Patna High Court
Sunil Kumar Yadav vs The Principal Commissioner Of Customs on 18 March, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.376 of 2019
======================================================
The Commissioner of Central Excise and Services Tax Patna now
Commissioner, Central GST and Central Excise Patna-II, C.T.T.C. Building,
Sanchar Parishar, Buddh Marg, Patna-800001
... ... Appellant/s
Versus
M/s Indian Oil Corporation Limited, Barauni Refinery, Begusarai, Bihar
... ... Respondent/s
======================================================
WITH
Miscellaneous Appeal No. 55 of 2024
======================================================
Commissioner of Central Excise, Patna (Now Pr. Commissioner of Central
GST and Central Excise, Patna-I) (C.R. Building Avenue, Bir Chand Patel
Path, Patna-800001, Bihar).
... ... Appellant/s
Versus
M/s Dadiji Steels Limited, Exhibition Road, Patna, Bihar.
... ... Respondent/s
======================================================
WITH
Miscellaneous Appeal No. 310 of 2024
======================================================
Sunil Kumar Yadav S/o Rishi Kishun Yadav @ Ram Kishun Yadav Proprietor
of M/S Sunil Traders, 15, Sirsiya, Anchal Kotwa, Pipra Kothi, East
Champaran.
... ... Appellant/s
Versus
1. The Principal Commissioner Of Customs, Patna, C.R. Building, Bir Chand
Patel Marg, Patna- 800001.
2. The Superintendent, Customs (P) Circle Sitamarhi.
3. The Assistant Commandant, SSB, D Coy, 51 ST, SSB, Sitamarhi.
... ... Respondent/s
======================================================
WITH
Miscellaneous Appeal No. 311 of 2024
======================================================
Sri Madan Kumar, Son of Late Saryug Ram, Resident of Panch Mandir Road,
P.S.- Motihari, District- East Champaran.
Patna High Court MA No.376 of 2019 dt.18-03-2026
2/29
... ... Appellant/s
Versus
The Commissioner of Customs, Patna, C.R. Building, Bir Chand Patel Marg,
Patna-800001.
... ... Respondent/s
======================================================
Appearance :
(In Miscellaneous Appeal No. 376 of 2019)
For the Appellant/s : Dr. K.N. Singh (ASG)
Mr. Anshuman Singh, Sr. SC
Mr. Shivaditya Dhari Sinha, Advocate
Mr. Abhinav, Advocate
For the Respondent/s : Mr. D.V. Pathy, Sr. Advocate
Mr. Mohit Agarwal, Advocate
Mr. Hiresh Karan, Advocate
Ms. Shivani Dewalla, Advocate
Mr. Sadashiv Tiwari, Advocate
(In Miscellaneous Appeal No. 55 of 2024)
For the Appellant/s : Dr. K.N. Singh (ASG)
Mr. Anshuman Singh, Sr. S.C.
For the Respondent/s : Mr. D.V. Pathy, Sr. Advocate
Mr. Mohit Agarwal, Advocate
Mr. Lokesh Kumar, Advocate
Mr. Rahul Kumar, Advocate
Mr. Vikash Khanna, Advocate
Ms. Twinkle Kumari, Advocate
(In Miscellaneous Appeal No. 310 of 2024)
For the Appellant/s : Mr. Archana Meenakshee, Advocate
For the Respondent/s : Mr. K.N. Singh, Additional Solicitor General
(In Miscellaneous Appeal No. 311 of 2024)
For the Appellant/s : Mr. Archana Meenakshee, Advocate
For the Respondent/s : Mr. Anshuman Singh, Sr. SC
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE DR. ANSHUMAN)
Date : 18-03-2026
Heard Mr. K.N. Singh, learned Additional
Solicitor General with Mr. Anshuman Singh, learned Senior
Standing Counsel for the appellant and Mr. D.V. Pathy, learned
Counsel for the respondents in M.A. No.376 of 2019 and M.A.
Patna High Court MA No.376 of 2019 dt.18-03-2026
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No.55 of 2024. Also heard Mrs. Archana Minakshi, learned
Counsel for the appellants and Mr. K.N. Singh, learned
Additional Solicitor General for the respondent in M.A. Nos.
310 and 311 of 2024.
2. From the orders dated 26.02.2026 and
27.02.2026
, it is apparent that the issue relating to
maintainability of the instant appeals under Section 35G of the
Central Excise Act, 1944 (1 of 1944) has been heard at length.
