Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
NARAYAN SHAMRAO PURANIK AND OTHERS
DATE OF JUDGMENT25/10/1982
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1983 AIR 46 1983 SCR (1) 655
1982 SCC (3) 519 1982 SCALE (2)948
ACT:
States Reorganization Act, 1956-Sub-s. (3) of s. 51-
Power of Chief Justice to appoint any place other than
principal seat for sittings of Judges and division Courts-
Scope and effect.
States Reorganisation Act, 1956-Permanent piece of
legislation-Provisions of sub-ss. (2) and (3) of s. 51 not
ebbed out by lapse of time.
Interpretation of statutes-A statute can be abrogated
only by express or implied repeal-Cannot become inoperative
by lapse of time.
Letters Patent authorising establishment of High
Courts-"Erect and establish"-Meaning of.
HEADNOTE:
Sub-s. (3) of s. 51 of the States Reorganization Act,
1956, provides that notwithstanding anything contained in
sub-s. (1) or sub-s.(2) thereof the Judges and division
Courts of the High Court of a new State may also sit at such
other place or places in that State as the Chief Justice
may, with the approval of the Governor, appoint.
Prior to the constitution of the States Reorganization
Commission, leaders of political parties from the Marathi-
speaking areas in the country had signed an agreement called
the ’Nagpur Pact’ which ultimately formed the basis for the
creation of the Maharashtra State. Clause (7) of this
agreement stipulated that the provision with regard to the
establishment of a permanent Bench of the High Court at
Nagpur shall apply mutatis mutandis to the Marathwada
region. The States Reorganisation Act, 1956 brought into
being the new State of Bombay with effect from November 1,
1956. By virtue of sub-s.(1) of s. 49, the existing High
Court of Bombay was deemed to be the High Court for the New
State of Bombay and, by a Presidential Order issued under
sub-s. (1) of s. 51, Bombay was declared to be its principal
seat. The then Chief Justice issued an order under sub-s.
(3) of s. 51 appointing Nagpur to be a place at which the
Judges and division Courts of the High Court would also sit
with effect from November 1, 1956. The Bench at Nagpur
continued to function till May 1, 1960 when the State was
bifurcated into Maharashtra and Gujarat and s. 41 of the
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Bombay Reorganisation Act, 1960 provided for the
establishment of a permanent Bench at Nagpur.
Due to the continued demand of the people of Marathwada
region and the passing of a unanimous resolution in support
by the Legislative Assembly the
656
State Government recommended to the Central Government
in 1978 that a permanent Bench of the High Court be
established at Aurangabad under sub s. (2) of s. 51 and
simultaneously made preparations, in consultation with the
Chief Justice for setting up the Bench. However, when it
became evident that the Central Government would take time
in reaching a decision on the proposal, it was decided, in
view of the preparations made and the mounting expectations
of the people, that, pending the establishment of a
permanent Bench under sub s. (2) of s 51, resort be had to
the provisions of sub-s. (3) thereof. Accordingly, on August
27,1981, the Chief Justice, with the prior approval of the
Governor of the State, issued an Order under sub-s. (3) of
s. 51 appointing Aurangabad as a place at which the Judges
and division Courts of the High Court of Judicature at
Bombay may also sit.
The respondents challenged the validity of the order
and the High Court set aside the same on the following
grounds:
1. The Act being of a transitory nature, the exercise
of the power under sub-s. (3) of s. 51 after a lapse of 26
years was constitutionally impermissible.
2. There was no nexus between the purpose. and objects
of the Act and the setting up of Aurangabad as an additional
venue for sittings of Judges and division Courts of the High
Court.
3. After the bifurcation of the bilingual State of
Bombay, the power of the Chief Justice under sub. s. (3) of
s. 51 would no longer be exercised as the State of
Maharashtra was not a ’new State’ within the meaning of s.
51 read with s. 2(1) of the Act.
4. The Order was bad in law as it had brought about a
territorial bifurcation of the High Court. Under sub-s. (3)
of s. 51 the Chief Justice had neither the power to
establish a Bench at any place nor the power to issue
administrative directions for filing or institution of
proceedings at such a place.
Allowing the appeal,
^
HELD: The Act is a permanent piece of legislation
enacted- by Parliament under Articles 3 and 4 of the
Constitution. Section 14 of the General Clauses Act, 1897,
provides that, where, by any Central Act or Regulation, any
power is conferred, then, unless a different intention
appears, that power may be exercised from time to time as
occasion arises. A statute can be abrogated only by express
or implied repeal. It cannot fall into desuetude or become
inoperative through obsolescence or by lapse of time. The
powers conferred on the President and the Chief Justice
under sub-ss. (2) and (3) of s. 51 are intended to be
exercised from time to time as occasion arises, as there is
no intention to the contrary manifested in the Act. The
assumption that these provisions have ebbed out by lapse of
time is plainly contrary to the meaning and effect of s. 69
of the Act which in terms provides that Part V which
contains s. 51 shall have. effect subject to any provision
that may be made on or after the appointed day with respect
to the High Court of any State by the Legislature or any
other authority having power to make such provision.
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Further, the opening words of s. 41 of the Bombay
Reorganisation Act, 1960 manifest a clear legislative
intention to preserve the continued existence of the
provisions contained in s. 51 of the States Reorganisation
Act, 1956. [669 B-C, 668 E-G, 670 A-B]
657
R.v. London County Council, L.R. [1931] 2 K B. 215
referred to.
2. It cannot be said that the impugned Order is not
directly connected with the reorganisation of States. There
has been a long-standing demand for the establishment of a
permanent Bench of the Bombay High Court at Aurangabad. A
solemn assurance in this behalf had been given to the people
of Marathwada region by cl. (7) of the ’Nagpur Pact’. Under
the scheme of the Act it would appear that having
constituted a High Court for the new State of Bombay and
conferred jurisdiction on it under s. 52 in relation to the
territories of the new State, Parliament left it to the
various high Constitutional functionaries designated in s.
51 to determine the place where the principal seat of the
High Court should be located and places where permanent
Bench or Benches of the High Court may be established, or
where the Judges and division Courts of the High Court may
also sit. While Nagpur was given a Bench by an order issued
under sub-s (3) of s. 51 and the arrangement made permanent
by s.41 of the Bombay Reorganisation Act, 1960, the proposal
for setting up a permanent Bench at Aurangabad is still
under the active consideration of the Central Government.
[670 D, 671 H, 672 A-B, 661 B, 670 H, 671 F-G, 672 A]
3. The expression "new State" occurring in sub-s. (1)
of s. 49 of the Act is defined in s. 2(1) to mean "a State
formed under the provisions of Part II". The State of Bombay
was a ’new State’ formed under s. 8 of the Act which occurs
in Part II. The High Court of Bombay was the High Court for
the new State of Bombay within the meaning of sub-s. (1) of
s. 49 and therefore the provisions of s. 51 are still
applicable. Sub-s. (1) of s. 28 of the Bombay Reorganisation
Act, 1960 provides that as from May 1,1960, there shall be a
separate High Court for the State of Gujarat and that the
High Court of Bombay shall become the High Court for the
State of Maharashtra and sub-s, (2) thereof provides that
the principal seat of the Gujarat High Court shall be at
such place as the President may, by notified order, appoint.
