Madras High Court
K. Sridhar Kumar vs The Union Of India (Uoi), Ministry Of ... on 26 February, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Since the issue raised in both the writ petitions relates to establishment of a Bench of the Madras High Court at Madurai, they are being disposed of by the following common order.
2. The petitioner in W.P.No. 2402 of 2002, who is a practising Advocate of the High Court, Madras seeks to issue a Writ of Declaration to declare the whole process of establishment of a Permanent Bench of Madras High Court at Madurai is unconstitutional and illegal.
3. The petitioner in Writ Petition No. 3333 of 2002, who is also a practising Advocate of the High Court, Madras, prays for issuance of a Writ of Declaration to declare the decision under Clause 31 of the Letters Patent of High Court of Madras seeking to constitute and establish a Bench of the High Court of Madras at Madurai as illegal, void and unconstitutional for being passed in violation of the legislative powers of the Parliament under Article 246 read with Entry 78, List I of VII Schedule of the Constitution of India and inconsistent with Article 214 of the Constitution of India.
4. First I shall deal with Writ Petition No. 2402 of 2002, wherein the only ground raised and argued by Mr. V. Balasubramanian, learned counsel for the petitioner is that the High Court of Madras is not a High Court of a new State within the meaning of Section 2(i) of States Reorganisation Act, 1956, but is an existing State as defined under Section 2(g) of the said Act and, therefore, the whole process initiated by the High Court to establish a Bench at Madurai is against the provisions of the State Reorganisation Act, 1956, hence illegal. The other ground urged by him is that the Constitution of India also does not contemplate such a situation of establishing a Bench of a High Court outside the Principal seat of the said High Court.
5. On direction, learned Additional Advocate General appeared for respondents 2 and 3. He elaborately argued by drawing my attention to The Indian High Courts Act, 1861; Letters Patent, 1862; Letters Patent, 1865; The Indian High Court Act, 1865; The Indian High court Act, 1911; The Government of India Act, 1915; The Government of India Act, 1935; The Constitution of India, 1950; The Government of India (Adaptation of Indian Laws) Order, 1937 and 1950; General Clauses Act, 1897; and (The) States Reorganisation Act, 1956.
6. At the outset, it is to be mentioned that the Full Court of the High Court has taken note of a report of a Committee of Three Judges of the Madras High Court and have resolved to have a Circuit Bench of the High Court of Madras at Madurai, subject to various conditions. While doing so, the High Court has taken note of the recommendations of Justice Jaswandh Singh Commission, which had recommended the establishment of a Circuit Bench of the Madras High Court at Madurai to cater the needs of Southern Part of the State, subject to various conditions. Justice Jaswandh Singh Commission had suggested that the recommendations be implemented by issuance of a Notification by the Hon'ble Chief Justice with the approval of the Governor under Section 51(3) of the State Reorganisation Act, 1956. Pursuant to the Resolutions passed by this Court, action has been taken to establish a Circuit Bench at Madurai, pursuant to which huge amounts have been spent in acquiring lands and putting up buildings. It is at this stage, both the writ petitions have been filed. Since the issue involved pertains to the jurisdiction to have a permanent or a Circuit Bench of a High Court in places other than the Principal seat of the High Court, it is necessary to trace the history of the High Courts in India.
7. The Indian High Courts Act, 1861 was passed on 6th August, 1861 which empowered the Crown to establish, by Letters Patent High court of Judicature at Calcutta for the Bengal Division, High Court of Judicature at Madras for Madras Division and High Court of Judicature at Bombay for the Bombay Division. On the basis of the authority given by the Indian High Courts Act, 1861, the Crown issued Letters Patent on 14th May 1862, establishing High Court of Judicature at Calcutta. On 26-6-1862, the Letters Patent establishing the High Court at Bombay and Madras were issued. It may be noted that all the said Letters Patent were identical in terms.
