The State Of Meghalaya vs Union Of India

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

ORIGINAL SUIT NO. 1 OF 2021

STATE OF MEGHALAYA ..... PLAINTIFF(S)

VERSUS

UNION OF INDIA & OTHERS ..... DEFENDANT(S)

ORDER

1. By way of these proceedings, registered as Original Suit No. 1 of

2021, the State of Meghalaya seeks to invoke the original jurisdiction of this

Court under Article 131 of the Constitution of India for a declaration that

Sections 5, 6, 7, 8 and 9 of the Lotteries (Regulation) Act, 1998 [‘the Act of

1998’], and Rule 5 of the Lotteries (Regulation) Rules, 2010 [‘the Rules of

2010’], are ultra vires and unconstitutional, and for other reliefs.

1.1. The reliefs claimed in the plaint read as under: -

“The plaintiff, therefore, prays that this Hon’ble Court may be pleased to pass a judgment and decree granting following relief:

a) Declare and hold Section 5 of the Lotteries (Regulation) Act, 1998 (Act No. 17 of 1998) and the Rules framed thereunder as being ultra-vires to the Constitution of India and unconstitutional;

and

b) Declare and hold Section 6 of the Lotteries (Regulation) Act, 1998 as being ultra-vires to the Constitution of India and Signature Not Verified unconstitutional as being violative of Article 14, to the extent it Digitally signed by ARJUN BISHT empowers the Central Government to pass orders prohibiting a lottery organized in contravention of provisions of Sections 5 of the Date: 2023.05.11 12:29:10 IST Reason:

Lotteries (Regulation) Act, 1998; and

1

c) Declare and hold Section 7, 8, 9 of the Lotteries Regulation Act, 1998 as being ultra-vires to the Constitution of India and unconstitutional as being violative of Article 14 to the extent they provide for penal consequences for violation of Section 5 of the Lotteries (Regulation) Act, 1998; and

d) Declare and hold Rule 5 of the Lotteries (Regulation) Rules 2010 as ultra-vires to the Constitution of India and unconstitutional as violative of Article 14; and

e) Grant permanent injunction, restraining the Defendant Union of India from issuing orders under Section 6 of the Lotteries (Regulation) Act, 1998 prohibiting sale of tickets of a lottery organized in contravention of provisions of Sections 5 of the Lotteries (Regulation) Act, 1998, in relation to the lotteries organized by the Plaintiff; and

f) Grant permanent injunction, restraining the Defendant Union of India from initiating or taking any penal action under Section 7, 8 and 9 of the Lotteries (Regulation) Act, 1998 against any person for violation of Section 5 and 6 of the Lotteries (Regulation) Act, 1998 to the extent it relates to the lotteries organized by the Plaintiff; and

g) Grant permanent injunction, restraining the Defendant Nos. 2 to 36 States and Union Territories from prohibiting sale of tickets of lottery organized by the Plaintiff State in their respective jurisdiction;

and

h) Award costs against such Defendant who may contest the Plaintiff’s claim to relief; and/or

i) Pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

2. Section 5 of the Act of 1998 is to the effect that a State Government

may prohibit the sale of tickets of a lottery organized, conducted or

promoted by every other State within its territories. Section 6 thereof

empowers the Central Government to prohibit a lottery organized,

conducted or promoted in contravention of Section 4 or where tickets of

such lottery are sold in contravention of Section 5, by an order published in

the Official Gazette. Section 7 of the Act of 1998 deals with penalties, which

may extend to rigorous imprisonment for 2 years or with fine or both.

2 Section 8 states that offences under the Act of 1998 shall be cognizable

and non-bailable. Section 9 of the Act of 1998 deals with offences by

companies and identifies those within the management who would be

deemed guilty of the offence and liable to be proceeded against and

punished. The State of Meghalaya assails Sections 6, 7, 8 and 9 of the Act

of 1998, insofar as they pertain to contraventions of Section 5 of the Act of

1998. Rule 5 of the Rules of 2010 details the procedure to prohibit sale of

lottery tickets, in terms of the provisions of the Act of 1998.

