BIHAR(And Other Cases).
DATE OF JUDGMENT:
05/10/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  458            1952 SCR   89
 CITATOR INFO :
 F          1952 SC 252  (1,30)
 RF         1954 SC 257  (4)
 R          1959 SC 395  (28)
E&D        1959 SC 512  (4)
 F          1965 SC 845  (20,21,23,24,25,27,33,35,38,39
 R          1965 SC1636  (25)
 O          1967 SC1643  (12,14,23,27,43,44,56,59,61,63
 RF         1973 SC1461  (16,20,27,30,32,38,39,44,46,88
 RF         1975 SC1193  (17)
 RF         1975 SC2299  (649)
 RF         1980 SC1789  (96)
 RF         1980 SC2056  (61)
 RF         1980 SC2097  (6)
 D          1981 SC 271  (19,33,42,43)
 RF         1986 SC1272  (78)
 RF         1986 SC1571  (34)
 RF         1987 SC1140  (3)
ACT:
Constitution  (First  Amendment) Act, 1951,  Arts.  31A,
31B-Validity--Constitution   of India,  1950, Arts.   13(2),
368,  379,  392--Provisional   Parliament--Power  to   amend
Constitution-  Constitution (Removal of Difficulties)  Order
No. 2 of 1950--Validity --Amendment of  Constitution--Proce-
dure--Bill  amended  by  Legislature--Amendment   curtailing
fundamental   rights--Amendment affecting land--Validity  of
Amending Act.
HEADNOTE:
    The Constitution (First Amendment) Act, 1951, which  has
inserted, inter alia, Arts. 31A and 3lB in the  Constitution
of India is not ultra vires or unconstitutional.
    The provisional Parliament is competent to exercise  the
power of amending the Constitution under Art. 368. The  fact
that  the said article refers to the two Houses of the  Par-
liament and the President separately and not to the  Parlia-
ment, does not lead to the inference that the body which  is
invested with the power to amend is not the Parliament but a
different body consisting of the two Houses.
The words "all the powers conferred by the provisions of
this  Constitution on Parliament" in Art. 379 are  not  con-
fined to such powers as could be exercised by the provision-
al  Parliament consisting of a single chamber, but are  wide
enough  to include the power to amend the Constitution  con-
ferred by Art. 368.
    The  Constitution (Removal of Difficulties) Order No.  2
made  by  the  President on the 26th  January,  1950,  which
purports  to adapt  Art. 368 by omitting "either  House  of"
and "in each House" and substituting "Parliament" for  "that
House" is not
         12
90
beyond  the powers conferred on him by Art. 39:1  and  ultra
vires.  There  is nothing in Art. 392 to  suggest  that  the
President should wait, before adapting a particular article,
till the occasion actually arose for the provisional Parlia-
ment to exercise the power conferred by the article.
    The  view that Art. 368 is a complete code in itself  in
respect of the procedure provided by it and does not contem-
plate any amendment of a Bill for amendment of the Constitu-
tion  after it has been introduced, and that if the Bill  is
amended during its passage through the House, the  amendment
Act  cannot be said to have been passed in  conformity  with
the  procedure prescribed by Art. 368 and would be  invalid,
is erroneous.
    Although  "law"  must ordinarily include  constitutional
law there is a clear demarcation between ordinary law  which
is  made in the exercise of legislative power and  constitu-
tional  law,  which is made in the exercise  of  constituent
power.   In the context of Art. 13, "law" must be  taken  to
mean  rules  or  regulations made in  exercise  of  ordinary
legislative  power  and not amendments to  the  constitution
made  in the exercise of constituent power with  the  result
that  Art. 13(2) does not affect amendments made under  Art.
368.
    Articles 31A and 3lB inserted in the Constitution by the
Constitution   (First Amendment) Act, 1951, do  not  curtail
the  powers of the High Court under Art. 226 to issue  writs
for  enforcement of any of the rights conferred by Part  III
or of the Supreme Court under Arts. 132 and 136 to entertain
appeals from orders issuing or refusing such writs; but they
only  exclude from the purview of Part III 'certain  classes
of cases.  These articles therefore do not require ratifica-
tion under cl. (b) of the proviso to Art. 368.