8. Clause 30 of the Letters Patent, 1862, provided that whenever it shall appear to the Governor in Council that the Jurisdiction and power vested in the High Court should be exercised in any place other than the usual place of city or such places by way of Circuit, the Governor in Council can authorise and direct the Judges of such Court to hold sitting in such place or places accordingly. The Letters Patent of 1862 was repealed and re-enacted by the Letters Patent, 1865, which contain similar provision in Clause 31. The said Clause is as follows:-
"31. Judges may be authorised to sit in any place by way of circuit or special commission- And We do further ordain that whenever it shall appear to the Governor-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 Madras 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."
It is clear from the said Clause that the Governor-in-Council can authorise and direct the Judges of the High Court concerned to hold sitting in any such place or places other than the usual place of sitting.
9. Next came the Indian High Courts Act, 1865 which made alterations in the Territorial Jurisdiction of the Chartered High Court established under the High Courts Act, 1861. The Indian High Courts Act, 1911 was passed empowering His Majesty to establish High Courts in any territory within His Majesty's dominion in India.
10. In the year 1915, the Government of India Act, 1915 was passed by the British Parliament consolidating and re-enacting the existing statutes concerning the Government of India and the High Courts. The Government of India Act, 1915 provided for the Constitution, Jurisdiction and Powers of the High Courts. It may be stated that the High Court at Patna, the high Court at Lahore were established under the Government of India Act, 1915 in the years 1916 and 1919 respectively.
11. The Government of India Act, 1935 was passed which included provisions regulating the establishment, Constitution, Jurisdiction and Powers of the High Courts. The High Court at Nagpur was established in the year 1936 under the Government of India Act, 1935.
12. It may be stated that all the High Courts established under the Indian High Courts Act, 1861, the Government of India Act, 1915, the Government of India Act, 1935 were established by Letters Patent. The Government of India Act, 1935, like the Government of India Act, 1915 contained provisions in Section 223 to continue in force with the existing Laws including the Letters Patent.
13. After the Government of India Act, 1935 was passed, the Government of India (Adaptation of Indian Laws) Order, 1937 was passed to bring the provisions of the existing Laws in accord with the provisions of the Government of India Act. In terms of the Adaptation Order, wherever the expression Governor in Council was used in existing Laws, it must be read as `Provincial Government'. Thus, the Letters Patent, 1865, which was in an existing Law and continued to be in operation, had to be read with the expression `Provincial Government' in the place of "Governor in Council."
14. The Constitution of India was enacted on 26-01-1950. Article 214 of the Constitution provided that there shall be a High Court for every State. Article 225 of the Constitution provided that subject to the provisions of the Constitution, the Jurisdiction and the Powers in relation to the Administration of Justice including any power to make Rules and to regulate the sitting of the Court shall be the same as immediately before the commencement of the Constitution. Article 372 of the Constitution also continued in force all the Laws in force in the territory of India before the Constitution. Clause 2 of Article 372 also enable the President to pass orders for adaptation and modification of such Laws. The Letters Patent, 1865 was an existing Law which was continued in force by the Government of India Act, 1915; the Government of India Act, 1935; and the Constitution, 1950.
15. The President of India passed orders known as the Adaptation of Laws Order, 1950, as per which the expression `Provincial' was to be read as `State'. Thus, for the expression `Governor in Council' in Clause 31 of Letters Patent was to be read as `Provincial Government' by virtue of the 1937 Adaptation Order and as `State Government' by virtue of the 1950 Adaptation Order. As per the General Clauses Act, the Government would be the Governor. Thus the expression, `Governor' has to be read in the place of the expression `Governor in Council'.