3. In addition to the declaratory reliefs, the State of Meghalaya has

also sought a perpetual injunction restraining the Union of India from

issuing orders under Section 6 of the Act of 1998 in relation to the lotteries

organized by it; a perpetual injunction restraining the Union of India from

initiating or taking any penal action under Sections 7, 8 and 9, for violation

of Sections 5 and 6 of the Act of 1998, in relation to the lotteries organized

by it; and a perpetual injunction restraining the States and Union Territories,

viz., defendant Nos. 2 to 36, from prohibiting the sale of lottery tickets

organized by it in their respective jurisdictions. Lastly, the State of

Meghalaya has also sought the suit costs against the contesting

defendants.

4. Presently, we have heard learned counsel for the contesting parties

on the question of maintainability of the suit; and we propose to deal only

with this issue of maintainability and the aspects supplemental.

4.1. It is the contention of the Union of India and several of the

impleaded States that this suit is not maintainable. It has essentially been 3 contended on behalf of the Union of India by the learned Attorney General

that in the case of State of Madhya Pradesh v. Union of India and Anr.:

(2011) 12 SCC 268, this Court has ruled that recourse to original jurisdiction

under Article 131 of the Constitution of India is not permissible to challenge

the vires of a statute; and the question is referred to a Larger Bench in

Original Suit No. 1 of 2012. It has also been submitted that in Original Suit

Nos. 1 of 2020, 1 of 2023 and 3 of 2023, similar question is pending

consideration before this Court. It has, therefore, been submitted that either

the matter be referred to a Larger Bench or the decision of Larger Bench

be awaited. It has been argued on behalf of the State of Kerala that Article

131 of the Constitution requires that the dispute raised thereunder should

involve a question, be it of law or fact, on which the existence or extent of

a legal right would depend; and it is asserted that the State of Meghalaya

cannot claim any ‘legal right’ to sell its lottery tickets in other States. It is

further contended that the business of lotteries would be a form of gambling

and amount to res extra commercium and, therefore, the State of

Meghalaya cannot claim any legal right to conduct its lottery business in

another State against the will of that State. Maintainability of the present

suit has been questioned on behalf of the State of Bihar and the State of

Assam too.

4.2. On the other hand, the State of Meghalaya, supported by the States

of Nagaland and Sikkim, would point out that a 6-Judge Bench of this Court

had an occasion to deal with the challenge by a State to a parliamentary

legislation under Article 131 of the Constitution in State of West Bengal v. 4 Union of India: AIR 1963 SC 1241 and assert that it is trite that a State

can maintain such a challenge by invoking the original jurisdiction of this

Court. It has also been contended that the decision in the case of State of

Madhya Pradesh (supra) may not be considered to be an authority for the

proposition that the present suit is not maintainable at all

5. Article 131 of the Constitution of India reads as under: -

“131. Original jurisdiction of the Supreme Court.- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute-

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.”

5.1. Rule 6 of Order XXVI of the Supreme Court Rules, 2013 reads as

under: -

“6. The plaint shall be rejected: -

(a) where it does not disclose a cause of action.

(b) where the suit appears from the statement in the plaint to be barred by any law.”

