RAI SAHIB RAM JAWAYA KAPUR v. THE STATE OF PUNJAB

The contentions raised by Mr. Pathak, who ap peared in support of the petitioners; are of a three-fold character. It is contended in the first place that the incompe executive Government of a State is wholly tent. without any legislative sanction, to engage in the acts of any trade or business activity and that 30 8 SCT/ND, ~2 230 SUPREM.E COURT REPORTS [1955] v. Mukherfta C.J. J955 Roi Sahib Itnnr the Government in carrying out their policy of estab- lishing monopoly in the business of printing and pub- 1•::;;• .~:::_:- lishi'.1g _te~t ~ooks fo_r school s~udents is wholly. wit~- out Junsd1ct10n and 1Hegal. His second contention 1s, Th• State of 1'unfab that assuming that the State could create a monopoly in its favour in respect of a particular trade or busi ness, that could be done not by any executive act but by means of a proper legislation which should con form to the requirements of article 19(6) of the Con stitution. Lastly, it is argued that it was not open to the Government to deprive the petitioners of interest in any business or undertaking which amounts law and without to property without authority of payment of compensation as is required under article 31 of the Constitution. from external or The first point raised by Mr. Pathak, in substance. amounts to this, that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competi tion with private agencies without the sanction of the It is not argued that the functions of a legislature. modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realrri intern a 1 enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community. What Mr. Pathak says, however, is, that as our Con stitution clearly recognises a division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the exe cutive cannot but be to executive the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out. The learned counsel has, in support of this contention, placed con siderable reliance upon articles 73 and 162 of our Constitution and also upon certain decided autho rities cif the Australian High Court to which we shall. presently refer. the function of Article 73 of the Constitution reliltes to the exe cutive powers of the Union, while the corresponding 2 S.C.R. SUPREME COURT REPORTS 231 1955 provision in regard to the executive powers of a State is contained in article 162. The provisions of these. Rai Sahib Ram articles are analogous to those of sections 8 and 49(2) Jawaya Kapur respectively of the Government of India Act, 1935 and :.thers and laid down the powers between the Union and the States, the same analogy as is provided in regard to the dis- tribution of legislative powers between them, Arti- cle 162, with which we are directly concerned in this case, lays down: rule of distribution of executive The. State of Pmuab following Mukhtriea c.J. "Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution 0T by any law made by Parliament upon the Union or autho rities thereof". Thus under this article the executive authority of the State is exclusive in respect to matters enu.rnerated in List II of Seventh Schedule. The authority also extends to . the Concurrent List except as provided in the. Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, autho rity and jurisdiction as are exercisable by the Govern ment of India by virtue of any treaty or any agree ment. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contain any Clefinition as to what the executive function is and what activities would the distri- scope. They are concerned primarily with legitimately come within to provide 232 SUPREME COURT REPORTS L1955] 1955 Rai Sahib Ram Jawaya Kapur aud others v. bution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Le~islature has The State of PunJab legislated on certain items appertaining to their res- Muklrerfea c..r. pective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not con fined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution. These provisions of the Con stitution therefore do not lend any support to Mr. .Pathak"s contention. The Australian cases upon which reliance has been placed by the learned counsel do not, in our opinion, appear to be of much help either. ln the first(') of these cases, the executive Government of the Common wealth, during the continuance of the war, entered into a number of agreements with a company which was engaged in the manufacture and sale of wool-tops. The agreements were of different types. By one class of agreements, the Commonwealth Government gave con sent to the sale of wool-tops by the company in return for ·a share of the profits of the transactions (called by the parties "a licence fee"). Another class provided that the business of manufacturing wool-tops should be carried on by the company as agents for the Com monwealth in consideration of the company receiving an annual sum from the Commonwealth. The rest of the agreements were a combination of these varieties. It was held by a Full Bench of the High Court that apart from any authority conferred by an Act of Parliament or by regulations thereunder, the executive Government of the Commonwealth had no power to make or ratify any of these agreements. The decision, it may be noticed, was based substantially upon the provision of section 61 of the Australian Constitution which is worded as follows : (1) Tlw_ C111111110111i•erif1h nnd the Cl'11fral i-v,,o/ Cm11111ii1<•(' v. Th,• Cnlnuia/ Co111hi11g. Spil111ii1g c111tf W.e111'i11g Co.Ltd., 31 C.l..R. -121. 