TaxTMI 
TaxTMI 
TaxTMI 
1980 (4) TMI 320
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....these S.C.L.A.Ps. have arisen, were pronounced after the Constitution (Forty-Fourth Amendment) Act, 1979 incorporating Art. 134A came into force on 1-8-1979, Rule 3 of Chapter XIX. of the Karnataka High Court Rules was suitably amended so as to bring it in consonance with Art. 134A of the Constitution. R. 3 as amended provides that a party desiring to appeal to the Supreme Court under Arts. 132 and 133 of the Constitution may apply orally for grant of certificate immediately after the pronouncement of the judgment by the Court and the Court may grant or refuse the same. The Division Bench consisting of the Chief Justice and Justice Bopanna, which had occasion to consider the scope of this Rule, has observed as follows: "Amended Rule 3 of Chapter XIX of the Karnataka High Court Rules, merely enables a party to make an oral application immediately after a judgment or order is pronounced for grant of a certificate of fitness to appeal to the Supreme Court. That Rule does not preclude a party from subsequently making a written application for grant of -a certificate of fitness to appeal to the Supreme Court". When an objection was raised in these cases before the Bench con....
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....as the case may be sub-clause (3) of clause (1) of Art. 134 may be given in respect of that case." It is clear from Art. 134A, that it prescribes two modes for granting certificates for appeal to the Supreme Court under Arts. 132, 133 or 134 viz., by the exercise of the suo motu power of the High Court or on an oral application made by or on behalf of the aggrieved party. So far as an oral application by the aggrieved party is concerned, the same is required to be made immediately after the passing or making of a judgment, decree, final order or sentence. Art. 134A does not expressly contemplate a written application being made for grant of a certificate. It is in exercise of the suo motu power of the High Court or an oral application made by the aggrieved party that Art. 134A makes it imperative that the High Court shall determine the question regarding grant of certificate referred to in Art. 132, 133 or 134 of the Constitution, as soon as may be, after passing or making of a judgment, decree, final order or sentence. 3. It was contended by the learned counsel for the petitioners that as making a written application for grant of certificate for appeal to the Supreme Court ....
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....er 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 Sole Trustee Loka Sikshana Trust v. The Commissioner of Income Tax [1975]101ITR234(SC) , 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(2) was wholly superfluous. Theref....
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....n 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 in stance approaching the High Court for certificate. As the aggrieved party who did not make an oral application imm....
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....gned to the word 'forthwith' in Keshav Nilakanth Joglekar v. The Commissioner of Police Greater Bombay 1957CriLJ10 . The said decision is helpful for understanding the meaning of the word 'immediately' inasmuch as their Lordships have come to the conclusion that the words 'forthwith' and 'immediately' have the same meaning. It will be useful to extract the relevant observations in paragraph 7 of the judgment which are as follows: "7. The meaning of the word "immediately' came up for consideration in Thompson v. Gibson (1841) 8 M & W 282 : 151 ER 1045. Holding that it was not to be construed literally, Lord Abinger C. B. observed: "If they "(acts of Parliament)" could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, upon this act of Parliament, that it was the intention of the legislature that not a single moment's interval should take place before the granting of the certificate, I should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretation; we are therefore to see how, consistently with comm....
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.... reasonable time from the service of notice. On these authorities, may be taken that an act which is to be done forthwith must be held to have been dispatch and without avoidable delay." It is in the light of the principles laid down in these decisions that the court has to decide having regard to the oral application for grant of certificate can be regarded as having been made immediately after the passing or making of a judgment, decree, final order or sentence. It is impossible to catalogue all possible situations when an oral application can be regarded as having been made immediately. But, it can safety be stated that if the oral application for the grant of a certificate is made then and there after the passing or making of a judgment, decree, final order or sentence, such an application has to be regarded as having been made then and there, then the court has to examine the circumstances of each case having regard to the principles stated earlier as to when the application can be regarded as having been made immediately. 11. We shall now consider the point of time when the determination about the grant, of certificate should be made. Article 134A provides that such de....