It is significant that the Act contains no similar provision
with regard to the principal seat of the High Court of
Bombay. That being so, the continued existence of the
principal seat of the Bombay High Court at Bombay is still
governed by sub-s. (1) of s. 51. If there is continued
existence of sub-s. (1) of s. 51 in relation to the
principal seat of the High Court for a new State, a fortiori
there is to an equal degree, the continued existence of the
provisions contained in sub-ss. (2) and (3) of s. 51. That
the Legislature pre-supposed the continued existence of s.
51 in relation to the High Court of Bombay is clear from the
opening words of s. 41 of the Bombay Reorganisation Act,
1960 which provides for the setting up of a permanent Bench
of the High Court at Nagpur. That section begins with the
words "Without prejudice to the provisions of s. 51 of the
States Reorganisation Act, 1956". Thus while enacting that
section, Parliament retained in tact the power conferred on
the President of India and the Chief Justice under s. 51 of
the States Reorganisation Act, 1956. [666 D, 665 H, 666 E-G,
657 C-E]
4. (a) The Constitution and structure of a High Court
depends on the statute creating it. It is clear from sub-ss.
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(1) and (2) of s. 51 that the President has the power to
appoint the principal seat of the High Court for a new State
and also establish a permanent Bench of that High Court at
one or more places within the State. Under these provisions
the President has the power not only to define the
territorial jurisdiction of the permanent Bench in relation
to the
658
principal seat but also confer on it exclusive jurisdiction
to hear cases arising in the territory falling within its
jurisdiction. The creation of a permanent Bench under sub-s.
(2) of s. 51 must therefore, bring about a territorial
bifurcation of the High Court. In contrast, the power of the
Chief Justice to appoint, under sub-s. (3) of s. 51, the
sittings of the Judges and Division Courts of the High Court
at places other than the place of the principal seat or the
permanent Bench, is in the unquestioned domain of the Chief
Justice, the only condition being that he must act Justice,
the only condition being that he must act with the approval
of the Governor. It is basically an internal matter
pertaining to the High Court. The Chief Justice has full
power, authority and jurisdiction in the matter of
allocation of the business of the High Court and this flows
not only from the provisions contained in sub-s. (3) of s.
51 but inheres in him in the very nature of things. The non
obstante clause contained in sub-s. (3) of s. 51 gives an
over riding effect to the power of the Chief Justice. There
is no territorial bifurcation of the High Court merely
because the Chief Justice directed under sub-s. (3) of s. 51
that the Judges and division Courts shall also sit at
Aurangabad. The Judges and division Courts at Aurangabad are
part of the same High Court and they exercise jurisdiction
as Judges of the High Court of Bombay at Aurangabad.[673 G,
675 H, 676 A-C, D-H, 677 A]
Seth Manji Dhana v. Commissioner of Income-tax, Bombay
JUDGMENT:
Bombay on July 22, 1958), approved.
Manickam Pillai Subbayya Pillai v. Assistant Registrar,
High Court of Kerala, Trivandrum, AIR (1958) Kerala 188;
overruled.
(b) It is difficult to comprehend how the Chief Justice
can arrange for the sittings of the Judges and Division
Courts at a particular place unless there is a seat at that
place. It may be true in the juristic sense that the seat of
the High Court must mean "the principal seat of such High
Court" i.e. the place where the High Court is competent to
transact every kind of business from any part of the
territories within its jurisdiction. It is impossible to
conceive of a High Court without a seat being assigned to
it. The place where its jurisdiction can be invoked is an
essential and indispensable feature of the legal institution
known as ’Court’. Where there is only one seat of the High
Court it must necessarily have all the attributes of the
principal seat. But where the High Court has more than one
seat, one of them may or may not be the principal seat
according to the legislative scheme. When the Chief Justice
makes an order in terms of sub s. (3) of s. 51 that Judges
and Division Courts of the High Court shall also sit at such
other place, the High Court in the generic sense has also a
seat at such other place. It is both sound reason and
commonsense to say that the High Court of Bombay is located
at its principal seat at Bombay, but it also has a seat at
the permanent Bench at Nagpur. Besides administering
Justice, the High Court has the administrative control over
the subordinate judiciary in the State. The High Court must
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necessarily carry on the administrative functions from the
principal seat but it may have more than one seat for
transaction of judicial business.[673 A-G]
Nasiruddin v. State Transport Appellate Tribunal,
[1976] 1 S.C.R. 505; distinguished.
659
(c) Provisions similar to sub-s. (3) of s. 51 of the
Act existed in almost all the Letters Patent of the Acts
under which the various High Courts have been constituted.
Clause 31 in each of the Letters Patent under which the High
Courts of Calcutta, Madras and Bombay were established
provided for "exercise of jurisdiction elsewhere than at the
ordinary place of sitting of the High Court" Whenever a High
Court was established by Letters Patent under s. 1 of the
Indian High Courts Act, 1861, or under s. 113 of the
Government of India Act, 1935. The High Court was ’erected
and established’ at a particular place mentioned in the
Letters Patent. The expression ’erect and establish’ in
relation to a High Court meant nothing more than to indicate
the establishment of the High Court at a particular place
where the High Court was competent to transact every kind of
business arising from any part of the territory within its
jurisdiction. [674 C, 675 F, 674 E-F, 675 B-C]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3379 of
1981
Appeal by Special leave from the Judgment and order
dated the 14th December, 1981 of the Bombay High Court in
Writ Petition No. 1104 of 1981.
F.S. Nariman, Arvind V. Savant and M.N. Shroff for the
Appellant.
A.L. Settwal, and Mrs. Jayshree Wad for Respondent No.
1.
D.R. Dhanuka, Lalit Bhasin, Vinay Bhasin, Suraj M. Shah
and Vineet Kumar for Respondent No. 2.
L.N. Sinha, Attorney General, M.K. Banerjee, Additional
Solicitor General of India and Miss A. Subhashini for
Respondent No. 3.
S.B. Bhasme, S.V. Tambwekar and R.G. Bhadekar for
Interveners 1-6.
V.N. Ganpule for Intervener No. 7.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is directed
against the judgment and order of the Bombay High Court
dated December 14, 1981. By its judgment the High Court
struck down an order dated August 27, 1981 by which the
Chief Justice of the Bombay High Court, in exercise of his
powers under sub-s. (3) of s. 51 of the States
Reorganization Act, 1956 (Act XXXVII of 1956) (for short
’the Act’) with the prior approval of the Governor of
Maharashtra, directed that the Judges and Division Courts of
the High Court of
660
Bombay shall also sit at Aurangabad with effect from August
27, 1981 for the disposal of cases arising out of the
Marathwada region of the State of Maharashtra.