6. Significantly, in Tashi Delek Gaming Solutions Ltd. v. State of

Karnataka and Ors.: (2006) 1 SCC 442, this Court had an occasion to

deal with the scope and ambit of Article 131 of the Constitution. This Court

observed that Article 131 would be attracted where adjudication is

necessary in relation to a legal right of one State or the Union of India vis-

5 à-vis other States, as the case may be. It was further observed that the

expression ‘legal right’ had indisputably received a liberal interpretation by

this Court from time to time. The issue in that case was the right of the

agents of the States of Sikkim and Meghalaya to challenge, by way of a

writ petition, a notification issued by the State of Karnataka, under the Act

of 1998, which affected their lottery business in that State. The Karnataka

High Court held against them on the ground that it would be for their

principals, i.e., the States of Sikkim and Meghalaya, to invoke the

jurisdiction of the Supreme Court under Article 131 of the Constitution. In

that regard, this Court observed that even if the States of Sikkim and

Meghalaya filed suits against the State of Karnataka under Article 131, the

independent right of the agents to maintain an action before the appropriate

forum could not be taken away. It was further observed that as Article 131

would not include even a statutory corporation, as the enlarged definition

of a ‘State’ under Article 12 would not extend to Article 131, it would not be

permissible for the agents, even if they joined together with their principals,

viz., the States of Sikkim and Meghalaya, to maintain a suit under Article

131. Further, this Court observed that if the States of Sikkim or Meghalaya

had intended to sue the State of Karnataka independently, in terms of

Article 131 of the Constitution, the only forum where the dispute between

them could have been resolved was this Court alone. It was, accordingly,

held that the writ petitions filed by the agents were maintainable.

7. Reference may also be made to the case of State of Rajasthan

and Ors. v. Union of India and Ors.: (1977) 3 SCC 592 decided by a 7- 6 Judge Bench of this Court, wherein it was observed that a State’s right to

seek enforcement of a legal right arising under the Constitution cannot be

thrown out in limine as being outside the scope and ambit of Article 131.

This Court noted that every constitutional question would concern

allocation and exercise of Governmental power and, therefore, no

constitutional question can fail to be political, but what this Court would not

entertain under Article 131 is a purely political dispute between States

which does not involve determination of any legal or constitutional right or

obligation.

8. Of particular significance in this context is the 7-Judge Bench

decision of this Court in State of Karnataka v. Union of India and Anr.:

(1977) 4 SCC 608, wherein it was observed in the concurring opinion with

majority as under: -

“162. The jurisdiction conferred on the Supreme Court by Article 131 of the Constitution should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure for determining whether a suit is maintainable. Article 131 undoubtedly confers “original jurisdiction” on the Supreme Court and the commonest form of a legal proceeding which is tried by a Court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which confers exclusive jurisdiction on this Court to entertain disputes of a certain nature in the exercise of its original jurisdiction, cannot be equated with a provision conferring a right on a civil court to entertain a common suit so as to apply to an original proceeding under Article 131 the canons of a suit which is ordinarily triable under Section 15 of the Code of Civil Procedure by a Court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a “suit” and significantly, Article 131 uses words and phrases not commonly employed for determining the jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a “cause of action”, an expression of known and definite legal import in the world of witness actions. Instead, it employs the word 'dispute,' which is no part of the elliptical jargon of law. But above all, Article 131 which in a manner of speaking is a self-contained code on matters falling within its purview, provides expressly for the 7 condition subject to which an action can lie under it. That condition is expressed by the clause : "if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends". By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in clauses (a) to (c) must involve a question on which the existence or extent of a legal right depends.

163. The quintessence of Article 131 is that there has to be a dispute between the parties regarding a question on which the existence or extent of a legal right depends. A challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent of the legal right of the Central Government to appoint the Commission of Inquiry depends and that is enough to sustain the proceeding brought by the State under Article 131 of the Constitution. Far from its being a case of the “omission of the obvious”, justifying the reading of words into Article 131 which are not there, I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a Court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits.”

8.1. Therefore, though titled as a ‘suit’, a proceeding under Article 131

of the Constitution of India cannot be likened to a civil suit under the Code

of Civil Procedure, 1908 [‘CPC’]. In any event, Section 9 CPC also grants

wide jurisdiction to the Court to try all civil suits unless they are barred,

either expressly or impliedly.

9. We may also note that Part III(A) of the Supreme Court Rules, 2013,

deals with original suits filed before this Court. Order XXVI therein deals

with ‘Plaints’ and Order XXVI Rule 6 states that a plaint shall be rejected –

(a) where it does not disclose a cause of action or (b) where the suit

appears from the statement in the plaint to be barred by any law. These

Rules were framed by this Court in exercise of power under Article 145 of

8 the Constitution. However, the premise that any ‘law’ could bar the original

jurisdiction of this Court under Article 131, i.e., a suit as it appears from the

statement in the plaint, is a misnomer as an enacted ‘law’ cannot possibly

control the scope and ambit of a constitutional provision.