Articles 31A and 31B are not invalid on the ground  that
they  relate to land which is a matter covered by the  State
List (item 18 of List II) as these articles are  essentially
amendments   of the Constitution, and Parliament  alone  has
the power to enact them.
JUDGMENT:
                 ORIGINAL  JURISDICTION  :  Petitions  under
Art.  32 of the Constitution (Petitions Nos. 166,287,317  to
319,  371,372,  374 to 389, 392 to 395, 418, 481 to  485  of
1951). The facts which led to these petitions are stated  in
the judgment.
    Arguments  were heard on the l2th, l4th, l1th, 18th  and
19th of September.
    P.R.  Das  (B.  Sen, with him) for  the  petitioners  in
Petitions Nos. 37 l, 372, 382,383, 388 and 392. Article  368
of  the Constitution is a complete code in itself.  It  does
not contemplate any amendments to the Bill
91
after its introduction.  The Bill must be passed and assent-
ed  to  by the President as it was  introduced  without  any
amendment. As the Constitution Amendment Bill was amended in
several respects during its passage through the  Parliament,
the  Constitution  (First Amendment) Act was not  passed  in
conformity  with the procedure laid down in article 368  and
is  therefore  invalid. When the  Parliament  exercises  its
ordinary legislative powers it has power to amend the  Bills
under articles 107. 108, 109(3) & (4).  It has no such power
when  it seeks to amend the Constitution itself  as  article
368  does not give any such power: of The Parliament Act  of
1911 (of England).  The Article 368 vests the power to amend
the  Constitution not in the Parliament but in  a  different
body,  viz., a two-thirds majority of the two Houses of  the
Parliament.   In  article  368, the  word  Parliament  which
occurs  in other articles is purposely avoided. There  is  a
distinction between ordinary legislative power and power  to
amend  the  Constitution. This distinction  is  observed  in
America  and the power to amend the Constitution  is  vested
there  also  in  a different body. Vide  Willis,  page  875,
Coolly  Vol.  1.  page 4, Orfield, page  146.   Article  379
speaks  of  the  power of the provisional  Parliament  as  a
legislative body. The powers under article 368 cannot be and
was not intended to be exercised by the provisional  Parlia-
ment  under  article 379. As it consists only  of  a  Single
Chamber the adaptations made in article 368 by the Constitu-
tion (Removal of Difficulties) Order No. 2 are ultra  vires.
Article 392 gives power to the President to remove only such
difficulties as arise in the working of the Constitution. It
cannot be used to remove difficulties in the way of amending
the  Constitution that have been deliberately introduced  by
the  Constitution.  No difficulty could have  been  possibly
experienced  in the working of the Constitution on the  very
day the Constitution came into force. The Constitution could
legally be amended only by the Parliament consisting of  two
Houses  constituted under clause 2 of Part V. In any  event,
the impugned Act is void under article 13 (2) as  contraven-
ing the provisions relating to
92
fundamental  rights  guaranteed  by Part III.  '  Law  '  in
article  13  (2) evidently includes all laws passed  by  the
Parliament  and must include laws passed under  article  368
amending  the   Constitution: Constituent  Assembly Debates,
Vol. IX No. 37, pp. 1644, 1645, 1661, 1665.
    S.M. Bose (M. L. Chaturvedi, with him)for the petitioner
in Petition No. 375.  The word "only" in article 368  refers
to  all  that follows and article 368 does  not  contemplate
amendment  of  a Bill after it has  been   introduced.   The
President's  Order is ultra rites his powers  Under  article
392.   There  is  no difficulty in working article  368  and
there could be no occasion for the President to adapt 368 in
the exercise of his powers under article 392.
    S.  Chaudhuri   (M.  L. Chaturvedi, with  him)  for  the
petitioner in Petition No. 368 adopted the arguments of P.R.
