Sankar Prasad Mitra, C.J:— This matter has been referred to the Special Division Bench under R. 1(ii) of Chapter II of the Appellate Side Rules of this Court by Sabyasachi Mukharji and M.M Dutt, JJ. The principal contention before the Division Bench centred round the applicability of S. 58 read with S. 38 of the Constitution 42nd Amendment Act, 1976 to pending appeals. The Act received the assent of the President on December 18, 1976.
2. By reason of the provisions of S. 1(2) of the Act, Ss. 38 and 58 came into force on February 1, 1977. Section 58 contains special provisions as to pending petitions under Art. 226 of the Constitution. It provides as follows:
“58(1) Notwithstanding anything contained in the Constitution, every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of injunction or stay or any other manner) made on, or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 as substituted by section 38.
Sub-section (2): In particular, and without prejudice to the generality of the provisions of sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated:….”
3. The dispute before the Division Bench was whether the above provisions applied to appeals pending in this Court on the appointed day in respect of Article 226 of the Constitution.
4. Mr. Noni Coomar Chakravorti, learned Advocate appearing on behalf of the Union of India states that his instructions are to submit to this Court that S. 58 has no application to appeals pending in the Court on the appointed day. We need not therefore decide the dispute that arose before the Division Bench. And we proceed on the basis of the above concession that appeals pending in this Court under Art. 226 of the Constitution are not affected by the provisions of S. 58 read with S. 38 of the Constitution 42nd Amendment Act, 1976.
5. As the entire appeal has been referred to us we have to express our opinion on other issues in this appeal. The Union of India is entitled to succeed in view of the judgment of this Court in Collector of Central Excise & Customs, West Bengal v. Sumanlal Parekh reported in 1974 Tax LR 2380. This was also a case under the Gold Control Act, 1968. This Court has held that in cases where alternative remedies have been provided for, in the absence of sufficient grounds to show why those remedies should not or could not be availed of, a petition under Art. 226 of the Constitution ought not to be encouraged.
6. In the instant case there are admittedly alternative remedies. There is no indication in the petition under Article 226 as to why those alternative remedies could not be pursued to seek appropriate reliefs. In the circumstances, the application under Art. 226 of the Constitution was not maintainable and should have been dismissed.
7. In the result, the appeal is allowed. The cross-objection is dismissed. The Rule granted under Art. 226 of the Constitution is discharged. The interim orders, if any are vacated.
8. There will be no order as to costs.
9. We make it clear that we express no opinion on the merits of the case of the petition under Art. 226 which the petitioner would be entitled to urge, if so advised, before the appropriate authorities. We also express no opinion on the scope, effect or validity of S. 58 read with S. 38 of the Constitution 42nd Amendment Act, 1976.
Sabyasachi Mukharji, J.:— I agree.
S.K Datta, J.:— I agree.
Appeal allowed.