By an order dated May 4, 1982 we allowed the appeal and
set aside the judgment of the High Court since it did not
appear to us that the impugned order issued by the Chief
Justice suffered from any infirmity, legal or
constitutional. We now proceed to give our reasons.
By virtue of sub-s. (1) of s. 49, the High Court of
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Bombay exercising immediately before the appointed day i.e.
November 1, 1956, jurisdiction in relation to the existing
State of Bombay, was deemed to be the High Court for the new
State of Bombay constituted under sub-section (1) of s. 8 of
the Act. Immediately before the appointed day, i.e. on
October 27, 1956, the Central Government while
telegraphically communicating to the then Chief Justice
(Chagla, C.J.) the issue of a Presidential Order under sub-
s. (1) of s. 51 of the Act appointing Bombay to be the
principal seat of the High Court for the new State of Bombay
with effect from November 1, 1956, conveyed that as from
that date the High Court shall function only at that place
unless the Chief Justice issued an order under sub-s. (3) of
s. 51 of the Act that temporary Benches may also function at
other places. The then Chief Justice was advised that he
should issue such notification on the appointed day, i.e.
November 1, 1956, for the establishment of Circuit Benches
at Nagpur and Rajkot with a view to preserve the continuity
of judicial administration, since the High Court of Madhya
Pradesh had its principal seat at Nagpur and the High Court
of Saurashtra at Rajkot, prior to the appointed day. The
then Chief Justice accordingly issued an order under sub-s.
(3) of s. 51 of the Act with the prior approval of the
Governor by which he appointed Nagpur and Rajkot to be
places at which the Judges and Division Courts of the Bombay
High Court would also sit with effect from November 1, 1956.
The two Benches at Nagpur and Rajkot continued to function
till May 1, 1960 when the bilingual State of Bombay was
bifurcated into two separate States-The State of Maharashtra
and the State of Gujarat-by the Bombay Reorganization Act,
1960 (Act, XI OF 1960).
Prior to the constitution of the States Reorganization
Commission in December 1953, leaders of political parties
from the Marathi-speaking areas in the Vidarbha and
Marathwada regions and of the then State of Bombay signed an
agreement or pact called
661
the Nagpur pact on September 23, 1953 which formed a basis
for joint representation to the States Reorganization
Commission and was the basis for the formation of
Maharashtra as a new State for the Marathi-speaking people
of the former State of Bombay, the Vidarbha region of the
former State of Madhya Pradesh, and the Marathwada region of
the erstwhile State of Hyderabad. CI. (7) of the Nagpur Pact
provides that the provision with regard to the establishment
of a permanent Bench of the High Court at Nagpur shall apply
mutatis mutandis to the Marathwada region.
It appears that due to continued demand of the people
of Marathwada region for the establishment of a permanent
Bench of the High Court at Aurangabad under sub-s. (2) of s.
51 of the Act, the State Government first took up the issue
with the then Chief Justice (Kantawala, C.J.) in 1977. On
March 22, 1978, the State Legislative Assembly passed a
unanimous resolution supporting a demand for the
establishment of a permanent Bench of the High Court at
Aurangabad to the effect:
"With a view to save huge expenses and to reduce
the inconvenience of the people of the Marathwada and
Pune regions in connection with legal proceedings, this
Assembly recommends to the Government to make a request
to the President to establish a permanent Bench of the
Bombay High Court having jurisdiction in Marathwada and
Pune regions, one at Aurangabad and the other at Pune."
The said demand for the constitution of a permanent Bench of
the High Court at Aurangabad was supported by the State Bar
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Council of Maharashtra, Advocates’. Association of Western
India, several bar associations and people in general. It is
necessary here to mention that the resolution at originally
moved made a demand for the setting up of a permanent Bench
of the High Court of Bombay at Aurangabad for the Marathwada
region, and there was no reference to Pune which was added
by way of amendment. Initially, the State Government made a
recommendation to the Central Government in 1978 for the
establishment of two permanent Benches under sub-s. (2) of
s. 51 of the Act, one at Aurangabad and the other at Pune,
but later in 1981 confined its recommendation to Aurangabad
alone.
The State Government thereafter took a Cabinet decision
in January, 1981 to establish a permanent Bench of the High
Court at
662
Aurangabad and this was conveyed by the Secretary to the
Government of Maharashtra, Law & Judiciary Department,
communicated by his letter dated February 3, 1981 to the
Registrar and he was requested, with the permission of the
Chief Justice, to submit proposals regarding accommodation
for the Court and residential bungalows for the Judges,
staff, furniture etc. necessary for setting up the Bench. As
a result of this communication, the Chief Justice wrote to
the Chief Minister on February 26, 1981 signifying his
consent to the establishment of a permanent Bench at
Aurangabad. After adverting to the fact that his
predecessors had opposed such a move and had indicated,
amongst other things, that such a step involved, as it does,
breaking up of the integrity of the institution and the Bar,
which would necessarily impair the quality and quantity of
the disposals, he nonetheless went on to say:
"As against that I am personally aware of the
difficulties to which the litigant public of Marathwada
is subjected to, in regard to their causes in this High
Court since the Marathwada area became a part of the
Bombay State with effect from 1.11.1956, resulting
virtually in the stifling of the genuine litigation
therefrom. Grievances on this count are many and
genuine to my knowledge. Establishment and continued
existence of the Benches in the High Courts of Madhya
Pradesh, Uttar Pradesh, Bihar, Kerala and a Bench at
Nagpur in our own State, make it difficult for them to
believe that their claim for a Bench alone is liable to
be ignored because of any such view of the Law
Commission or the Jurists. This only goes to deepen the
bitterness and sense of injustice that is prevalent
among them."
It however became evident by the middle of June, 1981
that the Central Government would take time in reaching a
decision on the proposal for the establishment of a
permanent Bench under sub s. (2) of s. 51 of the Act at
Aurangabad as the question involved a much larger issue,
viz. the principles to be adopted and the criterion laid
down for the establishment of permanent Benches of High
Courts generally. This meant that there would be inevitable
delay in securing concurrence of the Central Government and
the issuance of a Presidential Notification under sub-s. (2)
of s. 51 of the Act. On June 12, 1981, the State Government
accordingly took a Cabinet decision that pending the
establishment of a permanent Bench under
663
sub-s. (2) of s. 51 of the Act at Aurangabad for the
Marathwada region, resort be had to the provisions of sub-s.
(3) thereof. On June 20, 1981 Secretary to the Government of
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Maharashtra, Law and Judiciary Department wrote to the
Registrar stating that there was a possibility of the delay
in securing concurrence of the Central Government and the
issuance of a notification by the President under sub-s. (2)
of s. 51 of the Act for the establishment of a permanent
Bench at Aurangabad and in order to tide over the
difficulty, the provisions of sub-s. (3) of s. 51 of the Act
may be resorted to and he therefore requested the Chief
Justice to favour the Government with his views in the
matter at an early date. On July 5, 1981, the Law Secretary
waited on the Chief Justice in that connection. On July 7,
1981 the Chief Justice wrote a letter to the Chief Minister
in which he stated that the Law Secretary had conveyed to
him the decision of the State Government to have a Circuit
Bench at Aurangabad under sub-s. (3) of s. 51 pending the
decision of the Central Government to establish a permanent
Bench there under sub-s. (2) of s. 51 of the Act. The Chief
Justice then added:
"I agree that some such step is necessary in view
of the preparations made by the Government at huge
costs and the mounting expectations of the people
there."
