Shrimant Shripatrao Dajisaheb Ghatge v. The State Of Maharashtra

Tulzapurkar, A.C.J:— These four petitions have been placed before this larger Bench with a view to ascertain the impact of art. 227 of the Constitution as amended by the Constitution (42nd Amendment) Act, 1976 on pending petitions filed under that Article prior to its amendment and to consider the allied questions that arise under the said amended Article. Each of the four petitions has been regarded as being representative in character of a large number of petitions that have been filed and are pending in this Court since prior to February 1, 1977, the date on which the amended art. 227 has come into force.

2. By Special Civil Application No. 5377 of 1976 a certain decision rendered in appeal and confirmed in review by the Maharashtra Revenue Tribunal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 has been challenged by the petitioners therein under art. 227; the petition was filed on December 9, 1976 and rule nisi and interim stay were granted by this Court on December 14, 1976. Special Civil Application No. 1880 of 1973 is directed against an order dated June 21, 1973 passed by the Commissioner, Poona Division, rejecting an application made by the petitioners under s. 88D(1)(iv) of the Bombay Tenancy and Agricultural Lands Act, 1948, whereby the petitioners had sought revocation or cancellation of the exemption certificate granted to their landlord under s. 88C on July 5, 1958; the petition was filed under art. 227 on August 3, 1973 and rule nisi and interim stay have been granted by this Court on August 6, 1973. In Special Civil Application No. 1428 of 1975 the petitioners therein have challenged the validity and/or legality of two notifications; section 4 notification dated August 25, 1969 and s. 6 notification, dated September 12, 1972 issued under the Land Acquisition Act purporting to acquire the petitioners' lands for public purpose viz. resettlement of persons likely to be affected due to Krishna Dam Project under art. 227; the petition has been filed on June 21, 1975 and rule and interim injunction have been issued by this Court on July 1, 1975. In Special Civil Application No. 1703 of 1975 the petitioner's (plaintiff) suit for possession against his tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was dismissed by the learned Judge of Small Causes Court at Pune on June 5, 1974 and against the dismissal he had filed an appeal to the District Judge at Pune and the learned Assistant Judge who heard the appeal allowed the same but remanded the suit back to the trial Court with certain directions; the petitioner-plaintiff has challenged the appellate Court's order under art. 227 of the Constitution; the petition was filed on August 1, 1975 and rule and interim stay have been granted by this Court on August 4, 1975. It is thus clear that all these four petitions filed under the unamended art. 227 have been admitted and are pending in this Court on February 1, 1977 when the amended art. 227 has come into force and the principal question that has been raised before us is whether the amended art. 227 would be applicable to or affect in any manner these four and similar other pending petitions? If the answer to the first question be in the affirmative, the second question raised is whether this Court can and/or should permit the petitioners to amend their petitions so as to convert them into petitions under art. 226 of the Constitution? Yet another question raised is what is the true effect of deletion of the words ‘and tribunals’ from the original art. 227 and addition of the words ‘subject to its appellate jurisdiction’ after the words ‘all Courts’ in the amended art. 227(1) on future petitions that might be filed after February 1, 1977 under the amended art. 227?

3. On the principal question as to whether the pending petitions (meaning petitions filed and admitted before February 1, 1977) under the original art. 227 would be governed or affected by the amended art. 227 which has come into force on February 1, 1977, Mr. Seervai appearing for the petitioners submitted that such pending petitions will have to be proceeded with, heard and disposed of by this Court under the original art. 227 and the hearing and disposal of these petitions will not be affected in any manner by the amended art. 227 for three or four reasons; in the first place he urged that the amended art. 227 has not been given any retrospective operation either expressly or by necessary intendment so as to apply to or govern the pending petitions and in the absence of such retrospective operation the pending petitions must be dealt with and disposed of in accordance with the original or unamended art. 227; secondly, he pointed out that in the context of s. 58 of the 42nd Amendment Act, 1976 making special provisions in regard to pending petitions under the original art. 226 (where expressly it has been enacted that such pending petitions shall be dealt with in accordance with the amended art. 226) and in the absence of similar provision in regard to pending petitions under the unamended art. 227 it should be reasonably inferred that the Parliament did not intend to make the amended art. 227 applicable to pending petitions filed under the original or unamended art. 227 and the intention was clear that such petitions should be governed and disposed of under the original art. 227; thirdly, he relied upon s. 6(e) of the General Clauses Act, 1897 as also on the principle enunciated by the Privy Council in the leading case of Colonial Sugar Refining Company v. Irving . [1905] A.C 369.; and lastly, in the alternative, he urged that quite independently of s. 6 of the General Clauses Act, such pending petitions would be saved from the amended Article and would have to be dealt with and disposed of in accordance with the original art. 227 in view of the well-settled general principle that, unless contrary can be shown a provision which takes away the jurisdiction of a Court is itself subject to an implied saving of a litigant's right and there is nothing in the amended art. 227 to indicate to the contrary. On the second question mentioned above, he submitted that if the Court came to the conclusion that the pending petitions under the original art. 227 were governed by and were required to be proceeded with under the amended art. 227, it would be both reasonable and equitable to grant permission to the petitioners to amend their petitions so as to convert them into petitions under art. 226, for, it is because of amendment that has been effected by Parliament in the original art. 227 that the necessity to amend the petitions in the above manner could be said to have arisen, for which the petitioners cannot be blamed; of course, he fairly conceded that unless the petitioners were able to make out a case under art. 226 the Court would not be in a position to grant any relief to them, but that would be an aspect touching the merits of the case which the Court will have to determine after the amendment was allowed. On the third question he submitted that in regard to future petitions the High Court will be able to exercise the power of superintendence under the amended art. 227 not only over all Courts but also over tribunals, bodies or authorities provided two conditions were satisfied viz. (i) such tribunal, body or authority, whatever be its label, was basically a Court and (ii) such tribunal, body or authority was subject to High Court's appellate or revisional jurisdiction; in other words, the amended art. 227 is not confined to exercising judicial superintendence over regular civil or criminal Courts constituted under the hierarchy of Courts but would extend to tribunals, bodies or authorities, who perform judicial functions of rendering definitive judgments having finality and authoritativeness to bind the parties litigating their rights before them in exercise of sovereign judicial power transferred to them by the State, provided such tribunals, bodies or authorities are subject to High Court's appellate or revisional jurisdiction. In reply Messrs Paranjpe and Bhabha, who appeared for the Union of India, Mr. R.W Adik, the learned Advocate-General of Maharashtra and counsel for the respondents raised two or three contentions. In the first place, it was contended that the amended art. 227 confers on the High Court only ‘administrative superintendence’ over all Courts subject to its appellate jurisdiction and the amendment effected in the original art. 227 has taken away the power of ‘judicial superintendence’ that had been conferred on the High Court by that Article before its amendment; in other words, by the amendment the Article has been brought on par with s. 224 of the Government of India Act, 1935 and has ceased to be on par with s. 107 of the Government of India Act, 1915 or s. 15 of the High Court Act, 1861 and since judicial superintendence has been taken away by the amendment with effect from February 1, 1977, the High Court cannot exercise judicial superintendence even in regard to pending petitions because that power no longer exists. Secondly, it was contended that assuming without admitting that the amended art. 227 retains the power of judicial superintendence with the High Court, such power under the amended Article is now confined to all Courts which are subject to High Court's appellate or revisional jurisdiction and the expression ‘all courts’ must mean regular civil or criminal Courts constituted under a hierarchy of Courts, that is to say, Courts constituted under the Bombay Civil Courts Act, the Presidency and Provincial Small Causes Courts Acts, the Bombay City Civil Court Act and criminal Courts constituted under the Criminal Procedure Code and would not extend to any tribunal or authority or even a Court constituted under any other enactment for enforcing the rights and liabilities created by such enactment and as such no petition under the amended art. 227 would lie against the decisions or orders of various tribunals like the Maharashtra Revenue Tribunal acting under the Bombay Tenancy and Agricultural Lands Act, 1948 or Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or Maharashtra Co-operative Tribunals acting under the Maharashtra Co-operative Societies Act, etc. Thirdly, it was contended that art. 227 being merely procedural would normally operate retrospectively and cover pending petitions without express provision being made in that behalf and as such absence of a provision in regard to pending petitions under the original art. 227 as is to be found in s. 58 of the 42nd Amendment Act in regard to pending petitions under art. 226 would not lead to an inference that the pending petitions under art. 227 were not governed nor intended to be governed by the amended art. 227. As regards s. 6 of the General Clauses Act, 1897 and the principle of Colonial Sugar Refining Company's case it was contended that neither s. 6 nor the ratio of the Privy Council decision would be applicable to the pending petitions in question, inasmuch as, both s. 6 as also the Privy Council decision deal with ‘accrued right’ or ‘vested right of appeal’ and it is such right and proceeding in respect thereof that are saved from the effect of a repealing enactment, while art. 22 both in its original form as well as in its amended form merely conferred and confers power upon the High Court to exercise superintendence over all Courts and tribunals (under the unamended Article) and over all Courts subject to its appellate jurisdiction (under the amended Article) but did not and does not confer any right on a litigant; in other words, since art. 227 dealt with and deals with procedural rights by way of conferring power of superintendence upon High Courts and not with substantive rights of any litigant, s. 6 would be inapplicable and the presumption would be that the amended Article would have retrospective operation and govern the hearing and disposal of pending petitions.