The question/issue on which hearing has taken place is as
follows:-
“Whether the right to appeal before the
High Court still exists under Section 35G of the Central
Excise Act, 1944 after its omission by National Tax
Tribunal Act, 2005 (Act No.49 of 2005) (hereinafter
referred to as ‘the NTTA’) with effect from 28.12.2005
and what shall be the effect of the judgment, namely,
Madras Bar Association Vs. The Union of India and
Others [(2014) 10 SCC 1], decided by Constitution
Bench of Hon’ble Supreme Court making National Tax
Tribunal Act, 2005 ultra vires.”
3. Miscellaneous Appeal Nos.376 of 2019 and
Miscellaneous Appeal No.55 of 2024 have been filed by the
Commissioner of Central Excise and Service Tax, Patna, under
Section 35G of the Central Excise Act, 1944 (1 of 1944).
4. In both these appeals respondents appeared
Patna High Court MA No.376 of 2019 dt.18-03-2026
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through Vakalatnama. Mr. D.V. Pathy, learned Senior Counsel,
appearing on behalf of the respondents has raised the
preliminary objection that after omission of Section 35G of the
Central Excise Act, 1944 by virtue of National Tax Tribunal Act,
2005 (Act No.49 of 2005) with effect from 28.12.2005,
provision for right to appeal has been omitted. Therefore, the
present appeals which have been filed under Section 35G by the
appellant, the Commissioner of Central Excise and Service
Tax/Central Excise, are not maintainable. Learned Senior
Counsel submits in support of his contention that National Tax
Tribunal Act 2005 (49 of 2005) came into effect since
28.12.2005, due to which the provision for right to appeal
before the High Court has been omitted and if on any
subsequent date it has been decided by Hon’ble Supreme Court
of India in case of Madras Bar Association Vs. The Union of
India reported in (2014) 10 SCC 1 that National Tax Tribunal
Act, 2005 became ultra vires and unconstitutional in its entirety
cannot automatically revive the provisions laid down under
Section 35G of the Central Excise Act, 1944.
5. In support of his argument, learned Senior
Counsel for the respondents submits and relied on the decision
made by Hon’ble Division Bench of this Court dated
Patna High Court MA No.376 of 2019 dt.18-03-2026
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18.07.2019 in Tax Case No.2 of 2010 (Prabhat Jarda Factory
India Vs. Commissioner of Central Excise Patna in which it
has been acknowledged that provision of Section 35H of the
Central Excise Act, 1944 (1 of 1944) stands deleted. The
Hon’ble Division Bench observed that the aforesaid issue came
up for consideration before the larger Bench of the Tribunal in
the case of Larsen & Toubro Ltd. Vs. Commissioner of
Income Tax, Chennai reported in 2006 TSTR 321. The
Division Bench restrained itself to proceed further granting
liberty to the then petitioner to take recourse to such remedy that
may be available to him in law for espousing the grievances in
the light of the provisions settled by the larger Bench. He
submits that it is true that in the Constitution Bench decision in
the case of Madras Bar Association Vs. The Union of India
(supra), it has been held that Sections 5, 6, 7, 8 and 13 of the
National Tax Tribunal Act have been declared as illegal and
unconstitutional on the basis of parameters laid down by the
decision of Constitution Bench of this Court and on the basis of
recognized constitutional conventions referable to the
constitutions framed on the Westminster model. He further
submits that parliament has power to enact legislation and to
vest adjudicatory provisions earlier vested in the High Court
Patna High Court MA No.376 of 2019 dt.18-03-2026
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with an alternative Court/Tribunal. Exercise of such power by
parliament would not per se violative of the basic structure of
the Constitution. But he submits that in spite of declaration of
the National Tax Tribunal Act illegal and unconstitutional, there
cannot be an automatic revival of the deleted provisions of the
Central Excise Act, 1944 (Act No.1 of 1944) and, therefore, he
submits that the present miscellaneous appeals are not
maintainable and, hence, the appeals should be rejected and may
not be entertained.