16. After the Constitution, new High Courts have been established, some of them are as follows:-
1. High Court of Andhra Pradesh, created by the Andhra State Act, 1953.
2. High Court of Kerala.
3. High Court of Mysore.
4. High Court of Rajasthan. High Courts of Kerala, Mysore and Rajasthan were established by the State Re-organisation Act,1956
5. High Court of Gujarat established by the Bombay Re-organisation Act, 1960.
6. High Court of Gowhati, established by the North-East Re-organisation Act, 1971.
7. High Court of Himachal Pradesh, established by the State of Himachal Pradesh Act, 1970.
All the afore-said Acts including the States Reorganisation Act, 1956, which established various High Courts contain the provisions providing for the place of the permanent City of the High Court and the Jurisdiction to have either permanent Benches or Circuit Benches, place or places outside the principal seat. All the said provisions provided for,
i) the place of the principal seat of the High Court,
ii) for establishment of permanent Bench other than the principal seat by the Notification of the President, after consulting the Governor and Chief Justice;
iii) to provide for a Circuit Bench outside the place of principal seat by the Chief Justice with the approval of the Governor.
Section 51 of the States Reorganisation Act, 1956 is one such provision dealing with the States which were the subject matter of the said Act, while other enactment dealt with similar subject relating to the other High Courts established by the respective enactments. In this regard, the learned Additional Advocate General relied on a decision of the Apex Court in the case of Umaji v. Radhikabai, reported in All India Reporter 1986 Supreme Court page 1272.
In that case, the question which falls for determination is "Whether an appeal lies under Clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a single Judge of that High Court in a petition filed under Article 226 or 227 of the Constitution of India?" After tracing history of constitution of various High Courts, Letters Patent, Constitution of India, Their Lordships have held as follows:- (para 109) "109.........The power of a High Court to make rules of Court and to regulate the sittings of the Court and members thereof sitting singly or in Division Courts is to be found in its Charter, whether it be a statute or Letters Patent. The position with respect to existing High Courts has already been set out in detail above. So far as High Courts which came into existence after the commencement of the Constitution are concerned, whenever new High Courts were set up the relevant statute made provisions in that behalf, for instance, the Andhra State Act, 1953, the States Reorganisation Act, 1956, the Bombay Reorganisation Act, 1960, the Delhi High Court Act, 1966, and the State of Himachal Pradesh Act, 1970. It is the charter of the High Court which generally confers a right of intra-Court appeal and it is the rules made under the rule making power of the High Court which generally provide which matters are to be heard by a single Judge and which by a Division Bench though at times statutes may also do so, as for example, the Kerala High Court Act, 1958, and the Karnataka High Court Act, 1961. Where by the charter of a High Court matters are not required to be heard by any particular number of Judges and such charter provides for an intra-Court appeal from the decision of a single Judge, whether such an appeal would lie or not would depend upon whether by the rules made by the High Court in the exercise of its rule-making power the matter is heard by a single Judge or a Division Bench subject to the condition that such right of appeal is not otherwise excluded."