4. At the outset it must be clarified that the contention raised by Messrs Paranjpe and Bhabha that the amended art. 227 confers on the High Court only ‘administrative superintendence’ over all Courts subject to its appellate jurisdiction and that with effect from February 1, 1977 the High Court no longer enjoys any power of judicial superintendence in respect of judgments or orders of such Courts is, in our view, irrelevant qua the pending petitions filed under unamended art. 227 if the hearing or disposal of such petitions is to be governed not by the amended Article but by the original art. 227, inasmuch as, it was not disputed by them that under the original art. 227 the High Court had power of judicial superintendence. However, the aspect whether under the amended art. 227 judicial superintendence has been taken away and merely administrative superintendence has been retained with the High Court would assume importance qua future petitions and also qua pending petitions if such petitions are held liable to be heard and disposed of in accordance with the amended art. 227. After clarifying the position as above, we shall proceed to deal with the aforesaid contention. The question is whether the amended art. 227 retains with the High Court merely administrative superintendence over all Courts and takes away the High Court's power of judicial superintendence over all Courts and tribunals hitherto enjoyed by it under the original art. 227? According to Messrs Paranjpe and Bhabha, initially under s. 107 of the Government of India Act, 1915 both administrative as well as judicial superintendence had been conferred upon the High Court with respect to subordinate Courts, but with the repeal of Government of India Act, 1915 and coming into force of the Government of India Act, 1935 s. 224 of the latter Act conferred power of administrative superintendence on the High Court in respect of ‘all Courts subordinate to its appellate jurisdiction’ and though under the original art. 227 of the Constitution power of superintendence, both administrative and judicial, could be said to have been conferred upon the High Court over all Courts and tribunals the amended art. 227 has been brought on par with s. 224 of the Government of India Act, 1935 and has ceased to be on par with s. 107 of the Government of India Act, 1915 or s. 15 of the High Courts Act, 1861 and therefore under the amended art. 227 the High Court has merely administrative supervisory powers over all Courts subject to its appellate jurisdiction. In support of this contention reliance was placed by counsel upon the provisions of s. 107 of the Government of India Act, 1915, s. 224 of the Government of India Act, 1935, original art. 227 of the Constitution and the amended art. 227 of the Constitution and also on two decisions—one of the Supreme Court in Waryam Singh v. Amarnath . [1954] A.I.R S.C 215. and the other of this Court in Kavasji Pestonji Dalal…Plaintiff; v. Rustomji Sorabjee Jamadar…Defendant.* . [1949] A.I.R Bom. 42, S.C 50 Bom. L.R 450..

5. It is not possible to accept this contention for two reasons, namely (a) on a true construction of the amended art. 227(5) it is clear that judicial superintendence or judicial supervision though limited in extent has been retained with the High Court along with its administrative superintendence or supervision and (b) the decided cases on which reliance has been placed do not support the contention urged. Looking at the contention from the construction point of view it will be necessary to set out the material parts of the amended art. 227 being cl. (1) and cl. (5) thereof. These run thus:

“227. Power of superintendence over all courts by the High Court.—

(1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction…

(5) Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.”

6. On a true and proper construction of the language employed in the aforesaid provisions it will appear clear that superintendence which every High Court is said to possess over all Courts subject to its appellate jurisdiction under cl. (1) includes judicial superintendence or judicial supervision. Under cl. (1) it has been generally provided that every High Court shall have superintendence over all Courts without specifying whether it is administrative or judicial which ordinarily would mean superintendence of both kinds and this made amply clear in cl. (5) according to which power of superintendence has been conferred upon the High Court to question any judgment of any inferior Court provided that such judgment is otherwise subject to either appeal or revision to the High Court and it is obvious that judgments can be questioned judicially and not administratively. In other words, it is plain that judicial supervision over inferior Court's judgments is contemplated by cl. (5). It will further appear clear that under cl. (5) some limitation or restriction is placed upon the High Court's judicial supervision or superintendence over the judgments of any inferior Court, in that such judicial supervision or judicial superintendence would be available to the High Court only in cases where such judgments are otherwise subject to an appeal or revision but such a limitation or restriction re-emphasises the fact that the superintendence spoken of by the amended art. 227(1) inlcudes judicial supervision or judicial superintendence. Secondly, it would not be quite correct to say that s. 224(2) of the Government of India Act, 1985 took away from the High Court its judicial supervision or superintendence over all Courts subordinate to it. But on a fair reading of that provision it will appear clear that judicial supervision or superintendence which was unquestionably vested in the High Court over its subordinate Courts under s. 107 of the Government of India Act, 1915 was merely limited or restricted to some extent and was not taken away altogether as has been suggested by Messrs Paranjpe and Bhabha and therefore it would be incorrect to say that the amended art. 227 of the Constitution by reason of its being brought on par with s. 224 of the Government of India Act, 1935 has the effect of taking away from the High Court its power of judicial supervision or superintendence over the subordinate Courts. It is true that in the original art. 227 there was no provision similar to sub-s. (2) of s. 224 of the Government of India Act, 1935 and such a provision now finds a place in the amended art. 227 in cl. (5) thereof but by reason of such provision, all that could be said is that judicial supervision or superintendence conferred upon the High Court over all Courts subject to its appellate jurisdiction could be said to have become limited of restricted to the same extent as it had been limited or restricted under s. 224(2) of the Government of India Act, 1985. This position as we shall point out later has been clarified by the decision of this Court in Kavasji Pestonji's case. After all this power of judicial superintendence conferred by the amended art. 227 is, as pointed out by Harries, C.J in Dalmia Jain Airways v. Sukumar Mukherjee . [1951] A.I.R Cal. 193., to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.

7. Coming to the decided cases the position was well-settled that the superintendence conferred upon each High Court by s. 107 of the Government of India Act, 1915 included judicial superintendence by the High Court over its subordinate Courts. In Balkrishna Hari Phansalkar…(Original Accused), Applicant; v. Emperor* . 1932 84 Bom. L.R 1523.. Sir John Beaumont, C.J has observed as under (p. 1545):

“…Under s. 107 the High Court has superintendence over all Courts for the time being subject to its appellate jurisdiction. It is not disputed that rights of superintendence include not only superintendence on administrative points, but superintendence on the judicial side too, and that under its power of superintendence the High Court can correct any error in a judgment of a Court subject to its appellate jurisdiction.”

8. In Emperor v. Jamnadas Nathji . 1936 89 Bom. L.R 82. Broomfield and Sen, JJ. invoked their jurisdiction under s. 107 to reverse a conviction which was wrong on the face of it. In that case the party who could have appealed had not appealed and therefore no application by him in revision could be entertained by the High Court but in order to prevent an obvious miscarriage of justice the Court interfered invoking its power of judicial superintendence under s. 107. It was not disputed before us that the original art. 227 of the Constitution was on par with s. 107 of the Government of India Act, 1915 with the only difference that the power of superintendence under the original art. 227 was extended to ‘tribunals’ in addition to ‘all courts’. But the original art. 227 had been differently structured as compared to s. 107 of the Government of India Act, 1915, inasmuch as, the power of superintendence had been divided into two parts; the first part being cl. (1) containing general power and the second part being cl. (2) containing enumeration of certain specified powers of superintendence. This difference in the structure of the original art. 227 gave rise to a Contention that in view of what was contained in cl. (2) the entire Article conferred on the High Court merely administrative superintendence over all Courts and tribunals, but such a contention was negatived by the Supreme Court in Waryam Singh's case. In para. 13 of its judgment the Supreme Court dealt with the nature of superintendence under the original art. 227 of the Constitution in these words (p. 217):

“The material part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.”

