T. S. Misra, J.
1. This appeal is directed against an order passed by the Civil Judge Faizabad appointing a receiver of certain properties situate in Ayodhya, district Faizabad. The appeal was filed in this Court at Allahabad. It was urged before the Division Bench hearing the appeal that the appeal was not maintainable in view of the Supreme Court decision in Civil Appeal No. 1940-41 of 1972 (Nasiruddin v. State Transport Appellate Tribunal) : 1SCR505 inasmuch as the district of Faizabad lies within the jurisdiction of the Lucknow Bench of this Court. The Division Bench, being of the view that the question involved was of considerable importance, desired that the matter be laid before a Full Bench for an authoritative pronouncement on it. That is how the matter has come up before this Full Bench.
2. Notices were accordingly issued to the parties concerned as well as the Presidents of Allahabad High Court Bar Association and Avadh Bar Association, and to the Advocate-General who haveintervened in this appeal and made their submissions.
3. It is a matter of history that the territory comprising of twelve districts i.e., Lucknow, Faizabad, Sultanpur, Rae Bareli, Pratapgarh, Bara Banki, Gonda, Bahraich, Sitapur, Kheri, Hardoi and Unnao were brought under the British Crown within the jurisdiction of the Court of Judicial Commissioner of Avadh at Lucknow, per Government order dated 4th February, 1856. About 69 years later, the U. P. Oudh Courts Act was passed in the year 1925, whereby the Chief Court of Oudh was established replacing the Judicial Commissioner's Court, having a Chief Judge and four puisne Judges. Again, in 1937 by the Government of India, Adaptation of Indian Laws Order, 1937 a provision was made for appointment of Judges under the Government of India Act, 1935 for the Chief Court of Oudh. Two more additional Judges were thus appointed. Similarly a High Court of Judicature was established at Allahabad exercising its jurisdiction in the remaining districts of United Provinces of Agra and Avadh. Subsequently, the United Provinces High Court Amalgamation Order, 1948, for short, 'the Amalgamation Order' was promulgated under Section 229 of the Government of India Act, 1935. The Amalgamation Order came into effect on the appointed day i.e., 26th July, 1948, and it was from this appointed day that the High Court of Judicature at Allahabad and the Oudh Chief Court at Lucknow constituted one High Court by the name 'High Court of Judicature at Allahabad', hereinafter referred to as the 'new High Court'. This new High Court had its seats at Allahabad and Lucknow. The Amalgamation Order required the Chief Justice of the new High Court to direct the areas in Avadh which would be within the jurisdiction of the Lucknow Bench. The Chief Justice of the new High Court passed an order No. 6103 dated 26th July, 1948, in the following terms:
'In exercise of the powers conferred by Article 14 of the United Provinces High Courts (Amalgamation) Order, 1948, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that as from the 26-7-1948 until further order, the Bench of the High Court at Lucknow shall exercise the jurisdiction and power vested under the said Order in the High Court in respect of cases arising in the whole of Avadh.'
Again, on 14th December, 1948, the Chief Justice passed another order reading as follows :--
'In exercise of the powers conferred by Article 14 of the United Provinces' High Courts (Amalgamation) Order, 1948 and in partial modification of the Court's notification No. 6103 dated July 26, 1948, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that with effect from January 3, 1949, the Bench of the High Court at Lucknow shall not exercise jurisdiction and power in respect of cases arising within the local limits of the jurisdiction of the District and Sessions Judge Faizabad.
Provided that nothing herein contained shall affect the jurisdiction and powers of the Lucknow Bench in respect of proceedings already pending before that Bench prior to the coming into force of the above orders.'
Various other orders were passed from time to time by the Chief Justice pertaining to the class of cases to be or not to be filed and heard by the Lucknow Bench.
4. On behalf of the President, Allahabad High Court Bar Association it was urged that both the orders of 26th July, 1948 and 14th December, 1948, as well as all subsequent orders passed by the Chief Justice under para. 14 of the Amalgamation Order with regard to the jurisdiction of Lucknow Bench were void inasmuch as the said orders were passed under misconception of the scope of his powers under the said para. 14 of the Amalgamation Order, and that the impugned orders were passed without taking into account the relevant considerations and excluding the irrelevant considerations. The argument, in substance was that para. 14 required the making of an order in the positive form. The order dated 26th July, 1948, being of an interim character was not a final order and as it was passed by the Chief Justice under a misconception of the scope of his power the same was void. Further, it was submitted that there was no application of mind by the Chief Justice when he passed the said order dated 26th July, 1948.
5. The submission on behalf of the appellant was that in view of the order dated 14th December 1948, passed by the Chief Justice in exercise of the power conferred by para. 14 of the Amalgamation Order the Bench of the newHigh Court sitting at Lucknow has no jurisdiction and power in respect of cases arising within the local limits of the jurisdiction of District and Sessions Judge, Faizabad. The Chief Justice had not passed a final order on 26th July, 1948, as was evident from the expression 'until further orders' used therein. The judgment of the Supreme Court in Nasirud-din's case : 1SCR505 would not come in the way of the appellant inasmuch as it could have only prospective and not retrospective effect. In other words, the law declared by the Supreme Court in Nasiruddin's case had the effect of prospective overruling or prospective operation.