6. Learned Senior Counsel/Additional Solicitor
General appearing on behalf of the appellants submits that the
contention made by the respondents on the point of
maintainability of the present miscellaneous appeals is not
sustainable in the eye of law. He submits that it is true that
Section 35G and many other provisions of the Central Excise
Act as well as of the Customs Act, 1962 were omitted by virtue
of enactment of the National Tax Tribunal Act with effect from
28.12.2005, but after decision made by the Constitution Bench
of Hon’ble Supreme Court in the case of Madras Bar
Association Vs. The Union of India (supra) declaring the
National Tax Tribunal Act ultra vires, illegal and
unconstitutional, the provisions of law, which were omitted by
Patna High Court MA No.376 of 2019 dt.18-03-2026
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the said National Tax Tribunal Act are revived automatically
and, as such, Section 35G and any other provisions shall exist
and restored to its original statute and there cannot be any
vacuum. In this regard, he submits that the concept of doctrine
of revival/survival has to be taken into consideration, which has
been discussed by Constitution Bench of Hon’ble Supreme
Court of India in the case of Property Owner Association and
Other Vs. The State of Maharashtra and Others reported in
AIR Online 2024 (SC) 772 :: (2024) 18 SCC 1. In this case,
this issue as to whether Article 31C of the Constitution (as
upheld in Kesavanand Bharti’s case {1973 (4) SCC 225 : (AIR
1973 SC 1461)] survives in the constitution after the
amendment of the provision by the 42 nd Amendment was struck
down by Hon’ble Supreme Court in Minerva Mills Ltd. and
Others Vs. Union of India and Others reported in (1980) 3
SCC 625: 1980 SCC Online SC 213. He submits that Hon’ble
Supreme Court of India in the said judgment has concluded that
if any amended text is invalidated, the only valid expression of
legislative intent is revival of the original text. He further
submits that if a Court were to find that even the original text
could not be given illegal effect because it had been repealed, it
would result in third outcome, i.e., a legal vacuum, which was
Patna High Court MA No.376 of 2019 dt.18-03-2026
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neither intended by the legislature that indicated the original text
nor by the legislature who adopted the amended text. In this
way, the third outcome would fail to give effect to either
legislative intent despite there being no constitutional fault in
the original provision. He also submits that if a Court were to
not only invalidate the newly inserted text, but also held that the
old text stands repealed, it would lead to absurd outcome or
render the statute wholly unworkable. The practical effect of
such an outcome would be that a judicial decision invalidating
an unconstitutional amendment would also inadvertently nullify
a valid and constitutional provision, which the legislature would
never have repealed without proving a replacement. He further
submits that at the time of deciding the case of Madras Bar
Association Vs. The Union of India (supra), the Constitution
Bench of the Hon’ble Supreme Court of India have
categorically discussed and held that appeal is a creature of
statute and cannot be done away by statute. The question posed
here is completely different and the answer to that question is
fundamental to our jurisprudence: that a jurisdiction to decide
substantial questions of law vests under our constitution, only
with the High Courts and the Supreme Court, and cannot be
vested in any other body as a core constitutional value would be
Patna High Court MA No.376 of 2019 dt.18-03-2026
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impaired thereby. He submits that in the light of the discussion,
which he is arguing on the basis of the Constitution Bench
judgments of Madras Bar Association (supra) as well as
Property Owners Association (supra) that once the National
Tax Tribunal Act is declared unconstitutional, then the
jurisdiction of the High Court to decide substantial question of
law shall automatically revived and in this view of the matter,
the preliminary objection raised by the learned Senior Counsel
for the respondent is not sustainable in the eye of law.
7. In the light of the submissions made by the
parties, more particularly with a view to answer the issue
framed by us about maintainability of the present appeals, it is
necessary to place the relevant paragraphs of the said judgments
on which parties have relied. Paragraphs 133 to 139 and
paragraphs 169 to 175 of Madras Bar Association (supra)
states as follows:
“133. Sections 5, 6, 7, 8 and
13 of the NTT Act have been held by us (to
the extent indicated hereinabove) to be
illegal and unconstitutional on the basis of
the parameters laid down by decisions of the
Constitution Benches of this Court and on
the basis of recognised constitutional
conventions referable to the constitutions
Patna High Court MA No.376 of 2019 dt.18-03-2026
10/29framed on the Westminster model. In the
absence of the aforesaid provisions which
have been held to be unconstitutional, the
remaining provisions have been rendered
otiose and worthless, and as such, the
provisions of the NTT Act, as a whole, are
hereby set aside.
134. (i) Parliament has the
power to enact legislation and to vest
adjudicatory functions earlier vested in the
High Court with an alternative
court/tribunal. Exercise of such power by
Parliament would not per se violate the
“basic structure” of the Constitution.
