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PETITIONER: RAJA GANGA PRATAP SINGH

       Vs.

RESPONDENT: THE ALLAHABAD BANK LTD., LUCKNOW

DATE OF JUDGMENT: 22/01/1957

BENCH:

ACT:    Statute, Constitutional validity of-Whether a question of interpretation  of the Constitution-Severability, if  should be  considered before deciding question of validity-Duty  of Court-Code  of Civil Procedure (V of 1908), s. 113  proviso- Constitution of India, Art. 228.

HEADNOTE:      The  respondent, a scheduled bank, sued  the  appellant for  recovery  of  money under a  mortgage.   The  appellant claimed  reduction  of  the debt  under  the  Uttar  Pradesh Zamindari Debt Reduction Act, 1953.  An advance or debt  due to  a  scheduled bank was excluded from  the  definition  of "debt"  given in the Act.  The appellant contended that  the definition  in so far as it excluded certain debts  offended Art.  14  Of  the  Constitution  as  it  made  an  arbitrary distinction   between  several  classes  of  debtors.    The appellant  applied to the court under the proviso to S.  113 of the Code of Civil Procedure praying that a case be stated for the opinion of the High Court as to the validity of  the impugned portion of the definition.  The Court rejected  the application.  The appellant made an application in  revision to the High Court and also an application under Art. 228  of the Constitution for withdrawing the case for a decision  of the  question of the validity of the definition.   The  High Court  dismissed  the applications.  The Courts  below  held that  in either view of the question as to the  validity  of the impugned portion of the definition, the appellant  would be  left  without the remedy which he sought,  because  that portion  of the definition was not severable from  the  rest and  the  whole  definition would have to  be  excluded  and therefore  it was not necessary to decide that  question  to dispose of the case                             1151     Held,  that  the question raised by the  appellant  came both  within the proviso to s. 113 of the Code and Art.  228 Of the Constitution.  The question whether the impugned part of  the definition contravened Art. 14 was a question as  to the  interpretation  of the Constitution and  that  question must  be decided first.  The question of severability  could arise  only  after that question had been  decided  and  the impugned part held invalid.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  357  of 1957.     Appeal  by  special leave from the  judgment  and  order

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dated  February  28,  1956,  of  the  Allahabad  High  Court (Lucknow  Bench)  in  Misc.  Case No. 4 of  1955  and  Civil Revision  No.  189 of 1955, arising out of the  order  dated August 6, 1955 of the Civil Judge, Sitapur in Suit No. 16 of 1953.     Vidya Sagar, for the appellant.     Iqbal  Ahmad, S. N. Andley and Rameshwar Nath,  for  the respondent.     1958.  January 22.  The following Judgment of the  Court was delivered by     SARKAR  J.-The  respondent, a scheduled bank,  sued  the appellant in the court of the Civil Judge, Sitapore in Uttar Pradesh,  for the recovery of money due under an  instrument of  mortgage.  The appellant contested the suit  on  several grounds  one  of which was that he was  entitled  to  relief under the Uttar Pradesh Zamindar’s Debt Reduction Act  (U.P. XV  of 1953) which reduced the amount recoverable on a  debt as  defined  in it.  Now a debt was defined in  the  Act  in these terms:    2(f):  "debt"  means  an advance in cash or in  kind  and includes  any transaction which is in substance a  debt  but does  not include an advance as aforesaid made on  or  after the first day of July, 1952 or a debt due to-     (i) the Central Government or Government of any State ;     (ii)  a local authority;     (iii) a scheduled bank;     (iv)  a co-operative society; and 1152     (v) a waqf, trust or endowment for a charitable or religious purpose only.     (vi)  a  person,  where  the debt was  advanced  on  his behalf by the Court of Wards to a ward. As  the respondent was a scheduled bank the debt due  to  it from the appellant was not a debt within this definition and consequently, no relief would appear to be available to  the appellant  under  the  Act in respect  of  that  debt.   The appellant, however, contended that the definition in so  far as  it  excluded  certain  debts offended  Art.  14  of  the Constitution in as much as it made an arbitrary  distinction between  several classes of debtors and denied the  excluded debtors, the equal protection of the law and that hence that portion  of the definition which excluded certain debts  was invalid  and  should  be  struck out and  the  rest  of  the definition should be left as operative.  If the  appellant’s contention  was justified, the definition would have to  run as follows: "debt" means an advance in cash or in coin and includes  any transaction  which  is in substance a debt, and would then include the debt due by the appellant to  the respondent.   If  this was the correct  position,  then  the appellant  would be entitled to all the reliefs  granted  by the Act.    This  defence,  therefore, raised a question  as  to  the validity  of a provision in the Act.  So the appellant  made an  application  to  the Civil  Judge,  Sitapur,  under  the proviso to s. 113 of the Code of Civil Procedure asking  him to  state  a  case  for the opinion of  the  High  Court  at Allahabad  to which he was subordinate as to the  invalidity of the impugned portion of the definition.  That proviso  is in these terms:     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