10. Noticeably, in B.R. Enterprises v. State of U.P. and Ors.: (1999)

9 SCC 700, this Court affirmed that ‘lottery’ was a form of gambling and

merely because a lottery is run by the State itself, it would not change its

character as res extra commercium. However, it was observed that sale of

lottery tickets by a State, though not a ‘trade’ under Article 301 of the

Constitution, would still be a ‘business’ within the meaning of Article 298(b)

of the Constitution. Dealing with Section 5 of the Act of 1998, this Court

observed that it is only a State, which has decided as a policy in public

interest to make itself a lottery-free zone, that can prohibit sale of lotteries

of other States within its territories. Therefore, a State conducting a lottery

can claim a right to do so under Article 298(b) of the Constitution.

11. It is no doubt true that in State of Madhya Pradesh v. Union of

India and Anr.: (2011) 12 SCC 268, while dealing with an amendment

application filed under Order VI Rule 17 CPC in an original suit under Article

131 of the Constitution, this Court noticed that the plaintiff, by way of

amendment, was seeking to challenge the validity of a Central law; and

held that, normally, for questions relating to validity of Central or other laws,

the appropriate forum is the extraordinary writ jurisdiction under Articles 32

and 226 of the Constitution of India and not an original suit filed under

Article 131 of the Constitution. Reference was made to Article 131-A, which 9 was inserted with effect from 01.02.1977 by the Constitution (42nd

Amendment) Act, 1976, and was thereafter repealed by the Constitution

(43rd Amendment) Act, 1977, with effect from 13.04.1978. Be it noted that

Article 131-A was introduced so as to confer exclusive jurisdiction upon the

Supreme Court to decide the constitutional validity of Central laws by

depriving the High Courts of jurisdiction to do so. However, it was noted

that hardship was being caused to persons living in distant parts of India

owing to Article 131-A, amongst other Articles, and it was decided to omit

such Articles, including Article 131-A, from the Constitution by way of the

Constitution (43rd Amendment) Act, 1977. Therefore, it is difficult to say that

the omission of Article 131-A was effected in the context of denuding the

Supreme Court of its jurisdiction to deal with the constitutional validity of

Central or State laws as, perhaps, assumed in the case of State of Madhya

Pradesh (supra). However, basing on such an assumption, this Court

observed that when Central laws can be challenged in the State High

Courts as well as before this Court in writ jurisdiction, normally, no recourse

can be permitted to challenge the validity of a Central law by invoking the

exclusive jurisdiction of this Court under Article 131 of the Constitution.

This view, however, lost sight of the fact that Article 131 confers ‘original

jurisdiction’ on this Court not only on the strength of the nature of the

dispute but also the status of the party invoking the remedy, i.e., either the

Union of India or a State, whereas the liberty to challenge the validity of

Central laws or State laws under Article 226 or Article 32 would be available

to all. The relevant observations in this case had been as under: - 10

“20. By way of the present amendment, the plaintiff State of M.P. is seeking to challenge the validity of the Central law in a proceeding (suit) initiated under Article 131 of the Constitution. Normally, for questions relating to validity of Central or other laws, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India in a writ petition and not an original suit filed under Article 131 which vests exclusive jurisdiction on this Court as regards the disputes enumerated therein. It is relevant to point out that Article 131-A of the Constitution inserted by the Constitution (forty-second Amendment) Act, 1976, provides for exclusive jurisdiction to this Court in regard to questions as to constitutionality of Central laws. The said Article 131-A viewed as substantially curtailing the power of judicial review of the writ courts, that is, the High Courts under Article 226 and this Court under Article 32 was omitted vide the Constitution (forty-third Amendment) Act, 1977. It follows that when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.”