9. The above observations therefore clearly show that the power of superintendence that was conferred upon each High Court under s. 107 of the Government of India Act, 1915 as well as under the original art. 227 of the Constitution was not merely administrative superintendence but included judicial superintendence. The position under s. 224 of the Government of India Act, 1985 has been clarified by this Court in Kavasji Pestonji's case to the effect that all that sub-s. (2) of s. 224 did was that it limited or restricted judicial superintendence of High Court in respect of the judgments of inferior Courts to a certain extent, namely that such judicial superintendence in respect of the judgments of inferior Courts would be available to the High Court only where such judgments were otherwise subject to an appeal or revision to the High Court. This conclusion has been reached after considering the marginal notes as well as the enacting parts of s. 107 of the 1915 Act and s. 224 of the 1985 Act and conflicting decisions of several High Courts. In para. 10 of its judgment this is what the Division Bench has observed (p. 46):

“…The prohibition under sub-s. (2) only refers to those judgments of an inferior Court which are not otherwise subject to appeal or revision to the High Court. But the prohibition cannot and does not apply to judgments which are subject to appeal or revision. If S. 224(1) gave the High Court the power of judicial interference, that power obviously has not been wholly taken away, but it has been taken away to the extent of those judgments which are not subject to appeal or revision. In other words, if a judgment is subject to appeal or revision, it seems that the High Court would still have the power to interfere judicially apart from and over and above merely dealing with those judgments in appeal or revision.”

10. Again in para. 28 the Division Bench has observed thus (p. 52):

“…Sub-section (1) is identical in terms with S. 107, Government of India Act, 1915, except of course with regard to the deletion of cl. (b) of S. 107, and in my opinion sub-s. (1) includes the power which existed under S. 107, Government of India Act, 1915, of judicial superintendence and correction. By reason of sub-s. (2) that power is taken away only with regard to judgments which are not subject to appeal or revision.”

11. In our view, the amended art. 227, being on lines of s. 224 of the Government of India Act, 1935, must be construed as conferring power of judicial superintendence on the High Court qua all inferior Courts and insertion of cl. (5) therein, which is in pari materia the same as sub-s. (2) of s. 224 of the 1985 Act, would only have the effect of limiting or restricting the judicial superintendence over the judgments of inferior Courts to the extent to which such judgments are otherwise subject to appeal or revision to the High Court. Reliance was placed on certain observations made by the Supreme Court in Waryam Singh's case in para. 18 of its judgment which follow the observations quoted by us earlier and these are as follows (p. 217):

“In this connection it has to be remembered that section 107 of the Government of India Act, 1915 was reproduced in the Government of India Act, 1985 as section 224. Section 224 of the 1985 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. section 224 of the 1985 act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to section 224 of the 1985 Act has been omitted from Article 227.

This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act, 1861 and section 107 of the Government of India Act, 1915.”

(Italics ours).

12. It must be pointed out that the Court's decision that judicial superintendence was vested in the High Court under the original art. 227 actually rested on two grounds: (a) on construction the Court held that cl. (2) did not affect the generality of the provision contained in cl. (1) which included judicial superintendence and (b) the preponderance of judicial opinion in India was that s. 107 of the Government of India Act, 1915 gave the power of judicial superintendence to High Court. Therefore, the decision on the point was principally based on construction of the Article. Further, while elaborating the second ground on which its decision rested the Court has observed that when s. 107 of the 1915 Act was replaced by s. 224 in the 1935 Act, sub-s. (2) of s. 224 was newly introduced and the idea presumably was to nullify the effect of the decisions of different High Courts but the expression ‘the idea presumably was’ itself clearly suggests that was not the definite opinion of the Court. It is thus clear that the two decisions on which reliance was placed by counsel for the Union of India do not support the contention urged. In our view, on pure construction of s. 224(2) and amended art. 227(5) it is clear that judicial supervision or superintendence, though limited in extent did vest and does vest in the High Court. The contention therefore that the amended art. 227 retains with the High Court only administrative superintendence over all Courts subject to its appellate jurisdiction must be rejected.

13. Having come to the conclusion that even under the amended art. 227 power of judicial supervision or superintendence with the limitation or restriction indicated above has been retained with the High Court over all Courts subject to its appellate jurisdiction, we shall next deal with the contention urged by Messrs Paranjpe and Bhabha on behalf of the Union of India and counsel for the respondents that art. 227 is merely procedural and confers power of superintendence upon the High Court and it neither deals with nor confers any right of action on the litigant and therefore the amendment effected therein would normally operate retrospectively and cover pending petitions without express provision being made in that behalf. On the other hand, on behalf of the petitioners Mr. Seervai contended that art. 227 has never been regarded as an Article dealing with the procedural matters or procedural rights but it confers substantive right upon a litigant to move the High Court and therefore the presumption would be the other way about, namely, that the amendment effected therein would ordinarily be prospective in the absence of retrospective operation being given to it either expressly or by necessary intendment and as such the pending petitions will have to be dealt with and disposed of in accordance with unamended art. 227. Therefore, the question that arises for consideration is whether art. 227 is purely procedural and deals with procedural matters like conferring power on the High Court to exercise judicial superintendence or it deals with and confers any right or substantive right on a litigant to move the High Court. In support of the contention that art. 227 is procedural and merely confers power of judicial superintendence upon High Court and not any right on the litigant reliance was placed upon the language of the Article itself as also certain observations in decided cases. The unamended art. 227(1) ran thus:

“Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.”

14. The amended art. 227(1) runs thus:

“Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.”

15. It was urged that the aforesaid provision by its very language merely conferred and confers power of superintendence upon every High Court and did not and does not say anything about conferring any right upon any litigant to move the High Court. It was pointed out that whenever the framers of the Constitution wanted to confer any right upon a litigant, appropriate phraseology has been used by them and in this behalf reference was made to arts. 132 and 133 of the Constitution by which a right of appeal has been conferred upon a litigant to approach the Supreme Court against the judgment or decisions of High Courts. It was further urged that under art. 227 the High Court can suo motu exercise its power of superintendence over subordinate Courts and what can be done by the High Court suo motu cannot be regarded as conferring any right upon a litigant; it was also contended that the granting of relief on a petition filed under art. 227 was and is discretionary and therefore art. 227 could not be regarded as conferring any right upon a litigant. Reliance was also placed upon certain observations made by the Punjab High Court in C.W Co-op. Transport Society v. Punjab State . [1962] A.I.R Punj. 94. and by this Court in two cases, A.B Sarin v. B.C Patil . [1951] A.I.R Bom. 423, S.C 53 Bom. L.R 674. and N.M Nayak v. Chhotalal Hariram* . 1967 69 Bom. L.R 551.. In the case before the Punjab High Court a distinction has been made between supervisory or revisional powers on the one hand and the appellate power on the other and the material observations on which reliance was placed have been set out in the head-note (d) of the report, which runs thus:

“Supervisory or revisional power is considered to be a power vesting in the Higher or superior tribunal to satisfy itself about the soundness or correctness of the order of the inferior tribunal. One usually accepted difference between the two powers (appellate and supervisory) appears to be that an appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum, whereas the supervisory or revisional power has for its object the right and responsibility of the higher forum to keep the subordinate tribunals within the bounds of law. The latter power, therefore, can always be exercised suo motu in order to see that the subordinate tribunals do not transgress the limits of law and keep themselves within the power conferred on them.”

16. In the first Bombay decision (A.R Sarin's case) the following observations of the division Bench appearing on p. 426 of the report were relied upon:

“…But in order that a petition for a writ of certiorari would not lie, the petitioner must have a specific legal remedy, and specific legal remedy in this context can only mean that he must have a right to approach a Court and he must have a right to a remedy if his case was just. Article 227 only deals with the power of the High Court and not with the rights of litigant. A litigant may approach the High Court, but he has no right to do so, nor has he a right to a remedy because the High Court may refuse a remedy under Art. 227. Therefore the mere power of superintendence conferred upon the High Court does not disentitle a petitioner seeking a writ of certiorari from coming to this Court and asking for that writ.”