17. It would thus be seen that the jurisdiction of the High Court to have either a permanent Bench or a Circuit Bench in a place other than the principal seat is a matter which has been dealt with by the Charter or by the various enactments which created the said High Courts. It may be useful to refer to the judgment of the Supreme Court in State of Maharashtra v. Narayan, reported in All India Reporter 1983 Supreme Court page 46. The appeal before the Supreme Court is by Special Leave which is directed against the judgment and order of the Bombay High Court dated 14-12-1981. By its judgment the High Court struck down an order dated 27-8-1981 by which the Chief Justice of the Bombay High Court, in exercise of his powers under sub-section (3) of Section 51 of the States Reorganisation Act, 1956 (in short "the Act") with the prior approval of the Governor of Maharashtra, directed that the Judges and Division Courts of the High Court of Bombay shall also sit at Aurangabad with effect from 27-8-1981 for the disposal of cases arising out of the Marathwada Region of the State of Maharashtra. Since the learned Additional Advocate General heavily relied on the three Judge Bench of the above referred decision, more facts in that case are to be noted. By virtue of sub-section (1) of Section 49, the High Court of 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 Section 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-section (1) of Section 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-section (3) of Section 51 of the Act that temporary Benches may also function at other places. The 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-section (3) of Section 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 Reorganisation Act, 1960. 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-section (2) of Section 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. The said move was also supported by the State Bar Council of Maharashtra Advocates' Association of Western India, several bar associations and people in general. The State Government thereafter took a Cabinet decision in January, 1981 to establish a permanent Bench of the High Court at Aurangabad and this was conveyed by the Secretary to the Government of Maharashtra, Law and Judiciary Department, communicated by his letter dated 3-2-1981 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 26-2-1981 signifying his consent to the establishment of a permanent Bench at Aurangabad. On 20-7-1981, 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-section (3) of Section 51 for the setting up of a Bench at Aurangabad. In reply to the same, the Registrar by his letter dated 24-7-1981 conveyed that the Chief Justice agreed with the suggestion of the State Government that action had to be taken under sub-section (3) of Section 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-section (3) of Section 51 of the Act. On 10-8-1981, the Law Secretary conveyed to the Registrar the approval of the Governor. On 27-8-1981, the Chief Justice issued an order under sub-section (3) of Section 51 of the Act. The High Court has set aside the impugned notification issued by the Chief Justice under sub-section (3) of Section 51 of the Act on the following grounds, namely: (1) The impugned order issued by the Chief Justice under sub-section (3) of Section 51 of the Act was not directly connected with or related to problems arising out of the reorganisation 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 Section 51 were not intended to be operative indefinitely 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-section (3) of Section 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, (3) The State of Maharashtra was not a new State within the meaning of Section 51 read with section 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 Section 3 of the Bombay Reorganisation Act, 1960 and therefore the power of the President of India to establish a permanent Bench or Benches of the High Court under sub-section (2) of Section 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-section (3) thereof, can no longer be exercised, (4) The power conferred on the Chief Justice under sub-section (3) of Section 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-section (3) of Section 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-section (3) of Section 51 of the Act was a colourable exercise of power and therefore liable to be struck down.
In the light of the said contentions, Their Lordships have referred to sub-section (1) of Section 49 and Section 51 of the Bombay Reorganisation Act, 1960 etc. Regarding the questions raised by the High Court, the Honourable Supreme Court in para 14 held that "the provisions of sub-sections (2) and (3) of Section 51 of the Act are supplemental or incidental to the provisions made by Parliament under Articles 3 and 4 of the Constitution. In para 15, Their Lordships have held thus:-
"15. 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 Reorganisation Act, 1956 was enacted. As a result 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..."
Their Lordships have further held thus:-
"Para 17...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...
Para 19. 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-section (3) of Section 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-section (3) of Section 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-section (3) of Section 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, and the minority view of Raina, J. in Abdul Taiyab Abbasbhai Malik v. Union of India, (FB), following the Kerala view.
Para 20.........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 common sense 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-section (3) of Section 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 generic sense has also a seat at such other places....
Para 22. It must here be mentioned that provisions similar to sub-section (3) of Section 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 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.
Para 23. 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 Section 1 of the Indian High Courts Act, 1861 called the Charter Act, or under Section 113 of the Government of India Act, 1935, the High Court was erected and established at a particular place mentioned in the Letters Patent. Section 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 Section 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-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 Section 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.
Para 24. Cl. 31 of these 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, Clause 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 thereto which had been or might be made by competent legislative authority of India.
Para 25... The creation of a permanent Bench under sub-section (2) of Section 51 of the Act must therefore bring about a territorial bifurcation of the High Court. Under sub-section (1) and sub-section (2) of section 51 of the Act the President has to act on the advice of the Council of Ministers as ordained by Article 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-section (3) of Section 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-section (3) of Section 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-section (3) of Section 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-section (3) of Section 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 directs under sub-section (3) of Section 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-section (3) of Section 51 of the Act directed 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 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-section (3) of Section 51 of the Act was a colourable exercise of power.