Rest of the letter deals with the problem of finding
residential accommodation for the Judges, staff, increase in
strength of Judges etc.
On July 20, 1981, the Law Secretary addressed a letter
to the Registrar requesting him to forward, with the
permission of the Chief Justice, proposal as is required
under sub-s. (3) of s. 51 for the setting up of a Bench at
Aurangabad. In reply to the same, the Registrar by his
letter dated July 24, 1981 conveyed that the Chief Justice
agreed with the suggestion of the State Government that
action had to be taken under sub-s. (3) of s. 51 of the Act
for which the approval of the Governor was necessary and he
enclosed a copy of the draft order which the Chief Justice
proposed to issue under sub-s. (3) of s. 51 of the Act. On
August 10, 1981, the Law Secretary conveyed to the Registrar
the approval of the Governor. On August 27, 1981, the Chief
Justice issued an order under sub-s. (3) of s. 51 of the Act
to the effect:
664
"In exercise of the powers conferred by sub-s. (3)
of s. 51 of the State Reorganization Act, 1956 (No. 37
of 1956) and all other powers enabling him in this
behalf, the Hon’ble the Chief Justice, with the
approval of the Governor of Maharashtra, is pleased to
appoint Aurangabad as a place at which the Hon’ble
Judges and Division Courts of the High Court of
Judicature at Bombay may also sit."
The High Court has set aside the impugned notification
issued by the Chief Justice under sub-s. (3) of s. 51 of the
Act on the following grounds, namely: (1) The impugned order
issued by the Chief Justice under sub-s. (3) of s.51 of the
Act was not directly connected with or related to problems
arising out of the reorganization of the States i.e. there
is no nexus between the purpose and objects of the Act and
the setting up of Aurangabad as a venue for additional seat
of the High Court, (2) The provisions of the Act and in
particular of s. 51 were not intended to be operative in
definitely and they were meant to be exercised either
immediately or within a reasonable time and therefore the
exercise of the power by the Chief Justice under sub-s. (3)
of s. 51 of the Act appointing Aurangabad as a place where
the Judges and Division Courts of the High Court may also
sit after a lapse of 26 years is constitutionally
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impermissible, (3) The State of Maharashtra was not a new
State within the meaning of s. 51 read with s. 2(1) of the
Act after the bifurcation of the bilingual State of Bombay
into the State of Maharashtra and the newly constituted
State of Gujarat under s. 3 of the Bombay Reorganization
Act, 1960 and therefore the power of the President of India
to establish a permanent Bench or Benches of the High Court
under sub-s. (2) of s. 51 of the Act and that of the Chief
Justice to appoint with the prior approval of the Governor a
place or places where the Judges and the Division Courts of
the High Court may also sit under sub-s. (3) thereof, can no
longer be exercised, (4) The power conferred on the Chief
Justice under sub s.(3) of s. 51 of the Act to appoint a
place or places where the Judges or the Division Courts of
the High Court may also sit, does not include a power to
establish a Bench or Benches at such places, and he had no
power or authority under sub-s. (3) of s. 51 of the Act to
issue administrative directions for the filing or
institution of proceedings at such a place and (5) The
impugned notification issued by the Chief Justice under sub-
s. (3) of s. 51 of the Act was a colourable exercise of
power and therefore liable to be struck down. We are afraid,
the High Court has proceeded on wholly wrong premises.
665
Section 51 of the Act provides as follows:
"51. Principal seat and other places of sitting of
High Courts for new States.
(1) The principal seat of the High Court for a
new State shall be at such place as the
President may, be notified order, appoint.
(2) The President may, after consultation with
the Governor of a new State and the Chief
Justice of the High Court for that State, by
notified order, provide for the establishment
of a permanent bench or benches of that High
Court at one or more places within the State
other than the principal seat of the High
Court and for any matters connected
therewith.
(3) Notwithstanding anything contained in
subsection (1) or sub-section (2), the Judges
and Division Courts of the High Court for a
new State may also sit at such other place or
places in that State as the Chief Justice
may, with the approval of the Governor,
appoint."
There questions arise for consideration in this appeal:
(1): Whether the power of the President under sub-s. (2) of
s. 51 of the Act or that of the Chief Justice of the High
Court under sub-s. (3) of s. 51 of the Act, can no longer be
exercised due to lapse of time. (2) Whether the exercise of
power by the Chief Justice under sub-s. (3) of s. 51 of the
Act appointing Aurangabad to be a place at which the Judges
and Division Courts of the High Court shall also sit is co-
related to the reorganization of the States, or he has no
nexus with the object and purposes sought to be achieved by
the Act and is only a part of the demand for
decentralization of the administration justice in general.
(3) Whether the power of the Chief Justice under sub-s. (3)
of s. 51 of the Act does not include a power to establish a
Bench or Benches at such place or places carving out
territorial jurisdiction for such Benches and authorising
the filing or institution of proceedings at such places.
It is difficult to agree with the High Court that the
High Court of Bombay is not the High Court of a new State
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within the meaning
666
of sub-s. (1) of s. 49 of the Act, merely because the
bilingual State of Bombay was bifurcated into two separate
States of Maharashtra and Gujarat under s. 3 of the Bombay
Reorganization Act, 1960. Nor do we see any valid basis for
the view taken by the High Court that the power of the
President to establish a permanent Bench or Benches of the
High Court under sub-s. (2) of s. 51 of the Act or that of
the Chief Justice to appoint, with the approval of the
Governor, a place or places where the Judges and Division
Courts may also sit under sub-s. (3) of s. 51 of the Act,
can no longer be exercised, in relation to the High Court of
Bombay. It was right by not disputed before us that the High
Court of Bombay was the High Court for the new State of
Bombay within the meaning of sub-s. (1) of s. 49 of the Act
and therefore the provisions of s. 51 of the Act are still
applicable. That must be so because the High Court of Bombay
owes its principal seat at Bombay to the Presidential Order
issued under sub-s. (1) of s. 51 of the Act. The expression
"new State" occurring in sub-s. (1) of s. 49 of the Act is
defined in s. 2(i) to mean "a State formed under the
provisions of Part II". The State of Bombay was a new State
formed under s. 8 of the Act, which occurs in Part II. The
Bombay Reorganization Act, 1960 (Act No.XI of 1960) which
reconstituted the erstwhile State of Bombay into the State
of Maharashtra and the State of Gujarat provides, inter
alia, by sub-s. (1) of s. 28 that, as from the appointed
day, i.e. May 1, 1960, there shall be a separate High Court
for the State of Gujarat and that the High Court of Bombay
shall become the High Court for the State of Maharashtra.