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case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been  so declared by                             1153 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  learned Civil Judge took the view that the  impugned portion   of  the  definition  infringed  art.  14  of   the Constitution  as  it made an arbitrary  distinction  between several classes of debtors and was therefore invalid, but he held that it was not necessary for the disposal of the  case to decide such question of invalidity because even if it was decided  in favour of the appellant, the result would be  to exclude the entire definition from the Act as the  offending portion  was not severable from the rest and  the  appellant would,   therefore,  be  in  any  event  left  without   the protection  of the Act.  In this view of the matter he  held that  the  proviso to s. 113 of the Code did not  apply  and dismissed the application under it.     The appellant then made an application to the High Court at  Allahabad  for a revision of the order  of  the  learned Civil  Judge.  He at the same time made another  application to the High Court under Art. 228 of the Constitution.   That article is in these terms:     If the High Court is satisfied that a case pending in  a court  subordinate to it involves a substantial question  of law  as  to  the interpretation  of  this  Constitution  the determination of which is necessary for the disposal of  the case, it shall withdraw the case and may-     (a)   either dispose of the case itself, or     (b)   determine the said question of law and return the  case  to  the court from which the  case  has  been  so withdrawn  together  with  a copy of its  judgment  on  such question,  and  the  said court  shall  on  receipt  thereof proceed  to  dispose  of the case in  conformity  with  such judgment.     The appellant in the latter application prayed that  the High Court might be pleased to withdraw the case and  either dispose  it  of  itself, or determine the  question  of  the validity of the defintion of debt in the Act and return  the case to the court of the Civil Judge, 1154 Sitapur,   for  final  disposal  in  accordance  with   such determination.     The High Court disposed of both the applications by  one judgment.   It  held  that there was no dispute  as  to  the constitutional principle which was clear, namely, that every citizen was entitled to the equal protection of the laws and that  any  enactment which infringed that principle,  is  to that extent void, and that the only dispute was whether  the impugned portion of the definition of a " debt " in the  Act was  severable from the rest and that was not a question  of the interpretation of any provision of the Constitution  but one  of the construction of the Act itself.  The High  Court also held that even if any question of the interpretation of the Constitution arose, a determination of that question was not necessary for the dispogal of the case.  In this view of the  matter  the  High Court dismissed  the  application  in revision  and also that under Art. 228.  From this  judgment the present appeal has been filed.    It  seems  clear to us that the question  raised  by  the appellant in this case comes within the proviso to s. 113 of the Code as also art. 228 of the Constitution.  The question

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contemplated  by the proviso to s. 113 of the Code is as  to the  validity of an Act or of a provision in it  while  Art. 228  of  the Constitution has in view a question as  to  the interpretation of the Constitution.  Now the question raised in the present case is as to the validity of a provision  in the  Zamindar’s  Debt  Reduction  Act.   This  question  is, however,  also  a question as to the interpretation  of  the Constitution,   for  the  validity  of  the   provision   is challenged  on the ground that it contravenes an article  of the Constitution.   The point that really arises in this appeal is whether  it is  necessary  for the disposal of the case  to  decide  the question of the validity of a portion of the definition of a debt  in  the Act . All other conditions  necessary  for  an order being made under the proviso to s. 113 of the Code  or Art.  228 of the Constitution exist and as to this there  is no serious dispute.  It is                             1155 not necessary for us therefore to discuss these conditions.     The  courts  below  held  that in  either  view  of  the question  of  the validity of the impugned  portion  of  the definition  of a debt, the appellant would be  without,  the remedy  which  he  sought,  because  that  portion  of   the definition was not severable from the rest, and therefore it was not necessary to decide that question to dispose of  the case.  We are unable to agree with this view.  The  question of  the validity of the definition in so far as it  excluded certain  debts  having  been  raised  and  pressed  by   the appellant,  it  had to be decided by the court.   Without  a decision of that question the case could not be disposed of. The fact that in the view of the court the impugned part  of the% definition was not severable from the rest and  there-’ fore  in any view of the question as to the validity of  the impugned  part, the appellant would not get any relief,  did not alter the position.  The question as to the severability of  the impugned part of the definition from the rest  would arise only after it had been decided that the impugned  part was invalid and so to be able to say that the impugned  part of  the definition was not severable from the rest,  it  had first  to be held that that part was invalid.  It could  not be said that as the impugned part was not severable from the rest  it -was not necessary for the disposal of the case  to decide  the question of the validity of the  impugned  part. We,  therefore,  hold  that it is necessary  to  decide  the question  of  the  validity  of the  impugned  part  of  the definition to dispose of the case.     This  appeal  is  hence allowed.  The  High  Court  will withdraw  the  case  and  either dispose  it  of  itself  or determine the question of the validity of the definition  of a  debt in the Zamindar’s Debt Reduction Act and return  the case to the Civil Judge, Sitapur, for disposal in accordance with its determination of the’ question.  The appellant will get the costs of this appeal.                                             Appeal allowed. I47