Para 26. As to the scope and effect of sub-section (3) of Section 51 of the Act, the question came up for consideration before Chagla, C.J. and Badkas, J. in Seth Manji Dana v. Commissioner of Income-tax, Bombay, Civil Appeal No. 995 of 1957 (Bom), decided on July 22, 1958. This was an application by which the validity of Rule 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 States 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 it to permit as a matter of convenience certain mattes 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 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 Rule 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 certainly 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 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."
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.
Finally, Their Lordships have concluded: (para 27) "27.....With respect, we are of the opinion that the view expressed by Chagla, C.J. in Manji Dana's case, Civil Appeal No. 995 of 1957, D/- 22-7-1958 (Bom) (supra), is to be preferred. Chagla, C.J. rightly observes that the Judges and Division Courts at a temporary Bench established under sub-section (3) of Section 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."
It is clear from the Supreme Court that the constitution of the High Court depends on the statute creating it and also recognised that the provisions similar to Section 51 of the States Reorganisation Act, 1956 existed in all the Letters Patent or the Acts under which the various High Courts have been constituted.
18. Thus every High Court whether it was created by Letters Patent or by other Enactments, they could have Benches outside the principal seat by virtue of the provisions contained in the Letters Patent or in the Acts which created them. The assumption of the petitioner that Section 51 of the States Reorganisation Act is only the source of power and that if the High Court is not covered by the said Act, it can have no Benches outside the principal seat is misconceived. Accordingly the contention of the Additional Advocate General that in so far as the Madras High Court is concerned, it could have Benches outside Madras by virtue of Clause 31 of the Letters Patent, 1865 read with the Adaptation Order, 1937 and 1950 is well founded. That apart, the Madras High Court will also be covered by the States Reorganisation Act, 1956, since the Madras is also a State, which was the subject matter of Reorganisation in terms of section 4 which occurs in Part II of the Act. I have already referred to Section 2 (i) of Part I and Section 4 of Part II of the Act which would comprehend Madras as the "new State" within the meaning of the said Act. Section 4 of Part II of the States Reorganisation Act, 1956 speaks about transfer of territory from Travancore-Cochin to Madras. It says that as from the appointed day, there shall be added to the State of Madras the territories comprised in the Agastheeswaram, Thovala, Kalkulam and Vilavancode taluks of Trivandrum district and the Shencottah taluk of Quilon district, and thereupon-
(a) the said territories shall cease to form part of the existing State of Travncore-Cochin;
(b) the territories comprised in the Agastheeswaram, Thovala, Kalkulam and Vilavancode taluks shall form a separate district to be known as Kanya kumari District in the State of Madras; and
(c) the territories comprised in the Shencottah taluk shall be included in and become part of Tirunelveli district in the State of Madras.
As rightly argued by the learned Additional Advocate General, those provisions, namely, Section 2(i) of Part I and Section 4 of Part II, would comprehend Madras as the "new State" within the meaning of the States Reorganisation Act. In any event, as pointed out earlier, Madras High Court would have the power to establish Benches outside Madras under the Letters Patent of 1865. I have already referred to the judgment of the Supreme Court reported in All India Reporter 1963 Supreme Court page 46 (cited supra), and particularly in para 25, the Supreme Court has emphasized the power of the Chief Justice which reads as follows:-
"The power of the Chief Justice to appoint under sub-section (3) of Section 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-section (3) of Section 51 of the Act, but inheres in him in the very nature of things."
Therefore, so far as Circuit Benches are concerned, it is an internal matter of the High Court, over which the Chief Justice is the ultimate authority. For all the above reasons, Writ Petition No. 2402 of 2002 deserves to be dismissed.
