Umaji Keshao Meshram & Ors Vs. Radhikabai W/O Anandrao Banapurkar & ANR [1986] INSC 42 (14 March 1986)
1986 Latest Caselaw 42 SC

Umaji Keshao Meshram & Ors Vs. Radhikabai W/O Anandrao Banapurkar & ANR [1986] INSC 42 (14 March 1986)

REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) MADON, D.P.

CITATION: 1986 AIR 1272 1986 SCR (1) 731 1986 SCC Supl. 401 1986 SCALE (1)681

CITATOR INFO: E&R 1992 SC 185 (1,3,4)

ACT:

Letters Patent 1929 (Bombay) Clause 15 :

Judgment of a Single Judge in a petition under Article 226/227 - Intra-Court Appeal - Whether competent and maintainable.

Expression "pursuant to section 108 of the Government of India Act" - Interpretation of.

Expression "Power of superintendence under the provisions of section 107 of the Government of India Act"- Whether to be construed as a reference to Art. 227 of the Constitution.

Bombay High Court Appellate Side Rules, 1960 : Rule 18 - Expression "shall be heard and finally disposed of" - Whether negatives filing of an appeal in a proceeding under Art. 226/227 of the Constitution.

Indian High Courts Act, 1861, Government of India Acts 1915- 1919 and 1935 - Whether Constitutional Laws.

Constitution of India, 1950 :

Articles 225, 226 and 227 - Whether confer wholly new powers on the High Courts existing at the commencement of the Constitution.

Expression "subject to the provisions of this Constitution" in Article 225 - Interpretation of.

Joint petition under Articles 226 and 227 - Implication of - Whether to be treated as one under Article 226.

Article 227 - Power of superintendence - Whether in addition to that conferred by Article 226.

732 Words and Phrases :

"Judgment" - Meaning of - Clause 15, Letters Patent 1929 (Bombay).

HEADNOTE:

Clause 15 of the Letters Patent, Bombay, in its finally amended and operative form (January 1929) provided that an appeal shall lie to the High Court of Judicature at Bombay, from a judgment of one Judge of the High Court, pursuant to s.108 of the Government of India Act of 1915, not being (a) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, (b) an order made in the exercise of revisional jurisdiction, (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of s.107 of the Government of India Act of 1915, or (d) a sentence or order passed or made in the exercise of criminal jurisdiction.

Rule 18 of Chapter XVII, of the Bombay High Court Appellate Side Rules, 1960, provides that applications under Art. 226 or Art. 227 of the Constitution arising out of the orders passed by the Maharashtra Revenue Tribunal under any enactment, may be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice.

% The appellants' revision application having been allowed by the Maharashtra Revenue Tribunal, the first respondent filed a petition under Art. 227 of the Constitution before the Nagpur Bench of the High Court of Bombay. By reason of the aforesaid r.18 the petition was heard by a Single Judge and allowed, restoring the order of the Sub-Divisional Officer. Against this judgment and order the appellants filed an appeal under cl.15 of the Letters Patent to a Division Bench of the Bombay High Court, Nagpur Bench, which was dismissed as not being competent in view of the earlier decision of a Full Bench in Shankar Naroba Salunke & Ors. v. Gyanchand Lobhachand Kothari & Ors.

decided on September 3, 1980. The Full Bench in that case had concluded that no intra-court appeal lay under cl.15 of the Letters Patent against the judgment of a Single Judge of the Bombay High Court in a petition filed under Art. 226 or 227 on the premises : (1) that on the commencement of the Constitution cl.15 of the Letters Patent having ceased to be in operation it could not control matters expressl 733 provided in the Constitution, for the High Courts then in existence became organically different High Courts as they acquired a different origin, nature and character since (a) the Constitution had effected a break with the past and made absolutely a new original and vital beginning as far as origin, source of power and conferment of constitutional authority was concerned, and (b) the provision for intra- court appeal in the Letters Patent dealt with different jurisdictions under the ordinary law only and not with any jurisdiction conferred upon the High Court by the Constitution, (2) that even if cl.15 of the Letters Patent were to apply an appeal would be barred by the express words of cl.15 itself because both Arts. 226 and 227 provide for the same relief, namely, scrutiny of records and control of subordinate Courts and Tribunals and, therefore, the exercise of the jurisdiction under these Articles would fall within the expression 'revisional jurisdiction' or "power of superintendence", and (3) that the expression "shall be heard and finally disposed of" in r.18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 negatives the filing of any appeal in a proceeding under Art. 226 or 227.

In this Appeal by Special Leave against the order of the Division Bench, in determining whether an intra-court appeal lies under cl.15 of the Letters Patent of the Bombay High Court to a Division Bench from the judgment of a Single Judge in a petition filed under Art. 227, the correctness of Shankar Naroba Salunke's case fell for close examination.

Dismissing the appeal, the Court, ^

HELD : By the Court (per Chinnappa Reddy and Madon, JJ.) No intra-court appeal lies under cl.15 of the Letters Patent of the Bombay High Court against the order of a Single Judge exercising jurisdiction under Art. 227 of the Constitution. [743 D-E; 834 D] Per Chinnappa Reddy, J.

The reference to s.107 of the Government of India Act, 1915 in cl.15 of the Letters Patent of the Bombay High Court 734 must necessarily be read as a reference to Art. 227 of the Constitution. So read, an appeal under cl. 15 is clearly not maintainable against an order made in exercise of the power under Art. 227. [743 E-F] Per Madon, J.