6. The Avadh Bar Association joined issue with the appellant and the Allahabad High Court Bar Association both with regard to the validity of the orders dated 26th July, 1948 and 14th December, 1948 and the relevant subsequent orders and their effect as also the effect of the Supreme Court judgment in Nasiruddin's case : 1SCR505 . Their submission, in brief, was that the order dated 26th July, 1948, was a valid order and the subsequent orders passed by the Chief Justice under para. 14 pertaining to the exercise of jurisdiction by the Lucknow Bench over the areas of Avadh and the types of cases were invalid. It was urged that the order dated 26th July, 1948, was passed by the Chief Justice in exercise of the powers conferred under para. 14 of the Amalgamation Order, and in view of the Supreme Court decision in Nasiruddin's case the Chief justice had no jurisdiction to pass any further order excluding any area of Avadh or any types of cases arising in Avadh from the jurisdiction of the Bench of the new High Court sitting at Lucknow. The decision of the Supreme Court in Nasiruddin's case is quite clear. The doctrine of prospective overruling was not attracted, nor did the question of prospective operation of law arise. Further, it was urged that there was nothing from which it could be inferred that the Chief Justice had not applied his mind while making the order dated 26th July, 1948, or that the Chief Justice had any misconception of the scope of his power when he passed the said order of 26th July, 1948 and that the words 'until further orders' did not whittle down the effect of that order in any manner whatsoever. At any rate, the said words were mere surplusage and could be ignored.
7. In the context of the contentions raised before us it would at the outset, be appropriate to examine the scheme of the Amalgamation Order. The United Provinces High Court (Amalgamation)' Order, 1948, was passed with a view to amalgamate the High Court in Allahabad and the Oudh Chief Court in Lucknow. Under para. 3 of the said order the High Court in Allahabad and the Chief Court in Oudh were amalgamated with effect from July 26, 1948, and a new High Court by the name of 'the High Court of Judicature at Allahabad' was constituted. Under para. 5 the Chief Justice of the High Court in Allahabad became the Chief Justice of the new High Court. Para. 7 provides that the new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as the law in force immediately before the appointed day (i.e., 26th July, 1948) is exercisable in respect of any part of that Province by either of the existing High Courts. The new High Court shall also have in respect of any area outside the United Provinces all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that area by the High Court at Allahabad.
7-A. Para. 14 of the said order reads as follows :--
'The new High Court, and the Judges and Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint.
Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such judges of the new High Court, not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:
Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad.'
8. Para. 14 thus requires that as many Judges of the new High Court, but not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Avadh as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court. The Chief Justice also has the discretion to order that certain cases or class of cases arising in the said areas shall be heard at Allahabad. The Chief Justice had thus to determine the areas in Avadh for the purpose of exercise of jurisdiction and power of the new High Court by the Judges sitting at Lucknow in respect of cases arising in such areas in Avadh.
9. The provisions of para 14 came to be considered by the Supreme Court in the case of Nasiruddin's case : 1SCR505 (supra). In para 28 of its judgment the Supreme Court observed :--
'The Order describes the High Court as the new High Court. The two High Courts have amalgamated in the new High Court. The seat is at Allahabad or at such other places as may be deter-mined. There is no permanence attached to Allahabad. If that were the intention of the Order, the word 'and' instead of the word 'or' would have been used. Other places may be determined by the Chief Justice in consultation with the Governor. It is left to prudence of the authorities mentioned as to what other places should be determined. In the normal understanding of the matters, it is left to the discretion of the authorities as to whether the seats at Allahabad as well as at Lucknow will be changed. Both places may continue. Both places may be changed. Lucknow is the seat of the Government. Allahabad has also the history that the High Court was there before the Order. Lucknow has been the principal place of Oudh. The Order aimed at giving status to the Oudh Chief Commissioner's Court as that of the High Court. It is difficult to foresee the future whether the authorities will change the location to other places but no idea of permanent seat can be read into the Order. One can only say that it is the wish and hope that both Allahabad and Lucknow will be the two important seats so that history is not wiped out and policy is not changed.' Again in para. 29 it was laid down that:--
'The conclusion of the High Court that the first proviso to paragraph 14 of the Order means that the areas in Oudh may be decreased is not the correct construction. The first proviso deals with nomination by the Chief Justice from time to time of not less than two Judges sitting at Lucknow. ............... The words 'from time to time' suggest not only that Judges may come from Allahabad to Lucknow or vice versa but also that the number may be increased or decreased ' according to exigencies. The only limitation on the number is that it shall not be less than two.'
In paragraph 30 of the judgment it was laid down:--
'The words 'as the Chief Justice may direct' mean that the Chief Justice exercises the power to direct what the areas in Oudh are for exercise of jurisdiction by Judges at Lucknow Bench. Once that power is exercised, it is exhausted. The reason is that the areas once determined should hold good on account of certainty and to dispel problems being created from time to time by increase or decrease of areas.'
