Shyam Narayan vs Union of India and others

Dipak Misra, J.

This is an application, preferred by original respondents No. 4 and 5 in W.P. No. 1815/2002, under Article 132(1) of the Constitution of India for grant of leave to file an appeal before the Supreme Court of India. An application forming the subject matter of MCP No. 2869/2003 has also been filed for grant of stay of operation of the Judgment passed on 24-7-2003.

We shall first deal with the application for grant of leave. Article 132(1) reads as under :-

Art. 132(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Art. 134A that the case involves a substantial question of law as to the interpretation of this Constitution.

It is pertinent to state here that the words "if the High Court certifies under Art. 134A" were substituted by the Constitution (44th Amendment) Act, 1978 with effect from 1-8-1979. Article 134A reads as under :

Art. 134A. Every High Court, passing or making a Judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of article 134, -

(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.

The aforesaid Article was inserted by the aforesaid amendment.

Article 134A came to be considered by a Full Bench of the Kamataka High Court in the case of Keshava S. Jamkhandi v. Ramachandra S. Jamkhandi, AIR 1981 Kar 97. In the aforesaid case, their Lordships in paragraphs 5 to 7 held as under:

Art. 134A was introduced in the Constitution with the object of avoiding delay. If the oral application for grant of a certificate is made immediately on the pronouncement of the Judgment, all the facts of the case will be fresh in the minds of the Judges deciding the case as they can decide the application without any waste of time. Length of the arguments will be reduced considerably. It is stated in paragraph 12 of the Objects and Reasons of the Constitution (Forty-fifth Amendment) Bill, 1978 that it is proposed to amend Articles 132, 133 and 134 and insert a new Article 134A to provide that the High Court should consider the question of granting of certificate immediately on the delivery of the judgment, decree, final order or sentence concerned (emphasis supplied by us)'' on the basis of an oral application by a party or, if the High Court deems it fit so to do, on its own motion. We may also call in aid the speech made by Shri Shanti Bhushan Minister of Law, the mover of the Bill, as it helps us considerably in the interpretation of Art. 134A, such use having been held to be permissible by the Supreme Court in The Sole Trustee, Lok Shikshana Trust Vs. The Commissioner of Income Tax, Mysore, . Shri Shanti Bhushan in his speech as mover of the Bill has stated as follows :-

Sri Shanti Bhushan : That is exactly what I am trying to give. The right of any citizen to go to the Supreme Court in any case in which he was entitled to go to the Supreme Court is not being taken away. He would have the same right to go to the Supreme Court.

So far as Clause (2) of Article 132 was concerned, it was wholly redundant when Article 136 was there. Article 136 gives the power to the Supreme Court to grant special leave against the judgment, decree, or order of any Court in any case on any ground. That is left to the Supreme Court. Therefore, so long as Article 136 is there, it is always open to the Supreme Court to grant special leave to appeal against any order, whether it is civil, criminal, any judgment, any decree of any Court, including a High Court. Therefore, that right is there. Article 132(7) was wholly superfluous. Therefore, that superfluous provision which was unnecessary has been deleted. It does not curtail any right of any person.

The whole purpose of this amendment is this. So far, the procedure was that after the High Court had decided a case, within a couple of months or so, whatever was the period of limitation prescribed, it was open to a party to make a written application before that High Court to certify the case as a fit one for appeal to the Supreme Court. Notice had to be issued of that application to the other party. Then the other party will come and another hearing would be fixed, and after a few adjournments the matter used to be heard and then either the certificate would be granted or refused. If the certificate was granted, the appeal was filed. If it was refused, before the period of limitation, application under Art. 136 for special leave could be filed. In order to curtail this unnecessary delay between one stage and another, we are making a provision like the one under the Government of India Act, 1935, in the matter of certifying cases as being fit for appeal to the Federal Court. As soon as the judgment is rendered by the High Court, because at that time both the parties know what the questions are, the Court also knows what the questions are, as also its own decision, the importance of this question, without insisting on the formality of a written application, at that very time it should be open to a party to ask for a certificate of fitness for appeal to the Supreme Court, and the High Court should take a decision quickly either to grant or refuse the certificate, so that the person can go under Article 136 for special leave to appeal. This is only good for the litigants except those whose interest may be in delaying cases. Otherwise, it does not curtail any right. It only means that the cases will reach the Supreme Court both promptly and quickly. That is all.