1. Under Art. 225 the High Courts exercising jurisdiction in relation to provinces immediately before the commencement of the Constitution became the High Courts for the corresponding States and exercised the same jurisdiction and administered the same law as theretofore, and the respective powers of the Judges of such High Courts, including the power to make rules for the Court and regulate the sittings of the Court and of members thereof sitting singly or in Division Courts, remained the same. The Letters Patent of the Bombay High Court and the Rules made by that High Court thus continued to be in operation by virtue of the Constitution itself. [760 C-E; 765 G-H]

2.1 The High Courts under the Constitution did not become organically different institutions from the same High Courts in existence immediately prior to the commencement of the Constitution. [754 E; 811 E]

2.2 The Constitution did not posit a break from the past and make absolutely a new original and vital beginning, but was the result of a process of evolution.

Almost three fourths of it is based upon the Government of India Act, 1935, subject to modifications which were made in the light of the experience and adopted to a republican form of Government. The existing institutions, including the High Courts, as also the laws in force which were in existence at the commencement of the Constitution, were preserved and continued by the Constitution. [800 F; 802 E,C; 805 D] State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, [1964] 6 S.C.R. 461 referred to.

2.3 The Indian High Courts Act, 1861 and the Government of India Acts, 1915-1919 and 1935 were all constitutional laws. It is erroneous to characterize them as ordinary laws. [807 C] 735 Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R 89, Union of India etc. v. Tulsiram Patel etc., [1985] 3 S.C.C. 398, 425-6., British Coal Corporation and Ors. v. The King, [1935] A.C. 500, 518, J.C.; James v. Commonwealth of Australia, [1936] A.C. 578, 614, J.C., In re the Central Provinces and Barar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (Central Provinces and Berar Act No. XIV of 1938) 1939 F.C.R. 18, 36.

In re the Hindu Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, 119411 F.C.R. 12, 26., Navinchandra Mafatlal v. Commissioner of Income Tax, Bombay City, [1955] 1 S.C.R. 829, 836, referred to.

2.4 Article 215 did not bring any revolutionary change in their nature and character. All the superior courts which preceded the High Courts were Courts of Record and the power to punish for contempt was inherent in and possessed by every Court of Record. Section 106(1) of the Government of India Act of 1915 provided that the serveral High Courts would be Courts of Record, and s.220 of the Government of India Act, 1935 made an identical provision. [811 D; 810 E; 811 A]

2.5 Articles 225, 226 and 227 did not confer upon the High Courts wholly new powers not possessed by the existing High Courts immediately prior to the commencement of the Constitution. Article 225 is in pari materia with s.223 of the Government of India Act, 1935. The power to issue directions, orders and writs under Art. 226 is modelled upon the prerogative writ jurisdiction possessed by the three Chartered High Courts in the exercise of their original jurisdiction immediately prior to the commencement of the Constitution, though under the Constitution that power has been made wider and more extensive and conferred upon every High Court to enable them to reach injustice wherever found and mould the reliefs accordingly. Article 227 derives its origin from s.15 of the Indian High Courts Act, 1861, s.107 of the Government of India Act, 1915-1919 And s.224 of the Government of India Act, 1935 which conferred upon each of the Chartered High Court the power of superintendence over all courts subject to its appellate jurisdiction. [813 D; 826 F; 830 B; 831 E; 815 G; 813 F-H] Prabodh Verma and Ors. v. State of Uttar Pradesh And Ors., [1985] 1 S.C.R. 216, Ryots of Garabandho and other 736 villages v. Zamindar of Parlakimedi and Anr., [1942-43] 70 I.A. 129., Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, 1150, Dwarkanath Hindu Undivided Family v. Income Tax Officer, Special Circle, Kanpur & Anr., [1965] 3 S.C.R. 536, 540-41 referred to.

3.1 It is the charter of the High Court, whether it be a statute or Letters Patent, 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. 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 tn 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. [839 H; 840 A-C]

3.2 Under c1.15 of the Letters Patent of the Bombay High Court, from the Judgment of a Single Judge an appeal lies to a Division Bench provided it is not barred by any statute, and provided the conditions laid down by c1.15 itself viz: (i) that lt must be a judgment pursuant to section 108 of the Government of India Act of 1915, and (ii) that it must not be a judgment falling within one of the excluded categories set out in claw e 15, are fulfilled.

[824 A-C]

3.3 By the Letters Patent dated March 11, 1919 the expression "pursuant to s.108 of the Government of India Act" was substituted for the expression "pursuant to s.13 of the said reacted Act", that is, the Indian High Courts Act, 1861. When the Government of India Act of 1915-1919 was repealed and replaced by the Government of India Act, 1935, the rule making power of the High Court and of the Chief Justice to assign work either to Single Judges or to Division Courts were continued unimpaired and unaffected under s.223 of the latter Act. Letters Patent establishing the High Courts sued by the Crown, falls within the meaning of the term "instrument" as used in s. 8(2) of the General Clauses Act, 1897. Therefore, by the combined operation of s.38 of the 737 Interpretation Act, 1889 and s 8 of the General Clause Act, the expression "pursuant to s.108 of the Government of India Act", is, on the coming into force of the Government of India Act, 1935, to be read as "pursuant to 6. 223 of the Government of India Act, 1935", and since Art 225 of the Constitution is in pari materia with s. 223 of the Government of India Act, 1935, on the commencement of the Constitution the expression "pursuant to s. 223 of the Government of India Act" - deemed to have been substituted for the expression "pursuant to s.108 of the Government of India Act to be read as "pursuant to Art. 225 of the Constitution" by virtue of Art. 367(1), which makes the General Clauses Act applicable for the interpretation of the Constitution. [824 D,G; 825 B; 826 E-H; 827 A] National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. [1953] S.C.R. 1028 referred to.