Sub-s. (2) of s. 28 of that Act provides that the principal
seat of the Gujarat High Court shall be at such place as the
President may, by notified order, appoint. It is rather
significant that the Bombay Reorganization Act, 1960
contains no similar provision with regard to the principal
seat of the High Court of Bombay. That being so, the
continued existence of the principal seat of the Bombay High
Court at Bombay is still governed by sub-s. (1) of s. 51 of
the Act. This conclusion of ours is reinforced by the
opening words of s. 41 of that Act which provides for the
setting up of a permanent bench of the Bombay High Court at
Nagpur, and it reads:
"41. Permanent Bench of Bombay High Court at
Nagpur-Without prejudice to the provisions of s. 51 of
the States Reorganization Act, 1956, such Judges of the
High Court at Bombay, being not less than three in
667
number, as the Chief Justice may from time to time
nominate, shall sit at Nagpur in order to exercise the
jurisdiction and power for the time being vested in
that High Court in respect of cases arising in the
districts of Buldana, Akola, Amravati, Yeotmal, Wardha,
Nagpur, Bhandara, Chanda and Rajpura:
Provided that the Chief Justice may, in his
discretion, order that any case arising in any
such districts shall be heard at Bombay."
The legislative intent is clear and explicit by the use
of the words "Without prejudice to the provisions of s. 51
of the States Reorganization Act, 1956". The legislature
pre-supposed the continued existence of s. 51 of the Act in
relation to the High Court of Bombay. That shows that while
enacting s.41 of the Act, Parliament retained the power of
the President of India both under sub-s. (1) and sub-s. (2)
of s.51 of the Act and that of the Chief Justice under sub-
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s. (3) thereof. If there is continued existence of sub-s.
(1) of s.51 of the Act in relation to the principal seat of
the High Court for a new State, a fortiori, there is, to an
equal degree, the continued, existence of the provisions
contained in sub-ss. (2) and (3) of s. 51 of the Act. This
is also clear from the provisions of s. 69 of the Act which
in terms provides that Part V which contains s.51 of the Act
shall have effect subject to any provision that may be made,
on or after the appointed day with respect to the High Court
of a new State, by the Legislature or any other authority
having power to make such provision.
Nor can we subscribe to the proposition that the power
of the President under sub-s. (2) of s. 51 of the Act, or
that of the Chief Justice of the High Court of a new State
under sub-s. (3) of that section, can no longer be exercised
due to lapse of time. The High Court is of the view that the
provisions of the Act and in particular of s. 51 were meant
to be exercised either immediately or within a reasonable
time of the reorganization of the States and therefore the
exercise of the power by the Chief Justice under sub-s. (3)
of s. 51 of the Act appointing Aurangabad as a place where
the Judges and Division Courts of the High Court may also
sit, after a lapse of 26 years, is constitutionally
impermissible. Any other view, according to the High Court,
is bound to give rise to a very anamolous situation as in
nine out of sixteen States not affected by the Act,
668
the creation of a permanent Bench of a High Court must be by
an Act of Parliament while in seven new States formed under
the Act, the same could be achieved by a Presidential
Notification under sub-s. (2) of s. 51 of the Act.
Furthermore, in States where the High Courts were
established by Letters Patent, the powers conferred on the
Chief Justices of the High Courts qua sittings of single
Judges and Division Courts can be exercised only with
legislative sanction whereas under sub s. (3) of s. 51 it
can be done by the Chief Justice of the High Court for a new
State, with the approval of the Governor of that State. Such
a construction of the provisions of s. 51 of the Act would,
according to the High Court, result in creating
discrimination between the States. The reasoning of the High
Court that the Act being of a transitory nature, the
exercise of the power of the President under sub-s. (2) of
s. 51 of the Act, or of the Chief Justice under sub-s. (3)
thereof, after, a lapse of 26 years, would be a complete
nullity, does not impress us at all. The provisions of sub-
ss. (2) and (3) of s. 51 of the Act are supplemental or
incidental to the provisions made by Parliament under Arts.
3 and 4 of the Constitution. Art. 3 of the Constitution
enables Parliament to make a law for the formation of a new
State. The Act is a law under Art. 3 for the reorganization
of the States. Art. 4 of the Constitution provides that the
law referred to in Art. 3 may contain "such supplemental,
incidental and consequential provisions as Parliament may
deem necessary". Under the scheme of the Act, these powers
continue to exist by reason of Part V of the Act unless
Parliament by law otherwise directs. The power of the
President under sub-s. (2) of s. 51 of the Act, and that of
the Chief Justice of the High Court under sub-s. (3) thereof
are intended and meant to be exercised from time to time as
occasion arises, as there is no intention to the contrary
manifested in the Act within the meaning of s. 14 of the
General Clauses Act. The High Court has assumed that the
provisions of sub-ss (2) and (3) of s. 51 of the Act have
’ebbed out’ by lapse of time. This assumption is plainly
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contrary to the meaning and effect of s. 69 of the Act which
in terms provides that Part V which contains s. 51 of the
Act, shall have effect subject to any provision that may be
made on or after the appointed day with respect to the High
Court of any State, by the Legislature or any other
authority having power to make such provision.
It is a matter of common knowledge that Parliament
considered it necessary to reorganize the existing States in
India and to provide for it and other matters connected
therewith and with that end in view, the States
Reorganization Act, 1956 was enacted. As a result
669
of reorganization, boundaries of various States changed.
Some of the States merged into other States in its entirety,
while some States got split and certain parts thereof merged
into one State and other parts into another. These
provisions were bound to give rise, and did give rise, to
various complex problems. These problems are bound to arise
from time to time. The Act is a permanent piece of
legislation on the Statute Book. Section 14 of the General
Clauses Act, 1897 provides that, where, by any Central Act
or Regulation, any power is conferred, then unless a
different intention appears, that power may be exercised
from time to time as occasion arises. The Section embodies a
uniform rule of construction. That the power may be
exercised from time to time when occasion arises unless a
contrary intention appears is therefore well settled. A
statute can be abrogated only by express or implied repeal.
It cannot fall into desuetude or become inoperative through
obsolescence or by lapse of time. In R. v. London Country
Council(1), Scrutton L.J. put the matter thus:
"The doctrine that, because a certain number of
people do not like an Act and because a good many
people disobey it, the Act is therefore "obsolescent"
and no one need pay any attention to, it is a very
dangerous proposition to hold in any constitutional
country. So long as an Act is on the statutebook, the
way to get rid of it is to repeal or alter it in
Parliament, not for subordinate bodies, who are bound
to obey the law, to take upon themselves to disobey an
Act of Parliament."
As to the theory of desuetude, Allen in his ’Law in the
Making, 5th edn. p. 454 observes:
"Age cannot wither an Act of Parliament, and at no
time, so far as I am aware, has it ever been admitted
in our jurisprudence that a statute might become
inoperative through obsolescence."
