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(9) When by virtue of the rules made by the High Court a Single Judge exercises the power conferred upon the High Court under Article 226 or Article 227, it follows that the power is exercised by him for the entire High Court and, therefore, the filing of an appeal against his judgment would amount to filing a second writ petition in the same matter which is not permissible.

(10) The expression "shall be heard and finally disposed of" in Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, negatives the filing of any appeal in a proceeding under Article 226 or 227 of the Constitution. The question thereafter came to be considered by a Special Bench of five Judges of the Bombay High Court in State of Maharashtra v. Kusum Charudutt Bharma Upadhye [1981] 83 Bom. L.R. 75, s.c. s (1981) Mah. L.J. 93. The Special Bench traced in great detail the origin, growth and development of the different powers and jurisdiction of the Bombay High Court and referred to various authorities on the point canvassed before it. It held that under Article 225 of the Constitution of India, the High Courts of various Provinces which were in existence immediately before the commencement of the Constitution continued on and from that date as the High Courts of corresponding States possessing all the jurisdictions and powers which they had prior to that date. It further held that Articles 226 and 227 of the Constitution did not confer upon the existing High Courts wholly new powers not reflected in any of the powers or jurisdictions possessed by any of them at the commencement of the Constitution. According to the Special Bench, the power under Article 226 was modelled upon the prerogative writ jurisdiction possessed by the three Chartered High Courts, namely, the High Courts of Calcutta, Bombay and Madras, in the exercise of their original jurisdiction, though that power had been made much wider by Article 226, and that Article 227 derives its origin from section 15 of the Indian High Courts Act, 1861, section 107 of the Government of India A Act of 1915 and section 224 of the Government of India Act, 1935, and that this power also existed in the former Supreme Court of Judicature at Bombay with respect to the Court of Requests and the Court of Quarter Sessions. The Special Bench also held that by reason of the provisions of section 38(1) in the Interpretation Act (52 & 53 Vict., c.

A question may well be asked why it was thought necessary to incorporate in the Constitution the jurisdiction and powers conferred by Articles 226, 227 and 228. The answer is obvious. Provisions similar to Articles 227 and 228 already existed in a Constitution Act, namely, in sections 224 and 225 of the Government of India Act, 1935. The said sections 224 and 225 were not made subject to the provisions of Part IX of the said Act and of any Order in Council made under the said Act or any other Act or to the provisions of any Act of the appropriate Legislature as the jurisdiction of the existing High Courts was by section 223 of the said Act. These sections could, therefore, have been amended only by a legislation made by the British Parliament by amending the Government of India Act, 1935. The Government of India Act, 1935, was repealed by Article 395 of the Constitution. It was, therefore, necessary to re-enact these provisions and the only way in which it could be done was to insert them in the Constitution because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by the appropriate Legislature. So far as Article 226 is concerned, the power to issue prerogative writs was possessed by the three Chartered High Courts only. As the Constitution-makers intended to confer the enlarged power under Article 226 upon all High Courts, and not merely the three Chartered High Courts, this power had to be embodied in an Article of the Constitution. It should also be borne in mind that the jurisdiction under Articles 226, 227 and 228 was intended to be conferred upon all High Courts - not only the existing High Courts but also any other High Court as and when it came to be established in the future. Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation.

The fact that Article 225 makes the jurisdiction and powers of the existing High Courts subject to a law of the appropriate Legislature does not mean that the jurisdiction under Article 226 or 227 cannot come within the scope of Article 225. A law made by an appropriate Legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Articles 226, 227 and 228 are not made subject to any law made by Parliament or the State Legislatures, the powers conferred by these three Articles cannot be limited, abridged or taken away by any Legislature. They can only be affected by amending the Constitution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing High Court is one conferred by ordinary legislation, it can be affected, either by way of abridgement or enlargement, by a law made by the appropriate Legislature and if it is one conferred by the Constitution, it can only be so affected by a constitutional amendment. What has escaped the notice of the Full Bench is that a provision for a right of appeal is not one which in any manner limits, abridges, takes away or adversely affects the power of the High Court under Article 226 or 227. Such a provivion merely regulates the exercise of the powers under these Articles. We may point out here that Article 145(1) confers upon this Court the power to make rules including rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III, that is, Fundamental Rights. By the opening clause of Article 145(1) this power is made "Subject to the provisions of any law made by Parliament". Therefore, the practice and procedure in respect of petitions under Article 32 for the enforcement of Fundamental Rights are regulated by rules framed by this Court and by any law made by Parliament in that behalf. We fail to see why the practice and procedure in respect of petitions under Articles 226 and 227 should stand on a different footing.

The Full Bench has confused the source of power with the exercise of that power. Conferment of power is one thing while the exercise of such power is a wholly different thing. Articles 226 and 227 confer certain powers upon the High Courts while Article 225 of the Constitution deals with the power to make rules for the exercise of powers possessed by the existing High Courts. The rule-making power extends to all jurisdictions and powers possessed by the existing High Courts, whether at the date of their Letters Patent or of the Government of India Act of 1915-1919 or of the Government of India Act, 1935, or conferred upon it by the Constitution itself or subsequent to the commencement of the Constitution by any amendment of the Constitution or any law made by the appropriate Legislature. According to the Full Bench, the rule-making power under Article 225 would not extend to the exercise of jurisdiction under Article 226 or 227 because these Articles contain inbuilt rule-making power. This is equally incorrect. Such a rule-making power is neither expressly provided for nor implied in either of these these two Articles. The power to make rules for the exercise of jurisdiction under Articles 226 and 227 by the existing High Courts is contained in Article 225 only.