19. While highlighting the case of the petitioner in Writ Petition No. 3333 of 2002, Mr. K. Vijayan, learned senior counsel, has raised a contention that Article 214 of the Constitution provides for one High Court for each State and that the impugned decision is opposed to Article 214. This contention is wholly misconceived and, in fact, is covered by the Judgment of the Supreme Court (cited supra). Paragraph 26 which I have already referred to, lays down that the Judges sitting outside the principal seat are as much a part of the High Court. The Supreme Court proceeded to state that the Judges and Division Courts of the High Court at a temporary Bench function as Judges and Division Courts of the High Court at the principal seat. In that decision, in paragraph 25 the Supreme Court has also held that the Judges and Division Courts at Aurangabad are part of the same High Court as those at the principal seat at Bombay. The above passages of the Supreme Court would clearly answer the above contention. Learned Additional Advocate General has also very much relied on another judgment of the Five Judge Bench of the Allahabad High Court in Bhuwal v. Deputy Director of Consolidation (FB), reported in All India Reporter 1977 Allahabad page 488. The following two questions have been referred to the Full Bench for its opinion:
1. Whether the first proviso to Clause 14 of the U.P. High Courts (Amalgamation) Order, 1948, is in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts (namely, Arts. 214, 230, 231) and the Scheme contemplated therein, and is saved by Art. 226 or Art. 372 or any other Article of the Constitution after its enforcement on 26-1-1950?
2. Whether the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U.P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution?
As far as the first question is concerned, Sri S.P. Gupta, counsel for the petitioner in that case, submitted that the first proviso to paragraph 14 of the United Provinces High Courts (Amalgamation) Order, 1948 is consistent (sic) (inconsistent?) with Articles 214, 226, 227 and 228 of the Constitution and also the general scheme of the constitution of the High Courts under the Constitution. It was contended that Article 214 of the Constitution provides for the existence of a single High Court in each State and there cannot be two separate judiciaries in the same State. It was urged that the test of singularity of a High Court, as contemplated by the Constitution, in a State should be its capacity to judicially function throughout its territory from the place where it is erected. The singularity of the Chief Justice or common set of Judges or a common seal should not be the correct test to find out the constitutionally contemplated singularity. It was submitted that according to the decision of the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal on a correct interpretation of the first proviso to paragraph 14 of the Order, the Judges at Lucknow have exclusive jurisdiction in respect of cases arising in the areas in Oudh and the Judges and Division Benches sitting at Allahabad High Court have no jurisdiction to entertain cases in respect of the areas of Oudh. This, it was contended, in substance amounted to the existence of two separate judiciaries in the same State and ran counter to Articles 214, 226, 227 and 228 of the Constitution. The said contention was hotly disputed by the counsel appearing for the other side i.e Oudh Bar Association. Their conclusion at para 5 is relevant:
"5. As a result of paragraph 3 of the Order, as from the 26th July, 1948, the then High Court at Allahabad and the erstwhile Chief Court in Oudh stood amalgamated and a new High Court was constituted by the name of the High Court of Judicature at Allahabad. By reason of paragraph 4, the permanent Judges of the two erstwhile Courts and their additional Judges became permanent or additional Judges of the new High Court. Instead of there continuing to remain two Chief Justices, the erstwhile Chief Justice of Allahabad High Court became the Chief Justice of the new High Court. Paragraph 7 (1) provides that:
"The new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts."
