Ms. Saramma Ninan vs Mr. Ninan John & Others
2001 Latest Caselaw 256 Del

ORDER

Arijit Pasayat, C.J.

1. This matter has placed before this Bench because of the following order passed by learned single judge on 11th December, 2001

"Since the constitutional validity of a statute is involved, List the matter before an appropriate Division Bench, subject to the orders of Hon'ble the Chief Justice, on 9th January, 2001."

2. When the matter was taken up we wanted to find out from the learned counsel appearing for the petitioner as to how vires of certain provisions of Indian Divorce Act, 1869(in short the 'Act') can be decided in an original petition filed under Section 10 of the Act. Learned counsel for the petitioner referred to order XXVIIA of the Code of Civil Procedure, 1908(in short the 'Code') and Section 113 thereof. Reference was also made to Article 228 of the Constitution of India, 1950(in short the 'Constitution'). Reference was also made to a decision of the Apex Court in Ganga Pratap v. Allahabad Bank Ltd., to contend that it is not impermissible to decide the vires. In the proceedings at hand. Reference was also made to decisions of Kerala and Bombay High Court in Ammini E.J. v. Union of India, and Pragati Varghes & Ors v. Cyril Varghes & Ors. (II) 1997 DMC 407 respectively to urge that vires questions were considered and decided in similar proceedings.

3. The provisions referred to by learned counsel for the petitioner read as follows:

ORDER XXVIIA, CPC

Suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument.

1. Notice to the Attorney General or the Advocate General- In any suit in which it appears to the Court that any such question as is referred to in clause (I) of Article 132, read with Article 147 of the constitution, is involved, the court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate General of the State if the question of law concerns a State Government.

1A. Procedure in suits involving validity or any statutory instrument - In any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved the Court shall not proceed to determine that question except after giving notice:-

(a) to the Government pleader, if the question concerns the Government, or

(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.

2. Court may add Government as party - The Court may at any stage of the proceedings order that the Central Government or a state Government shall be added as a defendant in any suit involving any such question as is referred to in clause (1) of Article 132, read with Article 147, of the Constitution, if the Attorney General for India or the Attorney-General of the State as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument - The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule IA, order that the Government of other authority shall be added as a defendant if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be whether upon receipt of notice under rule IA or otherwise, applies for the addition, and the court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.

3. Costs - Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General. Advocate General, or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.

4. Application of Order to appeals - In the application of this Order to appeals the word "defendant" shall be held to include a respondent and the word "Suit" an appeal."

Section 113, CPC

"113. Reference to High Court: Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as its thinks fit:

Provided that where the court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court."

Article 228, Constitution of India

"228. Transfer of certain cases to High Court: If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may:

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

4. On a bare perusal of the provisions it is crystal clear that the aforesaid provisions have no application to the facts of the present case. First of all learned Single Judge is not a "Court subordinate" to the Division Bench. There is in fact no reference mad in terms of provision in question. Since constitutional validity of a statute has been questioned, the matter was directed to be placed before a Division Bench. Additionally, order XXVIIA of the Code refers to the matters relating to Article 132 and 147 of the Constitution. Admittedly the provisions which are impugned to the ultra vires do not fall in any of these two provisions of the Constitution. Similarly Section 113 deals with a reference to the High Court by any Court for its opinion. The provision does not deal with reference by a Single Judge to the Division Bench for opinion. In fact, as noted above there is no reference made to a Division Bench. Similarly, Article 228 deals with transfer of certain cases to the High Court. The same in turn relates to transfer of a case from a subordinate Court to the High Court. As indicated above, learned Single Judge is not a court 'Subordinated to the Division Bench.

5. It is fairly well settled in law that a forum which is creature of a starute cannot adjudicate upon the constitutional validity of a provision or the vires of that statute. By a catena of decisions, for example, K.S. Venkataraman & Co.(P) Ltd. v. State of Madras, , Commr. of Income-tax v. Straw Products Ltd., (1966) 60 ITR 156, C.T.Senthilnathan Chettiar v. State of Madras, (1968) 67 ITR 102. Alpha Chem v. State of U.P. (1993)89 STC 304 and C.W.T. v. Hashmatunnisa Begum, .the position has been clarified. Therefore, a forum which is created under a statute cannot adjudicate upon the vires of provisions of that statute. In Hashmatunnisa Begum's case(supra), while dealing with references under Wealth-tax Act, 1957, Apex Court, Inter alia, observed as follows:

"XXXXXX

We, however, should not be understood to have pronounced on the question of constitutionality. That is the task of the Court in a judicial review but the rule of preference of a particular construction amongst alternatives, in order to avoid unconstitutionality is unavoidable here."

In Alpha Chem's case (supra). Apex Court observed inter alia, as follows:

"As the Tribunal is a creature of the statute, it can only decide the dispute between the assessed and the Commissioner in terms of the provisions of the Act the question of ultra vires is foreign to the scope of its jurisdiction."

6. Strong reliance has been placed by learned counsel for the petitioner on the two decisions, viz., Ammini E.J.'s case(supra) and Pragati Varghes's case (supra) to contend that Full Bench of kerala and Bombay High Courts adjudicated upon the constitutional validity of provisions. On a close reading of these two decisions. We find that they do not in any way assist the petitioner. So far as the Kerala decision is concerned. paragraph 7 of the judgment makes it clear that decision was rendered on a writ petition which was taken up along with the reference made under Section 20 of the Act. So far as the Bombay decision is concerned, there is no discussion on the question as to whether the constitutional validity of a provision can be adjudicated upon by a forum created under the statute. A decision is only an authority for what it actually decides and not for what follows from it incidentally, logically or as a corollary. This position has been highlighted by the Apex Court in State of Orissa v. Sudhansu Sekhar Misra, , Sreenivasa General Traders v. State of Andhra Pradesh, and M/s Amar Nath Om Parkash v. State of Punjab, . Observations of the Judges are not to be read as Euclid's theorems, nor as provisions of the statute. It is needless to repeat the oft quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. (see Quinn v. Leathem (1901) Ac 495). In M/s Gasket Radiators Pvt. Ltd, v. ESI Corporation, it was observed that "Nor can we read a Judgment on a particular aspect of a question as a Holy Book covering all aspects of every questions whether such questions and facets of such questions arose for consideratin or not in that case." Judgments of Court are not be treated or construed as statutes. To interpret words phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statute. they do not interpret judgments. They interpret words of statute, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd v. Horton, 1951 AC 737 at page 761. Lord Mac Dermot observed: "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J as though they were part of an Act of Parliament and applying the rules and interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge." In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 Lord Reid Said, "Lord Atkin's Speech..... It is not to be treated as if it was a statutory definition. It will require qualification in new circumstances." Megarry, J in (1971) I WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said: "There is always peril in treating the words of a speech of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

7. Validity of the provisions as challenged in the petition under Section 10 of the Act cannot be adjudicated in the said petition. In that view of the matter, we are of the view that the matter has to be placed before the learned Single Judge for disposal of the matrimonial case on 26th March, 2001. Ordered accordingly.