Satish Chandra, J. - (1.) ON February 7, 1977, a Division Bench of this Court passed the following order: "By this writ petition under Art. 226 of the Constitution, the petitioners seek to challenge the validity of the U. P. ordinance No. 14 of 1976, which has since been replaced by an Act, on the ground that it contravenes Art. 29 and other provisions of the Constitution. Art. 228-A (3) of the Constitution provides that the minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law has to be five. Even if we are not inclined to accept the argument of the petitioners, it will not be possible for us to reject the writ petition, as it would amount to determination of a question on constitutional validity of the Ordinance. The object of placing a writ petition for admission obviously cannot be to compel the Division Bench to admit the writ petition whether it agrees with the arguments advanced by the petitioner or not. In the circumstances, in cases where the constitutional validity of some State law is being questioned, it will serve no useful purpose to list that petition before Division Bench. Accordingly we direct that the papers of this writ petition be placed before the Hon'ble the Chief Justice for making the appropriate orders."
(2.) THE Hon'ble the Chief Justice directed that the petition be listed before this Bench. When the hearing began, we felt that even though a petition under Art. 226 of the Constitution may raise question as to the constitutional validity of any State law, it may not be necessary for it to be heard by a Bench of five Judges for its admission. Learned counsel for the petitioner conceded that though this aspect was implicit in the reference but since such a question was not expressly referred, he may be granted time to study and make considered submissions. We accordingly adjourned the hearing. Art. 228-A as added to the Constitution by the Constitution (Forty Second Amendment) Act, 1976 reads: "Special provisions as to disposal of questions relating to constitutional validity of State laws- (1) No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid. (2) Subject to the provisions of Art. 131-A, the High Court may determine all questions relating to the constitutional validity of any State law. (3) The minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law shall be five: Provided that where the High Court consists of less than five Judges, all the Judges of the High Court may sit and determine such question. (4) A State Law shall not be declared to be constitutionally invalid by the High Court unless- (a) Where the High Court consists of five Judges or more, not less than two-thirds of the Judges sitting for the purposes of determining the validity of such law, hold it to be constitutionally invalid; and (b) Where the High Court consists of less than five Judges, all the Judges of the High Court sitting for the purpose hold it to be constitutionally invalid. (5) The provisions of this article shall have effect notwithstanding anything contained in this Part. Explanation.- In computing the number of Judges of a High Court for the purposes of this article, a Judge who is disqualified by reason of personal or pecuniary bias shall be excluded." The scheme of this Article is that the High Court has been debarred from declaring any Central law to be constitutionally invalid. In the next place, a High Court can declare a State law to be constitutionally invalid if two-thirds of the Judges sitting for the purpose of determining the validity of such law hold it to be constitutionally invalid. To this end, at least five Judges must sit and hear the case. If a High Court consists of less than five Judges all the Judges have to sit and hold that the law is constitutionally invalid.
(3.) LEARNED counsel for the petitioner urged that by cl. (3) at least five Judges have to sit for determining the question as to the constitutional validity of the State law. The word 'determining' meant settling or resolving the question. According to learned counsel a Bench of less than five Judges cannot, at the admission stage, dismiss the writ petition involving a constitutional question because by dismissal, the question as to the constitutional validity of any State law is determined, though against the petitioner. While conceding that a Bench of less than five Judges may after hearing it admit a writ petition, but they cannot validly dismiss it. The word 'determination' has been defined under Shorter Oxford English Dictionary, page 493, as a bringing or coming to an end, judicial or authoritative decision or settlement, the resolving of a question the action of decisively ascertaining the position, the mental action of coming to a decision. The word 'determine', has been defined to mean to put an end to, to settle or decide, to come to a judicial decision, to lay down decisively or authoritatively, to ascertain definitely, to resolve a question. In Webster's Third New International Dictionary, page 616, the word 'determine' has been defined to mean to fix conclusively or authoritatively to settle a question or controversy to settle or decide by choice of alternatives or possibilities. In Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand (AIR 1963 SC 677), it was held that the expression 'determination' in the context in which it occurs in Art. 136 signifies an effective expression of opinion which ends a controversy or a dispute. In the Divisional Personnel Officer, Southern Railways v. T. R. Challappan (AIR 1975 SC 2216 para 21), it was held that the word 'determine' has a much wider scope than the word 'consider'. The word 'consider' merely connotes that there must be active application of the mind by an authority after considering the entire circumstances of the case. In some decision, the word determine, has been held to mean to come to an end. (See Sital Sukhiram v. Central Government Industrial Tribunal-cum-Labour Court (AIR 1969 Madh Pra 200, para 9) and Krishna Kutty Nair v. Industrial Tribunal, Trivandrum (AIR 1960 Ker 31, para 7).);