Delhi High Court Bar Association ... vs Hon'Ble Chief Justice High Court ...
1993 Latest Caselaw 275 Del

JUDGMENT

D.P. Wadhwa, J.

(1) The petitioners, numbering two, by this petition filed under Article 226 of the Constitution of India seek a declaration that 4 of the Delhi High Court (Amendment) Act, 1991 (for short "the Amending Act") is ultra vires the Constitution and section 10 of the Delhi High Court Act, 1966 (forshort''the Principal Act"), and so also Notification No. 825 (E) dated 9 November 1992 of the Central Government in the Ministry of Law, Justice and Company Affairs, is ultra vires the Constitution and section 10 of the Principal Act. By the Amending Act the words "rupees one lakh" in sub-section (2) of section 5 of the Principal. Act were substituted with the words "rupees five lakhs". This meant that the High Court of Delhi would have ordinary original civil jurisdiction in every suit value of which exceeded rupees five lakhs..The Amending Act received the assent of the President of India on 28 December 1991. Sub-section (2) of section 1 of the Amending Act provided that it shall come into force on such date as the Central Government may by notification in the official gazette appoint. This notification is No. 825 (E) dated 9 November 1992 and is being impugned. The Central Government by this notification appointed 9 November 1992 as the date on which the Amending Act shall come into force. The petitioners also seek a declaration that the respondent Administrator, Union Territory of Delhi, is under a legal obligation to immediately issue a notification to bifurcate the subordinate courts in Delhi, and further that order transferring to the subordinate courts certain class of suits/ proceedings as on 9 November 1992 from the Delhi High Court is also ultra vires section 5 read with section 10 of the Principal Act as jurisdiction cannot be split. Then the petitioners seek a writ of certiorari or other order or direction to quash the decision to transfer suits and proceedings filed on the original side of the Delhi High Court on or before 9 November 1992, and a similar writ of prohibition, order or direction restraining the Chief Justice of the Delhi High Court to transfer any such suits or proceedings, and lastly, the petitioners seek a writ of mandamus, direction or order directing the respondents to act in accordance with the principles of legality in the matter of giving effect to the amendment made in section 5 of the Principal Act by the Amending Act.

(2) As noted above, there are two petitioners. First petitioner is an association of advocates and the second petitioner is a member of the first petitioner. When the petition was originally instituted there were five respondents. First respondent is the Chief Justice of Delhi High Court by name and the second respondent is the Chief Justice by' designation, the third, fourth and fifth respondents, respectively, being Union of India in the Ministry of Law, Justice and Company Affairs; the Administrator, Union Territory of Delhi; and the High Court of Delhi through its Registrar. The matter in the first instance was listed before the Vacation Judge who deleted the first respondent from the array of the respondents because the learned Judge was of the view that no case of personal mala fides or even estoppel had been set up against him. He recorded that for the purposes of proper determination of the issues involved in the writ petition the averments made in paras 27, 28, 29 and 30 of the petition appeared to be of no consequence. The learned Judge also said that since the Chief Justice in his official capacity bad been imp leaded as second respondent and High Court had been joined as fifth respondent, it was unnecessary to retain the first respondent who has been sued by name. His name was, therfore, deleted. The complaint in effect in paragraphs 27, 28, 29 and 30 was that the Chief Justice either in his personal capacity or as the Chief Justice could not take up the matter to the Full Court to give effect to section 4 of the Amending Act.

 (3) Since a lot turns on the interpretation of section 4 of the Amending Act, it may be reproduced as under :-    "POWER of Chief Justice to transfer pending suits and proceedings to subordinate Courts.- "The Chief Justice of the High Court of Delhi may transfer any suit or other proceedings which is or are pending in the High Court immediately before the commencement of this Act and in which no witnesses have been examined before such commencement to such subordinate court in the Union territory of Delhi as would have jurisdiction to entertain such suit or proceedings been instituted or filed for the first time after such commencement."  

 (4) Reverting back to the order admitting this petition, the learned Vacation Judge issued notice to Delhi Bar Association, New Delhi Bar Association and Shahdara Bar Association because of the controversy raised in the petition and in order to decide the matter effectively and completely. At the same time it was ordered that cases pending in the High Court shall not be transferred in pursuance of the provision made in section 4 of the Amending Act.   

 (5) COUNTER-AFFIDAVITS have been filed by the respondents 1,2 and 4 and by the Delhi Bar Association. On behalf of respondents 1 and 4, i.e., the Chief Justice and Delhi High Court, the counter-affidavit has been sworn by Mr. R.S. Chhabra, a Joint Registrar of the High Court, which he verified as true and correct to his knowledge and belief as per the official records.   

 (6) We may also note that when the Principal Act was original enacted the High Court was conferred ordinary civil jurisdiction in civil suit value of which exceeded Rs.25,000.00 . This was in sub-section (2) of section5 of the Principal Act. We may also reproduce sub-section (2) of section 5 of the Principal Act as originally enacted :-    "(2) NOTWITHSTANDING anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds twenty-five thousands rupees."  

 (7) By the Amending Act of 1969 which received the assent of the President of India on 9 September 1969 and came into force on 23 September 1969, for the words "twenty- five thousand rupees" as appearing in sub-section (2) of section 5, the words "fifty thousand rupees" were substituted. Then by the Amending Act of 1980 which received the assent of the President on 2 July 1980 and came into force on 6 September 1980, the words "fifty thousand rupees" were substituted by the words "rupees one lakh" in subsection (2)ofsection5. In both these Amending Acts of 1969 and 1980 provision similar to section 4 of the present Amending Act existed. Mr. Lekhi for the petitioners said it was a mistake that at that time provision similar to section 4 of the Amending Act were not challenged, but that, he said, did not operate as an estoppel for the petitioners not to contend that section 4 of the Amending Act was unconstitutional.   