3.4 When a single Judge of a Chartered High Court decided a petition under Art 226 or 227, his judgment is one given pursuant to Art. 225 and is appealable under c1.15 of the Letters Patent unless it falls within one of the excluded categories. [829 F]

3.5 Under cl. 15 no intra-court appeal lay against an order passed or made in the exercise of the power of superintendence under the provisions of s. 107 of the Government of India Act. By the same process of interpretation by reason of which the phrase 'pursuant to s.

108 of the Government of India Act' in c1.15 is to be read as "pursuant to Art. 225 of the Constitution of India" tho phrase "order passed or made in tho exercise of tho power of superintendence under the provisions of s. 107 of tho Government of India Act" is to be read as "order passed or made in the exercise of power of superintendence under the provisions of Art. 227 of the Constitution:. So read, an intra-court appeal does not lie against the judgment of a Single Judge of the Bombay High Court given in a petition under Art. 227 by reason of such appeal being expressly barred by c1.15 of the Letters Patent. [834 B-D] J.G. Chikhale v. G.R. Bodbe, [1965] 67 Bom. L.R. 609;

Sukhendu Barua v. Hare Krishna De & Ors., A.I.R. 1953 Cal.

636; Shrinivasa Reddiar and Ors. v. Krishnaswami Reddiar and Ors., A.I.R. 1955 Mad. 72; In re : V. Tirupuliswamy Naidu, 738 I.L.R. 1955 Mad. 1083, s.c. = A.I.R.1955 Mad. 287; J & K Cooperative Bank v. Shams-ud-din-Bacha, A.I.R. 1970 J & K 190; Ishwar Singh v. Ram Piari and Anr., A.I.R. 1978 H.P. 39 and South Asia Industries Pvt. Ltd. v. S.B. Sarup Singh & Ors., [1965] 2 S.C.R. 756 referred to.

In the instant case the petition filed by the appellants before the Nagpur Bench of the Bombay High Court was admittedly under Art. 227 and under the rules of the High Court it was heard by a Single Judge. An intra-court appeal against the decision of the learned Single Judge in a petition under Art. 227 having been expressly barred under cl. 15 of the Letters Patent of that High Court, the appeal filed by the appellants from the decision of the Single Judge to the Division Bench was rightly dismissed as being not maintainable. r [840 D] State of Maharashtra v. Kusum Charudutt Bharma Upadhye, [1981] 83 Bom. L.R. 75, s.c. 1981 Mah. L.J. 93 approved.

Shankar Naroba Salunke & Ors. v. Gyanchsnd Lobhchand Kothair & Ors., L.P. As Nos. 3, 10, 11 & 17 of 1979 and 34 of 1980 decided on September 3, 1980, over-ruled in part.

4.1 Where a petition filed under Art. 226 is according to the rules of a particular High Court heard by a Single Judge, an intra-court appeal will lie from the judgment if such a right of appeal is provided in the Charter whether such charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge given in a petition under Art.

226 would be appealable to a Division Bench of that High Court. [831 H; 832 A-B]

4.2 The words "be heard and finally disposed of by a Single Judge" used in r.l8 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 do not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. Under r. 1 and 17 of the Rules applications under Arts. 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue a rule nisi in an application under Art. 226 but precludes him from passing any final order on such 739 application. The use of the words "finally disposed of" in A r.18 clarifies the position that in such cases the power of the Single Judge is not confined merely to issue a rule nisi.[837 B; 836 E-G]

4.3 Proceedings under Art. 226 of the Constitution cannot be governed by rules made by the High Courts under the Code of Civil Procedure , 1908. Under ss. 122 and 125 of the Code, the High Courts are conferred the power to make rules regulating their own procedure and the procedure of the civil courts and they can by such rules annul, alter or add to all or any of the rules in the First schedule to the Code. Under s. 141, the procedure provided in the Code in regard to suits is to be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction but by virtue of the Explanation to that section inserted by the Code of Civil Procedure (Amendment) Act, 1976 the expression 'proceedings' occurring therein is not to include any proceeding under Art. 226. [839 B-E] Shah Babulal Khimji v. Jayaben D. Kania & Anr., [1982] 1 S.C.R. 187 distinguished.

4.4 The right of appeal against the Judgment of a Single Judge is given by the Letters Patent which has been continued in force by Art.225. If under the rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. An intra-court appeal against the judgment of a Single Judge in a petition under Art.226 is not barred while c1.15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Art.227. [837 A-C]

4.5 Where the facts justify a party in filing an application either under Art.226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Art.226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Art.227, this ought not to be held to deprive a party of the right of appeal under c1.15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Art.226. [837 F-G] 740 Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors., [1955] 1 S.C.R. 1104; Aidal Singh & Ors. v. Karan Singh & Ors., A.I.R. 1957 All 414; Raj Kishan Jain v. Tulsi Dass, A.I.R.