The submission made by Sri Gupta loses sight of a clear distinction that exists between the High Court as such and the Judges who constitute it. As held by the majority of the Judges constituting the Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal, U.P. Lucknow (FB), the nature and extent of the jurisdiction enjoyed by a court and the manner in which that jurisdiction will be exercised are two distinct matters. How and where the jurisdiction will be exercised by the Judges are matters governed by the practice and procedure prescribed by law and the place of sitting appointed for them. In our opinion while paragraph 7 of the Order defines the jurisdiction of the new High Court, paragraph 14 is concerned with the manner in which that jurisdiction is to be exercised. It was not disputed before us that it is open to the Chief Justice under the Rules of the Court to allocate different classes of cases to individual Judges or Division Benches of this Court. Thus the Chief Justice has the power to order that individual Judges or Division Benches of this Court will entertain cases arising out of separate districts of the State. In the event of such an order being passed, it cannot be contended that in substance the High Court had been split up merely because by reason of an order of the Chief Justice other Judges of the Court do not have jurisdiction to entertain and decide cases arising out of a district allocated to a particular Judge or Division Bench. The first proviso to paragraph 14, in our opinion, amounts to no more than a statutory allocation of cases arising out of certain district to the Judges of this Court sitting at Lucknow and is in no fashion, in conflict with Arts. 214, 226, 227 or 228 or any other provisions of the Constitution."
Finally they concluded that the jurisdiction and power of the Allahabad High Court conferred on the Judges sitting at Lucknow under paragraph 14 of the U.P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Article 226 of the Constitution. By this judgment, the Allahabad High Court has clearly held that paragraph 14 of the U.P. High Courts (Amalgamation)Order which provides for Benches outside the principal seat is valid. While doing so, the Full Bench has held that there was no violation of Article 14 of the Constitution of India.
20. Accordingly, I reject the first contention raised by the learned senior counsel for the petitioner.
21. The second contention of Mr. Vijayan, learned senior counsel, is that the jurisdiction to deal with High Courts is a Parliamentary power under Entry 78 of List I and in the absence of any Parliamentary Law or Constitutional provision, no such decision can be taken. As rightly argued by the learned Additional Advocate General, this contention ignores Articles 225 and 372 of the Constitution, which read as follows:-
"Article 225. Jurisdiction of existing High Courts.- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.
Article 372. Continuance in force of existing laws and their adaptation.- (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.
(3) Nothing in clause (2) shall be deemed-
(a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.
Explanation I.- The expression "law in force" in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.
Explanation II.- Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this constitution had extra-territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect.
Explanation III.- Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.
Explanation IV.- An Ordinance promulgated by the Governor of a Province under section 88 of the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of Article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period."
As rightly argued by the learned Additional Advocate General, while under the Constitution, the power to deal with Jurisdiction of Courts is vested in the Parliament under Entry 78 List I, the same Constitution has enacted Article 372 which continues in force all existing Laws including the Letters Patent and also has enacted Article 225 which provides that until a Law passed by an appropriate Legislature, the Jurisdiction, powers of Courts shall be the same as immediately before the Constitution. Thus, the Letters Patent and the various Acts which created the High Courts continued to be Laws in force and saved by the Constitution, which provided for Benches to be established outside the principal seat.
22. The scheme of the Constitution also is clear by the various Enactments brought about under the Constitution, which while creating High Courts provided for the Benches to be established at places outside the principal seat. It may useful to refer to a Full Bench Judgment of the Andhra Pradesh High Court, in Venkateswarulu v. Satyanarayana, reported in 1957 Andhra Pradesh page 49, wherein the Full Bench has construed that the Letters Patent would constitute Laws in force within the meaning of Article 225 of the Constitution. In Dimitrios Paizis v. Motor Vessel "Nicos", would also go to show that the Letters Patent was an existing Law, which continued to be in force, by virtue of the Government of India Act, 1915 and 1935; accordingly the second contention of Mr.K. Vijayan, learned senior counsel for the petitioner deserves to be rejected.
23. The third contention of Mr. K. Vijayan was that Clause 31 of the Letters Patent cannot be invoked since the expression `Governor in Council' is used therein and there is no such authority in existence. In this context, it is to be noted that learned Additional Advocate General has already referred to the Government of India (Adaptation of Indian Laws) Order, 1937 and the Adaptation of Laws Order, 1950, as per which, the expression `Governor in Council' had become 'provincial Government' and thereafter 'State Government'. The expression 'State Government', as defined in Section 3(60)(c) (which is applicable at present) means the Governor and, therefore, the expression 'Governor' has to be read in the place of the expression 'Governor in Council' in Clause 31 of the Letters Patent. Learned Additional Advocate General has also produced the relevant extract from the Government of India (Adaptation of Indian Laws) Order, 1937 as well as the Adaptation of Laws Order, 1950. Accordingly, the third contention of the learned senior counsel for the petitioner is also liable to be rejected.