17. Similarly in the second Bombay decision (N.M Nayak's case) the following observations which appear on p. 553 of the report were relied upon:

“Now, it is well established that the High Court would exercise its powers under art. 227 most sparingly in order to prevent gross injustice. The powers under art. 227 are exercised by the Court in its discretion and cannot be claimed as of right by any party.”

18. In other words, relying upon the language of art. 227 and the observations quoted from the three rulings cited above it was contended that art. 227 must be regarded as being merely procedural conferring power of superintendence upon High Court and not an Article conferring any right upon a litigant—much less any substantive right or vested right like a right of appeal. It is not possible to accept this contention for the reasons which we shall presently indicate.

19. In the first place no particular phraseology or definite language is required for conferral of a right of action or a right to move a Court upon a litigant and simply because art. 227 says that every High Court shall have superintendence over all Courts it does not mean that such language is decisive on the point that no right of action is conferred on the litigant, the language used will have to be considered in light of the entire scheme of the Constitution which confers fundamental and other rights on citizens and non-citizens and provides for remedies for enforcement of such rights. Secondly the argument that art. 227 confers suo motu power of superintendence upon the High Court or that the granting of relief thereunder is discretionary with the High Court and therefore no right could be said to have been conferred on the litigant does not impress us at all. The mere fact that power of judicial superintendence can be exercised by the High Court suo motu does not and cannot negative the right of a litigant to move the Court if the Article otherwise confers or grants such a right, for, the two concepts—concept of suo motu exercise of powers and concept of exercising the power on being invited to do so upon an application by a litigant are distinct and different. Similarly the aspect that granting of relief under art. 227 is always within the discretion of the High Court can have no bearing on the question whether the Article confers a right on the litigant, for, granting of specific performance or injunction is equally discretionary but it cannot be suggested that a plaintiff has no right to file a suit for such reliefs. In this respect art. 226 and art. 227 stand on the same footing and it is well-established that if a proper case is made out for the exercise of the Court's power under either of these Articles and there exist no other circumstances like laches or delay or coming to Court with unclean hands etc. it will be the duty of the Court to exercise the power in favour of the petitioner. The Supreme Court has in this context observed thus:

“…having regard to the nature of the said powers, and the object intended to be achieved by their conferment, there can be little doubt that in dealing with applications made before them the High Courts have to exercise their discretion in a judicial manner and in accordance with principles which are well-settled in that behalf. The High Courts cannot capriciously or unreasonably refuse to entertain the said applications and to deal with them on the merits on the sole ground that the exercise of their jurisdiction under Art. 226(1) is discretionary.”

20. (Vide para. 18 of the judgment in Makhan Singh v. State of Punjab)10. The three decisions, one of the Punjab High Court and the other two of this Court, are clearly distinguishable and the observations relied upon will have to be regarded as having been made in the context of the points that arose for decision in each of the cases and as such inapplicable to the question at issue before us. In the Punjab case the question that arose for determination related to the nature of power conferred on the State Government under s. 64(h) (as added in Punjab) of the Motor Vehicles Act, 1939 to deal with the appellate orders passed by the appellate Tribunal/Authority in appeal and the question was whether the power conferred under cl. (h) was liable to be struck down as arbitrary and vague in the absence of any test or criteria being indicated therein by reference to which the power could be exercised and the Punjab High Court held that the power under cl. (h) appeared to be analogous to the power of revision and cl. (h) could not be struck down as being arbitrary and vague and it was in that context that the Court made a distinction between supervisory or revisional powers on the one hand and appellate powers on the other and made the observations relied upon to the effect that whereas an appeal confers a right on the aggrieved party, supervisory or revisional power has for its object the right and responsibility of the higher forum to keep the subordinate tribunals within the bounds of law and that the same can be exercised suo motu. The observations relied upon were therefore made in the context of the question as to what was the nature of power conferred on the State Government under s. 64(h) and the Court held the power to be the power of revision and having held so it distinguished that power from the appellate power. The observations made by this Court in A.R Sarin's case on which reliance has been placed do lend some support to the contention urged on behalf of the Union of India but it may be pointed out that those observations were made in the context of the question whether art. 227 provides for a specific legal remedy so as to disentitle a petitioner to seek a writ of certiorari under art. 226 and the Court held that the petitioner was entitled to the writ under art. 226, inasmuch as art. 227 could not be said to provide a specific legal remedy and the reason stated is that a litigant may approach the High Court but he has no right to do so, nor has he a right to a remedy because the High Court may refuse a remedy under art. 227. This reasoning runs counter to the Supreme Court's observations which we have quoted above in Makhan Singh's case. As regards the observations made by this Court in N.M Nayak's case it is clear that those observations do not lend much support to the contention, for, all that those observations indicate is that the power exercisable under art. 227 is always sparingly used to prevent gross injustice and the exercise thereof is discretionary with the High Court. In none of these cases the question whether art. 227 is merely procedural or confers a right of action on the litigant directly arose for decision and therefore the observations which were made in the context of other questions that arose for determination in each of the three cases cannot avail the counsel for Union of India and the respondents.

21. In our view, while considering the question whether art. 227 is purely procedural or confers a right on the litigant to move the High Court it will be wrong to consider art. 227 in isolation but all the three Articles viz. arts. 32, 226 and 227 which deal with high prerogative writs and writ jurisdiction of the Supreme Court and the High Courts will have to be considered together. Furthermore, the nature of remedies provided by such writs and the manner in which and the purpose for which the remedies have been provided under these Articles will have an important bearing on the question at issue. At the outset it may be stated that there is a well recognised distinction between remedies in private law and remedies in public law and that writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari are clearly remedies in public law, though issuance of some of them benefits private individuals. All these writs are known in English law as high prerogative writs associated with the King's name. The theory of English law is that the King himself superintends the due course of justice through his own Court preventing cases of usurpation of jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. It is this theory of English law and the concept of prerogative writs that have been borrowed and incorporated in our Constitution by its founding fathers. In the pre-Constitution days only the three High Courts in the presidency towns of Bombay, Calcutta and Madras had the power to issue the prerogative wits but their power to issue the said writs was confined only to the local limits of their original civil jurisdiction (vide Privy Council decision ill the Ryots of Garabandho v. Zemindar of Parlakimedi . 1943 L.R 70 I.A 120, S.C 47 Bom. L.R 525.). This power to issue such writs within those limits was derived by these High Courts as successor Courts of the Supreme Courts which had been exercising jurisdiction over each of the Presidency Towns of Bombay, Calcutta and Madras, the Supreme Courts themselves having got under their respective Letters Patent all the powers, jurisdiction and authority of the Courts of King's Bench in England. The other High Courts in India had no power to issue such writs at all. In that situation, the framers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set-up which they called ‘fundamental rights’, thought of providing for speedy and inexpensive remedies for enforcement of such rights and that is how arts. 32, 226 and 227 came to be enacted in the Constitution. Thus the nature of the remedies provided the manner in which and the purpose for which these have been provided show that these Articles will have to be regarded as conferring a right on the litigant to move the Court for enforcement of fundamental and other rights and not as Articles merely dealing with procedural matters. In other words, it would be clear that the power conferred upon the Supreme Court under art. 32(2) and upon the High Courts under art. 226(1) to issue directions, orders or writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari will have to be equated with the conferral of remedies in public law, that is to say, conferral of a right to constitutional remedies upon a litigant notwithstanding the phraseology used in art. 32(2) and art. 226(1), namely “the Supreme Court/every High Court shall have power…to issue directions or orders or writs”. Such result, in our view, follows from the nature of remedies provided by such high prerogative writs and the manner and purpose for which such remedies have been provided in these Articles. That, the remedies provided by high prerogative writs are remedies in public law as opposed to remedies in private law and that the theory of English law qua, these writs has been borrowed and introduced in our Constitution by its framers will be clear from the following observations of Ramaswamy, J. in the judgment of the Supreme Court in Mohammed Hanif v. State Of Assam† . [1970] 2 S.C.R 197. (p. 202):

“It is true that the jurisdiction of the High Court under Art. 220 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 220 is a supervisory jurisdiction, a jurisdiction meant to supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction.]n a proceeding under Art. 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Art. 220 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate eases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative wits, the reason being that they are specially associated with the King's name. These writs were always granted for the protection of public interest and primarily by the Court of the King's Bench. As a matter of history the Court of the King's Bench was held to be coram rege ipso and was required to perform quasi-governmental functions. The theory of the English law is that the King himself superintends the due course of justice through his own Court—preventing cases of usurpation of jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in T.C Basappa v. T. Nagappa . [1955] 1 S.C.R 250. our Constitution makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Art. 220 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law.”