It is, therefore, clear that Art. 134A has been introduced in order to curtail unnecessary delay. If on the construction of Article 134A two interpretations are possible, we must prefer that interpretation which advances the object of the statute. If it is held that making of a written application at any time after the judgment or order is pronounced is permissible, it will certainly defeat the very object of introduction of Article 134A.

It is no doubt true that the Limitation Act, 1963 contains Art. 132 prescribing sixty days as the period of limitation for making application for a certificate of fitness to appeal to the Supreme Court under Arts. 132, 133 and 134 of the Constitution. That article has neither been deleted nor amended. It was, therefore, maintained that a written application for grant of certificate is not excluded. It is true that the existence of Art. 132 prescribing the period of limitation for making a written application brings about some incongruity. If there is a conflict between the enactment made by the Parliament and the constitutional provision, it is the constitutional provision that has to prevail. Sri. U. L. Narayana Rao, Senior Central Government Standing Counsel appearing for the Union of India submitted that he has been instructed to submit to the Court that steps are being taken to delete Art. 132 of the Limitation Act and Art. 134A of the Constitution does not contemplate written applications. Now an aggrieved party can approach the Supreme Court for grant of special leave to appeal without in the first instance approaching the High Court for certificate. As the aggrieved party who did not make an oral application immediately, can move the Supreme Court for special leave, his rights will not be jeopardized.

As Art. 134A does not expressly provide for making a written application and as it expressly provides for making an oral application by the aggrieved party immediately after the passing or making of a Judgment, decree, final order or sentence, we have no hesitation in taking the view that the aggrieved party, who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence, cannot file a written application for a certificate for appeal to the Supreme Court at any time after the passing or making of a judgment, decree, order or sentence.

The aforesaid decision was followed by a Division Bench of the High Court of Orissa in the case of State of Orissa Vs. Sashi Bhusan Kar, wherein the Division Bench in paragraph 8 held as under :-

This view of ours finds support in a Division Bench decision of the Calcutta High Court reported in (1980) 84 CWN 657, Rickeit and Colman of India v. Fifth Industrial Tribunal and a Full Bench decision of the Karnataka High Court reported in Keshava S. Jamkhandi Vs. Ramachandra S. Jamkhandi, , Keshava v. Ramachandra. In the latter decision, the learned Judges of the Kamataka High Court have also quoted the speech made by Mr. Shanti Bhusan, the then Minister of Law, while moving the Bill giving the purpose for which the new provision in Art. 134A was proposed to be inserted. In both these decisions, it has been held that in spite of the existing provision in Art. 132 of the Limitation Act, no written application can be maintained in the High Court in view of the bar contained in An. 134A of the Constitution. No decision of the Supreme Court or this Court on this question has been placed by either side.

We are in respectful agreement with the view expressed by the Kamataka High Court and Orissa High Court. Accordingly, we have no hesitation in holding that a written application at this juncture is not maintainable as the judgment was pronounced in open Court after reading a part of it as well as the operative part on 24th July, 2003.

It is relevant to state here that the application for stay has been filed, as has been indicated hereinabove. M.C.P. No. 2869/2003 has been filed for grant of stay on the backdrop that an application for grant of leave has been filed under Article 132(1) of the Constitution of India. As we have already held that the application is not maintainable in law, the application for grant of stay is devoid of any substance.

At this juncture, Mr. Surendra Singh, learned senior counsel appearing for the original respondents No. 4 and 5 in writ petition submitted that the respondents are to approach the Supreme Court and in the meantime protection should be given. The present case has its own significance. We have restrained the motion picture, namely; "Kabhi Khushi Kabhi Gham" to be exhibited because we have taken the view that the national anthem could not have been presented and projected in the movie in the manner as has been shown. Taking into consideration the totality of circumstances, we are not inclined to accept the prayer putforth by Mr. Surendra Singh for grant of stay for a specified period. In the result, the application for stay also stands rejected.

Consequently, the MCC as well as the MCP stand rejected.

C.C. be given today itself.