Referring once again to para. 14 of the Amalgamation Order the Supreme Court in para. 32 of its judgment observed:--
'Paragraph 14 of the Order deals with the seats of the High Court at Allahabad and Lucknow. It is only the first proviso to Paragraph 14 of the Order which states that unless the Governor of the United Provinces with the concurrence of the Chief Justice otherwise directs, not less than two Judges shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh the jurisdiction and power vested in the new High Court. The first proviso to para. 14 of the order specifies the instrumentality through which the jurisdiction vested in the new High Court will be exercised in respect of cases arising in Oudh. The direction which the Chief Justice has given once with regard to the areas in Oudh remains unaltered.'
Similarly in paragraph 33 of the judgment it was observed:
'The second part of the first proviso to para. 14 of the Order which speaks of cases arising in such areas in Oudh as the Chief Justice may direct do not attract the application of the words 'from time to time'. The second part of the first proviso to paragraph 14 shows that such areas in Oudh as the Chief Justice may direct are areas in respect of which once such direction is given, there is no intention in the Order to exercise such power of direction from time to time.
The Supreme Court, therefore, set aside the conclusion of the High Court that the areas in Avadh could be increased or decreased by the Chief Justice from time to time. The conclusions were then summed up in paragraph 37 and paragraph 38 of the aforesaid Supreme Court judgment as under:
'To sum up, our conclusions are as follows. First, there, is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the Order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word 'heard' confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word 'heard' means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order, be directed to be heard at Allahabad. Fourth, the expression 'cause of action' with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas, then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.
'Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified area of Oudh or part of the cause of action arose at a place outside the specified Oudh areas.'
10. The Supreme Court in Nasiruddin's case : 1SCR505 (supra) has thus held inter alia, that the Chief Justice of the High Court has no power to increase or decrease the areas in Avadh from time to time. The areas in Avadh having been determined once by the Chief Justice, there was no scope for changing the areas. It has clearly laid down that the second part of the first proviso to para 14 of the Amalgamation Order shows that such areas in Avadh as the Chief Justice may direct or areas in respect of which once such direction is given, there is no intention in the Order to exercise such power of direction from time to time.
11. Mr. Jagdish Swarup submitted that the aforesaid proposition of law so declared by the Supreme Court should apply prospectively. On the principle of prospective overruling, Mr. S. C. Khare supplemented the argument by saying that the rule laid down by the Supreme Court in Nasiruddin's case should not govern past transactions but may apply in the future, and in support of his contention he strongly relied upon Linkletter v. Walker, (381 US 618). In order to appreciate the argument of the learned counsel it would be appropriate to examine the content and growth of the principle of 'prospective overruling'.
12. Blackstone in the memorable past had observed in his Commentaries 69 (15th Ed. 1809) that the duty of the Court was 'not to pronounce a new rule but to maintain and expound the old one'. A Judge, according to him, 'did not make the law but only discovered or found the true law. If a subsequent decision overruled the earlier one, the latter decision did not make law but only discovered the correct principle of law. It necessarily implied retroactivity. Thus according to the traditional common law view based upon Blackstonian theory all overruling decisions were operative retrospectively as well as prospectively. The theory thatthe Court is mere discoverer of law rather than maker of law was, however, rejected as a myth by Austin and other jurists, namely, George F. Canfield Robert Hillfreman, J. H. Wigmore and Cardozo who propounded the doctrine of prospective overruling. Blackstone's theory does not any more hold the field.
13. The law-making function of Courts has now been clearly recognized. A Judge not only discovers law but also makes law. Whether the source of law is constitution, statute, document, common law principle or administrative order, its scope and application is sooner or later made an issue before the court in a litigation process. Law is the product of this litigation process. In the days we are passing through there is an awakening that the common man should know, and if necessary, be told through proper agencies, of his legal rights and obligations. Expansive ideas about what Judges ought to do are pouring in. Courts are playing an important and significant role in bringing about the desired change in the society. There is no gainsaying that even the existing judicial mechanism functioning in trial-type adversarious hearings does formulate legal norms in large polycentric disputes. These legal norms have binding force and are laws. Law is the manifestation of the sense of community. Judges translate the needs and desires of society into the language of law. It has a capacity to grow and it must grow. Law which is a resulting product of a litigation process is not found but made. 'The process being legislation it demands the legislator's wisdom'' (see the Nature of Judicial Process by Car-dozo). In his thoughtful words Cardozo said
'the Judge, however, legislates only between the gaps and fills the open spaces in law. The power to declare the law carries with it the power and within limits the duty to make law when none exists. In numerous cases the law is so clear that Judges have no discretion. They have the right to legislate within gaps, but often there are no gaps. The modern philosophy of law seems to maintain that the Courts must keep the legal doctrines up-to-date with the mores by continual restatement and by giving them a continually new content. With new conditions there must be new rules.'