22. Similarly, the manner in which and the purpose for which art. 226 was inserted in our Constitution has been explained by the Supreme Court in Election Commission, India v. Saka Venkata Rao . [1953] S.C.R 1144.. It was a case prior to the insertion of cl. (1A) in art. 226 and the question was whether the Madras High Court could issue a writ under art. 226 to the Election Commission of India which had its office permanently located in New Delhi and the Supreme Court held that the Madras High Court had no jurisdiction to do so. Dealing with the historical background of writ jurisdiction and while coming to the conclusion that the Madras High Court's power to issue writs had a two-fold limitation Chief Justice Patanjali Sastri had made some observations at p. 1150 of the report which run thus:

“Turning now to the question as to the powers of a High Court under article 226, it will be noticed that article 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in the Parlakimedi case that the High Court of Madras—the High Courts of Bombay and Calcutta were in the same position—had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., ‘for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised ‘throughout the territories in relation to which it exercises jurisdiction’, that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be ‘within those territories’, which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories”.

23. It may also be pointed out that the sub-heading under which art. 32 occurs in Part III of the Constitution is “Right to Constitutional remedies”. An attempt was made by Mr. Paranjpe to make a distinction between art. 32 on the one hand and art. 226 on the other by pointing out that whereas in cl. (1) of art. 32 there is express reference to ‘the right to move the Supreme Court’, there is no such provision to be found in art. 226, but we are clearly of the view that the difference pointed out will have no bearing on the issue, for, the language of art. 32(2) and the language of art. 226(1) (omitting non-obstante clause) so far as is material is identical and all that cl. (1) of art. 32 does is that the right to move the Supreme Court for enforcement of fundamental rights has been raised to the level of a fundamental right by being ‘guaranteed’ thereunder and by including it in Part III and nothing more and this position is clarified by the Supreme Court in Romesh Thappar v. State Of Madras . [1950] A.I.R S.C 124.. In other words, it seems to us clear that both under art. 32 and art. 226 a substantive right to constitutional remedies has been conferred upon a litigant and these Articles, particularly art. 32(2) and art. 226(1) cannot be said to be merely dealing with the procedural matters like conferring power upon the Supreme Court or the High Court. The position with regard to art. 227 would also be the same, for, it was not disputed before us that the nature and content of the powers conferred upon the High Court under art. 226 and art. 227 are the same and do overlap and in fact in certain respects the powers under art. 227 are wider in that under art. 227 the Court can act suo motu while under art. 226 there is no such power and secondly while in a certiorari under art. 226 the High Court can only annul or quash the decision of the inferior body or authority, it can under art. 227 do that and also issue further directions in the matter, (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque . [1955] 1 S.C.R 1104.). It is true that under art. 226 the writs mentioned therein could be issued by the High Court for enforcement of fundamental rights which is not done ordinarily under art. 227 but on rare or exceptional occassions the power of judicial superintendence under art. 227 could be exercised for enforcing a fundamental right as for instance when the impugned executive action violating a fundamental right is taken under a law which is challenged as being ultra vires. It is, therefore, clear that art. 227 also cannot be regarded as merely dealing with procedural matters but must be held to be an Article that confers a substantive right upon a litigant.

24. There is yet one more aspect to which our attention was invited by the learned Advocate-General of Maharashtra which shows that art. 226 is not merely procedural but confers a right on the litigant to move High Court and in this behalf reference was made to art. 359(1) of the Constitution. Article 359(1) enables the President, where a proclamation of Emergency is in operation, to declare by an order that the right to move any Court for enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or such shorter period as may be specified in the order. He pointed out that in Makhan Singh's case a contention was raised that the words ‘any court’ in art. 359(1) meant only the ‘Supreme Court’ and that the issuance of the Presidential Order thereunder suspending the enforcement of fundamental rights did not prevent a citizen from moving the High Court by resorting to art. 226 of the Constitution but the Supreme Court in effect held that a detenu's right to move the High Court for enforcement of fundamental right under art. 226 also, got suspended by coming to the conclusion that the expression ‘any court’ meant any Court of competent jurisdiction including the High Court. In para. 15 the contention urged has been set out thus (p. 394):

“…His (Mr. Setalvad's) argument, therefore, is that the only right of which a citizen can be deprived under Art. 359(1) is the right to move the Supreme Court, and so, his case is that even in regard to fundamental rights specified in the Presidential Order, a citizen is entitled to ask for reliefs from the High Court under Art. 226 because the right to move the High Court flowing from Art. 226 does not fall within the mischief of Art. 359(1)”.

25. This argument was repelled by the Court in para. 16 thus (p. 394):

“This argument attempts to interpret the words ‘the right to move for the enforcement of the specified rights’ in isolation and without taking into account the other words which indicate that the right to move which is specified in the said article is the right to move ‘any court’. In plain language, the words ‘any court’ cannot mean only the Supreme Court; they would necessarily take in all courts of competent jurisdiction. If the intention of the Constitution makers was to confine the operation of Art. 359(1) to the right to move only the Supreme Court, nothing could have been easier than to say so expressly instead of using the wider words ‘the right to move any court’.”

26. Ultimately in para. 18 the Supreme Court has concluded thus (p. 895):

“…Therefore, it is idle to suggest that the proceedings taken by citizens under Art. 226(1) are outside the purview of Art. 359(1). We must accordingly hold that the right to move any court under Art. 359(1) refers to the right to move any court of competent jurisdiction.”

27. The same position was affirmed by the Supreme Court in its latest decision in A.D.M, Jabalpur v. S. Shukla . 1976 2 SCC 521. In para. 33 of the judgment Chief Justice Ray has observed thus (p. 1224):

“…A person can enforce fundamental rights in this Court under Article 32 as well as in the High Courts under Article 226. It is idle to suggest that the object of Article 359(1), is that the right to move this Court only is barred and not the right to move any High Court. Article 226 does not provide a guaranteed fundamental right like Article 32. This guaranteed right under Article 32 itself may he suspended by a Presidential Order under Article 359(1). In such a case it could not be said that the object of the makers of the Constitution is that a person could not move this Court for the enforcement of fundamental rights mentioned in the Presidential Order but could do so under Article 226. The bar created by Article 359(1) applies to petitions for the enforcement of fundamental rights mentioned in the Presidential Order whether by way of an application under Article 32 or by way of any application under Article 226.”

28. In our view, art. 380(1) furnishes intrinsic evidence that art. 226 confers a right on a citizen to move the Court and is not merely procedural, inasmuch as, art. 226 has been equiperated with art. 32 by the Supreme Court to the extent that art. 226 confers a substantive right, though not a fundamental right, on the litigant to move the High Court for enforcement of fundamental rights and other rights. The position in regard to art. 227 would be the same.

29. In view of our aforesaid conclusion, it will be easy to deal with the principal question raised before us, namely whether the pending petitions filed and admitted by this Court under the unamended art. 227 prior to February 1, 1977 are to be heard and disposed of in accordance with the original or unamended art. 227 or their disposal is governed by the amended art. 227 and the answer to the question primarily depends upon whether the amended art. 227 has been given any retrospective operation so as to cover the pending petitions. On reading the amended art. 227 and comparing the same with the original or unamended one it will appear clear that a couple of changes have been effected. In the first place, cl. (1) of the original art. 227 conferred on the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercised jurisdiction, whereas in the amended cl. (1) the words ‘and tribunals’ have been deleted and the words ‘subject to its appellate jurisdiction’ have been substituted after the words ‘all courts’; in other words, this amendment purports to take away the High Court's superintendence over ‘tribunals’. Secondly a new cl. (5), which was not there in the original Article, has been inserted in the amended Article with the result that a limitation has been placed on the High Court's power of judicial superintendence over judgments of inferior Courts, namely that such judicial superintendence will be available to the High Court only in cases where such judgments are otherwise subject to an appeal or revision to the High Court. It was conceded by Mr. Paranjpe before us that the phrase “subject to its appellate jurisdiction” occurring in cl. (1) read with cl. (5) clearly shows that for invoicing the High Court's power of judicial superintendence it would be enough if the inferior Court's judgment to question which the power is to be invoked, was subject to either an appeal or revision to the High Court. Clauses (2), (3) and (4) of the original art. 227 have remained the same in the amended Article. But apart from the aforesaid changes effected it is clear that the amended art. 227 has not been given any retrospective operation either by express words or by necessary intendment and the amended Article is clearly prospective in operation. That being the position since we have come to the conclusion that art. 227 is not procedural but confers a right of action on a litigant it is obvious that all petitions pending as on February 1, 1977 will have to be heard and disposed of in accordance with the original or unamended art. 227. The general rule applicable in that behalf has been stated in Craies on Statute Law (Seventh edn.) thus (p. 401):

“…It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of notion. (Per Jessel M.R in In re Joseph Suche & Co. Limited18).”