12. In State of Jharkhand v. State of Bihar and Anr: (2015) 2 SCC

431, another co-ordinate Bench of this Court recorded its inability to agree

with the conclusion drawn in State of Madhya Pradesh (supra) that, in an

original suit under Article 131, the constitutionality of an enactment could

not be examined. However, as the said decision was rendered by a co-

ordinate Bench, the Bench observed that judicial discipline demanded that

the matter should be referred for examination of the question by a Larger

Bench of this Court. Basing on this judgment, it is contended that till the

jurisdiction of this Court to entertain a challenge under Article 131 to the

constitutionality of an enactment is decided by a Larger Bench, this Court

should stay its hands. In this case, the other co-ordinate Bench of this

Court, while regretting inability to agree with the observations in State of

Madhya Pradesh (supra) stated its reasons, inter alia, in the following: -

“11. We regret our inability to agree with the conclusion recorded in State of M.P. v. Union of India, that in an original suit under Article 11 131, the constitutionality of an enactment cannot be examined.

Since the above decision is rendered by a coordinate Bench of two Judges, judicial discipline demands that we should not only refer the matter for examination of the said question by a larger Bench of this Court, but are also obliged to record broadly the reasons which compel us to disagree with the abovementioned decision.

12. The Constitution of India invests this Court with jurisdiction, both original and appellate, under various provisions of Part V, Chapter V of the Constitution. Such jurisdiction of this Court is in addition to the jurisdiction created under Article 32 of the Constitution of India for the enforcement of fundamental rights guaranteed under Part III of the Constitution.

*** *** ***

14. It can be seen from the language of Article 131 that the exclusive jurisdiction of this Court extends to any dispute between the Government of India and any one or more States and the disputes arising between two or more States in various possible combinations specified in the said article. The dispute could be on a question of fact or law or fact.”

12.1. In this decision, while referring to the aforesaid decisions in the

State of Karnataka (supra), this Court further observed while making

reference to a Larger Bench as under: -

“16. If the question of constitutionality of a statute (either of Parliament or the State Legislature) were to be raised by a party other than the persons specified under Article 131, both this Court as well as the High Courts are competent to examine. This proposition is too well settled in our jurisprudence for the period of last sixty years. What is more significant is that if Parliament chooses to repeal the proviso to Section 113 of the Code of Civil Procedure, even an ordinary civil court functioning in accordance with the procedure prescribed under the Code of Civil Procedure would be competent to examine such a question.

“113.Reference to High Court.—Subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

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 case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the

12 court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.” It is only the proviso of Section 113 of the Code of Civil Procedure which obliges an ordinary civil court to refer the same for the opinion of the High Court. Therefore, we find it difficult to accept the statement of law enunciated by this Court in State of M.P. v. Union of India.

17. We are unable to agree with the proposition that this Court cannot examine the constitutionality of a statute in exercise of its exclusive original jurisdiction under Article 131.

18. We, therefore, deem it appropriate that the question is required to be examined by a larger Bench of this Court. We direct the Registry to place the matter before the Hon'ble the Chief Justice of India for appropriate orders in this regard.”

13. It is also noteworthy that the case on hand cannot be viewed as

limited just to a challenge to the validity of certain provisions of the Act of

1998. In light of earlier judgments of this Court, as referred hereinbefore, it

would be open to this Court to read down or interpret the statutory

provisions so as to effectively deal with the grievance of the States of

Meghalaya, Nagaland and Sikkim with the provisions of the Act of 1998,

which allegedly infringe their right to do business under Article 298(b). No

doubt, if this Court is required to decide the constitutional validity of the

impugned provisions of the Act of 1998, it may be necessary to await the

decision of the Larger Bench, but not otherwise. Therefore, at this stage, it

would be premature to non-suit the State of Meghalaya on the ground that

this suit is not maintainable or to keep it on hold for all purposes, pending

the decision of the Larger Bench. Significantly, the Bench in the State of

Madhya Pradesh (supra) did not take note of the Larger Bench decision

in State of West Bengal (supra), but having referred to the same in State

of Jharkhand (supra), the Bench still deemed it appropriate to refer the

matter to a Larger Bench. In the State of Karnataka (supra), this Court 13 observed that there is a distinction between ‘State’ and ‘State Government’

and this distinction is evident from the language of Article 131 and,

therefore, what has to be seen for the purpose of determining the

applicability of that Article is whether any legal right of the State, as distinct

from the State Government, is infringed.