14. The sociological approach to a problem demands a search for social justice. Precedents have a recognised position in the administration of justice, but the rule of adherence to precedents need be in some degree relaxed. This is all the more necessary so as to keep the law in harmony with social environment. A rule of law having grown in a remote past may not be found to serve the present generation. It is, therefore, always possible that a Judge will elect to overrule a controlling rule of former decision and as pointed out by Cardozo'' if Judges have woefully misinterpreted the mores of their day or if the mores of their day are no longer those of ours they ought not to tie, in helpless submission the hands of their successors'. A Judge while interpreting a document or statute, a provision of common law or constitutional law enacts into law a social philosophy in tune with the spirit of the age.
15. In the historic decision in Kesavananda Bharti v State of Kerala : AIR1973SC1461 Justice Mathew observed :--
'The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in the former respect. But that is difference in degree only. From & dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs, and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted to be so. It does not only 'seek' and 'find' the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Both in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply pre-existing substantive law in their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts arelegislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal noms. Lord Reid said:
Their was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy tales seem to have thought that in some Alladdin's Cave there is hidden the Common Law in all its splendour and that on a Judge's appointment there descends on him knowledge of the magic words Open Sesame. But we do not believe in fairy tales any more.'
I do not think any person with a sense of realism believes today as Blackstone did that the law declared by the Courts has a platonic or ideal existence before it is expounded by Judges. John Chipman Gray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver not the one who originally wrote it.
15-A. 'It is somewhat strange that judicial process which involves law-making should be called 'finding the law' some simple hearted people believe that the names we give to things do not matter. But though the rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment'. Nobody doubts today that within the confines of vast spaces, a judge moves with freedom which stamps his action as creative. 'The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.'
Courts have thus a significant voice of creating laws, the basic task of legislators. In the absence of anything in the enactment to show that it is to have retrospective operation, a statute cannot be so construed as to have the effect of altering the law applicable to pending litigations at the time when it was passed (See Garikapati v. Subbiah Choudhary : 1SCR488 . A Judge made law, however, may be retrospective as well as prospective or only prospective in operation and it is now generally recognisedthat the Court has a power to hold that the rule established by an overruling decision will operate in the future only and will not even be operative upon the parties to the overruling case.
16. 'Prospective overruling' is an-example of judicial law-making. Under this device the instant case is decided under the old rule but warning is given that future cases would come under a rule which the Court then announced. It puts a limitation on the application of the principal findings in the case. It connotes that a decision laying down a principle which had held the field is overruled and a new principle is propounded. The technique of prospective overruling germinated in Bingham v. Miller, (1848) 17 Chio 445 and was referred to by Wigmore in his editorial preface to Science of Legal Method (9 Modern Legal Philosophy Series, 1917), In his eloquent speech made before the New York Bar Association Justice Cardozo emphasised the need of the doctrine of prospective overruling and put it succinctly in his decision in Great Northern Rly. Co. v. Sunburst Oil and Ref. Co., (1932) 77 Law Ed 360. Rejecting the plea that the decision of a Court overruling its earlier decision and not giving its rule retroactive operation violated the due process clause of the 14th Amendment Justice Cardozo said:
'This is not a case where a Court -in overruling an earlier decision has come to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing. Even that may often be done though litigants not infrequently have argued to the contrary ............
This is a case where a Court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by the refusal. We think that the Federal Constitutor, has no voice upon the subject. A state in defining the elements of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may be so that the decision of the highest Courts, though later overruled, was law nonetheless for intermediate transactions. ............ On the other hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declaration, in which event, the discredited declaration
'will be viewed as if it had never been and to reconsider declaration as law from the beginning. The choice for any state may be determined by the juristic philosophy of the Judges of her Courts, their considerations of law, its origin and nature.'
17. It was thus ruled in Sunburst case (1932) 77 Law Ed 360 that there was no constitutional objection to a state court's making a choice for itself, in overruling an earlier decision, as to whether the new rule declared by it should operate prospectively only or should apply also to past transactions. The United State Supreme Court affirmed the state court decision overruling an earlier case involving the construction of a state railroad rate-fixing statute, where the state court, in overruling the earlier case refused to make the new rule retrospective and held that the parties to the instant case were controlled by the law as established in the overruled case.