(8) As to how ordinary original civil jurisdiction came to be conferred on the Delhi High Court under the Principal Act, a Full Bench decision of this Court in University of Delhi and another v. Hafiz Mohd. Said and others, , gave a brief history. This may be quoted in extenso and is as under:- "3. By an Act of the Governor General of India in Council (Act No. Xxiii of 1865) the Chief Court of the Punjab was established and the Provinces of the Punjab and Delhi were subject to its jurisdiction. This position continued till the Letters Patent constituting the High Court of Judicature at Lahore dated 21st March 1919 was issued by which the High Court at Lahore was established for the provinces of the Punjab and Delhi called the High Court of Judicature at Lahore. The Punjab High Court after 1947 continued to be governed by this Letters Patent and the Union Territory of Delhi continued to be within the jurisdiction of the Punjab High Court. Clause 9 of the Letters Patent conferred extraordinary original civil jurisdiction on the High Court. Clause Ii provided that the High Court of judicature at Lahore shall be a court of appeal from the civil courts of the provinces of the Punjab and Delhi. It is important to note that no ordinary original civil jurisdiction was conferred on the High Court under the Letters Patent. 4. The Punjab Courts Act, 1918 (as in force in Delhi) provides for different clauses of civil courts, the court of District Judge shall be deemed to be the District Court or principal civil court of original jurisdiction in the District. Subsequently jurisdiction to be exercised in original civil suits was conferred on three classes of subordinate judges, with class. I, subordinate judges exercising the jurisdiction without limit as to the value of the cases. 5. It will thus be seen that in the Union Territory of Delhi prior to the coming into force of the Act the ordinary original civil jurisdiction was exercised by the subordinate judges and the High Court did not at all exercise any ordinary originalciviljurisdiction. 6. Section 5(2) of the Act provided that notwithstanding anything in any law for the time being in force, the High Court shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds twenty-five thousand rupees (the said valuation has now been raised to fifty thousand rupees vide Act 37 of 1969). 7. Section 16 of the Act provided that all proceedings pending immediately before the appointed day in any subordinate court in the Union Territory of Delhi or in relation to any such civil suit as is referred to in sub-section (2) of section 5 shall on that day stand transferred to the High Court of Delhi which shall proceed to try, hear and determine the matter as if it had been pending therein. 8. Thus for the first time by the passing of the Act, in the Union Territory of Delhi, High Court came to exercise the ordinary original civil jurisdiction above certain valuation. The suits regarding the valuation below the prescribed valuation continued to be tried by the Subordinate Judges. As the ordinary original civil jurisdiction was being conferred on the High Court for the first time Section 7 of the Act also provided that the High Court-of Delhi shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction. 9. Section 10 of the Act provided that where a single judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5, an appeal shall lie from the judgment of the single judge to a Division Court of that High Court. 10. Section 122 of the Code gives power to the High Court to make roles regulating their own procedure and empowers it by such rules to annul, alter or add any of the rules in the First Schedule. 11. Section 129 of the Code further empowers the High Court to make rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction. 12. By virtue of powers conferred by Sections 122 and 129 of the Code and Section 7 of the Act, this court framed Rules known as Delhi High Court (Original Side) Rules, 1967 (hereinafter called the Rules). 13. Rule 3 states that all proceedings on the original side of the court instituted or transferred pursuant to provisions of the Act or any other law shall unless ordered by the Court be governed by these Rules. 14. Rule 19 provides that except to the extent otherwise provided in these Rules, the provisions of the Civil P.C. shall apply to all proceedings on original side."

(9) As we have seen above, when the Delhi High Court Act, 1966, was enacted and came into force on the appointed day that being 31 October 1966, it was for the first time that the Delhi High Court was conferred ordinary original civil jurisdiction in civil suit the value of which exceeded Rs.25,000.00 . That jurisdiction was conferred notwithstanding anything contained in any law for the time being in force.. Then the jurisdiction was enhanced by subsequent amendments from Rs.25,000.00 to Rs.50,000.00 , to Rs.1 lakh and nowtors.51akhs. Butforsection5 the Delhi High Court would not have ordinary original civil jurisdiction in asuit. Section 7 confers power on the High Court to make rules,orders with respect to practice "and procedure for the exercise of its ordinary original civil jurisdiction. Sub-section (1) of section10 provides that where a Single Judge of the Delhi High Court exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the Single Judge to a Division Court of the:High Court. Then under sub-section (2) of section 10, the law in force immediately before the appointed, day relating to the powers of the Chief Justice, Single Judges and Division-Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the 'necessary modifications, apply in relation to the High Court of Delhi. "This sub-section (2) is, however, subject to the provisions of sub-section (1). Section 16 of the Act provides that all proceedings pending immediately before the appointed day in any sub ordinary court in the Union territory of Delhi in or in relation to any such civil suit as is referred to in sub-section (2) of section 5 shall on that day stand transferred to the High Court of Delhi which shall proceed to try, hear and determine the matter as if it had been pending therein. Section 12 of the Act deals with transfer of proceedings from the High Court of Punjab to the High Court of Delhi, and this section is as under:- "12. Transfer of proceedings from the High Court of Punjab to the High Court of Delhi-(1) Except as hereinafter provided, the High Court of Punjabshall,asfrom theappointedday, have no jurisdiction in respect of the Union territory of Delhi. (2) Such proceedings pending in the High Court of Punjab immediately before the appointed day as are certified, whether before or after that day, by the Chief Justice of that High Court having regard to the place of accrual of the cause of action and other circumstances to be proceedings which ought to be heard and decided by the High Court of Delhi, shall, as soon as may be after such certification, be transferred to the High Court of Delhi. (3) Notwithstanding anything contained in sub-sections (1) and (2) of this section and in section 5, but save as hereinafter provided, the High Court of Punjab shall have, and the High Court of Delhi shall not have jurisdiction to entertain, hear or dispose of, appeals, application for leave to appeal including leave to appeal to the Supreme Court, application for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court of Punjab before the appointed day: Provided that if after any such proceedings have been entertained by the High Court of Punjab, it appears to (he Chief Justice of that High Court that they ought to be transferred to the High Court of Delhi, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly. "

(10) From this section it will be seen that it has been left to the Chief Justice of the High Court of Punjab to transfer to the High Court of Delhi such cases having regard to the place of accrual of the cause of action and other circumstances to be proceedings which ought to be heard and decided by the High Court of Delhi. Even where there is an application for review and other proceedings with reference to any order already passed by the High Court of Punjab where it appears to the Chief Justice of High Court of Punjab that those proceedings are to be transferred to the High Court of Delhi, he shall order that they shall be so transferred and such proceedings shall thereupon be transferred accordingly. Discretion has, thus, been vested with the Chief Justice.