2 ~.C.R. SUPREME COURT REPORTS 233 "The executive power of the Commonwealth is vested in the Queen and is exercised by the Governor- General as the Queen's representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth". 1955 Jr#. Sahib Ram Ja-;;:z~a 0~":,.~' v. The State of Punjab Mukilerjell C.J. In addition to this, the King could assign other func tions and powers to the Governor-General under sec tion 2 but in this particular case no assignment of any additional powers was alleged or proved. The court held that the agreements were not directly authorised by the Parliament or under the provisions of any statute and as they were not for the execution and maintenance of the Constitution they must be held to be void. Isacs, J., in his judgment, dealt elabo rately with the two types of agreements and held that the agreements, so far as they purported to bind the the Government money, as the company price of consents, amounted to the imposition of a tax and were void without the authority of Parlia ment. The other kind of agreements which purported to bind the Government to pay to the company a remuneration for manufacturing wool-tops was held to be an appropriation of public revenue and being without legislative authority was also void. to pay to It will be apparent that none of the principles indicated above could have any application to the cu cumstances of the present case. There is no provision in our Constitution corresponding to section 61 of the imposed Australian Act. The Government has not anything like taxation or licence fee in the present case nor have we been told that the appropriation of public revenue involved in the so-called business text books carried on by the Government has not been sanctioned by the legislature by proper Appr.opriation Acts. The other casc(1) is of an altogether different character and arose in th«: following way. The Com monwealth Government had established a clothini! factory in Melbourne for the purpose of making nav;i and military uniforms for the defence forces and (1) .Vid·" Attorney General for Jlklqf"1 v. The Commo11weal1h, 52 C'.L.R. 533. 234 SUPREME COURT REPORTS [1955] v. Mukherjea c,J. T/re S1ute of J'uhiab General deemed such peace-time operations of postal employees. In times of peace the operations of 1955 the factory included the supply of uniforms for other Rui S'lfrib Ram Ja:~~"o5::':: departments of the Commonwealth and for employees in various public utility services. The Governor- factory necessary for the efficient defence of the Com monwealth inasmuch as the maintenance intact of the trained complement of the factory wou Id assist in meeting wartime demands. A question arose as to whether operations of the factory for such pur poses-in peace-time were authorised by the Defence Act. The majority of the court answered the ques tion in the affirmative. Starke, J. delivered a dissent relied. ing opinion upon which Mr. . Pathak mainly The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of -the Commonwealth extended to the· main t~e laws of the tenance of the Constitution and of there was nothing in Commonwealth and held that the Constitution or any law of the Commonwealth which enabled the Commonwealth to establish and than Common maintain clothing factories for other wealth purposes. The opinion, whether right or wrong, turns upon the particular facts of the case and upon the provision of section 61 of the Australian Act and it cannot and does not throw any light on the question that in the present case. requires decision , A question very similar to that in the present case did arise for consideration before a Full Bench of the Allahabad High Court in Motila1 v. The Guvemment of the State of Uttar Pradesh('). The point c<invassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Govern ment to do so. Different views were expressed by this question. Chief Justice different Judges on Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent: (I) A.LR. 1951 Allahabad 257. 2 S.C.R. SUPREME COURT REPORTS 235 1 °11 h S ust1ce t. e h Ch" f J ccor mg to t e tate ms its own property and The $.tare of P1111jab 19ss Rrsi, Sa/tib Ram It must mean more than merely executing the Jal'!lldya K,af'Jur · ott1er.< A v. It prnst include all powers that may be needed to carry into effect the aims and objects of the Constitu- tion. d . 