30. Moreover, here we are concerned with the question at a stage when the right to move the Court conferred by art. 227 has been exercised or put in action and proceedings have been commenced. In such a case the pending proceedings must be disposed of in accordance with the original art. 227. Secondly, we find considerable force in the contention of Mr. Seervai that in the context of s. 58 of the 42nd Amendment Act, 1976 which makes the amended art. 226 applicable to pending petitions filed under the original art. 226 and in the absence of a similar provision in regard to pending petitions under the unamended art. 227 a reasonable inference should be drawn that the Parliament did not intend to apply the amended Article to pending petitions. In this behalf it must be remembered that the amendment of the art. 227 by the 42nd Amendment Act, 1976 was a part and parcel of series of amendments that were effected or brought about in the Constitution and the amendment of original art. 227 will have to be considered along with other amendments, particularly the amendments that have been effected in the connected art. 226 and the special provision made in s. 58 as to pending petitions under art. 226. Looking at the question from this angle it will appear clear that in s. 58 of the 42nd Amendment Act, 1976 the Parliament has made special provision with regard to pending petitions under art. 226 and has by that provision enacted that such pending petitions shall be dealt with in accordance with the amended art. 226 and it is also clear that a similar provision in regard to pending petitions under the unamended art. 227 has not been made and therefore a reasonable inference arises that Parliament did not intend that pending petitions under the original art. 227 should be governed by the amended art. 227. Mr. Paranjpe sought to explain the insertion of s. 58 in the Constitution on the basis that it was necessary to make some provision principally in respect of interim orders that had been passed by the High Courts in pending petitions under the original art. 226 while Mr. Bhabha tried to explain it on the basis that because the original art. 226 contained an admixture of procedural and substantive rights, the special provision of s. 58 was necessary and since the original art. 227 was purely procedural and the amended art. 227 took away the jurisdiction of the High Court over the tribunals a provision akin to s. 58 was unnecessary. It is not possible to accept either of the explanations as valid; in the first place, s. 58 does not principally deal with interim orders passed in pending petitions under the original art. 226 but deals with both as to what should happen to interim orders as also the pending petitions themselves and secondly, as discussed earlier, the original art. 227 did not deal with procedural matters but conferred a substantive right on the litigant and as such it is not possible to accept the argument that the amended art. 227 has merely taken away the High Court's jurisdiction over tribunals but it has purported to abridge the litigant's right to move the High Court against the decisions or orders of tribunals. It is, therefore, clear that inference suggested by Mr. Seervai arises that Parliament did not intend that pending petitions under the original art. 227 should be governed by the amended art. 227.

31. In the above context it will be useful to refer to the principle which is well established and which is applicable in cases where a statute is enacted when actions are pending and the principle is that where a statute is passed pending an action as distinct from ‘after the date of the cause of action’ strong and distinct words are necessary to alter the vested rights of either litigant as they stood at the commencement of the action: The Midland Railway Co. v. Pye . 1861 10 C.B N.S 179. and Turnbull v. Forman . 1885 L.R 15 Q.B.D 234.. This principle was invoked and applied by this Court in Sudkya Ramji v. Md. Issak . [1950] A.I.R Bom. 236, S.C 52 Bom. L.R 123.. Applying this principle here it will be clear that pending petitions under the original art. 227 will not be affected by the amended Article, inasmuch as, there are no words at all, much less strong and distinct words, in the amended art. 227 which suggest either expressly or by necessary implication that any alteration was intended in the right of the petitioners to continue and complete their proceedings in accordance with the Article as it stood at the commencement of their action.

32. Mr. Seervai next relied upon s. 6(e) of the General Clauses Act, 1897 as also on the principle enunciated by the Privy Council in the leading case of Colonial Sugar Refining Company v. Irving for saving the pending petitions from the operation of the amended art. 227. According to him, by deleting the words ‘and tribunals’ occurring in the original art. 227 the amended art. 227 has in effect partially repealed the original Article, inasmuch as, the High Court's powers of judicial superintendence in respect of the decisions and orders of the tribunals is completely taken away and therefore under s. 6(e) of the General Clauses Act the pending petitions under the original art. 227 will have to be proceeded with as if the amendment by way of repeal had not been made. Further he pointed out that in Colonial Sugar Refining Company's case the Judiciary Act, 1903 (under which Her Majesty in Council ceased to be a Court of Appeal from the decisions of the State Supreme Court and in its place the High Court of Australia was substituted as the forum of appeal against such decisions) was passed during the pendency of an action in the Court of first instance and the Privy Council in its decision recognised the position that from the date of initiation of original action the suitor had a right of appeal to the superior tribunal according to law as it stood at the commencement of the proceeding. He strongly relied upon the following observations made by their Lordships in that case, which appear at p. 372 of the report:

“…The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act, retrospectively unless a clear intention to that effect is manifested.”

33. He urged that both under s. 6 of the General Clauses Act as well as under the aforesaid principle of Colonial Sugar Refining Company's case the pending petitions filed under the original art. 227 will have to be continued, heard and disposed of as if the amended Article was not applicable, for, according to him, by parity of reasoning it could legitimately be said that each of the petitioners' right to move this Court under the original art. 227 for invoking supervisory jurisdiction of this Court had accrued to each one of them and got vested in each no sooner each one of them had commenced his original action or proceeding for enforcing his right under the concerned enactment before the concerned authority thereunder. Alternatively he contended that quite independently of s. 6 of the General Clauses Act there is a well settled general principle that unless a contrary can be shown the provision which takes away the jurisdiction of a Court is itself subject to implied saving of the litigant's right and the pending petitions here would fall within that principle.

34. We shall deal with the contention based on s. 6 of the General Clauses Act and that based on the principle of Colonial Sugar Refining Company's case separately. Section 6 of the General Clauses Act deals with the effect of repeal of an enactment and under s. 6(c) it has been provided that the repeal of an enactment “shall not affect any right accrued” under the enactment so repealed and under s. 6(e) it has been provided that “any proceeding in respect of any such right” (meaning the ‘accrued right’ under s. 6(c)) has to be continued as if the repeal had not taken place. In our view, having regard to the provisions of s. 6(c) and s. 6(e) it will be difficult to apply those provisions to pending petitions under the original art. 227 unless we accept the further argument of Mr. Seervai that no sooner each of the petitioners commenced his original action or proceeding for enforcing his right under the concerned anactment before the concerned authority a substantive right to move the High Court under the original art. 227 had accrued to him. However, it is unnecessary for us to go that far and hold that s. 6(e) would apply to the pending petitions under the original art. 227, for, in our view, the general principle which has been invoked by him alternatively and which is applicable quite independently of s. 6 would govern the disposal of these pending petitions. Since we are not resting our judgment on the provisions of s. 6(e) of the General Clauses Act, it is unnecessary to deal with or discuss two or three cases on which Mr. Bhabha relied including English decision in Director of Public Works v. Ho Po Sang . [1961] 2 All E.R 721., for contending that the pending petitions would not be saved under s. 6(e) of the said Act.