18. The doctrine of prospective overruling came in the forefront soon after the decision in Mapp v. Ohio, (1961) 6 Law Ed 2nd 1081 wherein it was held that the exclusion of evidence seized in violation of the search and seizure provisions of 14th Amendment wag required of the states by the Due Process Clause of the l4th Amendment. Illegally seized evidence was held to be not admissible in a criminal trial in the state courts. Faced with the prospect of retrial of many criminals whose convictions had become final had Mapp been applied retrospectively, it was suggested by several eminent jurists of the day that Mapp should apply prospectively only. Professor Bender in his article. 'The Retroactive Effect of An Overruling Constitutional Decision: Mapp v. Ohio suggested that the purpose of Mapp was not directed to the past but to the future and that 'the imperative of judicial integrity' had been the most compelling reason for applying such essential rules of evidence uniformly in both State and Federal Courts, Prof. Freund in his article 'New Vestas in Constitutional Law'' and Traynor in his paper 'Mapp v. Ohio at Large in Fifty States' also came out with their suggestions pointing out the efficacy of the doctrine of prospective overruling. Prof. Currier, however, was critical of the application of the doctrine of prospective overruling and pointed out five factors as relevant to the decision whether or not to apply a decision retroactively equality, the image of justice, reliance on law as contemporaneously interpreted, stability and efficiency. Of the Administration of Justice, Prof. Mishkin and Prof. H. Shschwartz also dealt with the doctrine in their own way. Ultimately the United States Supreme Court considered the question of applicability of the doctrine of prospective overruling in Linkletter v. Walker, (14 Law Ed 601) when the question of retroactivity of Mapp v. Ohio came before it. Mapp had overruled, J. A. Wolf v. State of Colorado, (95 Law Ed 1782) to the extent that it failed to apply the exclusionary rule to the States. Linkletter was convicted on May 28, 1959 by the District Court. At the time of his arrest he had been under surveillance for two days as a suspect in connection with another burglary. He was taken to the police station, searched, and keys were taken from his person. After he was booked and placed in jail, other officers took his keys, entered and searched his house and seized certain property and papers. Later his place of business was entered and searched and seizures were effected. These intrusions were made without a warrant. The State District Court held that the arresting officers had reasonable cause for the arrest under Louisiana Law and finding probable cause to search as an incident to arrest it held the seizures valid. The Supreme Court of Louisiana affirmed in February, 1960. On June 19, 1961 Mapp was announced. Linkletter then filed a habeas corpus petition in the State Court on the basis of Mapp. The writ being denied in the Louisiana courts, he then filed a like application in the United States District Court. After denial there he appealed and the Court of Appeals affirmed. It found the searches too remote from the arrest and therefore illegal, but held that the constitutional requirement of exclusion of evidence under Mapp was not retrospective. He then approached the United States Supreme Court. Clark, J., expressing the view of seven members of the Court held that the Mapp rule did not operate retrospectively upon cases 'finally' decided prior to the Mapp case. Dealing with the question of prospective overruling it was held that retroactive operation of an overruling decision is neither required nor prohibited by the Constitution; whether and to what extent a new rule adopted in an overruling decision will be given retroactive effect is not a matter of constitutional compulsion but a matter of judicial policy to be determined by the court after weighing the merits and demerits of the particular case,by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation. Further it was observed that the new rule would also be applicable to cases still pending on direct review at the time the overruling decision was rendered but would not be applicable to convictions which had become 'final' before rendition of the overruling decision. The Court explained that by 'final' it meant that the judgment of conviction had been rendered, the availability of appeal had been exhausted and the time for petition for certiorari had elapsed. Although the overruling decision involved the admissibility of evidence obtained through an unreasonable search and seizure, the Court rejected the contention that the operation of the decision should date from the day of the seizure in the overruling case, rather than the date of the judgment of the court. It was said that the date of seizure had no legal significance and that the date of the overruling decision was the crucial date and the better cut off time. The prospective and retroactive techniques were thus combined in Linkletter while it was held that the rule established was to apply to cases where direct appeals were pending when the decision was made.
19. In Warring v. Colpoys. (1941) 86 Law Ed 543) it was pointed out that once a party's rights have been finally determined through litigation, an attempt to reopen a question on the basis of an overruling decision would be contrary to the principles of res judicata, and that if an overruling decision is applied to a case which has previously reached a final judgment 'that means that just about everybody was fooled'. Similarly, it was recognised in Jackson v. Harris, (43 F 2d 513} that an overruling decision should be denied retroactive application where contracts have been entered into or rights or titles acquired on the basis of the overruled decision. Linkletter v. Walkar 14 Law Ed 2nd 601 (supra) was followed in Dan Tahan v. Shett, (15 Law Ed 2nd 453) which denied retroactive effect to the new rule that the privilege against self-incrimination clause of the American Constitution prohibits the prosecution in a State or Federal trial from commenting upon the fact that the accused had not taken the stand to testify at his trial. So, while preserving the important aspect of Link-letter, that is, the 'standard of no likelihood or unreliability' Tehan was an extension of Linkletter. Again, in Sylvester Johnson v. State of New Jersey, ( (1966) 16 Law Ed 2nd 882) it was reitrated that in determining whether to give retrospective or prospective effect to its decisions adopting new rules, a court will look to the purpose of the- particular new rule involved, the reliance placed upon the former rule, and the effect on the administration of justice of a retrospective application of the new rule, and that even if a new judicial rule had already been applied to the parties before the Court in which the new rule was announced, such application did not foreclose the possibility of applying the decision only prospectively with respect to the other parties. The constitutional principles announced in Escobedo v. Illinois, ((1964) 12 Law Ed 2nd 977) holding inadmissible under the Sixth and Fourteenth Amendments evidence of pre-trial statements of a state criminal defendant were held not to apply retrospectively to cases still on direct appeal when the Escobedo case was decided, but to apply only to trials begun after the date on which the Escobedo decision was announced. A stricter test was thus applied in Johnson v. New Jersey, ((1966) 16 Law Ed 2nd 882) that the new rule would not apply retrospectively to cases which were pending on appeal when the overruling case was decided, but would apply only to trials begun after the date on which the decision in the overruling decision was announced. It thus goes beyond Linkletter in denying application of the new rule not only to cases which had become 'final' prior to the new ruling but also to the cases the trial proceedings of which had been begun beforehand.