1959 Punj. 291; Barham Dutt & Ors. v. Peoples' Co-operative Transport Society Ltd., New Delhi & Ors., A.I.R. 1961 Punj.

24 referred to.

5.1 Unless excluded from the purview of c1.15, an intra-court appeal lies under that clause against a judgment delivered in the exercise of any of the Civil Jurisdiction conferred by the Letters Patent, whether by a clause preceding or succeeding c1.15. [819 E]

5.2 The word "judgment" in C1.15 of the Letters Patent is not qualified in any way as to the jurisdiction in which lt is given except that it should not be a sentence or order passed or made in any criminal trial. It embraces not only judgments given in the exercise of jurisdictions specifically mentioned in the Letters Patent but also in the exercise of jurisdictions not so mentioned, except those expressly excluded by cl. 15 itself. [818 E; 819 F; 818 H] Saroda Soonduree Dossee v. Tincowree Nundee, 1884 Hyde's Reports 70; Ranee Shurno Moyee v. Luchmeeput Doogur & Ors., 1867 (7) Sutherland's Weekly Reporter 52; Mohendra Lall Mitter v. Anondo Commer Mitter, I.L.R. 1897 (25) Cal.

236; Collection of Bombay v. Issac Penhas, 1947 (49) Bom.

L.R. 709 F.B.; Mahomedalli Allabux v. Ismailji Khadilkar 1926 (28) Bom. L.R. 471; Raghunath Keshav Khadilkar v. Poona Municipality and Anr., 1944 (46) Bom. L.R. 675; National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd., [1953] S.C.R. 1028 and South Asia Industries Pvt. Ltd. v. S.B. Sarup Singh & Ors., [1965] 2 S.C.R. 756 referred to.

6.1 Under Art. 225 the jurisdiction of existing High Courts has been preserved and continued subject to the provisions of the Constitution and of any law made by the appropriate Legislature. It comprehends within its scope not only the jurisdiction which the existing High Courts possessed immediately prior to the commencement of the Constitution but also the jurisdiction and powers which the other Articles of the Constitution, such as Arts. 226, 227 and 228 confer upon the High Courts. [821, F-G; 822 F] 741 National Sewing Thread Co. Ltd. v. James Chadwick & Bors. Ltd. [1953] S.C.R. 1028; Chairman Budge Budge Municipality v. Mongru Mia & Ors., A.I.R. 1953 Cal. 433 and Sheo Prasad & State of U.P., A.I.R. 1965 All. 106 referred to.

6.2 The fact that Art. 225 makes the jurisdiction of the existing High Courts "subject to the law of the appropriate Legislature" does not mean that the jurisdiction under Art. 226 or 227 cannot come within the scope of Art.

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 Arts. 226, 227 and 228 are not made subject to any law made by Parliament or the State Legislature, 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. [832 C-D]

6.3 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 Courts under Art. 226 or 227.

[823 F]

6.4 The power to make rules for the exercise of jurisdiction under Arts. 226 and 227 by the existing High Court is contained in Art. 225 only. This 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 them 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. [829 A; 828 F-G]

7. When an appeal is filed against the judgment of the single Judge given in a petition under Art. 226 or 227, it does not amount to filing a second appeal in the same matter, for an appeal is not a fresh proceeding but merely a continuation of the original proceedings. The expression "High Court" used in statutes providing for appeals to the High Court only means the High Court acting through one Judge or a Division Court consisting of two or more Judges as may be provided by the rules of Court unless any enactment specifically provides for a particular number of Judges to hear any particular matter. [829 C-D] 742 Garikapatti Veeraya v. N. Subbiah Choudhury, [1957] S.C.R. 488; and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors., [1973] 1 S.C.R. 185 referred to.

8.1 Though at times it may appear that a Writ of ceriorari of Writ of prohibition partakes the nature of superintendence in as much as the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Art. 227.

[830 F-E]

8.2 The powers conferred by Arts. 226 and 227 are separate and distinct and operate in different fields. Their source and origin are different and the models upon which they are patterned are also different. The power to issue a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari under Art. 226 cannot be equated with the power of superintendence over the subordinate courts and tribunals under Art. 227. In a proceeding under Art. 226 the person, authority or the State against whom the direction, order or writ is sought is a necessary party. Under Art. 227, however, what comes up before the High Court is the order of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within the authority and according to law [830 F,B,C, G-H; 831 A] Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors., [1973] 1 S.C.R. 185; State of Gujarat v.

Vakhatsinghji Vajesinghji Veghela, A.I.R. 1968 S.C. 1487, 1488; Mahomedalli Allabux v. Ismailji Abdulali, [1926] 28 Bom. L.R. 471; Raghunath Keshav Khadilkar v. Poona Municipality & Anr., [1944] 46 Bom. L.R. 675; Ryots of Garabandho & Other Villages v. Zamindar of Parlakimedi & Anr., 1942-43 (70) I.A. 129 and Moulvi Hamid Hasan Nomani v. Banwarilal Roy & Ors., L.R. [1946-47] 74 I.A, 120 referred to.

