Laxmibai Sonsheth Ambole, President, Deshi Makkhan Vyapari Sangh (Regd.) and ors. Vs. Union of India (Uoi), - Court Judgment

Bilal Nazki, J.

1. This is a matter which is a sad reflection on certain aspects of the judicial system of this country. Coming up this matter before us was a very sad experience in our long association with the judiciary as we must admit that we were not aware as to what abuse judicial prosecution can be put and to what extent the system would fail in checking the abuse of process of law.

2. The original suit being Suit No. 284 of 1966 was filed before the High Court in the year 1966. It remained pending with the High Court till the year 1970. On 10th April, 1970 the High Court (Mr. Justice Kantawala, as His Lordship then was) transferred the suit to the Bombay City Civil Court in view of the provisions of Section 6(2)(ii) of the Maharashtra Act, 1970 known as Bombay Court Fees Act. The suit was renumbered in the Bombay City Civil Court and then trial started. Now this matter has come back to the High Court after 42 years on a reference made by the Judge of the Bombay City Civil Court in terms of Section 113 of the Code of Civil Procedure.

3. On the first flush one could see the dispute itself was not maintainable. But for 42 years the unscrupulous elements were not only able to continue with the suit but were also able to enjoy a blanket stay of the prosecution of hundreds of members of the Plaintiffs enjoying complete immunity from prosecution for violation of the provisions of Prevention of Food Adulteration Act. The number of these persons, who are enjoying this benefit, is 140. Originally, the High Court passed order on 31st March, 1967. This order was continued by the Bombay City Court Court. Then it appears that the appeal was filed being Civil Appeal No. 2825 of 1975, which was disposed of by the High Court on 19th April, 1976 continuing the earlier order of staying the prosecution in cases under the Prevention of Food Adulteration Act.

4. Now coming to the suit, the suit only is for a declaration to declare certain clauses of Section 2, amendment to Sections 14, 16 and 16A of the Prevention of Food Adulteration Act as unconstitutional. Besides these sections being challenged, more than 20 Rules framed under the Prevention of Food Adulteration Act were also challenged as ultra vires. There was no other relief claimed. The trial Court on the basis of the pleadings framed 29 Issues. All Issues except 5 issues relate to constitutionality of each of the provisions, which means whether the particular provision was ultra vires or not. A separate issue was framed for each of the provisions of the Act or the Rule. The first five issues were framed as under:

(1) Whether this Court has got no jurisdiction to entertain and try this suit by reason of Section 113 of the Civil Procedure Code and/or Article 228 of the Constitution of India ?

(2) Whether the suit for declaration and injunction as framed for in the plaint is not maintainable as contended in para 1 of the written statement ?

(3) Whether the leave obtained by the Plaintiffs under Order 1 Rule 8 of the Code of Civil Procedure is liable to be quashed as contended in para 2 of the Written Statement ?

(4) Whether the Plaint suffers from misjoinder of the Plaintiffs and causes of action ?

(5) Whether the suit is barred by limitation as contended in para 4 of the Written Statement ?

These issues were treated to have been preliminary issues and were decided by an order dated 5th March, 1984. By this order the Court held that it had jurisdiction to try the suit inspite of Section 113 of the Code of Civil Procedure and Article 228 of the Constitution of India. It also held first two issues in favour of the Plaintiff and the issues which had been framed like Issue Nos. 3,4 and 5 over which the onus was with the defendants were decided against the defendants. When the suit came for final decision, after leading of evidence by the parties, the trial court passed the judgment on 21st April, 2001 and the trial court referred the matter under Section 113 of the Code of Civil Procedure with the statement of case.

5. In nut shell, it may be pointed out that the trial Court on the basis of evidence has come to the conclusion that the rules were arbitrarily framed without considering the regional and seasonal data and conditions prevailing under village conditions. The trial court also found that the Plaintiffs have proved beyond reasonable doubt that the Central Committee of Food Standards, its committees, subcommittees had not taken note of the relevant data. The trial court also found that what should have been before the Legislature for framing the Act or the rules, was not before them. Therefore, the Court was of the prima facie opinion that the rules made were needed to be interfered with. The Court also found that the provisions which were made without taking relevant data into consideration were invalid and ultra vires to the Constitution. After holding this, the Court found the difficulty in Section 113 of the Code of Civil Procedure. Therefore, the trial court referred the matter to this Court.

6. We have heard the learned Counsel for the parties, perused the record. If the Court had used its wisdom on analysing Section 113 of the Code of Civil Procedure at the first instance when the preliminary issues were decided or even at the later stage when the Reference was made, it would have come to a definite conclusion that it had no jurisdiction to entertain such a suit. Section 113 of the Code of Civil Procedure lays down that subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court. Proviso was added to Section 113 by Act 24 of 1951 which lays down:

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

The language of this proviso is so clear that it cannot entertain any ambiguity, the power to make a reference by a civil court to the High Court is limited to a reference where question of validity of an act, ordinance or regulations becomes necessary for deciding the case before the civil court. If the determination of a regulation, act or ordinance is not necessary for disposal of a case before the civil court, the civil court is not competent to make reference, even if the civil court is of the opinion that any act, ordinance or regulation was invalid. We fail to understand what was the case that was to be decided by the civil court. Because, if the reference is answered either in negative or positive what remains to be decided by the civil court. There must be some cause of action, fate of which would depend on the answer to the reference by the High Court. We have seen that a prayer was also added for injunction to the following effect:

(k) That the defendants, their agents and servants be permanently restrained by an order or injunction of this Honourable Court from enforcing the said subsection (1) Clause (1) of Section 2, Sections 14 and 16 as original framed and/or Sub-clause (m) of Clause (ia) of Section 2 read with Clause (xiia) of Section 2 definition of primary food, Section 14 and Section 16 as amended by the Prevention of Food Adulteration (Amendment) Act of 1976 and the said rules herein aboe mentioned and from prosecuting any person under the Prevention of Food Adulteration Act and for contravention of the said Rules contained in Appendix 'B' of the said Rules framed under the Prevention of Food Adulteration Rules viz. A.11.05 (b) A.11.14; read with Rule 44B, A.11.01.01; A.11.01.02; A.11.01, A.11.02, A.11.13; A.11.06 and A.11.10 read with Rule 44; and/or the Rules as amended vide Gazette Notification aforesaid viz. Rule A.11.02.20 read with Rule A.11.02.01; Rule A.11.02.21 read with Rule A.11.02.01; Rule A.11.02.21 read with Rule A.11.02.01; Rule 11.02.17 read with Rule A.11.02.01; Rule A.11.01.05 read with Rule A.11.01.11 (prescribing standards for flavoured milk and boiled milk) from continuing the prosecutions already instituted by them under the said provision of the said Act and of the said Rules in the Courts in Bombay and in the Courts of the State of Maharashtra.

7. When the preliminary question was decided, the trial court referred to Section 34 of the Specific Relief Act. But gave a finding, it is different matter as to whether that prayer will succeed or fail with the determination of the act, ordinance or regulation and the validity of the impugned provisions. Now let us have a look at Section 34 of the Specific Relief Act, which reads thus:

34. Discretion of court as to declaration of status or right, Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Similarly, Section 41 was taken note of but its import was not considered. Under Section 41(d) of the Specific Relief Act, it is laid down that injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. Therefore, what the court was contemplating to decree finally was an injunction that the plaintiffs should not be prosecuted in the criminal matter. The Court gave novel reasons to reject the argument that the suit was not maintainable under Sections 34 or 41 of the Specific Relief Act. By saying that if the court comes to a conclusion that the provisions of the Act and the Rules made under the Prevention of Food Adulteration Act were ultra vires then it would make a reference under Section 113 of the Code of Civil Procedure. Clearly, the suit was barred but still the court went on with its trial. We have other reason to come to the conclusion that the suit was not maintainable at all. Section 9 of the Code of Civil Procedure deals with the jurisdiction of the civil court and lays down that court shall subject to the provisions of the Code of Civil Procedure have jurisdiction to try all suits of a civil nature except the suits of which their cognizance is either expressly or impliedly barred. So for any cause of action under this section, suit can be filed and entertained by a civil court but there are two exceptions. One, if the cognisance of the suit is barred by any law expressly or impliedly. Now it is contended by the learned Counsel for the plaintiffs that there is no law which expressly or impliedly bar filing of the suit challenging validity of the law.

8. In this context, let us have a look at the Constitution of India. Before taking look at the Constitution of India, we may point out that the suit was basically filed only to declare certain provisions of law as violative of Articles 14 and 19 of the Constitution of India. The mechanism is provided for redressal of violation of fundamental rights of a citizens by the Constitution itself. Generally speaking any law, which is violative of Chapter III of the Constitution is void. Clause (1) of Article 13 lays down, that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Clause (2) of Article 13 lays down that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. If the law suffers from an incapacity under Articles 13(1) and 13(2), the remedy is in Article 32 and Article 226 of the Constitution of India. The Article 32 itself is a part of Chapter III dealing with fundamental rights and it lays down that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III are guaranteed and under Clause (2) the Supreme Court has power to issue directions or orders or writs whichever may be appropriate, for the enforcement of any of the rights conferred by Part III and there is a Clause (3) also to Article 32 where the Parliament has been given a power to empower any other court to exercise within the legal limits of its jurisdiction or any of the power exercised by the Supreme Court under Clause (2). So, if we see the mechanism of the Chapter on the fundamental rights, the fundamental rights are guaranteed. For enforcement of fundamental rights, a person can approach the Supreme Court as a matter of right. The Supreme Court has a power to issue directions, writ or orders for enforcement of fundamental rights conferred by Part III. By Article 32(3) the Parliament by law can empower any other court to exercise the jurisdiction which jurisdiction is conferred on the Supreme Court by Article 32(2) of the Constitution.

9. Now coming to the powers of the High Court under Article 226 of the Constitution of India.

226. Power of High Courts to issue certain writs, (1) Notwithstanding anything in article 32, every High Court shall have power, through the territories in relation to which its exercises jurisdiction, to issue to any person, or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose;

(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order whether by way of injunction or stay or in any other manner is made on, or in any proceedings relating to, a petition under clause 1, without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order, and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open and if the application is not so disposed of, the interim order shall, on the expiry of that period or, as the case maybe, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Curt by clause (2) of Article 32.

So the High Court along with the Supreme Court has power to issue a writ, direction or order for enforcement of any rights conferred by Part III. In addition to it, it has a power to issue writ for any other purposes. Therefore, if power has specifically been conferred on the Supreme Court and the High Courts to enforce fundamental rights, the question of entertaining suit by a civil court does not arise at all. By conferring power on the Supreme Court and the High Courts to enforce fundamental rights and by also laying down that the powers conferred on the Supreme Court under Article 32(2) of the Constitution can be exercised by any other Court if parliament empowers such court to exercise the jurisdiction. In our view, it is express power of jurisdiction of civil courts to entertain suits with regard to enforcement of fundamental rights.

10. Therefore, in our view, the suit itself was not maintainable and therefore the reference is misplaced.