135. (ii) Recognised
constitutional conventions pertaining to the
Westminster model do not debar the
legislating authority from enacting
legislation to vest adjudicatory functions
earlier vested in a superior court with an
alternative court/tribunal. Exercise of such
power by Parliament would per se not
violate any constitutional convention.
136. (iii) The “basic
structure” of the Constitution will stand
violated if while enacting legislation
pertaining to transfer of judicial power,
Parliament does not ensure that the newly
created court/tribunal conforms with the
salient characteristics and standards of the
Patna High Court MA No.376 of 2019 dt.18-03-2026
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137. (iv) Constitutional
conventions pertaining to the Constitutions
styled on the Westminster model will also
stand breached, if while enacting legislation,
pertaining to transfer of judicial power,
conventions and salient characteristics of
the court sought to be replaced are not
incorporated in the court/tribunal sought to
be created.
138. (v) The prayer made in
Writ Petition (C) No. 621 of 2007 is
declined. Company Secretaries are held
ineligible for representing a party to an
appeal before NTT.
139. (vi) Examined on the
touchstone of Conclusions (iii) and (iv)
(contained in paras 136 and 137, above)
Sections 5, 6, 7, 8 and 13 of the NTT Act (to
the extent indicated hereinabove), are held
to be unconstitutional. Since the aforesaid
provisions constitute the edifice of the NTT
Act, and without these provisions the
remaining provisions are rendered
ineffective and inconsequential, the entire
enactment is declared unconstitutional.
169. It is obvious, that
substantial questions of law which relate to
taxation would also involve many areas of
civil and criminal law, for example Hindu
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goods, contracts, Mohammedan Law,
Company Law, Law relating to Trusts and
Societies, Transfer of Property, Law relating
to Intellectual Property, Interpretation of
Statutes and sections dealing with
prosecution for offences. It is therefore not
correct to say that taxation, being a
specialized subject, can be dealt with by a
tribunal. All substantial questions of law
have under our constitutional scheme to be
decided by the superior courts and the
superior courts alone. Indeed, one of the
objects for enacting the National Tax
Tribunals Act, as stated by the Minister on
the floor of the House, is that the National
Tax Tribunal can lay down the law for the
whole of India which then would bind all
other authorities and tribunals. This is a
direct encroachment on the High Courts’
power under Article 227 to decide
substantial questions of law which would
bind all tribunals vide East India
Commercial Co. Ltd. V. Collector of
Customs [(1963) 3 SCR 338 : AIR 1962 SC
1893] .
170. In fact, it is a little
surprising that the National Tax Tribunal is
interposed between the appellate Tribunal
and the Supreme Court for the very good
Patna High Court MA No.376 of 2019 dt.18-03-2026
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Supreme Court that will declare the law to
be followed in future. As the appellate
tribunal is already a second appellate court,
it would be wholly unnecessary to have a
National Tax Tribunal decide substantial
questions of law in case of conflicting
decisions of High Courts and Appellate
Tribunals as these would ultimately be
decided by the Supreme Court itself, which
decision would under Article 141 be binding
on all tax authorities and tribunals.
Secondly, in all tax matters, the State is
invariably a party and the High Court is
ideally situated to decide substantial
questions of law which arise between the
State and private persons, being
constitutionally completely independent of
executive control. The same cannot be said
of tribunals which, as L. Chandra Kumar [L.
Chandra Kumar v. Union of India, (1997) 3
SCC 261 : 1997 SCC (L & S) 577] states,
will have to be under a nodal ministry as
tribunals are not under the supervisory
jurisdiction of the High Courts.
171. Indeed, other constitutions which
are based on the Westminster model, like the
British North America Act which governs
Canada have held likewise. In Attorney
General (Quebec) v. Farrah [(1978) 2 SCR
Patna High Court MA No.376 of 2019 dt.18-03-2026
14/29638 : (1978) 86 DLR (3d) 161 (Can SC)] a
transport tribunal was given appellate
jurisdiction over the Quebec Transport
Commission. The tribunal performed no
function other than deciding questions of
law. Since this function was ultimately
performed only by superior courts, the
impugned section was held to be
unconstitutional. This judgment was
followed in Residential Tenancies Act of
Ontario, In re [(1981) 1 SCR 714 : 123 DLR
(3d) 554 (Can SC)]. This judgment went
further, and struck down the Residential
Tenancy Act which established a tribunal to
require landlords and tenants to comply with
the obligations imposed under the Act. The
court held:
“The Court of Appeal delivered a careful
and scholarly unanimous judgment in which
each of these questions was answered in the
negative. The Court concluded it was not
within the legislative authority of Ontario to
empower the Residential Tenancy
Commission to make eviction orders and
compliance orders as provided in the
Residential Tenancies Act, 1979. The
importance of the issue is reflected in the
fact that five Judges of the Court, including
the Chief Justice and Associate Chief
Justice, sat on the appeal.”