(11) Then in the exercise of powers conferred by section 7 of the Delhi High Court Act and by sections 122 and 129 of the Code of Civil Procedure the Delhi High Court made rules with respect to practice and procedure for exercise of its ordinary original civil jurisdiction. Rule 3 of Chapter I prescribes that all proceedings on the original side of the court instituted or transferred pursuant to the provisions of the Act or any other law shall unless otherwise ordered by the Court be governed by these Rules. Then Rule 1 falling under Chapter Ii prescribes that every suit coming before the Court in its Ordinary Original Civil Jurisdiction shall be tried and heard by a Single Judge. Rules 2 under this Chapter provides that if a Judge thinks fit he may refer any question of law, practice or procedure arising in any proceedings before him to the Chief Justice for constituting a Bench of two or more Judges to decide the same. If only a question his been referred, the Judge shall, after receipt of acopy, dispose of such suit, application or proceedings in confirmity therewith. Rule 3 gives powers of the Registrar in relation to certain matters described therein and under Rule 6 the Chief Justice and companion Judges may assign or delegate to a Deputy Registrar or to any other officer any functions required by these Rules to be exercised by the Registrar. Rule 7 provides which matters could be disposed of by a Judge in Chambers. Chapter Ii under which all these rules fall is under the heading "Exercise of Original Civil Jurisdiction". Then there are roles regarding form of pleadings, presentation of plaint, etc., commission to examine witnesses, accounts, witnesses, etc. Under Order 17 Rule I of the Code when the hearing of the suit has commenced, it shall be continued from day-to-day untill all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. Order 18 provides for hearing of the suit and examination of the witnesses. On the day fixed for hearing of the suit the party having the right to begin states his case and produces his evidence in support of the issues which he is bound to prove. The other party then states his case and produces his evidence, if any, and may then address the court generally on the whole case. The party beginning may then reply generally the whole case. Important to note is that under the Code as well as under the Rules adjournments are not to be granted as a matter of course and once the hearing of the suit has commenced it has to be continued from day-to-day.

(12) A bare reading of the Delhi High Court Original Side Rules and the Code would show that Rules framed under Chapter Vi of the Rules and Orders of the High Court would not be applicable to the proceedings on the original side of the Court.

(13) Section 6 of the General Clauses Act, 1897, refers to the effect Oi repeal. It says that where an Act repeals any enactment then unless a different intention appears, the repeal shall not (a)....; or (b)......; or (c) affect any right, privilege, obligation, or liability acquired, occurred or incurred under any enactment so repealed; or (d)......; or (e) affect any investigation, legal proceedings or remedy in respect of any such right or privilege., obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or arrangement may be imposed as if the repealing Act had not been * passed.

(14) The Punjab Courts Act, 1918, was amended by the Punjab Courts (Amendment) Act, 1963, and was extended to Delhi by notification published in the Gazette of India dated April Ii, 1964. After this amendment, section 39 of the Punjab Courts Act, 1918, read as follows:- "39. Appeals from Subordinate Judges - (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie :- (a) to the District Judge, - (i) Where the decree or order was made before the extension of the Punjab Courts (Amendment) Act, 1963 to the Union Territory of Delhi and the value of the original suit in which the decree or order was made did not exceed five thousand rupees; or (ii) where the decree or order is made after the extension of the Punjab Courts (Amendment) Act, 1963, to the Union Territory of Delhi and the value of the original suit in which the decree or order is made does not exceed ten thousand rupees; and 106 (2) Subject to the provisions of sub-section (2A), an appeal to the Court of the District Judge shall be heard by the District Judge or by an Additional District Judge. ' (2A)An additional District Judge shall hear only such appeals as the High Court, by general or special order, may direct or as the District Judge of the District may make over to him. (3) The High Court may by notification direct that appeal lying to the District Court from all or, any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly and the Court of such other Subordinate Judge shall be deemed to be a District Court for the purpose of all appeals so preferred."

Before coming into force of the Principal Act, section 25 of the Punjab Courts Act read as under :- "25. Original jurisdiction of District Judge in suits -Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have Jurisdiction original civil suits without limit as regards the value. "

 Section 19 of the Principal Act stated that the laws specified in the Schedule shall be amended in the manner and with effect from the date specified therein. The Punjab Courts Act was, thus, amended as under:-    "I. ASfrom theappointedday,inthePunjabCourtsAct, 1918,as in force in the Union Territory of Deljhi, - (i) in section 25, for the words "in original civil suits without limit as regards the value", the words "in every original civil suit the value of which does not exceed twenty-five thousand rupees" shall be substituted; (ii)in Section 26, for the words "the jurisdiction", the words and figures "subject to the limit prescribed in Section 25, the jurisdiction" shall be substituted."  

 (15) Then the Amending Acts of 1969 and 1980 further amended section 25 as inforce in Delhi; firstly, for the words "twenty-five thousand rupees", the words "fifty-thousand rupees" were substituted, and then the words "fifty-thousand rupees" were substituted with the words "rupees one lakh".   