14. In the aforesaid view of the matter, we are not inclined to accept the

contentions urged by the Union of India and some of the States, including

the State of Kerala, that this suit is not maintainable under Article 131 of

the Constitution. Given the wide ambit of the reliefs sought herein, the

State of Meghalaya is entitled to take the case forward on merits, subject

to what has been stated hereinbefore, with regard to the final relief to be

granted in the context of validity of the impugned provisions of the Act of

1998. As the State of Meghalaya seeks to assert its right to do business in

lotteries under Article 298(b) and its executive power to do so would be

subject to parliamentary legislation, viz., the Act of 1998, the grievances

raised by it in that context would constitute disputes which fall squarely

within the four corners of Article 131 of the Constitution.

15. For what has been discussed hereinabove, the position that

emerges is that the suit of the present nature and in its present form cannot

be dismissed at the threshold as not maintainable.

16. In any case, even if the decision in the Larger Bench reference is

to be awaited, the question, however, would remain as to whether nothing

further could be done in the present suit until determination by Larger

Bench. The answer to this question, in our view, would be in the negative 14 for the first principles governing such a position. In this regard, a reference

to the principles underlying Section 10 of the Code of Civil Procedure, 1908

shall be a reasonable guiding light.

17. By virtue of Section 10 CPC, a Court is prohibited from proceeding

with trial of any suit in which the matter in issue is also directly and

substantially in issue in a previously instituted suit, of course, subject to

other conditions mentioned therein. This Court has explained that the

object of the prohibition contained in Section 10 CPC is to prevent the

Courts of concurrent jurisdiction from simultaneously trying two parallel

suits and to avoid inconsistent findings. However, this rule of procedure is

held not affecting the jurisdiction of the Court to entertain and deal with the

latter suit and does not create a bar to the institution of the suit. The Courts

have also consistently held that Section 10 CPC does not create a bar to

the passing of interlocutory orders including those of injunction. These

principles are succinctly summarised by this Court in the case of Indian

Bank v. Maharashtra State Cooperative Marketing Federation Ltd.:

(1998) 5 SCC 69. Therein, this Court was, of course, considering the

applicability of bar under Section 10 to summary suit under Order XXXVII

of CPC but, while explaining the connotation of the expression “trial” in

Section 10 CPC, observed as under: -

“8. Therefore, the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to “proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit”. The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to

15 avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the “trial” of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word “trial” in Section 10 is not used in its widest sense.”

18. The above principles of law, with necessary variations, when

applied to the present case, lead to the position that even if final

determination of the question of maintainability (in case the constitutional

validity of the impugned provision is to be decided) may depend upon the

decision of Larger Bench, the supplemental proceedings in the present

suit, particularly those relating to the prayer of interim relief, cannot be put

on hold.

19. In view of the above, in the first place, we are unable to uphold the

contention on behalf of the contesting defendants that the present

proceedings ought to be held as not maintainable. Secondly, even if final

answer to this question is to await the decision of the Larger Bench, there

is no bar to the passing of interlocutory orders such as that of injunction.

Whether an injunction is to be granted in the present case or not is a matter

different and that shall be examined at the appropriate stage.

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20. Therefore, at the present stage, we leave it open for the contesting

defendants to file their reply in relation to the prayer for interim relief by the

plaintiff-State, if so chosen, within four weeks from today.

21. List the matter after ensuing summer vacations.

……....……………………. J.

(DINESH MAHESHWARI)

.……....……………………. J.

(SANJAY KUMAR) NEW DELHI;

MAY 11, 2023.

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