1 1e aws. a right to hold and manage carry on such trade or business as a citizen has the At1fklterjea c..1. right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary to law. The running of a transport business there- fore was not per se outside the ambit of the executive authority of the State. Sapru, J. held that the power to run a Government bus service was incidental to the power of acquiring property which was expressly conferred by articl~ 298 of the Constitution. Moo- JJ., who delivered a commoi1 tham and Wanchoo, judgment, were also of the opinion that there was no need for a specific legislative enactment to enable a State Government to run a bus service. In the opinion of these learned Judges an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public. Agarwala. J. dissented from the majority view and held to run a bus the State Government had no power service in the absence of an Act of the legislature authorising the State to do so. The opinion of Ag:ar- wala, J. undoubtedly supports the contention of Mr. Pathak but it appears to us to be too narrow and un- supportable. .. It may not be possible to frame an exhaustive de finition of what executive function means and implies. Ordinarily the executive power connotes residue functions that remain after legisla of governmental taken away. The tive and judicial functions are Indian Constitution has not doctrine of separation of powers its absolute rigidity but the functions of the different parts or branches of the Government have been sufficicntlv difTerentiated and consequently it can very well be said that our Constitution does not contcmplrite indeed recognised 236 SUPREME COURT REPORTS [I 955] and others v, The State of Pnnjah.are delegated to it by the 1955 Rai Sahib Ram Jawa.va Kqpur, executive indeed can exercise assumption, by one organ or part of the State, of to another. The functions that essentially belong the powers of depart mental or subordinate legislation when such powers It can also, Mukherjeb CJ. when so empowered, exercise J'udicial functions in a limited way. The executive overnment; however. can never go against the provisions of the Constitu tion or of any law. This is clear from the provisions the Constitution but, as we have of article 154 of already stated, it does not follow from there must order to enable the executive the powers of be a law already in existence and that the executive are limited merely to the carrying out of these laws. to function legislature. this that to have The limits within which the executive Gt,vernment can function under the Indian Constitution can be ascertained without much difficulty by reference the form of the executive which our Constitution has set up. Our Constitution, though federal in its struc ture, is modelled on the British Parliamentary system where the executive is deemed the primarv formulation of governmental responsibility for the policy and its transmission the con dition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the promo the maintenance of order. tion of social and economic welfare. the diredion of foreign policy, in fact the carrying on or supervision of the general administration of the State. into law though Jn India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the execut.ive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The Presi dent has thus been made a formal or constitutional 2 S.C.R. SUPREME COURT REPORTS 237 1955 v. ers in regard In the Indian Constitution, head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same Roi Sa/iJ'b Ram the Government of Jawa~a~~apur provisions obtain States; the Governor or the Rajpramukh, as the case may be. occupies the position of the head of the exe- The State 01 Pun/ab cutive in the State but it is virtually the council of Mukhe, Jea CJ. Ministers in each State that carries on the executive Government. therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is. like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part". The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself virtual control of both legislative and executive func- tions; and as the Ministers constituting the Cabinet fundamentals an·d act on are presumably agreed on the .principle of collective responsibility, the most im- portant questions of policy are all formulated by them. Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business. Is it necessary that there must be a specific legislation legalising such trade activities before they could be em barked upon? We cannot say that such If the trade or busi legislation is always necessary. it is certainly re ness involves expenditure of funds, quired that Parliament should authorise such expendi ture either directly or under the provisions of a statute. What is generally done in such cases is. that required for carrying on the business are the sums entered in the annual financial statement which the Ministry has to lay before the House or Houses of Legislature in respect of every financia} year under article 202 of the Constitution. So much of the esti nrntes as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legisla ture has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduc- 31-s SCIIND.'82 238 SUPREME COURT REPORTS. [1955] 1955 •• '"' 011 (article 203). After the grant is tion of the amount Rni snhib Ram sanctioned, an Appropriation Bill '0"~Y:rf."P!!' provide for the appropriation out of the consolidated fund of the State of all moneys required to meet the TheSror• 0! l'mriab grants thus made by the Assembly (article 204). As M11kh-;:;a c,1. soon as the Appropriation Act is passed, the expendi ture made under the heads covered by it would be deemed to be properly authorised by law under article .266(3) of the Constitution. is introduced It may be, as Mr. Pathak contends, that the Ap propriation Acts are no substitute for specific legisla tion and that they validate only the expenses out of the consolidated funds for the particular years for which they are passed; but nothing more than that may be necessary for carrying on