(16) By the impugned Amending Act, in section 25 for the words "rupees one lakh", the words "rupees five lakhs" were substituted. Section 39 after this Amending Act of 1991 reads as under:- "39. Appeals from Subordinate Judges -(1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie :- (a) to the District Judge, - (i) Where the decree or order was made before the extension of the Punjab Courts (Amendment) Act, 1963 to the Union Territory of Delhi and the value of the original suit in which the decree or order was made did not exceed five thousand rupees; or (ii) where the decree or order is made after the extension of the Punjab Courts (Amendment) Act, 1963, to the Union Territory of Delhi and the value of the original suit in which the decree or order is made does not exceed ten thousand rupees; or (iii) where the decree or order is made after the commencement of the Delhi High Court (Amendment) Act, 1991, and the value of the original suit in which the decree or order is made does not exceed rupees one lakh; and (2)Subjecttotheprovisions of sub-section(2A),an appeal to the Court of the District Judge shall be heard by the District Judge or by an Additional District Judge. (2A) An additional District Judge shall hear only such appeals as the High Court, by general or special order, may direct or as the District Judge of the District may make over to him. (3) The High Court may by notification direct that appeal lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly and the Court of such other Subordinate Judge shall be deemed to be a District Court for the purpose of all appeals so preferred."

Regular First Appeal to the High Court as per the High Court Rules and Orders (Volume V, Chapter 3) from the judgment and decree of a subordinate court is to be heard by a bench of two judges.

(17) Civil Procedure Code provides for appeals from the original decrees (section 96), from Orders (section 104), second appeal (section 100), revision (section 115), and reference under section 113 to the High Court. An argument was raised that under the Principal Act appeals could be filed against the orders of a Single Judge to a Division Bench whether those orders were covered under section 104 of the Code or not. This right, it was contended, had been taken away by the Amending Act.

(18) After the Amending Act came into force on 9 November 1992 the Chief Justice constituted a Committee of three Judges on the original side of the High Court including the Judge in charge thereof to go into the .matter of transfer of pending cases to district subordinate courts for the purpose of making order under section 4 of the Amending Act. The aforesaid committee considered the decisions taken earlier in pursuance of the Amending Acts of 1969 and 1980 and other material and made certain recommendations as to the stages of various types of cases pending in the High Court on its original side which should be transferred to the subordinate courts. The Chief Justice then placed the recommendations of the committee before the Full Court in its meeting? on 3 December 1992 and 8 December 1992 and the Full Court gave its view that report of the committee be accepted subject to certain modifications. The Chief Justice then taking into consideration the report of the committee and views expressed by the Full Court directed that all pending suits in the High Court on the original side up to to the value of Rs.5 lakhs be transferred to the subordinate courts in terms of section 4 of the Amending Act with the following exceptions: "A)Execution applications; b) Arbitration cases; c) Cases in which issues have been framed; d) Cases in which any interlocutory application is either part-heard, or in case arguments have been heard, judgment has been reserved, till pronouncement of judgment in the said I.A. or the matter is released from being part-heard; and e) cases in which ex-parte evidence by way of affidavits has been ordered to be filed. "

It is stated that this would result in transfer of about 7,800 suits out of the total pendency of about 14,811 pending suits.

(19) The challenge of the petitioners to section 4 of the Amending Act as unconstitutional is for the reasons that (1) it takes away the vested right of appeal under section 5(2); (2) it is discriminatory; (3) even if valid the exercise of power by the Chief Justice is vitiated because he did not exercise the power himself and his consulting the Full Court or constituting the committee of three judges amounted to delegation of power; (4) and section 4 in any case would not apply to pending proceedings and no pending proceedings could be transferred. It is contended that the court has power to issue mandamus directing bifurcation of subordinate courts.

(20) It may be stated that there is no challenge to section 3 of the Amending Act which substituted the words "rupees five lakhs" for the words "rupees one lakh". Further elaborating Mr. Lekhi, learned counsel for the petitioners, submitted that suits were filed in the High Court and not before the Chief Justice or any other particular Judge. No such Judge either sitting individually or the Chief Justice could have any authority to transfer the cases filed in the High Court to the subordinate courts. When a suit is filed in the High Court it is the High Court which is seized of the matter. Chief Justice, therefore, could not be authorised under section 4 of the Amending Act to transfer the cases pending in the High Court in his administrative power unless section 5(2) was amended to read Chief Justice instead of the High Court. Mr. Lekhi further said that discretion under section 4 of the Amending Act conferred upon the Chief Justice was not exercised by him properly and was rather dictated by the Full Court which was not contemplated. He said it was the fundamental principle that it was not merit of the decision but it was the method how the decision was arrived at which was relevant. If the process to reach the decision was of the Full Court, then the ultimate decision of the Chief Justice directing transfer of certain cases would fall. Then Mr. Lekhi said that High Court Rules and Orders derive their force from the Constitution, while the Amending Act was a piece of legislation by the Parliament. He said the Amending Act could not be put at a higher pedestal and particularly when here it was left to the executive to Fix the date to enforce the Amending Act. In this connection he drew our attention to Chapter IX-A of Volume Iv of the High Court Rules and Orders and Article 216 of the Constitution. Mr. Lekhi then said that forum of appeal was important and when a suit was filed in the High Court the litigant knew as to how his suit was to be processed and he got a vested right that his appeal against any adverse order passed by a Single Judge was to be heard by a Division Bench. According to Mr.Lekhi, section 4 of the Amending Act was, therefore, unconstitutional as it deprived that litigant of his that vested right of appeal. For this reasonal so he said the Amending Act could have only prospective operation and no pending proceedings in the High Court would be transferred. He said section 4 of the Amending Act violated section 10 of the Principal Act. Mr. Lekhi said operation of the Amending Act was intended to be prospective as was evidence by the use of the words "shall come into force" in sub-section (2) of section 1 of the Amending Act. He said the word "may" appearing in section 4 of the Amending Act would mean "shall" which implied an act to be done in the future. This also would show that operation of section 4 of the Amending Act was meant to be prospective. Then it was contended that section 4 of the Amending Act was also unconstitutional as it violated Article 14 of the Constitution by making a classification which was unreasonable per se. He said it had nothing to do with the object sought to be achieved by the Amending Act and distinction between the proceedings where witnesses had been examined and where none examined was arbitrary and without any basis. Then Mr. Lekhi submitted that though the Amending Act received the assent of the President on 30 December 1991 it came into force by the impugned notification dated 9 November 1992 after about a year. He said the words "shall be substituted" as appearing in section 3(1) of the Amending Act would make the Amending Act prospective. Mr. Lekhi said that no law could take away the forum and the total hierarchy of forums. He again asserted that the Amending Act was in itself a law having prospective operation as it had needed a notification to enforce it which came long after it received the assent of the President. He said change in jurisdiction was a legislative function and not administrative which could be done by the Chief Justice. Section 4ofthe Amending Act was unconstitutional as there was total abdication of the legislative function, so Mr. Lekhi contended. Mr. Lekhi also referred to the Maharashtra Act No.XV of 1987 called the Bombay City Civil Court and Bombay Court of Small Causes(Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986,where section 9 was as under :- "9.The amendments made by this Act in the City Civil Court Act and the Presidency Small Cause Courts Act shall not have any effect in respect of and apply to any suits, appeals or other proceedings of a civil nature pending before any Court on the date immediately preceding the date of commencement of this Act,and such proceedings shall be continued and disposed of by that Court, as if this Act had not been passed; and any appeal, revision application or other proceedings of a civil nature in respect of any decree or order passed by any Court before the date of commencement of this Act shall be filed before and heard and disposed of by the Court competent to entertain such proceedings before such commencement, as if this Act had not been passed. "