8.3 A proceeding under Art. 226 is an original proceeding while a proceeding under Art. 227 is not an original proceeding. [831 F] State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, [1963] 1 S.C.R. 1; Commissioner of Income-tax, Bombay & Anr.

v. Ishwarlal Bhagwandas & Ors., [1966] 1 S.C.R. 190; Ramesh 743 Anr. v. Seth Gendalal Motilal Patni & Ors. [1966] 3 S.C.R.

198; Arbind Kumar Singh v. Nand Kishore Prasad & Ors. [1963] 3 S.C.R. 322; Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors. [1973] 1 S.C.R. 185 and Waryam Singh & Anr. v. Amarnath & Anr. [1954] S.C.R. 565 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3683 of 1984.

From the Judgment and Order dated 16th September, 1980 of the Bombay High Court in Letters Patent Appeal No. 46 of 1980.

T.U. Mehta and C.K. Ratnaparkhi for the Appellants.

Naunit Lal, Kailash Vasdev and Mrs. Vinod Arya for the Respondents.

The following Judgments were delivered :

CHINNAPPA REDDY, J. Unfamiliar as I am with the history, tradition and the lore of the city and the High Court of Bombay, I content myself by agreeing with the conclusion of my learned brother that no appeal under clause 15 of the Letters Patent lies to the High Court against the order of a single judge of the High Court exercising jurisdiction under Art. 227 of the Constitution, no less and no more I do not have any doubt that the reference to s.107 of the Government of India Act, 1915 in Clause 15 of the Letters Patent must necessarily be read as a reference to Art. 227 of the Constitution. So read an appeal under clause 15 is clearly not maintainable against an order made in exercise of the power under Art. 227. This is the view taken by all the High Courts in India except the High Court of Bombay, where alone opinion has not been unanimous.

MADON, J. The question which falls for determination in this Appeal 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?" 744 The facts which have given rise to this Appeal by Special Leave granted by this Court need to be briefly stated. The First Respondent, Radhikabai, is a widow. She is the owner of three fields situate at Mouza Khed-Makta, Tahsil Brahmapuri, District Chandrapur. Kesheo, the father of the Appellants, was the tenant of the said fields. The First Respondent filed an application under section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act No. XCIX of 1958), read with section 39 of that Act for possession of the said fields on the ground that she wanted them for personally cultivating them.

The said application was allowed and she took possession of the said fields. On the ground that instead of personally cultivating the said fields the First Respondent had leased them to the Second Respondent, the Appellants filed an application under section 52 of the Tenancy Act claiming that they had become entitled to have the possession of the said fields restored to them. It was the case of the First Respondent that the Second Respondent was working in the said fields as her servant on a monthly salary. The Appellants' said application was allowed by the Additional Tahsildar, Brahmapuri. The First Respondent's appeal against the said order was allowed by the Sub-Divisional Officer, Brahmapuri. The Appellants thereupon went in revision to the Maharashtra Revenue Tribunal at Nagpur and the Tribunal allowed the said revision application. Thereupon the First Respondent filed a petition under Article 227 of the Constitution of India before the Nagpur Bench of the High Court of Bombay being Special Civil Application No. 1392 of 1974. By reason of the provision of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, the said petition was heard by a learned Single Judge of the said High Court who allowed the petition, set aside the order of the Tribunal and restored the order of the Sub- Divisional Officer. Against this judgment and order the Appellants filed an appeal under clause 15 of the Letters Patent to a Division Bench of the Bombay High Court, Nagpur Bench. The Division Bench dismissed the said appeal as not being competent in view of the decision of a Full Bench of the Bombay High Court, Nagpur Bench, in Shankar Naroba Salunke and others v. Gyanchand Lobbachand Kothari and Others Letters Patent Appeals Nos 3, 10, 11 and 17 of 1979 and 34 of 1980 decided on September 3, 1980. It is against the said order of the Division Bench that the present Appeal by Special Leave has been filed by the Appellants.

745 As the Appellants' Letters Patent Appeal was dismissed as being not maintainable by reason of the judgment given by the Full Bench of the said High Court, what really falls to be considered in the present Appeal is the correctness of that Judgment.

The High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862, issued by the British Crown in pursuance of authority conferred upon it by the Indian High Courts Act, 1861 (24 & 25.Vict., c.104). Clause 14 of the said Letters patent provided as follows:

"14. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment, in all cases of original civil jurisdiction, of one or more Judges of the said High Court or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High E Court, but that the right of appeal in such case shall be to Us, Our heirs or successors, in Our or Their Privy Council in manner hereinafter provided.

The Letters Patent issued in 1862 were revoked and replaced by Letters Patent dated December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the following terms :

"15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge 746 of the said High Court, or of one Judge of any Division Court, pursuant to section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the judgment not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division Court, wherever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said high Court, at the time being; but that the right, of appeal from other judgments of Judges of the said High Court., or of such Division Court, shall be to Us, Our heirs or successors, in Our or Their Privy Council, as hereinafter provided." By Letters Patent dated March 11, 1919, published in the Bombay Government Gazette dated June 19, 1919, Part I, pages 1446-7, the words and brackets in clause 15, namely, "(not being a sentence or order passed or made in any criminal trial)", were substituted by the words and brackets "(not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of super-intendence under the provisions of section one hundred and seven of the Government of India Act, 1915, or in the exercise of criminal jurisdiction)". By Letters Patent dated December 9, 1927, published in the Bombay Government Gazette dated February 2, 1928, Part I, pages 196-7, clause is was substituted. This substituted clause was amended by Letters Patent dated January 22, 1929, published in the Bombay Government Gazette dated January 24, 1929, Part I, at pages 131-2. The substituted clause 15 as amended in 1929 reads as follows:

"15. Appeal to the High Court from Judges of the Court.