The learned author mentions that there was at one time
a theory which, in the name of ’non-observance’ came very
near to the doctrine of Desuetude, that if a statute had
been in existence for any considerable period without ever
being put into operation it may be of little or no effect.
The rule concerning desuetude has
670
always met with such general disfavour that it seems hardly
profitable to discuss it further. It cannot be said that
sub-s. (2) or (3) of s. 51 of the Act can be regarded as
obsolescent. The opening words of s. 41 of the Bombay
Reorganization Act, 1960 manifest a clear legislative
intention to preserve the continued existence of the
provisions contained in s. 51 of the Act. It was as recent
as December 8, 1976 that the President issued a notification
under sub-s. (2) of s. 51 of the Act for the establishment
of a permanent Bench of the Rajasthan High Court at Jaipur.
The High Court is therefore not right in observing that the
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provisions of s. 51 of the Act were not intended to be
operative indefinitely and they were meant to be exercised
either immediately or within a reasonable time, or that the
powers of the President or the Chief Justice thereunder can
no longer be exercised in relation to the High Court of
Bombay.
The conclusion reached by the High Court that the
impugned notification issued by the Chief Justice under sub-
s. (3) of s. 51 of the Act was not directly connected with
the reorganization of the States, or had no nexus with the
objects and purposes sought to be achieved by the Act but
was only as part of the demand for decentralization of the
administration of justice in general, can only be justified
as a necessary corollary flowing from its views expressed on
other aspects of the matter. The creation of 14 new States
by Part II of the Act based on a linguistic basis virtually
led to the re-drawing of the political map of India as a
whole. Even after the reorganization of the States in 1956,
the political map of India continued to change owing to the
growing pressure of political considerations and
circumstances. The formation of the linguistic State of
Bombay constituted under s. 8 of the Act became the source
of struggle between the Gujarati and Marathi-speaking people
as a result of which the State of Bombay was further
bifurcated in 1960. These political changes necessarily
affected the constitution and structure of the High Court.
Under the Constitution, Parliament alone has the legislative
competence to make a law relating to the subject under Entry
78 of List I of the Seventh Schedule which reads:
"78. Constitution and organisation (including
vacations) of the High Courts except provisions as to
officers and servants of High Courts: persons entitled
to practise before the High Courts:
Under the scheme of the Act, it would appear that
having constituted a High Court for the new State of Bombay
under sub-s.
671
(1) of s. 49 of the Act and conferred jurisdiction on it
under s. 52 in relation to the territories of the new State,
Parliament left it to the various high Constitutional
functionaries designated in the three sub-sections of s. 51
of the Act to determine the place where the principal seat
of the High Court should be located and places where
permanent Bench or Benches of the High Court may be
established or where the Judges and Division Courts of the
High Court may also sit. on the reorganization of the States
as from the appoint day, i.e. November 1, 1956, the
territories of the new State of Bombay formed under s. 8 of
the Act and with it the jurisdiction of the High Court was
considerably extended. The merger of the new territories of
the Vidarbha region of the former State of Madhya Pradesh
and the Marathwada region of the erstwhile State of
Hyderabad together with the Saurashtra region of the newly
constituted State of Gujarat was an additional source of
strength of the High Court. It became necessary for the more
convenient transaction of judicial business to establish, as
from the appointed day, two Benches of the High Court at
Nagpur and Rajkot to deal with matters arising from Vidarbha
and Saurashtra regions respectively. The formation of the
separate State of Gujarat in 1960 under s. 3 of the Bombay
Reorganization Act, 1960 resulted in severance of ties not
only with the Saurashtra region but also with the Gujarat
districts over which the High Court had exercised
jurisdiction for about a century. The High Court of Bombay
therefore underwent a major transformation in 1956 when the
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bilingual State of Bombay was formed under s. 8 of the Act
and then again in 1960 when with the formation of a separate
State of Gujarat under s. 3 of the Bombay Reorganization
Act, the residuary State of Bombay was to be known as the
State of Maharashtra. Nagpur which ceased to be the seat of
the High Court of the new State of Madhya Pradesh, was given
a Bench by an order issued by the then Chief Justice of the
High Court under sub s. (3) of s. 51 of the Act. The
arrangement was made permanent by s. 41 of that Act which
provided for the establishment of a permanent Bench at
Nagpur to deal with cases arising out of the Vidarbha
region. It was a solemn assurance given to the people of the
Marathwada region of the erstwhile State of Hyderabad by cl.
(7) of the Nagpur Pact that the provision with regard to the
establishment of a permanent Bench at Nagpur shall also
apply mutatis mutandis to the Marathwada region.
There has been a long-standing demand ever since the
formation of the bilingual State of Bombay under s. 8 of the
Act for the establishment of a permanent Bench of the Bombay
High Court at
672
Aurangabad under sub-s. (2) of s. 51 of the Act for the
disposal of cases arising out of the Marathwada region of
the State of Maharashtra and the matter is still under the
active consideration of the Central Government. Pending the
decision of the Central Government regarding the
establishment of a permanent Bench of the High Court under
sub-s. (2) of s. 51 of the Act at Aurangabad for the
Marathwada region, the Chief Justice of the Bombay High
Court issued the impugned order for the establishment of a
Bench at Aurangabad with effect from August 27, 1981.
The only other point to be considered, and this was the
point principally stressed in this appeal, is whether the
power conferred on the Chief Justice under sub-s. (3) of s.
51 of the Act to appoint a place or places where the Judges
and Division Courts may also sit, does not include a power
to establish a Bench or Benches at such place or places, nor
that he had any power or authority thereunder to issue
administrative directions for the filing or institution of
proceedings at such a place. There is quite some discussion
in the judgment of the High Court on the distinction between
the "sittings" of the Judges and Division Courts and the
"seat" of the High Court and after going into the history of
the constitution of the various High Courts in India and the
Letters Patent constituting such High Courts, the High Court
holds that the exercise of the power by the Chief Justice
under sub-s. (3) of s. 51 of the Act is bad in law as it
brings about a territorial bifurcation of the High Court.
According to the High Court, the Judges and Division Courts
at Aurangabad were competent to hear and decide cases
arising out of the districts of the Marathwada region
assigned to them by the Chief Justice, but the Chief Justice
had no power or authority under sub s. (3) of s. 51 of the
Act to issue administrative directions for the filing or
institution of proceedings at such a place. The judgment of
the High Court mainly rests on the decision of the Kerala
High Court in Manickam Pillai Subbayya Pillai v. Assistant
Registrar, High Court Kerala, Trivandrum(1) and the minority
view of Raina, J. in Abdul Taiyab Abbasbhai Malik & Ors. v.
The Union of India & Ors.,(2) following the Kerala view.