Patna High Court MA No.376 of 2019 dt.18-03-2026
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It then went on to enunciate a three steps
test with which we are not directly
concerned. The Court finally concluded:
“Implicit throughout the argument
advanced on behalf of the Attorney General
of Ontario is the assumption that the Court
system is too cumbersome, too expensive and
therefore unable to respond properly to the
social needs which the Residential Tenancies
Act, 1979 is intended to meet. All statutes
respond to social needs. The Courts are
unfamiliar with equity and the concept of
fairness, justice, convenience,
reasonableness. Since the enactment in 1976
of the legislation assuring ‘security of
tenure’ the Country Court Judges of Ontario
have been dealing with matters arising out
of that legislation, apparently with
reasonable dispatch, as both landlords and
tenants in the present proceedings have
spoken clearly against transfer of
jurisdiction in respect of eviction and
compliance orders from the Courts to a
special commission. It is perhaps also of
interest that there is no suggestion in the
material filed with us that the Law Reforms
Commission favoured removal from the
Courts of the historic functions performed
for over 100 years by the Courts.
I am neither unaware of, nor
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support of a view that Section 96 should not
be interpreted so as to thwart or unduly
restrict the future growth of provincial
administrative tribunals. Yet, however
worthy the policy objectives, must be
recognised that we, as a Court, are not given
the freedom to choose whether the problem
is such that provincial, rather than federal,
authority should deal with it. We must seek
to give effect to the Constitution as we
understand it and with due regard for the
manner in which it has been judicially
interpreted in the past. If the impugned
power is violative of Section 96 it must be
struck down.”
172. In Hinds v. R. [1977 AC 195 :
(1976) 2 WLR 366 : (1976) 1 All ER 353
(PC)] , the Privy Council had to decide a
matter under the Jamaican Constitution. A
Gun Court Act, 1974 was passed by the
Jamaican Parliament in which it set up
various courts. A question similar to the
question posed in the instant case was
decided thus: (AC pp. 213A-214C)
“… All constitutions on the Westminster
model deal under separate Chapter headings
with the legislature, the executive and the
judicature. The Chapter dealing with the
judicature invariably contains provisions
Patna High Court MA No.376 of 2019 dt.18-03-2026
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security of tenure of the members of the
judiciary which are designed to assure to
them a degree of independence from the
other two branches of Government. It may,
as in the case of Constitution of Ceylon,
contain nothing more. To the extent to which
the Constitution itself is silent as to the
distribution of the plenitude of judicial
power between various courts it is implicit
that it shall continue to be distributed
between and exercised by the courts that
were already in existence when the new
Constitution came into force; but the
legislature, in the exercise of its power to
make laws for the ‘peace, order and good
Government’ of the State, may provide for
the establishment of new courts and for the
transfer to them of the whole or part of the
jurisdiction previously exercisable by an
existing court. What, however, is implicit in
the very structure of a Constitution on the
Westminster model is that judicial power,
however it be distributed from time to time
between various courts, is to continue to be
vested in persons appointed to hold judicial
office in the manner and on the terms laid
down in the Chapter dealing with the
judicature, even though this is not expressly
stated in the constitution (Liyanage v. R.
Patna High Court MA No.376 of 2019 dt.18-03-2026
18/29[Liyanage v. R., (1967) 1 AC 259 : (1966) 2
WLR 682 : (1966) 1 All ER 650 (PC)] , AC
pp. 287-88 : All ER p. 658).