(21) He said similar provision should have been made in the Amending Act aswell. On the question of bifurcation of the courts in the Union territory of Delhi, Mr. Lekhi drew our attention to a letter dated 21 May 1979 of the then Chief Justice of the High Court advocating bifurcation. He also referred to the Law Commission Report showing that there was poor judge ratio and said that court's infrastructure was to be increased and necessary buildings constructed. Mr. Lekhi said that no District Judge could oversee the work of so many Additional District Judges, Subordinate Judges and Magistrates and then he said that for the purpose of bifurcation it was not necessary to amend any law and only notifications by the Central Government and the High Court were required. He said successive Chief Justices and the Full Court have time and again endorsed the proposal to bifurcate the courts in Delhi. That was also necessary for the proper morale of the sub ordinary judiciary who will have more avenues and then justice might reach at the door steps of the litigants. He said there will be competition and system of administration of justice would improve. Finally, Mr. Lekhi referred to the statement of the Law Minister in this respect when he moved the bill which later became the Amending Act. Mr. Lekhi also pointed out that though an appeal would lie against an order made by a learned Single Judge in a proceeding remaining pending in the High Court, against those very orders passed by the District Judge in transferred cases only a revision would lie which would be heard by a Single Judge. "This he said was not permissible. In support of this submission he referred to a decision of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, , holding that where the High Court dismissed the revision petition under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, after hearing both the parties, the order of the appellate court became merged with the order made in revision like any order made in appeal. When reference was drawn to an unreported decision being an order dated 6 November 1969 in I.A. No. 1840/ 69 in Execution No. 58/67 entitled Jaswant Singh Jain & ors v.Jugal Kishore and others, where the court did not find anything to invalidate the powers conferred on the Chief Justice to transfer all pending cases as mentioned in the Amending Act of 1969, Mr. Lekhi said the judgment was per incuriam and, therefore, not binding.

(22) Mr. Madan Lokur, Central Government Standing Counsel, appearing for the High Court and the Chief Justice submitted that as per High Court Rules and Orders an appeal from a judgment and decree of the District Judge would be heard by a Division Bench in the High Court. In this context he said there was no change in the appellate forum. He said appeal is a statutory right and if a statute grants such a right, it can take away that right or may put conditions for the exercise of that right of appeal. Mr. Lokur said in the present case neither any fetters had been put on the right of appeal nor had this right been abolished. He said only a new forum had been created. He said there was no vested right to be heard by a particular forum since it was a mere matter of procedure. The Amending Act though affects pending procedings it was not retrospective in operation as contended by the petitioners. The object of the Amending Act was speedy disposal of cases. He said it was undisputed that the disposal of cases in the District Court was much quicker. Thus, Mr. Lokur said that the Supreme Court in Maganlal Chhaganlal (P) Ltd.v.Municipal Corporation of Greater Bombay and others,, had gone to the extent of holding that for speedy disposal of cases, if a special procedure was adopted for a class of such cases, it could not be unconstitutional. Finally, Mr. Lokur said that though the Chief Justice first constituted a Committee of three judges and then took the view of the Full Court into consideration, the record clearly indicated that the decision of the Chief Justice was arrived it independently. He said there was no bar in consulting the Full Court and rather by doing so the Chief Justice had established a wholesome precedent. Mr. Lokur referred to a decision in Union of India v. W.N. Chadba, 1992 (3) Scale 396, where the court quoted with approval the view expressed by Cardozo J in "The Judge as Legislator" to the effect that a judge is "to exercise discretion informed by tradition, methodised or analogy, disciplined bysystem...."