24. It may also be useful to refer a decision of the Apex Court in S.I. Corporation (P.) Ltd. V. Secretary, Board of Revenue, reported in All India Reporter 1964 page 207 which lays down that the expression "subject to the provisions of the Constitution" occurring in Article 225 of the Constitution means that it should not be inconsistent with the Constitutional Provisions other than the question relating to Legislative competence. In other words, the Supreme Court has held that all existing laws will continue in force without reference to the question of Legislative competence, subject to the same being not in conflict with any specific provision of the Constitution. Clause 31 of the Letters Patent has not been shown to be in conflict with any provision of the Constitution. On the other hand, the said provision is consistent with the scheme of the Constitution, more particularly Article 231(2)(c) which contemplates a common High Court for two or more States to have a Bench in a place other than the principal seat. That apart, several enactments passed by the Parliament transferable to Entry 78 List I to the VII Schedule contained provision providing for the establishment of Benches outside the place where the principal seat is situated. Accordingly, there is no merit in any one of the contentions raised by Mr. K. Vijayan, learned senior counsel. Though he has referred to a decision of the Supreme Court in Federation of Bar Association in Karnataka v. Union of India, reported in 2000 (5) Supreme 267 : (2000) 6 S.C.C. page 714, even in the penultimate paragraph Their Lordships have observed that there is no use in harping on the situations in certain other larger States where High Courts have benches established away from the principal seat due to variety of reasons. In such a circumstance, I am of the view that the said decision is not helpful to the petitioner's case.
25. In the light of what is stated above, there are no merits in the above writ petitions and they are liable to be dismissed. Before parting with these cases, as stated earlier, both the writ petitions have been filed by two practising advocates of the High Court, Madras. The petitioner in the former case got enrolled in the year 1986 and has been practising in this Court on all branches of law. Though the petitioner in the latter case did not set out the details regarding his enrolment, however, it is stated that he is a practising lawyer in the Madras High Court. There is no explanation by either of them for filing these writ petitions at this juncture. It is pertinent to note that only considering the plight of the litigant public, escalation in transport and other incidental charges, the Committee has recommended the constitution of a Bench at Madurai. According to the learned Additional Advocate General, the structural work for the Madurai Bench has already been completed. It is not their case that they were not aware of the report of the Jaswandh Singh Commission recommending constitution of a Bench at Madurai for the benefit of the litigant public hailing from Southern Districts, and of the ear-marking of substantial amount for the construction of the Court-halls, administrative blocks, residential quarters for the Judges etc. even a year back. The details about the orders passed by the Government and the stages of construction work, as well as the inspection by the Hon'ble Chief Justice etc., have been flashed by the Media at every stage. As stated earlier, the petitioners being practising advocates in the High Court, they cannot plead ignorance of the above developments. As rightly pointed out by the learned Additional Advocate General, both the writ petitions have to be dismissed in limine on the ground of laches. Even on merits, as stated above, the writ petitions are lacking even the basic ingredients justifying their claim. In any event, this Court places on record its displeasure in the act of the petitioners in filing these writ petitions unmindful of the precious time of this Court which otherwise could have been utilised in other better and genuine cases. This Court places on record the strenuous efforts made by the learned Additional Advocate General in placing all the relevant materials to arrive at a just decision.
26. For all the above reasons, both the writ petitions are dismissed. No costs. Consequently, W.P.M.P.Nos. 3331 and 4684 of 2002 are also dismissed.