35. According to Mr. Seervai, quite independently of the provisions of s. 6 of the General Clauses Act there is a well settled principle firmly established and accepted by Courts that unless contrary can be shown a provision which takes away the jurisdiction of a Court is itself subject to implied saving of litigant's right and since there is nothing in the amended art. 227 to indicate to the contrary, the petitioner's right to continue the pending petitions under the original art. 227 must be held to have been saved. He contended that it cannot be disputed that the amended art. 227 clearly takes away the supervisory jurisdiction of the High Court over tribunals qua their decisions or orders and since there is nothing to indicate to the contrary in the amended Article, such amended Article which takes away the High Court's supervisory jurisdiction over tribunals must be regarded as being subject to implied condition that litigant's right to continue the action which he has commenced before the amended Article has come into force is clearly saved. In this behalf strong reliance was placed by him upon two decisions, one a Full Bench decision of the Calcutta High Court in the case of Sadar Ali v. Doliluddin . [1928] A.I.R Cal. 640, F.B., where the principle has been enunciated and the other of the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry & Others . [1957] A.I.R S.C 540. in which the principle has been approved. In the Calcutta case the question that arose for determination was whether or not the appellants had a right to file Letters Patent Appeal from the decision of a single Judge sitting in second appeal in the absence of a certificate from him that the case was a fit one for appeal and the question had arisen in the context of new Letters Patent requiring such a certificate which had come into effect on January 14, 1928. The Full Bench held that the date of presentation of second appeal to the High Court was not the date which determined the applicability of the amended cl. 15 requiring permission or certificate of the deciding Judge for further appeal but the date of institution of suit was the determining factor. It may be stated that the question was not decided by reference to s. 6 of the General Clauses Act, but upon general principles governing the question of retrospective operation of the amended Letters Patent. Chief Justice Rankin in the course of judgment observed thus (p. 643):

“In this view the only question which remains is the question whether the new clause can be given retrospective effect. The provision that the new Letters Patent shall come into force on the date of publication in the Gazette does not operate to give it such effect. Nor does the fact that the jurisdiction and authority of the Court is the primary subject of the Letters Patent found a valid argument to the effect that after the date of commencement the Court can have no authority to entertain such an appeal as this. Unless the contrary can be shown the provision which takes away jurisdiction is itself subject to the implied saving of the litigants' rights”.

36. The above general principle enunciated by Rankin, C.J has been referred to with approval by the Supreme Court in Garikapati's case at two places in para. 25 and para. 43 of the judgment. We may point out that in para. 43 where the aforesaid principle has been referred to a second time the position becomes clear that in the context of question which the Supreme Court was required to consider in that case, the aforesaid principle has been accepted as a principle of general applicability quite apart from s. 6 of the General Clauses Act. The question of construing art. 133 of the Constitution in the context of President's Adaptation Order whereby s. 109 and s. 110 of Civil Procedure Code were brought in conformity with art. 133 was dealt with by the Court in that paragraph and while dealing with that question the Court has observed thus (p. 562):

“We now pass on to consider another construction of Art. 133 which appears to us to be quite cogent. We have seen that Ss. 109 and 110 of the Code of Civil Procedure were adapted by the President's Order and the valuation had been raised from Rs. 10,000 to Rs. 20,000 in order to bring it into conformity with Art. 133. Clause 20 of that Adaptation Order itself provided that such adaptation would not affect the vested rights. Therefore those litigants who had a vested right of appeal from judgments, decrees or final orders of a High Court in a civil proceeding arising out of a suit or proceeding instituted prior to the Constitution and which involved a right or property valued at over Rs. 10,000 but below Rs. 20,000 are still to be governed by the old Ss. 109 and 110. This means that the words ‘judgment, decree or final order’ occurring in Ss. 109 and 110 of the Code as adapted must be read as a judgment, decree or final order made after the date of the adaptation other than those in respect of which a vested right of appeal existed before the adaptation and which were preserved by cl. 20. If Ss. 109 and 110 must be read in this way why should not Art. 138 be read as covering all judgments, decrees or final orders of a High Court passed after the commencement of the Constitution other than those in respect of which a vested right of appeal existed from before the Constitution? It is said that there is no saving provision to Art. 133 like cl. 20 of the Adaptation Order and therefore Art. 133 cannot be read in a restricted way. This argument is unsound and here the observations of Rankin, C.J in the Special Bench case of Calcutta referred to above become apposite, namely; that the provision which takes away jurisdiction is itself subject to the implied saving of the litigant's right”.

37. It will thus appear clear that quite apart from s. 6 of the General Clauses Act the aforesaid general principle could be said to be well established and applying that principle here it can be said that since in the amended art. 227 there is no indication to the contrary the proceedings by way of petitions, which have been validly commenced under the original art. 227 and which are pending at the time when the amended art. 227 has come into operation, will have to be dealt with and disposed of in accordance with the original art. 227, inasmuch as, the petitioners' right to continue the validly instituted petitions upto the end cannot be affected by the amended art. 227.

38. Coming to the Colonial Sugar Refining Company's case it is obvious that the principle laid down there was in the context of the accepted position that the right of appeal was regarded as having been vested in a suitor no sooner he commenced his original action and the question would be whether the principle could be extended to the original action itself in the sense that once it is instituted or commenced the litigant could be said to have acquired a vested right to continue the same unaffected by any alteration in the law. In that context it will be useful to refer to a decision of the Federal Court in Venugopala v. Krishnaswami . [1943] A.I.R F.C 24. where the Federal Court has taken the view that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In that case a suit had been instituted in 1932 in British India with respect to property situate in British India and also in Burma. In 1937 Burma became separate from British India and a question arose whether the suit could be continued in the British Indian Court where it had been instituted and the Federal Court ruled that it could be so continued even after Burma had been separated. On the basis of s. 38 of the English Interpretation Act (equivalent to s. 6 of our General Clauses Act) which governed the interpretation of the Constitution Act two rival contentions were urged. On the one hand it was contended that what was saved under the said section was a substantive right under the repealed enactment and cl. (e) of sub-s. (2) of s. 38 could not be invoked in cases where the substantive right was not taken away by the repealing Act but the forum or method of enforcing it was changed. On the other hand, it was contended that the right to obtain relief in a suit pending at the time when the repealing enactment came into operation was itself in the nature of substantive right. The Federal Court did not decide that point but preferred to rest its judgment on the principle enunciated by the Privy Council in Colonial Sugar Refining Company's case. Even that decision was sought to be distinguished on behalf of the appellant on the ground that the right of appeal against a decree stood on a different footing from a right to continue a suit to its normal termination but the Federal Court negatived the contention by saying that the Court was unable to see any distinction between the two cases and it extended the principle of Colonial Sugar Refining Company's case to the latter case. Justice Varadachariar observed in that behalf thus (p. 27):

“It will be noticed that in that case the Judiciary Act was passed during the pendency of the action in the Court of first instance and their Lordships' decision recognized that, from the date of the initiation of the action, the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. This necessarily involves the recognition of an equally valuable right that the proceedings should in due course be tried and disposed of by the tribunal before which it had been commenced. This principle that a statute should not be so interpreted as to take away an action which has been well commenced has been affirmed in various cases in differing circumstances. In Marsh v. Higgins . 1850 9 C.B 551, at p. 568., it was observed by Wilde, C.J that:

‘It must have been well known to both brandies of the legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced’: (cf. In re Joseph Suche & Co. Limited and see also Vedavalli Narasiah v. Mangamma . 1903 I.L.R 27 Mad. 538. and Subbaraya Mudaliar v. Rakki . 1908 I.L.R 32 Mad. 140.).”

39. On parity of reasoning we are inclined to hold that the petitioners herein would be entitled to continue their pending petitions and have them disposed of in, accordance with the original art. 227.

40. Having regard to the above discussion we hold that the pending petitions under the original art. 227 will not be affected by the amended art. 227 and must be dealt with and disposed of in accordance with the original or unamended art. 227.

41. In view of the aforesaid conclusion reached by us on pending petitions, it is unnecessary to deal with or decide the question whether the pending petitions should be permitted to be amended by converting them into petitions under art. 226. However, if it became necessary we would certainly grant the necessary permission to amend and that too without imposing any condition as to costs, inasmuch as, the amendment shall have been necessitated by reason of the 42nd Amendment Act, 1976 and not for any fault of the petitioners.