20. In England, Lord Simon in Jones v. Secy. of States, (1972 AC 944) commended the technique of prospective overruling in his after-thought note added to his judgment, though he preferred to leave the question and extent of its interpretation to Parliament. The House of Lords in Hedley Byrne v. Heller, (1964 AC 465) indulged in what amounted to prospective overruling inasmuch as while they should have limited themselves to the exclusion of liability clause in the dependent's statement they 'chose instead to enunciate ...... a future principle of responsibility.'
21. Mr. M. D. A. Freeman while dealing with the doctrine of prospective overruling in his article 'Standards of Adjudication, Judicial Law Making and Prospective Overruling' published in Current Legal Problems, 1973 Vol. 26, p. 166 concluded that 'prospective overruling does not and, in spite of superficial attractions, it is a technique which does not commend itself.'
22. C. K. Alien in 'Law in the Making' has observed that the 'function of the Judge is to interpret, not to legislate; but in the process of interpretation he inevitably affects the development of the law. He 'makes' law only in a secondary or derivative sense; but the formative effect of his interpretation on all the most essential principles of law is of the highest and most lasting importance'. He further proceeds to observe: 'The handicap of case-law is its rigidity and the 'time-lag' from which it suffers in relation to changing social conditions. Although the Common Law is constantly, but in many cases very slowly, passing through transformations, its inherent rigidity is inconsistent with the claim of flexibility. ............ There is, however, at the present time, a marked disposition to mitigate, by various devices, the severity of precedent which it tends merely to perpetuate error, and the whole system seems to be passing through a critical phase in its long history.'
23. A noticeable feature of English case law, however, is that it does not lack judicial inventiveness in the fashioning and timing of relief to those who come to Courts for redress.
24. In our country, the doctrine
of prospective overruling was introduced for the first time in Golak Nath v. State of Punjab : 2SCR762 though its germination could be noticed in Bengal Immunity Co. v. State of Bihar : 2SCR603 where it was laid down that the Supreme Court had the power to overrule its earlier decisions. The earlier judgment in State of Bombay v. United Motors (India) Ltd. : 4SCR1069 was overruled. A plea was raised before the Court that there would be many transactions upset by the Court's overruling United Motors but this was not found to be sufficient reason for not overruling that case.
25. In Golak Nath's case : 2SCR762 Subba Rao, J., speaking for the majority observed:
'As this Court for the first time had been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move varily in the beginning. We would lay down the following propositions (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its 'earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.'
26. Golak Nath's case has, however, been overruled in Kesavananda Bharti v. State of Kerala : AIR1973SC1461 (supra)
27. Inasmuch as it has a far reaching effect, the doctrine of prospective overruling is to be applied cautiously in our country in the background of Indian jurisprudence. It applies not only in cases in which earlier decisions have been overruled but it would apply also to a situation where the Court has upset a previous generally held point of law. As pointed out by Prof. Bender the decision whether or not to rule retroactive should generally be made in the same judgment which determines that a change in the point of law is called for. The Court may declare law prospectively on the ground that the ends of justice would be met in doing so. Further, the Supreme Court alone may apply this doctrine inasmuch as it alone has the final say and the law declared by it has the binding force throughout the country.
28. In view of the above discussion there is no escape from the conclusion that the doctrine of prospective overruling or prospective operation of new rule adopted by courts in overruling precedent does not apply to the case in hand. No precedent was overruled by the Supreme Court and no new rule was evolved instead in Nasiruddin's case : 1SCR505 (supra). The Chief Justice of the new High Court had not passed the impugned orders on the faith of any then existing rule or generally held principle of law which would have been said to have been later overruled by the Supreme Court in Nasiruddin. The Supreme Court in Nasiruddin did not supersede any of its earlier decisions, nor did it say that the law enunciated by it in that case would apply only prospectively. The Supreme Court merely interpreted the various provisions of para. 14 of the Amalgamation Order and in doing so it pointed out the scope of the power of the Chief Justice of the new High Court by holding that the direction which the Chief Justice has given once with regard to the areas in Avadh remains unaltered. In other words, the 'intention of the Amalgamation Order' was made clear by pointing out that the exercise of the power by the Chief Justice could be made only once and that the Chief Justice has no power to increase or decrease the areas in Avadh from time to time. There was thus no case of overruling an earlier decision and evolving a new rule of law; hence there could be no question of prospective application of the law declared by the Supreme Court in Nasiruddin. The impugned order of 26th July, 1948, was not passed on the basis of any established rule of law which could be said to be inconsistent with the rule enunciated in Nasiruddin. The contention of Mr. Jagdish' Swarup on this score cannot, therefore be accepted.