The more recent constitutions on the
Westminster model, unlike their earlier
prototypes, include a Chapter dealing with
fundamental rights and freedoms. The
provisions of this Chapter form part of the
substantive law of the State and until
amended by whatever special procedure is
laid down in the Constitution for this
purpose, impose a fetter upon the exercise by
the legislature, the executive and the
judiciary of the plenitude of their respective
powers. The remaining Chapters of the
constitutions are primarily concerned not
with the legislature, the executive and the
judicature as abstractions, but with the
persons who shall be entitled collectively or
individually to exercise the plenitude of
legislative, executive or judicial power–
their qualifications for legislative, executive
or judicial office, the methods of selecting
them, their tenure of office, the procedure to
be followed where powers are conferred
upon a class of persons acting collectively
and the majorities required for the exercise
of these powers. Thus, where a constitution
on the Westminster model speaks of a
particular ‘court’ already in existence when
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the Constitution comes into force, it uses this
expression as a collective description of all
those individual Judges who, whether sitting
alone or with other Judges or with a jury,
are entitled to exercise the jurisdiction
exercised by that court before the
Constitution came into force. Any express
provision in the Constitution for the
appointment or security of tenure of Judges
of that court will apply to all individual
Judges subsequently appointed to exercise
an analogous jurisdiction, whatever other
name may be given to the ‘court’ in which
they sit (Attorney General for Ontario.
Attorney General for Canada [1925 AC 750
(PC)] ).
Where, under a constitution
on the Westminster model, a law is made by
Parliament which purports to confer
jurisdiction upon a court described by a new
name, the question whether the law conflicts
with the provisions of the Constitution
dealing with the exercise of the judicial
power does not depend upon the label (in the
instant case ‘The Gun Court’) which
Parliament attaches to the Judges when
exercising the jurisdiction conferred on them
by the law whose constitutionality is
impugned. It is the substance of the law that
must be regarded, not the form. What is the
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nature of the jurisdiction to be exercised by
the Judges who are to compose the court to
which the new label is attached? Does the
method of their appointment and the security
of their tenure conform to the requirements
of the Constitution applicable to Judges
who, at the time the Constitution came into
force, exercised jurisdiction of that nature?
(Attorney General for Australia v. R. [1957
AC 288 : (1957) 2 WLR 607 : (1957) 2 All
ER 45 (PC)] , AC pp. 309-10).”
173. Ultimately, a majority of the court
found that the provisions of the 1974 Act, in
so far as they provide for the establishment
of a full court division of the Gun Court
consisting of three resident Magistrates were
unconstitutional.
174. It was also argued by the learned
Attorney General that the High Courts’
jurisdiction under Section 260-A of the
Income Tax Act and other similar tax laws
could be taken away by ordinary law and
such sections could be deleted. If that is so
surely the jurisdiction vested in the High
Court by the said section can be transferred
to another body.
175. It is well settled that an appeal is a
creature of statute and can be done away by
statute. The question posed here is
completely different and the answer to that
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question is fundamental to our
jurisprudence: that a jurisdiction to decide
substantial questions of law vests under our
constitution, only with the High Courts and
the Supreme Court, and cannot be vested in
any other body as a core constitutional value
would be impaired thereby.”
8. Similarly, paragraph 31, 57, 58 and 65 of
Property Owners Association (supra) states as follows:
“31. In view of the above, the
scope of this judgment can be tied down to
determining two issues:
31.1. (a) Article 31-C:
Whether Article 31-C (as upheld in Kesavananda Bharati [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC
225]) survives in the Constitution after the
amendment to the provision by the Forty-
second Amendment was struck down by this
Court in Minerva Mills [Minerva Mills Ltd.
v. Union of India, (1980) 3 SCC 625]; and
31.2. (b) Article 39(b):
Whether the interpretation of Article 39(b)
adopted by Krishna Iyer, J. in Ranganatha
Reddy [State of Karnataka v. Ranganatha
Reddy, (1977) 4 SCC 471] and followed in
Sanjeev Coke [Sanjeev Coke Mfg. Co. v.
Bharat Coking Coal Ltd., (1983) 1 SCC
147] must be reconsidered. Whether the
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community” in Article 39(b) can be
interpreted to include resources that are
owned privately and not by the State.
57. Mr R. Venkatramani,
learned Attorney General for India and Mr
Tushar Mehta, learned Solicitor General of
India, representing the respondents,
countered the above understanding. Their
position was supported by Mr Rakesh
Dwivedi and Mr Gopal Sankaranarayanan,
learned Senior Counsel appearing for the
interveners. Their arguments may be briefly
summarised as follows:
57.1. When an amendment is
set aside, the entire legal effect of the
amendment is invalidated and thus the text
preceding the amendment will be restored.
