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A. Sambasiva Rao, Ag.C.J.

1. All these matters are placed before a Full Bench in view of the 42nd Amendment to the Constitution of India. There are writ petitions, writ appeals and a Supreme Court leave petition amongst them. These cases cover the entire gamut of Article. 226. which is newly substituted by the 42nd Amendment, the scope and amplitude of Section 58 of the Amendment Act and its impact on pending writ petitions, writ appeals and interlocutory petitions therein as well as petitions seeking leave for appeal to the Supreme Court. More than one Division Bench have referred several of the above cases seeking an authoritative pronouncement of a Full Bench on all these aspects, with the result that we will have to consider now in this judgment the full scope of Article. 226, as substituted by the 42nd Amendment and of Section 58 of that Amendment Act.

2. We may also point out that none of the above cases is under Article. 227 and so much so, no arguments have been advanced on the scope of Article. 227 of the 42nd Amendment. We are not, therefore, expressing any opinion on that particular provision.

3. It must be noted at the outset that the 42nd Amendment Act has not merely added to Article. 226 a new clause here or deleted an old clause there. Instead, by virtue of Section 38 of the Act a new Article. 226 is substituted. Further, some new articles have also been added which have great impact on the scope of Article. 226. Section 58 of the Amendment Act is not made a part of Constitution but has been enacted by the Parliament as a separate provision for pending petitions under Article. 226. Patently it is transitory provision laying down the guidelines according to which petitions pending on the appointed day viz., 1st February 1977 should be disposed of. The new Article. 226 Clause (1) starts with a non-obstante clause. It says that "Notwithstanding anything in Article. 32 but subject to the provisions of Article. 131-A and Article. 226-A", every High Court shall have power to exercise the jurisdiction thereunder in the manner specified later in the Article.. Therefore, this power under Article. 226 can be exercised by every High Court notwithstanding anything contained in Article. 32 which provides for the right to move the Supreme Court for the enforcement of the rights conferred by part III of the Constitution. For the enforcement of any of the rights conferred by the provisions of Part III a High Court also can be moved by virtue of sub-cl. (a) of Clause (1) of Article. 226. That is why Clause (1) of Article.. 226 says as old Article. 226 has also done that the power thereunder can be exercised notwithstanding anything in Article. 32. At the same time, the power of the High Court under the Article. is now subject to the provisions of Article. 131-A and 226-A.

4. A new Article. 131-A was introduced by Section 23 of the 42nd Amendment which lays down that the Supreme Court alone has exclusive jurisdiction in regard to questions as to constitutional validity of Central laws. In this regard the jurisdiction of any other Court is specifically excluded. However, under Clause (2) of Article. 131-A, duty is cast on the High Court to refer certain questions for the decision of the Supreme Court when it is satisfied that a case pending before it, or before a Court subordinate to it involves questions as to the constitutional validity of any Central law or as the case may be, of both Central and State laws and that the determination of such questions is necessary for the disposal of the case. Under Clause (3) of Article. 131-A, power is conferred on the Supreme Court to require the High Court to refer such questions to it for its decision on an application made by the Attorney-General of India in this behalf. At the same time, the newly introduced Article. 32-A precludes the Supreme Court from considering the constitutional validity of any State law in any proceedings under Article. 32, unless the constitutional validity of any Central law is also in issue in such proceedings. Immediately after Article. 226. A new Article. Art. 226-A has been introduced by virtue of Section 39 of the Amendment Act. It says:

6. We may also incidentally refer to Article. 139-A newly introduced by Section 24 of the 42nd Amendment which provides for transfer of cases, if the Supreme Court is satisfied, on an application made by the Attorney-General of India that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance. Likewise, under Clause (2) of Article. 139-A the Supreme Court is conferred with power to transfer any case, appeal or other proceeding pending before any High Court to any other High Court, if it deems it expedient so to do for the ends of justice. This provision does not affect the power of the High Court to entertain writ petitions under Article. 226. But cases which come under the ambit of Article. 139-A may be withdrawn by the Supreme Court to itself or may be transferred to any other High Court.