29. Assuming that Nasiruddin's case : 1SCR505 fills in a gap in law in the Amalgamation Order by laying down that the Chief Justice of the new High Court had the power to determine the jurisdictional area of the Luck-now Bench of this High Court only once and having so determined it once, he had no power to increase or decrease that area, could it be said that the law so declared should operate prospectively only and that the Chief Justice can now pass an order in that behalf under para. 14 of the Amalgamation Order after the date of the decision in Nasiruddin's case and after making it he shall cease to have power and authority to make another order And, could it also be said that even if the. Chief Justice had passed any order, which in fact he had, prior to the date of the decision in Nasiruddin's case, all those earlier orders should not be construed in the light of the law declared by the Supreme Court in Nasiruddin In my view, these questions must be replied in the negative. The scope of power of the Chief Justice under para. 14 of the Amalgamation Order was made plain in Nasiruddin. If the Chief Justice of the new High Court had ever passed an order under para. 14 with regard to the territorial jurisdiction of the Lucknow Bench whether before or after Nasiruddin's case the first order in point of time shall prevail and that first order was not liable to be modified by increasing or decreasing the 'area'. The contention of Mr. S. C. Khare that the law declared by the Supreme Court in Nasiruddin shouldnot govern the past transactions, namely the past order or orders made under para. 14 of the Amalgamation Order is, therefore, untenable and cannot be accepted.
30. Further, there, is nothing on record from which it could be inferred that the Chief Justice had not applied his mind while making his order dated 26th July, 1948, or that he had acted in haste. The subsequent orders do not indicate that the first order of 26th July, 1948 was passed without application of mind.
31. The contention that relevant considerations were not taken into account while making the order dated 26th July, 1948, and subsequent orders is equally devoid of merits. It was submitted by Mr. Khare that the relevant considerations were to be ascertained from the policy of paras. 7 and 14 of the Amalgamation Order and that the relevant consideration was the abolition of Lucknow Bench. This contention, in my view, is meritless and stands concluded by the decision of the Supreme Court in Nasiruddin's case : 1SCR505 (supra).
32. The question which, however, still falls for determination is whether the Chief Justice of the new High Court had ever given direction as to what the areas in Avadh are for exercise of jurisdiction and power by Judges sitting at Lucknow Bench in respect of cases arising in such areas.
33. It was argued on behalf of the Allahabad High Court Bar Association that the areas in Avadh have not been finally determined by the Chief Justice, that the Order dated 26th July, 1948 and all other subsequent orders relating to the determination of the areas in Avadh were interim orders of provisional or tentative nature as was evident from the expression 'until further orders' used in the said orders, that the Chief Justice may now finally determine the areas in Avadh 'as required by para. 14 of the Amalgamation Order and, once he does so the same would not be liable to be changed. The contention on behalf of the respondent as also the Avadh Bar Association was that the Chief Justice had already determined the areas in Avadh per his order dated 26th July, 1948 and having so determined it once, the Chief Justice hag no power to increase or decrease the areas in Avadh from time to time for the purposes of para. 14 of the Amalgamation Order and that the expression'until further orders' was mere surplusage and liable to be ignored. It is in this context that we have to see as to whether the Chief Justice of the new High Court has ever exercised his power to determine the areas in Avadh for exercise of jurisdiction by the Judges sitting at Lucknow Bench. If that power has once been exercised it has exhausted. The first order passed in this connection by the Chief Justice of the new High Court is admittedly Order No. 6102 dated 26th July, 1948. It has already been quoted in extenso hereinabove. This order speaks that it has been passed in exercise of the power conferred on the Chief Justice under Clause 14 of the Amalgamation Order. The direction given by the Chief Justice determining the areas in Avadh for the exercise of jurisdiction by Judges at Lucknow Bench is no doubt prefaced by the words 'until further orders'. What is the meaning to be attached to the expression 'until further order' The word 'until' bears relation to time. It must, therefore, mean that it shall be operative till such time as another order is not passed.