(23) Mr. G.Ramaswamy appearing for Delhi Bar Association said that section 4of the Amending Act was constitutionally valid. He referred to Entry 46 of List lll of the Seventh Schedule of the Constitution which is to the effect "Jurisdiction and powers of courts, except the Supreme Court, with respect to any of the matters in this list" and said that the Amending Act would fit in this constitutional pigeon-hole. We, however, think that any reference to any entry in any of the lists to uphold the validity of the Amending Act is unnecessary inasmuch the Parliament is competent to legislate in respect of any of the matters mentioned in any of the three lists of the Seventh Schedule of the Constitution in the Union Territory of Delhi. Mr. Ramaswamy said a provision will be invalid if there was no legislative competence, or it was ultra vires the constitution, or it prescribed a special procedure which was arbitrary, but he said arbitrariness in a provision was normally no ground to question that provision when legislation had been made by Legislature competent to make it. He said section 4 was neither arbitrary nor discriminatory. Section 4, lie said, was a matter relating to procedure and it did not contain substantive rights and was by its very nature could be retrospective. He said no right of appeal was affected and that right of appeal and right to forum was a matter of procedure and no litigant had a right to any particular forum and as such no vested right of a litigant bad been affected by the Amending Act. Mr. Ramaswamy said that the Chief Justice did not commit any illegality in consulting the Full Court and that nature of power under section 4 was neither quasi judicial nor judicial but was of purely administrative or statutory in nature and the Chief Justice could consult any body provided he did not surrender his discretion or abdicate his functions. Continuing Mr. Ramaswamy said that the original jurisdiction was conferred for the first time by the Principal Act and the effect of the Amending Act was to modify the ordinary original civil jurisdiction. The ordinary original civil jurisdiction being the creation of a statute could be enlarged, modified or limited by an amendment of the statute. Referring to the objects and reasons for enactment of the Amending Act it was stated that since it as a law for the benefit of the litigants and in the interest of speedy disposal of cases, the Amending Act could even otherwise have retrospective operation. Mr. Ramaswamy said that if the legislative intention was to make the Amending Act only prospective in operation then there was no question of transferring any of the pending cases and it was not necessary to confer any discretion on the Chief Justice under section 4 of the Amending Act. He said if proper construction is given to section 1(2) of the Amending Act which provided for the date when the Act would come into force it would show that section 4 provided for a class of matters pending on that date to be transferred at the discretion of the Chief Justice. Mr. Ramaswamy then referred to similar provision as contained in section 4 of the Amending Act in the earlier two Amending Acts of 1969 and 1980 where on both the occasions the Amending Acts had been applied retrospectively. He said it must, therefore, be presumed that the Parliament while enacting the Amending Act of 1991 was aware of the retrospective application of section 4 on the previous occasions. He said legislative history was important circumstance to interpret a particular provision. In this connection he referred to decisions of the Privy Council in Webb v. Qutrim, 1907 A.C. 81 (PC), and Barras v. Aberdeen Sterm Trawling and Fishing Company Limited, 1933 A.C. 402 (HL). In Webb v. Outrim, 1907 A.C. 81 (PC), Lord Halsbury while delivering the judgment in the Privy Council approved the following statement of Griffith C.J. in the following words: "IT is quite true, as observed by Griffith C.J., in the above-mentioned case of D'Emden v. Redder, 1 Commonwealth L.R. 91, at p. 110, that: "When a particular form of legislative enactment, which has received authoritative interpretation, whether by judicial decision or by a long courseofpractice,isadopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them."

(24) This was again approved in Barras v. Aberdeen Steam Trawling and Fishing Company, Limited, 1933 A.C. 402 (HL). With reference to this Lord Blanesburgh in his opinion further said as under :- "THAT statement is specially valuable because of its insistence on the condition that the interpretation shall beauthoritative. It is useful also in that it recalls that the interpretation may result both from judicial decision and from a long course of practice. If the numerous authorities are looked at it will be found, I think, that the foundation for the application of the rule has been discovered in a long course of practice far more frequently than in a judicial decision, particularly where that judicial decision is one of a Court short of this House."

(25) Mr. Ramaswamy then said that section 10 of the Principal Act only provided for the procedure of appeal from its ordinary original jurisdiction and this section conferred no substantive right of appeal. He said there was a difference between a right of appeal and a right to forum and though right of appeal is a substantive right and a vested right, it was not so in the case of forum since it was of procedural nature. Mr. Ramaswamy drew distinction in the decision of the Supreme Court in Commissioner of Income Tax, Orissa v. Shri Dhadi Sahu, , which had been referred to earlier by Mr. Lekhi. Then Mr. Ramaswamy said that true intentions of the legislature in enacting section 4 of the Amending Act was to enable the Chief Justice to retain certain matters of the value of, less than Rs.5 lakhs in the High Court. He said if section 4 did not exist then consequent to coming into force of the the Amending Act section 3 thereof would denude the High Court of jurisdiction even in pending matters. He said if section 4 is to struck down it would be worst for the petitioners as then all suits would have to be transferred to the District Court which alone would have jurisdiction in suits with value of less than Rs. 5 lakhs. Finally, Mr. Ramaswamy said that prayer for bifurcation of the courts could not be allowed as it was in the nature of declaration which would ordinarily be not within the scope of Article 226. He said any such direction or declaration would amount to legislation on the part of the High Court which could not be done in law. He said the court could not assume the functions of the legislature or question the wisdom of any policy decision likely to be taken.