There are no distinct steps of erasure and
insertion. All the stages of the Forty-second
Amendment stand cumulatively negated by
the decision in Minerva Mills [Minerva
Mills Ltd. v. Union of India, (1980) 3 SCC
625] ;
57.2. When exercising basic
structure scrutiny, this Court grounds its
reasoning in the relationship between the
unamended provision and the amended
provision and the impact of the amendment
has on the Constitution. If the Court finds an
Patna High Court MA No.376 of 2019 dt.18-03-2026
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amendment impermissible and invalidates it,
the position as it stood prior to the
amendment must stand revived for the basic
structure theory to have effect. If the
invalidation of an amendment by the Court
led to some third result, where the insertion
was invalidated but the erased text did not
revive, this would not result in a return to the
unamended Constitution but some third
contemplated result which may itself violate
the basic structure. Thus, the revival of the
unamended constitutional provision is the
approach consistent with the theoretical
foundation of basic structure review;
57.3. The decision of a
Constitution Bench of this Court in Supreme
Court Advocates-on-Record Assn. v. Union
of India [Supreme Court Advocates-on-
Record Assn. v. Union of India, (2016) 5
SCC 1] squarely covers the present scenario
and holds that when a constitutional
amendment is struck down, the position that
existed prior to the amendment stands
revived;
57.4. This Court in the
decisions in Bhim Singhji v. Union of India
[Bhim Singhji v. Union of India, (1981) 1
SCC 166] , Sanjeev Coke [Sanjeev Coke
Mfg. Co. v. Bharat Coking Coal Ltd.,
(1983) 1 SCC 147] and Basantibai Khetan
Patna High Court MA No.376 of 2019 dt.18-03-2026
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[State of Maharashtra v. Basantibai
Mohanlal Khetan, (1986) 2 SCC 516] has
repeatedly held that Article 31-C as it stood
prior to the Forty-second Amendment is
operative; and
57.5. If the words struck
down by Minerva Mills [Minerva Mills
Ltd.v. Union of India, (1980) 3 SCC 625]
relating to clauses (b) and (c) of Article 39
were omitted by judicial fiat from Article 31-
C, the entire provision would be unworkable
despite this precise text of Article 31-C
having been upheld by thirteen Judges in
Kesavananda Bharati [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC
225] and the constitutional validity of the
provision having been reaffirmed in Waman
Rao [Waman Rao v. Union of India, (1980)
3 SCC 587] .
58. Before delving further
into our analysis, we may briefly advert to
the decisions relied on by the respondents
where this Court has applied Article 31-C
after the decision in Minerva Mills
[Minerva Mills Ltd. v. Union of India,
(1980) 3 SCC 625] . If these decisions
provide a cogent answer as to the status of
Article 31-C after Minerva Mills [Minerva
Mills Ltd. v. Union of India, (1980) 3 SCC
625] , our inquiry need not go any further.
Patna High Court MA No.376 of 2019 dt.18-03-2026
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65. It is also pertinent to refer
to the approach of the two-Judge Bench of
this Court in Basantibai Khetan [State of
Maharashtra v. Basantibai Mohanlal
Khetan, (1986) 2 SCC 516] . In that case,
special leave petitions were filed against the
judgment [Basantibai Fakirchand Khetan v.
State of Maharashtra, 1983 SCC OnLine
Bom 256] of the High Court of Judicature at
Bombay invalidating certain provisions of
the MHADA Act which permitted the
acquisition of private property. It was
contended that the provisions of the
legislation which set out the basis for
determining compensation were violative of
Articles 14 and 19 of the Constitution. In
invalidating these provisions, the High Court
held that the impugned provisions were not
protected by Article 31-C of the Constitution
and were violative of Article 14. However,
when the matter was heard by a Division
Bench of this Court, E.S. Venkataramiah, J.