Das and S.M. Bose.
    S.K. Dhar (Nanakchand and M.L. Chaturvedi, with him) for
the petitioner in Petition No- 387. Article 379 on which the
provisional Parliament's jurisdiction to amend the Constitu-
tion  is  based  not only empowers the  said  Parliament  to
exercise the powers of the Parliament but also imposes  upon
it  the obligation to perform all the duties  enjoined  upon
the Parliament by the Constitution. Hence Parliament  cannot
seek  to  abridge  the rights of property  of  the  citizens
guaranteed  by Part III. As the present Act contravenes  the
provisions of Part III, it is void under article 13 (2).  In
any  event, the new articles 31A and 3lB curtail the  powers
of  the  Supreme Court under articles 32, 132  and  136  and
those of the High Court under article 226, and as such, they
required  ratification  under clause (b) of the  proviso  to
article 368 and not having been ratified, they are void  and
unconstitutional.  They are also ultra vires as they  relate
to land, a subject matter covered by List II  (see item  18)
over  which  the State Legislatures  have  exclusive  power.
Parliament  cannot make a law validating a law which it  had
no power to enact.
93
    N.P. Asthana (K. B. Asthana, with him) for the petition-
ers  in Petitions Nos. 481 to 484.  Article 338 s, does  not
confer  power  on any body to amend  the  constitution.   It
simply  lays down the procedure to be followed for  amending
the  Constitution.   In this view u   article 379  does  not
come into operation at all. Under article 392 the  President
himself  can alter the Constitution but he cannot  authorise
the provisional Parliament to do so.
    S.P. Sinha (Nanak Chand, with him) for the petitioner in
Petition  No. 485. Article 13(2) is very wide in  its  scope
and  it invalidates all laws past, present and future  which
seek  to curtail the rights conferred by Part II 1. It  does
not exempt laws passed under article 368 from its operation.
N.C.  Chatterjee (with V.N. Swami for the petitioner  in
PetitiOn  No. 287 and with Abdul Razzak Khan for  the  peti-
tioner  in  Petition  No. 318).  Article 368  must  be  read
subject to article 13(2).  Articles 31A and 31IB are  legis-
lative in character and were enacted in the exercise of  the
law-making  power of the Parliament and not in the  exercise
of any power to amend the Constitution and Parliament has no
power to validate the laws as it had no power to enact them.
N.R.  Raghavachari   (V.  N. Swami, with  him)  for  the
petitioner in Petition No. 166.  The fundamental rights  are
supreme  and article 13 (2) is a complete bar to any  amend-
ment of the rights cenferred by Part III.
    N.S..  Bindra  (Kahan Chand Chopra, with  him)  for  the
petitioner in Petition No. 319.
    M.L.  Chaturvedi for the petitioners in  Petitions  Nos.
374,376, 377, 379, 380, 381,384, 385, 386, 389, 393, 394 and
395.
Bishan  Singh for the petitioner in Petition No. 418.  Abdul
Razzak Khan and P. 5. Safeer for the petitioner in  Petition
No. a17.
    M.C.  Setalvad,  Attorney-General for India  (with  G.N.
Joshi)  for the Union of India, and (with Lal Narain  Singh,
G  N. Joshi, A. Kuppuswami and
94
G. Durgabai) for the State  of Bihar.  The donee     of  the
power  under article 368  is Parliament. and The process  of
the  passage of the Bill indicated  in the said  article  is
the same as that of ordinary  legislative Bills.  The  arti-
cle  does not mean that the powers under article 368 are  to
be  exercised by a fluctuating body of varying majority  and
not  by  Parliament.  If the constituent authority  and  the
legislative authority are two different entities the  saving
clauses  in  articles 2,3, 4 and 240, will  be  meaningless.
Under  article 379 provisional Parliament can  exercise  all
the powers of Parliament;  hence Provisional Parliament  can
act  under  article  368. "All the powers"  in  article  379