And We do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an 747 order made in the exercise of revisional Jurisdic- tion and not being a sentence or order passed or made in the exercise of the power of superin- tendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or ? order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal;

but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as here inafter provided." In clause 15 as substituted in 1927 the words "on or after the first day of February One thousand nine hundred and twenty nine" did not find a place but were inserted by the said Letters Patent of 1929.

It may be pointed out that the provision in clause 15 providing for an appeal from a judgment, in a second appeal decided by a Judge of the High Court if such Judge declares that the case is a fit one for appeal has now become inoperative in view of section 100A of the Code of Civil Procedure , 1908, which was inserted in that Code by the Code of Civil Procedure (Amendment) Act, 1976, under which no further appeal is to lie against the judgment of a single - Judge of the High Court in a second appeal. The provision in clause 15 providing for an appeal from the Judgment of one y Judge of any Division Court has also become redundant and inoperative after the amendment of clause 36 of the Letters 748 Patent by the said Letters Patent dated December 9, 1927.

Prior to such amendment where a Division Bench was composed of two or more Judges and the Judges were equally divided in opinion as to the decision to be given on any point, the opinion of the senior Judge was to prevail and under clause 15 an appeal lay from his judgment. After the amendment of clause 36, if the Judges of the Division Bench are equally divided, they are to state the point upon which they differ and the case has then to be heard upon that point by one or more of the other Judges and the point is to be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

When analysed and broken up into its competent parts clause 15 in its finally amended and operative form reads as follows :

An appeal shall lie to the High Court of Judicature at Bombay - (1) from a judgment (2) of one Judge of the High Court (3) pursuant to section 108 of the Government of India Act of 1915 (4) not being - (a) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, (b) an order made in the exercise of revisional jurisdiction, (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act of 1915, or 749 (d) a sentence or order passed or made in the exercise of criminal jurisdiction.

The Letters Patent of the Calcutta, Bombay and Madras High Courts are mutatis mutandis in the same terms with minor variations, mostly as a result of amendments subsequently made. The word "judgment" is not defined in the Letters Patent and has been the subject-matter of conflicting decisions by these three High Courts. The question fell for consideration of this Court in Shah Babulal Khimji v. Jayaben D. Kania and Another [1982] I S.C.R. 187. In that case, a Single Judge sitting on the Original Side of the Bombay High Court dismissed an application made by the appellant for appointment of an interim receiver and the grant of an interim injunction. An appeal against that order was dismissed by a Division Bench of the High Court on the ground that it was not maintainable under clause 15 of the Letters Patent. After considering various authorities a three-Judge Bench of this Court reversed the judgment and order of the Division Bench and held that an appeal under clause 15 of the Letters Patent lay against the said order because section 104 of the Code of Civil Procedure , 1908, applied to the Original Side of the Bombay High Court and such an order would be appealable under that section read with Rule 1 of Order XLIII of the Code and also because such an order even on merits contained the quality of finality and would, therefore, be a "judgment" within the meaning of clause 15 of the Letters Patent. The question whether the judgment of a Single Judge in a petition filed under Article 226 or 227 of the Constitution of India was not before the Court in Shah Babulal Khimji case and was not decided by it.

There was no dispute before us that the decision of the learned Single Judge allowing the First Respondent's petition under Article 227 of the Constitution was a "judgment" within the meaning of clause 15 of the Letters Patent. What was disputed was whether an appeal lay against that judgment under clause 15 of the Letters Patent. G In Jagannath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde [1965] 67 Bom. L.R. 609, s.c. = (1965) Mah. L.J. 426 a Division Bench of the Bombay High Court, Nagpur Bench, held that no appeal lies against the judgment of a Single Judge in a petition under Article 227 of the Constitution because after 750 the coming into force of the Constitution the words "section 107 of the Government of India Act" (that is, of the Government of India Act of 1915) in clause 15 should be read as "Article 227 of the Constitution" inasmuch as Article 227 confers a power of superintendence as wide as was available to the High Court under section 107 of the Government of India Act of 1915. Later, a group of Letters Patent appeals from the judgments of different Single Judges in writ petitions filed either under Article 226 or 227 of the Constitution came before a Full Bench of three Judges which, as mentioned earlier, held that no appeal lay under clause 15 of the Letters Patent against the judgment of a Single Judge of that High Court in a petition filed under Article 226 or Article 227 of the Constitution. The reasons given by the Full Bench for reaching this conclusion (quoting as far as possible its own words) were as follows :

(1) The Constitution of India brought about a fundamental change in the character of the High Courts which were in existence on the date the Constitution came into force. According to the Full Bench, the Constitution "purports to lay down an original institutional matrix of its own". It observed that "it is not out of the historical ramparts that something is being put up, but a fundamental scheme, though mostly drawn on the historical feed back, is conceived and constructed . . . Source of founding the High Court is thus changed and is now referable to the terms of the paramount law of the Constitution." (2) the Constitution made a break with the past and had made absolutely a new original and vital beginning and it, therefore, followed as a matter of law that as far as origin, source of power and the conferment of constitutional authority were concerned, the Letters Patent or earlier legislating had mere historical relevance and could not control matters expressly provided in the Constitution.