It is not necessary for our purposes to go into the
distinction sought to be drawn between the "sittings" of the
Judges and Division Courts at a place and the "seat" of the
High Court. It is
673
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difficult to comprehend how the Chief Justice can arrange
for the sittings of the Judges and Division Courts at a
particular place unless there is a seat at that place. It
may be true in the juristic sense that the seat of the High
Court must mean "the principal seat of such High Court,"
i.e. the place where the High Court is competent to transact
every kind of business from any part of the territories
within its jurisdiction. It is impossible to conceive of a
High Court without a seat being assigned to it. The place
where it would sit to administer justice or, in other words,
where its jurisdiction can be invoked is an essential and
indispensable feature of the legal institution, known as a
Court. Where there is only one seat of the High Court, it
must necessarily have all the attributes of the principal
seat. But where the High Court has more than one seat, one
of them may or may not be the principal seat according to
the legislative scheme. It is both sound reason and
commonsense to say that the High Court of Bombay is located
at its principal seat at Bombay, but it also has a seat at
the permanent Bench at Nagpur. When the Chief Justice makes
an order in terms of sub-s. (3) of s. 51 of the Act that
Judges and Division Courts of the High Court shall also sit
at such other places, the High Court in the genetic sense
has also a seat at such other places. We may drew some
analogy from the provisions of Art. 130 of the Constitution
which reads:
"130. The Supreme Court shall sit in Delhi or in
such other place or places, as the Chief Justice of
India may, with the approval of the President, from
time to time, appoint."
It is necessary to emphasize that besides administering
justice, the High Court has the administrative control over
the subordinate judiciary in State. The High Court must
necessarily carry on its administrative functions from the
principal seat, i.e. the place where the High Court
transacts every Kind of business in all its capacities. The
High Court as such is located there, but it may have more
than one seat for transaction of judicial business. The
constitution and structure of the High Court depends on the
statute creating it. The decision in Nasiruddin v. State
Transport Appellate Tribunal(1) is not directly in point as
it turned on the construction of the provisions of the U.P.
High Courts (Amalgamation) order, 1948. It is however an
authority for the proposition that after the
674
amalgamation of the High Court of Allahabad and the Chief
Court of Oudh, the two High Courts ceased to exist and
became Benches of the newly constituted High Court by the
name of the High Court of Judicature at Allahabad. Further,
the Court held that a case "instituted" at a particular
Bench had to be "heard" at that Bench. It recognized that
there can be two seats of the High Court without a principal
seat.
It must here be mentioned that provisions similar to
sub-s.(3) of s. 51 of the Act existed in almost all the
Letters Patent or the Acts under which the various High
Courts have been constituted. While introducing the Bill of
1861 in the British Parliament for the establishment of the
High Courts for the Bengal Division of the Presidency of
Fort William and also at Madras and Bombay, Sir Charles
Wood, Secretary of State for India, laid stress on the
advantage of the Judges of the new Courts going on circuit
to try criminal cases. He said:
"Now according to the provisions of this Bill, the
Judges of the Supreme Court may be sent on circuit
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throughout the country......It may be impossible in a
country like India to bring justice to every man’s
door, but at all events the system now proposed will
bring it far nearer than at present."
When we examine the constitution of the various High
Courts in India, one thing is clear that whenever a High
Court was established by Letters patent under s. 1 of the
Indian High Courts Act, 1861 called the Charter Act, or
under s. 113 of the Government of India Act, 1935, the High
Court was created and established at a particular place
mentioned in the Letters Patent. S. 1 of the Charter Act
provided that it shall be lawful for Her Majesty, by Letters
Patent under the great seal of the United Kingdom, to erect
and establish a High Court of Judicature at Fort William at
Bengal for the Bengal Division of the Presidency of the Fort
William, and by like Letters Patent, to erect and establish
like High Courts at Madras and Bombay for these Presidencies
respectively. In pursuance of these provisions by Letters
Patent issued by Her Majesty in 1862, the Chartered High
Courts of Calcutta, Madras and Bombay were established. In
virtue of the powers conferred by s. 16 of the Act the Crown
by Letters Patent established in 1866 at Agra a High Court
of Judicature for North-Western Provinces for the Presidency
of Fort William, to be called a High Court of Judicature for
North
675
Western Provinces. The seat of the High Court for the North
Western Provinces was shifted from Agra to Allahabad in 1869
and its designation was altered to the High Court of
Judicature at Allahabad by Supplementary Letters Patent
issued in 1919 in pursuance of s. 101 (5) of the Government
of India Act, 1915. The expression "erect and establish" in
relation to a High Court meant nothing more than to indicate
the establishment of the High Court at a particular place
where the High Court was competent to transact every kind of
business arising from any part of the territory within its
jurisdiction.
Cl. 31 of the Letters Patent for the High Court of
Calcutta provides for "exercise of jurisdiction elsewhere
than at the ordinary place of sitting of the High Court" and
it reads as follows:
"And we do further ordain that whenever it shall
appear to the Governor General in Council convenient
that the jurisdiction and power by these our Letters
Patent, or by the recited Act, vested in the said High
Court of Judicature at Fort William in Bengal, should
be exercised in any place within the jurisdiction of
any Court now subject to the superintendence of the
said High Court, other than the usual place of sitting
of the said High Court, or at several such places by
way of circuit, the proceedings in cases before the
said High Court at such place or places shall be
regulated by any law relating thereto which has been or
may be made by competent legislative authority for
India."
The Letters Patent for the High Courts of Madras and Bombay
are mutatis mutandis in almost the same terms. Cl. 31 of
these Letters Patent similarly provided for "exercise of
jurisdiction elsewhere than at the ordinary place of sitting
of the High Court." It would appear therefrom that the power
to direct that the High Court shall sit at a place or places
other than the usual place of sitting of these High Courts
was a power of the Governor-General in Council, and the
proceedings in cases before the said High Courts at such
place or places were to be regulated by any law relating
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thereto which had been or might be made by competent
legislative authority for India.
It is clear upon the terms of s. 51 of the Act that
undoubtedly the President has the power under sub-s. (1) to
appoint the principal
676
seat of the High Court for a new State. Likewise, the power
of the President under sub-s. (2) thereof, after
consultation with the Governor of a new State and the Chief
Justice of the High Court for that State, pertains to the
establishment of a permanent Bench or Benches of that High
Court of a new State at one or more places within the State
other than the place where the principal seat of the High
Court is located and for any matters connected therewith
clearly confer power on the President to define the
territorial jurisdiction of the permanent Bench in relation
to the principal seat as also for the conferment of
exclusive jurisdiction to such permanent Bench to hear cases
arising in districts falling within its jurisdiction. The
creation of a permanent Bench under sub-s. (2) of s. 51 of
the Act must therefore bring about a territorial bifurcation
of the High Court. Under sub-s. (1) and sub-s. (2) of s. 51
of the Act the President has to act on the advice of the
Council of Ministers as ordained by Art. 74(1) of the
Constitution. In both the matters the decision lies with the
Central Government. In contrast, the power of the Chief
Justice to appoint under sub-s.(3) of s. 51 of the Act the
sittings of the Judges and Division Courts of the High Court
for a new State at places other than the place of the
principal seat or the permanent Bench is in the unquestioned
domain of the Chief Justice, the only condition being that
he must act with the approval of the Governor. It is
basically an internal matter pertaining to the High Court.