of the trade or busi the Constitution no ness. Under article 266(3) of moneys out of the consolidated funds of India or the consolidated fund of a State shall be appropriated ex cept in accordance with law and for the purposes and in the manner provided in this Constitution. The expression "law" here ·obviously includes the Appro priation Acts. It is true that the Appropriation Acts cannot be said to give a direct legislative sanction to long as the the trade activities themselves. But so trade activities are carried on in pursuance of the policy which the executive Government has formu lated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific possibly be raised. Objections could be raised only in regard to the expenditure of public funds for carry ing on of the trade or business and Appropriation Acts would afford a complete answer. legislative provision Specific legislation may indeed be necessary if the addition to Government require certain powers· what they possess under ordinary law carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carrv on their busine~s. a specific legislation sanctioning s~1ch course would have to be passed. in order 2 S.C.R. SUPREME COURT REPORTS 239 In the present case it is not disputed that the entire 1955 the business of Rai Sahib R"m '""'<lY" 1'"P"' !lnzi 11thers v. expenses necessary for carrying on printing and publishing the text books for recog- nised schools in Punjab were estimated and shown in . the annual financial statement and that the demands Tire St!lte of P1111i!lh for grants, which were made under different heads, M11kherJe11 c .. 1. were sanctioned by the State Legislature and due Appropriation Acts were passed. For the purpose of re- carrying on the business the Government do not quire any additional powers and whatever is neces- sary for their purpose, they can have by entering into contracts with authors and other people. This power of contract is expressly vested in the Government under article 298 of the Constitution. In these cir- cumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legisla- tion sanctioning such course. "· These discussions however are to some extent academic and are not sufficient by themselves to dis pose of the petitioners' case. As we have said already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution. The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts· of the exe cutive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of petitioners guaranteed under Part III of the Consti tution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the latter petitioners have been would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are fringed. The material question for consideration t hcrcfore is: What fundamental rights of the peti tioners, if any, have been violated by the notifications thereby, the infringed 240 SUPREME COURT REPORTS _ (1955] 19ss and acts of the executive Government of Punjab &1 Silltib Ram undertaken by them in furtherance of their policy of school Jawaya /(Jlpur and '!/.h"'s 1'11. State of Puf!iai Muklierjea c;.J. nationalisation of the text books students? for the The petitioners claim fundamental right under article l 9(1)(g) of the Constitution. which guarantees, inter alia, to all persons the right to carry on any trade or business. The business which the petitioners have been carrying on is that of printing and publish ing books for sale including text books used in the primary and middle classes of the schools in Punjab. Ordinarily it is for the school authorities to prescribe the text books that are to be used by the students and if these text books are available in the market the pupils can purchase them from any book-seller they like. There is no fundamental right in the pub lishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued to the schools which are recog future.. With regard nised by the Government the position of the. pub lishers is still worse. The recognised schools receive aids of various kinds from the Government including institutions, for grants for the maintenance of the equipment, f.urniture, scholarships and other things and the pupils of the recognised sch0<9ls are admitted to the school final examinations at lower rates. of fees than those demanded from the students of non-recog nised schools. Under the school code, one of the main conditions upon which is granted by Government is that th~ schpol authorities must use as text books only those which are prescribed or autho rised by the Government. So far therefore as recognised schools are concerned-and we are con in the present case cerned only with these schools the choice of text books rests entirely with the Gov ernment and it is for the Government to decide in which way the selection of these text books is to be made. The procedure hitherto followed was that t_he Government used to invite publishers and authors to submit their books for examination and approval by recognition " 2S.C.R. SUPREME COURT REPORTS 241 . h 11111a 1955 · • v .. rp 'h s e tllle o, __.:._ the only right which Mukherjea c.J. to print and publish 11 the pupils. So long the Education Department and after selection was made by the Government, the size, contents as . well Rai. Sqhib R,,m as the prices of the books were fixed and it was left Ja:~a /f;,"fr:' to. the