(3) The High Courts were created as a result of the Letters Patent issued under the Indian High Courts Act, 1861 (24 & 25 Vict. c. 104), and, therefore, 751 the establishment, creation and jurisdiction of the High Courts had their origin in the ordinary law made by the "Imperial Parliament".

(4) The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government of India Act, 1935, make it obvious that the words "original" and "appellate" were used with reference to legal jurisdictions of the High Courts created by ordinary legislations as distinct from organic or Constitutional jurisdiction not subject to such laws. The Constitutional jurisdiction conferred by Article 226 or 227 cannot be equated with nor can form part of any of the jurisdictions within the contemplation of the Letters Patent.

(5) The historical origin of clause 15 lies in the Imperial device to provide an intra-court appeal in causes heard in the exercise of its original civil jurisdiction by the High Court acting by its Single Judge's Court, all other appeals being differently provided for.

(6) The fact that the Letters Patent can be amended by ordinary legislating shows that the jurisdiction of the High Court under Articles 226 and 227 could not fall within the purview of the Letters Patent.

(7) Articles 226 and 227 of the Constitution contain inbuilt rule-making power and, therefore, after the coming into force of the Constitution, the authority to make rules is not required to be traced to section 108 of the Government of India Act, 1915, but resides in Articles 226 and 227 of the Constitution supplemented with regard to identical matters by Article 225.

(8) Both Articles 226 and 227 of the Constitution, in substance, provide for the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these Articles would fall within the expression "revisional jurisdiction" or 752 'power of superintendence" and hence even under clause 15 of the Letters Patent an appeal would be barred.

(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 753 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.

63) and section 8 of the General Clauses Act, 1897, and on well-established principles of interpretation of statutes the words "the power of superintendence under the provisions of section 107 of the Government of India Act" occurring in clause 15 of the Letters Patent were to be read as "the power of superintendence under the provisions of section 224 of the Government of India Act, 1935" when the 1935 Act came into force and by the same process of interpretation when the Constitution of India came into force the words "the power of superintendence under the provisions of Article 227 of the Constitution" are to be read for the words "the power of superintendence under the provisions of section 224 of the Government of India Act, 1935". According to the Special Bench an appeal against the judgment of a Single Judge is a proceeding under Article 227 of the Constitution was, therefore, expressly barred by clause 15 of the Letters Patent. The Special Bench also held that Articles 226 and 227 of the Constitution operated in different fields and that in the exercise of its power under Article 226 the High Court exercises original jurisdiction as contrasted with its appellate or revisional jurisdictions and that where the original proceeding under Article 226 concerned civil rights, the proceeding under Article 226 would be an original civil proceeding and, therefore, an appeal would lie under clause 15 of the Letters Patent against the judgment of a Single Judge in such a proceeding. The Special Bench further held that the words 'heard and finally disposed of" in Rule 18 of the Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, did not imply any exclusion of a Letters Patent appeal against the judgment of a Single Judge in a proceeding under Article 226 of the Constitution. According to the Special Bench, where the facts justified a party in filing an application under either Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, the court ought to treat the application as being one made under Article 226. The Special Bench overruled the decision in Shankar Nhroba Salunke and others v. Gyanchand Lobbachand Kothari and others except for the conclusion 754 reached in that case that no appeal lies under clause 15 of the Letters Patent against the judgment of a Single Judge of the High Court in a proceeding under Article 227 of the Constitution.

Though the Petition for Special Leave to Appeal in this matter was filed in the end of April 1983 nearly two and a half years after the judgment of the Special Bench was delivered and nearly two years after it was reported, strangely enough what was challenged in the Petition for Special Leave was only the correctness of the judgment of the Full Bench and not that of the Special Bench. None the less, in view of the importance of the question raised by this Appeal, the correctness of the Full Bench decision requires to be examined by this Court.

The judgment of the Full Bench is based upon one major premise and two minor premises - the major premise being that on the commencement of the Constitution the High Courts then in existence became organically different High Courts as they acquired a different origin, nature and character;

the minor premises being (i) that the provision for an intra-court appeal in the Letters Patent dealt with different jurisdictions under the ordinary law only and not with any jurisdiction conferred upon the High Court by the Constitution, and e (ii) that Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, negatived any right of appeal. Each of these premises is, however, vitiated by a fallacy.

As the High Court of Bombay was in existence immediately prior to the commencement of the Constitution, we will first turn to the relevant provisions of the Constitution as originally enacted, pointing out where necessary the subsequent changes made therein.

Clause (14) of Article 366 of the Constitution defines the term "High Court" as follows :

"(14) 'High Court' means any Court which is deemed for the purposes of this Constitution to be a High Court for any State and includes - (a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and 755 (b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution".

Chapter V of Part VI of the Constitution deals with High Courts and is headed "The High Courts in the States".

Article 214 as originally enacted provides as follows :

"214. High Courts for States. - (1) There shall be a High Court for each State.

(2) For the purposes of this Constitution the High Court exercising jurisdiction in relation to any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.

(3) The provisions of this Chapter shall apply to every High Court referred to in this article." Clauses (2) and (3) of this Article were omitted with effect from November 1, 1956, by the Constitution (Seventh Amendment) Act, 1956, in order to implement the scheme of reorganization of States.