(26) But for section 4 of the Amending Act all suit of the value of Rs.5 lakhs and below would have stood transferred to the District Courts as from the date of enforcement of the Amending Act Delhi High Court would cease to have jurisdiction to try any of such suits. This would be clear from the language of sub-section (2) of section 5 of the Principal Act after the amendment as after the coming into force of the Amending Act the High Court of Delhi shall have ordinary original civil jurisdiction in civil suits the value of which exceeds Rs.5 lakhs. This ordinary original civil jurisdiction has been conferred on the Delhi Hh Court by the Principal Act and that jurisdiction is now limited to cases of the value exceeding Rs. 5 lakhs. Section 4 prevents this result flowing from the amendment of sub- section (2) of section5 of the Principal Act and allows retaining of suits of the value of Rs-5 lakhs earlier pending in the High Court. Last lines of section 4 of the Amending Act are quite explicit and when the cases stand transferred to the subordinate courts those courts shall entertain such suits or proceedings as if these had been instituted or filed for the first time before them after the commencement of the Amending Act. Then section 39 of the Punjab Courts Act as amended by the Amending Act would come into play and under this section an appeal from a decree or order of a subordinate judge shall lie to a forum as provided therein. The decision of the Supreme Court in the case of Commissioner of Income Tax, Orissa v. Dhadi Sahu is, therefore, clearly distinguishable as section 39 of the Punjab Courts Act provides the forum of appeal when a judgment is passed and an order made by a subordinate court without affecting the vested right of an appeal. Assuming what the petitioners say is right that appeal against an order which is not appealable under section 104 of the Code of Civil Procedure would now be barred in those cases which are to be transferred to the subordinate courts, the aggrieved party in those cases can still agitate that appeal would lie in those cases to a Division Bench of the High Court. That at best would be the effect of the decision of the Punjab High Court in M/s.Gordhan Das Baldev Das v. The Governor General in Council (AIR 1952 Punjab 103 (FB) but that would not mean that the Amending Act is unconstitutional. Classification made by section 4 of the Amending Act is valid. We have seen above that as per the Code and the Delhi High Court Original Side Rules once the hearing starts in a case it has to go on every day till the hearing is concluded. Thus, in cases where witnesses are being examined as per the procedure prescribed, those cases have to be heard on day-to-day basis. In practice that may not be so but the legislature when making the distinction as given in section 4 is to go by the provisions of law and the procedure prescribed. The cases where witnesses are being examined could not be taken out from the list of the Judges hearing those matters and sent to the subordinate courts in midstream.

(27) We will agree with Mr. Lekhi that if the Amending Act is unconstitutional no amount of past practice would make the law valid. But that is not the case here. We have not found the Amending Act to be unconstitutional in any way. Past practice followed when Amending Acts of 19069 and 1980 came into force would be a proper guide to interpret the similar provision in the present Amending Act. We have seen above that when the Principal Act was passed the Chief Justice of the Punjab High Court had been given discretion to transfer the cases to Delhi High Court and now a similar discretion has been vested in the Chief Justice and is same as that vested in him in the earlier Amending Acts to transfer any suit or other proceedings pending in the High Court immediately before the commencement of the Amending Act provided no witnesses had been examined before such commencement. The Chief Justice before exercising his discretion under section 4 of the Amending Act first constituted a committee of three senior judges working on the original side of the High Court which took into account the past practice and after obtaining the report of that Committee laid the matter before the Full Court for its advice. The Full Court after deliberations gave its view. The Chief Justice after examining the relevant material accepted the view of the Full Court, but it cannot be said that that was not his independent decision. We do not find anything wrong in the procedure adopted by the Chief Justice. In fact in the circumstances that was perhaps the best course for him to do so. Could the Chief Justice take the decision in the matter unaided in a situation like the present one? Perhaps not. Requirement of law is that Chief Justice should conscientiously reach a decision. The view expressed by the Full Court was merely advisory and though the Chief Justice would be entitled to give as much weight to it as be may choose to give it, yet if be accepts the advice of the Full in toto and is guided by the advice rendered by the Full Court, he commits no irregularity or illegality so long it is his own decision after due application of his mind. There is thus nothing wrong or improper about it. Nothing has been brought on record by the petitioners which would show that the Chief Justice had acted under any dictation of the Full Court. The Chief Justice has not abdicated his functions enjoined upon him under section 4 of the Amending Act and his impugned act is beyond challenge. We also find reference to the High Court Rules and Orders, Volume V, of no relevance inasmuch as the ordinary original civil jurisdiction has been conferred on the High Court by a statute and the legislature which enacted that statute has right to modify, revoke or enlarge that jurisdiction. In the present case the Parliament has not chosen to adopt the provision similar to that of section 9 of the Bombay City Civil Court etc. Act of 1986. No grievance can be made by the petitioners on that account.

(28) We may reproduce the the statement of objects and reasons when the Bill, which was ultimately passed as the Amending Act, was introduced in the Parliament. This has been referred to by both the parties :- "UNDER section 5(2) of the Delhi High Court Act, 1966, the High Court of Delhi has ordinary original civil jurisdiction in every suit the value of which exceeds one lakh rupees. Having regard to the value of money these days and in the interest of speedy disposal of work in the High Court, it is proposed to raise the said limit specified in the said sub-section from one lakh rupees to five lakh rupees."

(29) As pointed out by Mr. Lokur that after the Amending Act it was expected that out of about 14,800 suits pending in the High Court about 7,800 would stand transferred to the ' District Courts reducing the workload of the High Court by 50% and thereby ensuring ' speedy disposal of cases. We will take judicial notice of the fact that six judges of the High Court are working on the original side exercising ordinary original civil jurisdiction. Every day each Judge has to deal with over 50 cases listed in the categories of Short Matters, Short Causes, Others (Misc. argument matters) and Long Causes (recording of evidence). There are about 175 cases already shown as finals in the cause list issued by the High Court meaning thereby that those cases are ready for arguments. At least since January 1992 not a single such case has been taken up for hearing as no time is left for that purpose. Many of such cases are ready for arguments for over ten years. There are more cases ready for final arguments but they are not being listed for obvious reasons that courts do not have time to hear those matters. In about 40 cases commissions have been issued for recording evidence of the witnesses as again the courts did not find time for the purpose. We will again take judicial notice of the fact that appeals are regularly being filed from the judgments and decrees of the subordinate courts. Such being the state of affairs it is difficult to uphold the contention of the petitioners that the Amending Act is unconstitutional inasmuch as it takes away the vested right of certain litigants to a particular forum. A litigant wants his case to be disposed of finally and there appears to be no purpose in this Court the rely deciding interim applications and recording evidence by itself or through commission in the suits when it does not get time to hear the final arguments. Transfer of some of the cases to the District Courts will certainly given respite to the hapless litigants. The grievance of the petitioners that an appeal against a particular order will be heard by a Division Bench when it is decided by a Single Judge of this Court has, therefore, no meaning.