He has full power, authority and jurisdiction in the matter
of allocation of business of the High Court which flows not
only from the provision contained in sub-s.(3) of s. 51 of
the Act but inheres in him in the very nature of things. The
opinion of the Chief Justice to appoint the seat of the High
Court for a new State at a place other than the principal
seat under sub-s. (3) of s. 51 of the Act must therefore
normally prevail because it is for the more convenient
transaction of judicial business. The non obstante clause
contained in sub-s. (3) of s. 51 given an overriding effect
to the power of the Chief Justice. There is no territorial
bifurcation of the High Court merely because the Chief
Justice directs under sub-s. (3) of s. 51 of the Act that
the Judges and Division Courts shall also sit at such other
places as he may, with the approval of the Governor,
appoint. It must accordingly be held that there was no
territorial bifurcation of the Bombay High Court merely
because the Chief Justice by the impugned notification
issued under sub-s. (3) of s. 51 of the Act directed that
the Judges and Division Courts shall also sit at Aurangabad.
The Judges and Division Courts at Aurangabad are
677
part of the same High Court as those at the principal seat
at Bombay and they exercise jurisdiction as Judges of the
High Court of Bombay at Aurangabad. The Chief Justice acted
within the scope of his powers. We see no substance in the
charge that the impugned notification issued by the Chief
Justice under sub-s. (3) of s. 51 of the Act was a
colourable exercise of power.
As to the scope and effect of sub-s. (3) of s. 51 of
the Act, the question came up for consideration before
Chagla, C.J. and Badkas, J. in Seth Manji Dana v.
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Commissioner of Income-tax, Bombay & Ors.(1) decided on July
22, 1958. This was an application by which the validity of
r. 254 of the Appellate Side Rules was challenged insofar as
it provided that all income-tax references presented at
Nagpur should be heard at the principal seat of the High
Court at Bombay, and the contention was that the result of
this rule was that it excluded income-tax references from
the jurisdiction of the High Court functioning at Nagpur. In
repelling the contention, Chagla, C. J. observed :
"Legally, the position is quite clear, under
section 51 (3) of the State Reorganization Act, the
Judges sitting at Nagpur constitute a part of the High
Court of Bombay. They are as much a part of the High
Court of Bombay, and if we might say so distinguished
part of the High Court of Bombay, as if they were
sitting under the same roof under which Judges function
in Bombay. All that happens is that the Chief Justice,
under the powers given to him under the Letters Patent
distributes the work to various Judges and various
Divisional Benches, and acting under that power he
distributes certain work to the Judges sitting at
Nagpur."
He then continued:
"All that rule 254 does is to permit as a matter
of convenience certain matters to be presented at
Nagpur to the Deputy Registrar. If rule 254 had not
been enacted, all matters would have to be presented at
Bombay and then the Chief Justice would have
distributed those matters to different Judges, whether
sitting in Bombay or at Nagpur. It is out of regard and
consideration for the
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people of Vidarbha and for their convenience that this
rule is enacted, so that litigants should not be put to
the inconvenience of going to Bombay to present certain
matters. Therefore, this particular rule has nothing
whatever to do either with section 51 (3) of the States
Reorganisation Act or with the Constitution."
With regard to r. 254, he went on to say :
"Now, having disposed of the legal aspect of the
matter, we turn to the practical aspect, and let us
consider whether this rule inconveniences the people at
Nagpur. If it does, it would certain call for an
amendment of that rule. Now, there is particular reason
why all Income Tax References should be heard in Bombay
and that reason is this. The High Court of Bombay for
many years, rightly or wrongly, has followed a
particular policy with regard to Income Tax References
and that policy is that the same Bench should hear
Income Tax References, so that there should be a
continuity with regard to the decisions given on these
References. I know that other High Courts have referred
to this policy with praise because they have realised
that the result of this policy has been that Income Tax
Law has been laid down in a manner which has received
commendation from various sources. The other reason is
and we hope we are not mistaken in saying so that the
number of Income Tax References from Nagpur are very
few. If the number was large, undoubtedly a very strong
case would be made out for these cases to be heard at
Nagpur."
He then concluded :
"After all, Courts exist for the convenience of
the litigants and not in order to maintain any
particular system of law or any particular system of
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administration. Whenever a Court finds that a
particular rule does not serve the convenience of
litigants, the Court should be always prepared to
change the rule."
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The ratio to be deduced from the decision of Chagla, C. J.
is that the Judges and Division Courts sitting at Nagpur
were functioning as if they were the Judges and Division
Courts of the High Court at Bombay.
In Manickam Pillai’s case (supra), the Kerala High
Court held that the curtailment of the territorial
jurisdiction of the main seat of the High Court of a new
State is a necessary concomitant to the establishment of a
permanent Bench under sub-s. (2) of s. 51 of the Act while
contrasting sub-s. (3) with sub-s. (2). There, a question
arose whether the temporary Bench of the High Court of
Kerala with its principal seat at Ernakulam created by the
Chief Justice at Trivandrum by an order issued under sub s.
(3) of s. 51 of the Act was not the High Court of Kerala,
and the Judges and Division Courts sitting at Trivandrum
were precisely in the same position as Judges and Division
Courts sitting in the several court-rooms of the High Court
at its principal seat in Ernakulam. In other words, the
contention was that the Judges and Division Courts sitting
at Trivandrum could only hear and dispose of such cases as
were directed to be posted before them by the Chief Justice
but no new case could be instituted there. Raman Nayar, J.
(as he then was) speaking for the Court held that the
Trivandrum Bench was not the High Court of Kerala and the
Judges and Division Courts sitting at Trivandrum could hear
and dispose of only such cases as may be assigned to them.
With respect, we are of the opinion that the view expressed
by Chagla, C. J. in Manji Dana’s case, (supra), is to be
preferred. Chagla, C. J. rightly observes that the Judges
and Division Courts at a temporary Bench established under
sub-s. (3) of s. 51 of the Act function as Judges and
Division Courts of the High Court at the principal seat, and
while so sitting at such a temporary Bench they may exercise
the jurisdiction and power of the High Court itself in
relation to all the matters entrusted to them.
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court is set aside
and the writ petition filed by respondent No. 1 is
dismissed. In terms of the order passed by us on May 4,
1982, we direct that in accordance with the notification
issued by the Chief Justice of the High Court of Bombay
dated August 27, 1981, the sittings of the Judges and
Division Courts may be held and continue to be held at
Aurangabad with full and normal powers to entertain and
dispose of all matters
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arising out of the Marathwada region, that is to say, the
area comprising the districts of Aurangabad, Bhir, Jalna,
Nanded, Osmanabad and Parbani. All cases pertaining to that
region and pending as on May 4, 1982 at the main seat of the
High Court at Bombay shall be dealt with and disposed of as
the Chief Justice of the High Court may direct. consistently
with the terms of the aforesaid notification dated August
27, 1981.
There shall be no order as to costs.
H. L. C. Appeal dismissed.
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