Report No. 54
Order 27A, rule 1
27A.8. On the question whether in a case which involves a question referred to in Order 27A, rule 1, notice must be given to the Advocate-General or the Attorney-General, as the case may be irrespective of the considerations whether the State is already a party to the suit, there are three reported cases from Bombay, Allahabad and Patna.
27A.9. In the Bombay case,1 section 6(4)(a) of the Bombay Land Requisition Act, 1948 was challenged as contravening the provisions of the Constitution. The petition, the Court held, involved a substantial question of law as to the interpretation of the Constitution, and Order 27A, rule 1 made it mandatory for the Court to give notice to the Advocate-General or the Attorney-General as the case may be. The Court observed-
"As the rule stands, it is clear and explicit and, as I said before, mandatory and it makes it incumbent upon the Court in every suit where such a question arises to give notice to the Advocate-General or the Attorney-General as the case may be."
1. Hemant v. State of Bombay, AIR 1951 Born 121 (124) (DB) (Chagla C.J. and Gajendra¬gadkar J.).
27A.10. It was urged that if the State or Union was already a party to the suit or proceeding, then no object could be served by giving notice to the Advocate-General or Attorney-General. The Court did not agree with this view. The court referred to such instances as, where the Advocate-General represents a charity or where, apart from being the legal adviser of the State, the Advocate-General not only represents the State but also the bar as its leader. The Court held that "The Advocate-Generals and the Attorney-General have independent rights and independent function to discharge, and an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation."
27A.11. Referring to Order 27A, rule 2, the Court said-
"This seems to suggest that the draftsman of the rule contemplated that even where the State or the Union was added as a party to the suit, the Advocate-General may still appear and, therefore, the question of costs had to be dealt with both with regard to the State and the Advocate-General."
27A.12. In the Allahabad case1, one of the issues involved was whether the dismissal of a Government employee had been ordered by a competent authority, and whether sufficient opportunity had been given to him to defend. In the High Court, after the hearing of the case had almost concluded, counsel for the State requested that notice of the appeal should be sent to the Advocate-General of the State, inasmuch as according to him, (Counsel for the State) the case involved a substantial question of law as to the interpretation of the Constitution referred to in Order 27A, rule 1, Civil Procedure Code. The Court held that these two points at issue did not involve any substantial question of law as to the interpretation of the Constitution, and observed:-
"The State is party to this appeal, and the case on behalf of the State had been argued by the learned standing Counsel. We, therefore, find ourselves unable to accede to the request made by the learned counsel for the respondent."
1. Om Prakash v. State of Uttar Pradesh, 1968 Lab IC 302 (319), para. 90 (DB).
27A.13. In one Patna easel, the vires of the Suits Valuation Act was challenged in a suit between private parties. Government was not a party. For the appellant, it was urged that certain sections of the Act were ultra vires the provisions of Article 14 of the Constitution. But it was conceded that this point could not be decided in second appeal, because no notice of this particular ground had been given to the Attorney-General, as required under Order 27A.
27A.14. We have examined the question whether the present position in respect of the point discussed above should be allowed to continue. Having regard to what was said in the Bombay case, we would not disturb the present provision.
27A.15. We now proceed to discuss one point which concerns the scope of Order 27A as a whole. It may be noted that Order 27A is confined to situations where the validity of an Act is challenged, and does not deal with questions relating to validity of statutory rules and orders (and other statutory instruments).
We have considered this question, having regard to the increasing importance of statutory instruments. We are of the view that when the vires of a statutory instrument is challenged in a suit, the authority which issued the instrument should be made a party to the suit. Even now, the promulgating authority would appear to be a proper party,1 in such cases. But our intention is to make the position more explicit in this respect. It is desirable that the Government or other authority issuing the instrument is given an opportunity to join as a party, in such cases. The amendments which we recommend in this regard will be substantially on the same pattern as the present provisions in Order 27A, which govern cases involving substantial questions of law as to the interpretation of the Constitution.
1. Order 1, rule 10.
27A.16. Accordingly, we make the following recommendations for amendment of Order 27A:-
(i) The heading of Order 27A should be revised, so as to read as follows:-
"Suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument."
[Order 27A, rule 1 will remain unchanged].
(ii) The following new rule should be added as rule 1A:-
"1A. In any suit in which it appears to the court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved, the court shall not proceed to determine that question until after notice has been given-
(a) to the Government Pleader, if the question concerns the Government, or
(b) to the authority which issued the statutory instrument, if the question concerns an authority other than the Government.
Explanation-In this rule, 'statutory instrument' means a rule, notification, bye¬law, order, scheme or form made under an enactment."1
[Order 27A, rule 2, will remain unchanged].
(iii) The following new rule should be added as rule 2A:-
"2A. The Court may, at any stage of the proceedings, in any suit involving any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a defendant-
(a) if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under rule 1A or otherwise, applies for such addition, and
(b) the court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question."
(iv) Order 27A, rule 3, should be revised as follows:-
"3. Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, the Advocate-General or the Government Pleader, or the Government or other authority, shall not be entitled to or liable for costs in the court which ordered the addition, unless the Court, having regard to all the circumstances of the case, for any special reason otherwise orders."
1. In the alternative, the definition could he placed at the end of the Order.