Clauses (1) and (2) of Article 1 of the Constitution as originally enacted provided as follows :

"(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule." Clause (2) was substituted by the Constitution (Seventh Amendment) Act, 1956, to read "The States and the territories thereof shall be as specified in the First Schedule." Under the First Schedule to the Constitution, the territory comprised in the Province of Bombay became the territory of the State of Bombay, and by reason of Article 214(2) read with 756 clause (14) of Article 366 of the Constitution the High Court for the Province of Bombay became the High Court for the State of Bombay. Article 215 provides as follows :

"215. High Courts to be courts of record. - Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." Article 225 reads as follows :

"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." The proviso to Article 225 was omitted by the Constitution (Forty-second Amendment) Act, 1976, with effect from February 1, 1977, and was reinserted with effect from June 20, 1979, by the Constitution (Forty-fourth Amendment) Act, 1978.

Clause (1) of Article 226 as originally enacted provided as follows :

757 "226. Power of High Courts to issue certain writs.

(1) Notwithstanding anyching in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdicition, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." This clause was substituted by the Constitution (Forty- second Amendment) Act, 1976. Clause (1) as so substituted was amended by the Constitution (Forty-third Amendment) Act, 1977, and the Constitution (Forty-fourth Amendment) Act, 1978, with the result that clause (1) of Article 226 has now been restored to its original form.

Article 227 as originally enacted provided as follows :

"227. Power of superintendence over all courts by the High Court. - (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may - (a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

758 (3) The High Courts may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." Clause (1) of Article 227 was substituted with effect from February 1, 1977, by the Constitution (Forty-second Amendment) Act, 1976, to read, "Every High Court shall have superintendence over all courts subject to its appellate jurisdiction". The clause was further substituted so as to restore it to its original form by the Constitution (Forty- fourth Amendment) Act, 1978, with effect from June 20, 1979.

It is also relevant to set out the provisions of Article 228. That Article is as follows:

"228. Transfer of certain cases to High Court. - If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case,it shall withdraw the case and may - (a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment." 759 The above Article was amended by the Constitution (Fortysecond Amendment) Act, 1976. It was again amended by the Constitution (Forty-third Amendment) Act, 1977, to restore it to its original form.

Article 230 as originally enacted provided as follows:

'230. Extension of or exclusion from the jurisdiction of High Courts. - Parliament may by law - (a) extend the jurisdiction of a High Court to, or (b) exclude the jurisdiction of a High Court from, any State specified in the First Schedule other than, or any area not within, the State in which the High Court has its principal seat." This Article was substituted by the Constitution (Seventh Amendment) Act, 1956, when the distinction between Parts A, B and C States was done away with, and the Article now confers power upon Parliament to extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union Territory.

Article 372(1) provides as follows :

"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 law 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." The expression "existing law" is defined by clause (10) of Article 366 to mean "any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this 760 Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, by-law, rule or regulation".

Under Article 367(1), unless the context otherwise requires, the General Clauses Act, 1897, subject to any adaptations and modifications that may be made therein by any Presidential order made under Article 372 to bring it in conformity with the provisions of the Constitution, is to apply for the interpretation of the Constitution.

The result of the above Constitutional provisions may be summed up thus :

(1) Under Article 225, the High Courts exercising jurisdiction in relation to the Provinces immediately before the commencement of the Constitution (hereinafter referred to as "the existing High Courts") became the High Courts for the corresponding States and exercised the same jurisdiction and administered the same law as theretofore; and the respective powers of the Judges of such High Courts in relation to the administration of justice in such Courts, including the power to make rules for the Court and regulate the sittings of the Court and of members thereof sitting singly or in Division Courts, remained the same as immediately before the commencement of the Constitution.

(2) The proviso to Article 225 removed the bar to the exercise of original jurisdiction by the existing High Courts in matters concerning the revenue contained in section 226(1) of the Government of India Act, 1935.

(3) Articles 226, 227 and 228 provided for the exercise of certain specific powers by every High Court, whether an existing High Court or a High Court which may come to be established after the commencement of the Constitution as some High Courts in fact were, for example, the High Courts of Andhra Pradesh, Gujarat and Delhi. These specific powers are the power to issue directions, 761 orders and writs under Article 226, the power of superintendence over subordinate courts and tribunals under Article 227, and the power under Article 228 to withdraw to itself from a subordinate court a case involving a substantial question of law as to the interpretation of the Constitution.

By section 8 of the States Reorganisation Act, 1956 (Act 37 of 1956), a new State of Bombay was formed with effect from "the appointed day", namely, November 1, 1956, comprising inter alia certain territories which then formed part of the State of Madhya Pradesh and were by that section transferred from that State to the new State of Bombay.

These territories comprised what is known as the "Vidarbha Region" consisting of the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara and Chanda (later named Chandrapur). It is from this region that the appeals before the Full Bench as also the present Appeal arise.

Section 49(1) of that Act provides as follows :

"49. High Courts for the new States - (1) The High Courts exercising immediately before the appointed day jurisdiction in relation to the existing States of Bombay, Madhya Pradesh and Punjab shall, as from the appointed day, be deemed to be the High Courts for the new States of Bombay, Madhya Pradesh and Punjab, respectively.

Under Section 51(1),