publishers or authors them and off er them for sale to as this system was in vogue publishers, like the petitioners had, was to off er their books for inspection and approval by the Govern- ment. They had no right to insist on any of their books being accepted as text books. So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be securing a particular lucky in market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to. him to say that it was his fundamental right to have his old customers for ever. On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase copyright in them from the authors and others pro- vided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or rusiness .is affeGted by it. Nobody is taking away the publi- shers' right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they l:'.re. concerned whether the Government .approves· of text books submitted by other persons who are willing to sell their copyrights in the books to them. or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print 242 SUPREME COURT REPORTS [1955] ._, 1955 Rui Sahib Ram ment of Mr. Pathak Jawayu Kapur und oth~rs v. and publish. We are unable to appreciate the argu- that the Government while cxer cising their undoubted right of approval calmot attach to it a condition which has no bearing on the purpose Tile State of Punjab for which the approval is made. We fail to see how the petitioners' position is in any way improved thereby. The action of the Government may be gLJod or bad. It may be criticised and condemned in Houses of the Legislature or outside but this do.es not amount to an infraction of the guaranteed by article 19(1 )(g) of the Constitution. fundamental .uukl~rjell c.J. two points As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government, the to fail on that ground. This being petition is bound raised by Mr. the position, the other Pathak do not require consideration at all. As petitioners have no fundamental right under article 19(l)(g) of the Constitution, the question whether the Government could establish a monopoly without any lc~islation under article 19(6) of the Constitution is allogclher imnrntcrial. Again a mere chance or pros pect of having particular customers cannot be said to be a right to property or to any interest in an under taking within the meaning of article 3112) of the Con stitution and no question of payment of compensation can arise because the petitioners have been deprived of the same. The result is that the petition is dismissed with costs. PETITIONS NOS. 71 TO 77 AND 85 OF 1955. identically MuKHERJEA C. J.-These 8 petitions under article 32 of the Constitution raise points for conside.i:ation as are involved in Petition No. 652 of 1954 just disposed of. The petitioners in these cases also purport to .be printers, publishers and . sellers of text-books for various classes in the schools. of Punjab and they complain .of infraction of fundamental rights under article J 9(l)(g) of the Con stitunon hv reason of the various notifications issued their policy by the Sta.te of Punjab in pursuance of 2 s.c.R. SUPREME COURT REPORTS 243 of nationalisation of text books. The learned counsel appearing in these cases have adopted in their entirety Rai Sahib Ram the arguments that have been advanced by Mr. Pathak Jaw4ya Kapur amt others in Petition No. 652 of 1954 and no fresh or additional v. argument has been put forward by any one of them. The SfrJJe of Punjab This beiqg the decision No 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs. in Petition M11k;;;;;;a c..1. the position 1955 SHIVA JUTE BALING LTD. v. HINDLEY & CO. LTD. [BIJAN KUMAR MuKHERJEA C.J. and SUDHI RANJAN DAS J.]. Appeal by Special Leave under Article 136 of the Constitution Procedure to be followed on grant of such leave-Supreme Court Rules, rules 8, 9, 12 and 13 of Order Xlll--Circumstances warrant ing action against an Appellant for rescinding special leave--Civil Procedure Code, Order XLV, rule 8-"Admission" of appeal to Supreme Cow·t-Applicability to appeals under article 136 of Consti tution-Extent of Rule 9, Order XIII, of Supreme Court Rules Rules and Practice of High Collrts-Formal motion in High Court for "admission" of appeal when special le1we was granted under article 136-Whether necessary--Calcutta High Court (Original Side) Rules, rule 9 of Chapter 32-Scope of. By an order dated May 25, 1~54, the Supreme Court granted the petitioners in the case special leave to appeal against the judg ment and order of the High Court at Caleutta. In accordance wi:h the order, the pt'titioners furnished the security amounts directed to be deposited within the time specified in the order. The Registrar of the High Court did not iSS\le. any notice of admission of appeal to be served by the Appellant's Solicitor on the Respondents as envisaged in rule 9 of Order. XIII, S.C.R. Nor did the Appellant fol lowing the practice of the High Court, move that C.ourt for "admis sion" of the appeal until January U, 1955. The Respondents first mo\·ed the High Co4rt complail).ing of d~ault on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 df Order XIII of the Supreme Court Rules. The application in the High Court was there fore kept pending. Held: Af~er the grant of $pecial leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the