(30) In New India Insurance Co. Ltd. v. Smt. Shanti Misra the Supreme Court did express the opinion that change of forum is a change of procedural law and nota substantive law. In Maria Cristina De Souza Sodder and others v. Amria Zurana Pereira Pinto and others, , the court held that right of appeal though was a substantive right and got vested in the litigant no sooner the lis was commenced in the court of the first instance and such right would not be affected by any repeal of an enactment conferring such right unless the repealing Act either expressly or by necessary implication took away such right. The court also said that the forum where such appeal could be lodged was a procedural matter and, therefore, the appeal the right to which had arisen under a repealing Act would have to be lodged in a forum provided for by the repealing Act. In Mithilesh Kumari and another v. Prem Behari Khare, , the Supreme Court'said that even vested right could be taken away and said that where remedy is barred the right became unenforceable. The decision of the Supreme Court in Commissioner of Income Tax, Orissa v, Shri Dhadi Sahu, , would appear to be some what in conflict with its earlier decision but this judgment though holds that forum of appeal is a vested right to be followed before a particular forum and that right becomes vested when the proceedings are initiated but that vested right would not continue if the legislature by express words or by necessary implications so indicates. The Full Bench of the Punjab High Court in M/s. Gordhan Das Baldev Das v. The Governor General in Council, Air 1952 Punjab 103 (FB), had also said that such a vested right of appeal to a particular forum could be taken away by a later statute if the intention of the legislature was clearly manifested in the later Act.

(31) We have seen above that but for section 4 of the Amending Act all the cases pending in the High Court of the value of Rs 5 lakhs and less would stand transferred to the District Courts in view of the amendment of sub-section (2) of section 5 as the High Court would cease to have jurisdiction in those matters. Section 4 which confers discretion on the Chief Justice uses the word "may" and that word has been used in deference to the high status of the office of the Chief Justice otherwise, as again noted above,it would mean''shall". We do not agree with the petitioners that the fact that it is left to the Central Government to enforce the Act and the use of the word "shall" meant that the Amending Act has only prospective operation. The moment Amending Act comes into operation necessary consequences follow. Section 39 of the Punjab Courts Act read with the Amending Act give the clear intention of the legislature and forum of appeal in respect of cases transferred to the subordinate courts would be that provided under the Punjab Courts Act.

(32) The discretion to be exercised by the Chief Justice under section 4 of the Amending Act is administrative in nature and is neither judicial nor quasi judicial. It is for the Chief Justice to exercise that discretion on the basis of the relevant material and that material can be gathered by him from any proper source, the only check on the discretion conferred by the statute would be that it is the discretion of that authority himself which he will exercise having due regards to the facts of a particular case and further that his decision making process should betransparent. We do not think that decision of the Supreme Court in Commissioner of Police, Bombay v. Gordfiandas Bhanji referred to by the petitioners has any relevance to the facts of this case. Rather it negatives the plea advanced by the petitioners. In this case the order of cancellation of license by the Commissioner of Police was at the behest of the Government of Bombay whereas under the rules it was for him to exercise that discretion. The case of Emperor v. Shibnath Banerji and others (AIR 1945 P.C. 156) is to the point that power is to be exercised by the person on whom it is conferred.

(33) The classification made by the Amending Act in section 4 is not arbitrary and is based on an intelligible principle having reasonable relation to the object, namely, the speedy disposal of cases, which the legislature seeks to attain.

(34) Under section 4 of the Amending Act there is clear intention of the legislature to transfer the cases where witnesses have not been examined. It has not been shown to us as to how a litigant whose case is transferred is going to suffer any prejudice when provisions of reference, review and appeal exist under the Code.

(35) No doubt Law Minister made a statement while introducing the Bill of the Amending Act that decision for bifurcation will be taken after hearing all concerned, but that assurance if given to the Parliament is not for this court to consider its implications. The High Court has all through been for bifurcation of courts. We will not go into the question as to how the bifurcation is to take place, whether by legislation or by issue of any notification either by the Central Government, Delhi Administration or the High Court. We will not like to go into the question in these proceedings if the issue of notification is an .act of legislation. We find that no proper basis have been laid and no material placed on record for the petitioners to seek this prayer. Till proper infrastructure is built it will not be feasible to bifurcate the courts. We are already having the spectre of 66 judicial officers not being posted for lack of accommodation. At this stage we leave this question, however, open whether a mandamus could issue or what directions this Court can given to decentralise the courts in Delhi and whether any declaration could issue requiring the Delhi Administration to issue a notification to bifurcate subordinate courts as this court on the administrative side is already seized of the matter. We may note that a reference was made to decision of the Supreme Court in State of Himachal Pradesh v. A Parent of.a student of Medical College, Shimla, and others wherein it was held that no mandamus could be issued directing the Government to legislate on a particular subject. It was, therefore, contended that no mandamus could issue directing the respondents to amend the provision of law or to issue any notification bifurcating the courts in Delhi. However, at this stage we are not inclined to consider this issue. As noted above, we will consider this aspect of the matter at an appropriate time when all the relevant material has been placed before the Court.

(36) Both Mr. Lokur and Mr. Ramaswamy also contended that this petition as public interest litigation was not maintainable inasmuch as no rights of the petitioner were affected and petitioners had no locus standi to fine any such petition. It was said it was not filed on behalf of any depressed or underprivileged class of society nor it was filed bonafide since it was filed to protect the pecuniary interests of the members of the first petitioner. Since we heard the arguments in detail on merit we would not like to go into this question and would again leave it open.

(37) We do not think it is necessary for us to laden our judgment with various other authorities cited at the Bar. During the course of arguments we did notice that both Mr. Aman Lekhi and Mr. Sanjay Hegde were very ably assisting their senior counsel and we record our appreciation of the hard work put by these two young lawyers.

(38) We, therefore, do not think the petitioners are right in any of their submissions and we wished that this petition should not at all have been filed in the first instance.

(39) This petition, therefore, fails and is dismissed.