(as the learned Chief Justice then was) held
that the law would be entitled to immunity
under Article 31-C. The learned Judge
observed: (SCC pp. 530 & 532, paras 13-14)
“13. Even granting for
purposes of argument that sub-sections (3)
and (4) of Section 44 are violative of Article
14 of the Constitution, we are of the view
Patna High Court MA No.376 of 2019 dt.18-03-2026
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that the said provisions receive the
protection of Article 31-C of the
Constitution. … Let us proceed on the basis
that after Kesavananda Bharati v. State of
Kerala [Kesavananda Bharati v. State of
Kerala, (1973) 4 SCC 225] and Minerva
Mills Ltd. v. Union of India [Minerva Mills
Ltd. v. Union of India, (1980) 3 SCC 625] ,
Article 31-C reads as:
’39-C. Saving of laws giving
effect to certain directive principles.–
Notwithstanding anything contained in
Article 13, no law giving effect to the policy
of the State towards securing the principles
specified in clause (b) or clause (c) of Article
39 shall be deemed to be void on the ground
that it is inconsistent with or takes away or
abridges any of the rights conferred by
Article 14 or Article 19.’
Clause (b) of Article 39 of the
Constitution which is relevant for our
purpose states that the State shall, in
particular, direct its policy towards securing
that the ownership and control of material
resources of the community are so
distributed as best to subserve common
good. …
14. … The High Court erred
in taking a very narrow view of the objects
of the Act and the functions of the Authority
Patna High Court MA No.376 of 2019 dt.18-03-2026
27/29under it. We are satisfied that the Act is
brought into force to implement the directive
principle contained in Article 39(b) and
hence even if there is any infraction of
Article 14 it is cured by Article 31-C which
is clearly attracted to the case.””
9. We conclude that it is true that Section 35G of
the Central Excise Act, 1944 (Act No. 1 of 1944) and Section
130 of the Customs Act, 1962 (Act No. 52 of 1962) were
omitted by virtue of the provisions introduced through the
National Tax Tribunal Act, 2005. However, it is equally true that
in Madras Bar Association v. Union of India (supra), the
constitutional validity of the National Tax Tribunal Act, 2005
was challenged before the Hon’ble Supreme Court, and the
entire enactment was declared unconstitutional.
10. Upon going through the provisions of
Section 35G of the Central Excise Act, 1944 and Section 130 of
the Customs Act, 1962, the jurisdiction to decide substantial
questions of law vested in the High Court about which the
Constitution Bench of Hon’ble Supreme Court has said so that it
is well settled principle that an appeal is a creature of statute and
can be done away by statue. The question posed here is
completely different and the answer to that question is
fundamental to our jurisprudence that a jurisdiction to decide
Patna High Court MA No.376 of 2019 dt.18-03-2026
28/29substantial questions of law vested in our constitution only in
the High Courts and the Supreme Court and cannot be vested in
any other body as a core constitutional value would be impaired
thereby. We, upon going through the Constitution Bench
decisions, are of the firm view that if we shall accept the
contention of the respondents, then it shall mean that a legal
vacuum shall be developed and as discussed in the judgment of
Property Owners Association (supra) that the practical effect
of such an outcome would be that a judicial decision
invalidating an unconstitutional amendment would also
inadvertently nullify a valid and constitutional provision,
which the legislature would never have repealed without
providing a replacement.
11. Hence, in the light of the discussions made
above, we reached on the conclusion that after decision of
Hon’ble Supreme Court of India in Madras Bar Association
case (supra), the National Text Tribunal Act has become
unconstitutional. The earlier provision mentioned in Section
35G of the Central Excise Act, 1944, Section 130 of the
Customs Act, 1962 (52 of 1962) as well as any other provisions
of law which were omitted by the said National Text Tribunal
Act shall automatically revived and there is no need of further
Patna High Court MA No.376 of 2019 dt.18-03-2026
29/29legislative or judicial direction for the same and in result the
objection as raised here in the present batch of appeals by
learned Senior Counsel for the respondents are rejected as not
sustainable in the eye of law.
12. In result, the present appeals shall be listed
under the heading ‘For Hearing Under Order 41 Rule 11 of the
CPC.
13. It is made clear that the issues involved in the
batch of appeals are common, i.e., whether appeals are
maintainable or not? But when it has been decided that the
present appeals are maintainable then in that case it is necessary
that all appeals be heard separately on its own merit.
14. Hence, Office is directed to detach these
appeals and list all appeals separately on 06.04.2026 under the
heading ‘For Hearing under Order 41 Rule 11 CPC‘.
(Dr. Anshuman, J)
Bibek Chaudhuri, J: I Agree.
Mkr./- (Bibek Chaudhuri, J) AFR/NAFR NAFR CAV DATE 27.02.2026 Uploading Date 18.03.2026 Transmission Date