42. The next question that arises for our consideration is: What is the true effect of deletion of the words ‘and tribunals’ from the original art. 227 and addition of the words ‘subject to its appellate jurisdiction’ after the words ‘all courts’ in the amended art. 227 on the High Court's power of judicial superintendence such as has been retained with it under the amended Article? In other words the question is whether the expression ‘courts’ is confined to regular civil and criminal Courts constituted under the heirarchy of Courts or would include tribunals, bodies or authorities, whatever be the label, that are basically Courts and this question has a direct bearing on the future petitions that might be filed in the High Court after February 1, 1977 under the amended art. 227. We have summarised in the earlier part of this judgment the rival contentions on this question and it is unnecessary to set out these over again. In support of the contention that the expression ‘courts’ occurring in the amended art. 227 is confined to regular civil and criminal Court constituted under the hierarchy of Courts and that all tribunals have been excluded from the purview of the High Court's superintendence, counsel for the Union of India mainly relied upon the fact that the amended art. 227 refers to High Court's power of superintendence over ‘all courts subject to its appellate jurisdiction’ and the words ‘and tribunals’ have been expressly deleted from the original art. 227(1) and therefore it was urged the expression ‘all courts’ must mean regular civil or criminal Courts constituted under the hierarchy of Courts, that is to say, Courts constituted under the Bombay Civil Courts Act, Presidency and Provincial Small Causes Courts Acts, Bombay City Civil Court Act and criminal Courts constituted under the Code of Criminal Procedure and must exclude all tribunals, bodies or authorities. Secondly it was pointed out that a distinction between regular civil and criminal Courts constituted under the hierarchy of Courts on the one hand and tribunals on the other has been recognised by the Constitution as well as by judicial decisions and in that behalf strong reliance was placed upon the observations of the Supreme Court in para. 6 of the judgment in Engineering Mazdoor Sabha v. Hind Cycles Ltd. . [1963] A.I.R S.C 874. which run thus (p. 878):

“Article 136(1) refers to a Tribunal in contradistinction to a Court. The expression ‘a Court’ in the technical sense is a Tribunal constituted by the State as a part of ordinary hierarchy of courts which are invested with the State's inherent judicial powers. The Tribunal as distinguished from the Court, exercises judicial powers and decides matters brought before it judicially or quasi-judicially, but it does not constitute a court in the technical sense. The Tribunal, according to the dictionary meaning, is a seat of justice; and in the discharge of its functions, it shares some of the characteristics of the court. A domestic Tribunal appointed in departmental proceedings, for instance, or instituted by an industrial employer cannot claim to be a Tribunal under Art. 136(1). Purely administrative Tribunals are also outside the scope of the said Article. The Tribunals which are contemplated by Art. 136(1) are clothed with some of the powers of the courts.”

43. The argument was that if for purposes of Art. 186(1) the expression ‘court’ has been interpreted as meaning ‘court’ in the technical sense, that is, a tribunal constituted by the State as a part of ordinary hierarchy of Courts, the same meaning should be given to that expression in the amended art. 227. It was pointed out that the aforesaid decision was referred to with approval by the Supreme Court in a later decision is A.C Companies v. P.N Sharma . [1965] A.I.R S.C 1595.. Thirdly counsel contended that having regard to the introduction of a new part in the Constitution by the 42nd Amendment Act, 1976, namely Part XIV-A comprising two new arts. 823A and 323B dealing with the proposed constitution of tribunals—administrative tribunals for adjudication of disputes and complaints concerning public services under the Union and State and tribunals for other matters, a clear intention to exclude all tribunals from the High Court's superintendence could be attributed to the Parliament when it amended art. 227 by deleting the words ‘and tribunals’ from the original art. 227(1) and in that behalf strong reliance was placed upon the provisions contained in art. 323A(2)(d) and (3) and art. 323B(3)(d) and (4); it was urged that though the tribunals contemplated by art. 323A and art. 323B had not yet been constituted there was conditional ouster of civil Court's jurisdiction having regard to cl. (2)(d) of art. 323A and cl. (3)(d) of art. 328B and in view of the scheme envisaged by these two new articles an intention could be attributed to Parliament that it wanted to exclude all tribunals from the purview of the High Court's superintendence under the amended art. 227.

44. It is not possible to accept this contention for the reasons which we will presently indicate. In the first place, neither the expression ‘Court’ nor the expression ‘tribunal’ has been defined in the Constitution and therefore the dictionary meaning or the normal connotation of these expressions will have to be considered. Secondly the proposition is well-settled that all Courts are tribunals but all tribunals are not Courts. If necessary, reference may be made to Justice Hidayatullah's judgment in Harinagar Sugar Mills v. Shyam Sunder . [1961] A.I.R S.C 1669. where the above proposition has been clearly stated; the proposition in other words means that some tribunals would be basically Courts i.e Courts in their normal connotation while some others would not be Courts and therefore it cannot be said that Parliament wanted to exclude all tribunals from the purview of the High Court's superintendence under the amended art. 227 but it can be said that Parliament intended to exclude only such tribunals as are not basically Courts from the High Court's superintendence. It is obvious that this result will follow if the expression ‘Courts’ is understood and regarded in its ordinary meaning or its accepted normal connotation, namely an adjudicating body which performs judicial function of rendering definitive judgments having finality and authoritativeness to bind the parties litigating their rights before it and that too in exercise of the sovereign judicial power transferred to it by the State. Any tribunal or authority possessing these two attributes will be a Court (vide Full Bench decision of this Court in Bapusaheb Balasaheb v. State . 1973 76 Bom. L.R 455, F.B.). As regards the Supreme Court decisions on which reliance has been placed by counsel for the Union of India, it may be pointed out that in both the cases the question that had arisen was whether the concerned adjudicating body was a ‘tribunal’ within the meaning of art. 136(1) of the Constitution or not and if so, whether an appeal against the impugned decision or order of that body would lie to the Supreme Court under that Article; the distinction between a Court and a tribunal was never in issue before the Supreme Court and hence the observations explaining the two concepts in contradiction to one another would be obiter, if not casual observations. Even if obiter these observations were made in the context of art. 136(1) where both the expressions ‘court’ and ‘tribunal’ have been used and therefore those observations will have no bearing when the concept of ‘court’ is to be understood in the amended art. 227 where the expression ‘courts’ stands by itself and not in juxtaposition with the other expression ‘tribunal’; the context having changed the expression ‘courts’ in the amended art. 227 cannot be interpreted to mean the same thing when that expression is used in juxtaposition with the expression ‘tribunal’ in one and the same Article like art. 136(1). Therefore, de hors the concept of ‘tribunal’ the expression ‘courts’ occurring in the amended art. 227 will have to be understood in its normal accepted connotation especially in the absence of any definition being given in the Constitution and would include such tribunals as to satisfy the two tests mentioned above.

45. Further the reliance placed on the newly introduced arts. 323A and 323B in Part XIV-A for the purpose of inferring an intention on the part of Parliament to exclude all tribunals from the purview of High Court's superintendence under the amended art. 227 appears to us to be misplaced.

46. In our view, these two Articles are merely enabling provisions empowering the Parliament to make laws providing for constitution of such tribunals for adjudication or trial of disputes and complaints or matters more particularly specified therein and under art. 823A(2)(d) and under art. 323B(3)(d) it has been provided that any law that may be made by the Parliament constituting such tribunals may provide for exclusion of jurisdiction of all Courts except the Supreme Court under art. 136 with respect to disputes and complaints or other matters falling within the purview of such tribunals. clause (3) of art. 323 a and cl. (4) of art. 323b merely provide that the provisions of these Articles shall have effect notwithstanding anything in any other provision of the Constitution or any other law for the time being in force. It is clear that the law made by Parliament constituting such tribunals may or may not provide for the exclusion of jurisdiction of all Courts except the Supreme Court with respect to matters falling within the purview of such tribunals or may do so subject to some conditions. Such a provision, in our view, cannot lead to the inference that Parliament had the intention of excluding all tribunals irrespective of their nature of their functions from the purview of High Court's judicial superintendence while amending the original art. 227. In fact, it is not the petitioners' contention that all tribunals are still within the purview of High Court's judicial superintendence; the contention is that Parliament has clearly evinced an intention to curtail High Court's judicial superintendence over tribunals but the curtailment refers to such tribunals which are not basically Courts. In our view, the introduction of the new arts. 323A and 323B in the Constitution by the 42nd Amending Act, 1976 cannot avail the respondent in support of the contention raised on their behalf.

47. Having regard to the above discussion, we are of the view that the High Court's power of judicial superintendence under the amended art. 227 certainly covers judgments of all Courts meaning thereby all regular civil and criminal Courts constituted under the hierarchy of Courts subject to its appellate or revisional jurisdiction but also extends to tribunals, bodies or authorities, whatever be their label provided two conditions are satisfied: (a) such tribunal, body or authority is basically a Court i.e it performs judicial function of rendering definitive judgments having finality and authoritativeness to bind the parties litigating their rights before it in exercise of sovereign judicial power transferred to it by the State and (b) such tribunal, body or authority is subject to High Court's appellate or revisional jurisdiction.

48. In view of the above the four petitions which have been placed before us are directed to be disposed of by division Bench or single Bench, as the case may be, in the light of our above decision.

49. There will be no order as to costs.

50. Order accordingly.