34. When the original order is made 'until further orders' it means that the original order shall extend till further order in that behalf if not passed. The introduction of these words in the original order implies that the order may be reviewed at a later date. But so long as the review is not made the original order remains in operation. But the review can be made only when there is power to do so. If there is no such power it cannot be reviewed. The authority may use the expression 'until further orders' in the original order believing that he has the power to review whereas he has none. This bona fide belief in the power of review will, however, not make the original order void if it is otherwise within the scope of his power. The review being beyond the power would make the subsequent order invalid having been passed in excess of power but the original order would remain unaffected. The Amalgamation Order speaks as a whole on the determination of the jurisdictional area of the Bench of the new High Court sitting at Lucknow. The determination of that area was left to be made by the Chief Justice. He had to do that under para. 14. The area of operation was oriented on history. The erstwhile Oudh Chief Court at Lucknow exercised its jurisdiction over the twelve districts of Avadh. For the exercise of jurisdictionby the Lucknow Bench of the new High Court the territorial area was to be carved out of those twelve districts. He had the power and authority to allocate all those twelve districts or some of them only to the Lucknow Bench. But this power he could exercise only once. Having exercised that power he ceased to have any power to modify, amend or rescind the order. The fusion of the Chief Court and the Allahabad High Court brought about the Amalgamation Order, resulted in a new High Court having its two seats one at Allahabad and the other at Lucknow. The new High Court has jurisdiction over the entire geographical area of Uttar Pradesh. The two Benches of the High Court have and should have a defined jurisdictional field of operation. A minimum of two Judges of the High Court are required to sit at Lucknow. Other Judges nominated by the Chief Justice shall also sit at Lucknow. The Chief Justice had to specify the territorial area over which the Lucknow Bench had to exercise jurisdiction. The paramount purpose of para. 14 was to regulate the territorial jurisdiction of the two Benches and to assign cases or class of cases to be entertained and/or decided by each of them. The Chief Justice was conscious of his power which para. 14 conferred on him. It seems from the expression 'until further orders' used in his order of 26th July, 1948 and subsequent orders that he could, whenever he deemed fit, modify or amend his order and make another order. By conditioning the order by the words 'until further orders' he meant to say that so long as he did not pass another order the original order dated 26th July, 1948, would remain operative. Whether the other order could or could not be passed depended on the law relevant thereto. If the law did not permit the passing of a subsequent order, the other order could not be passed and if despite legal bar an order was subsequently passed, it would be void and of no consequence. The Chief Justice was aware that he had a power and duty to perform under para. 14 and he did exercise that power and perform his duty by defining the territorial jurisdiction of Lucknow Bench. But it appears that he also thought that he had the power to modify or amend his order by redefining the territorial jurisdiction of that Bench. The Chief Justice had no such power. He had the authority under para. 14 to specify the jurisdictional area of the Lucknow Bench only once. Whether he did so by making an order couched in a language which gave it the character of an interim order by fixing its 'tenure' to last until further orders or he made an unconditional order, his authority exhausted as soon as he made the order. He could not thereafter make another order in that behalf. He had to exercise his authority only once and it was immaterial whether he did so by making an interim order or a final order. In the circumstances, the Order dated 26th July, 1948, being the first order, was the only effective order and the order dated 14th December, 1948 and other subsequent orders decreasing the 'area' were illegal and void, having been made without the requisite power.
35. Assuming that by using the words 'until further orders' the Chief Justice meant that he was passing one order on that date and that he would pass another order at a later stage, will the original order dated 26th July, 1948, be vitiated on that ground? The argument of Mr. S. C. Khare was that as the order was passed by the Chief Justice on the misapprehension of the scope of his power, it was void. But, what was the scope of the power of the Chief Justice under para. 14 and what was the misapprehension, and what is the effect of misapprehension on the original order and on subsequent orders The power was to define the territorial jurisdiction of Luck-now Bench. The power was to be exer-cisd only once. The Chief Justice thought that he could modify his original order and even subsequent orders whenever he deemed it fit and proper. So he misapprehended his power to modify or amend, a power which the Amalgamation Order did not confer on him. This misapprehension could have the effect of vitiating the subsequent orders but not the original order which was passed within the scope of power and authority. If the Chief Justice passed an order under the belief that he might amend, or modify it subsequently by another order which power he did not have, that belief would not render the original order void. He had the power to allocate an area to Lucknow Bench. In exercise of that power he allocated the whole of Avadh by his order dated 26th July, 1948. The order being within his competence was legal and valid. If he at the same time believed that he could on reconsideration or review, modify that order that assumption would not make the original order invalid, if an authority under a wrongnotion that he had power of modification or amendment or rescision passes an order which is within the ambit and scope of his power, that order would not be void. On the contrary, the subsequent order passed bona fide but in excess of power would be void. The Chief Justice had the power to define only once the teritorial area of operation of the Luck-now Bench and had no power to determine it from time to time. If he thought that he had the power to go on passing the orders with regard to it and did pass orders accordingly, that would render the subsequent orders invalid inasmuch as he did not possess such power, but that misapprehension of the scope of his power to modify or amend, it would not render the original order void inasmuch as it was within the scope of his power and not beyond it.
36. A misapprehension of power would mean that the authority wielding that power either believed that it had no power which in fact he had or that he believed to have a certain power which in fact he did not have. Misapprehension of the scope of power indicates that the authority concerned did not have the correct idea of the ambit and limits of his power. But where the authority makes an order, which is well within the ambit of his statutory power but conditions it with regard to the time during which the order will remain operative and effective by fixing a particular date or 'until further orders' it would not be an action taken under the misapprehension of the scope of power. It may be that the statute may not have empowered him to fix a time limit during which the order was to remain operative but that would not render the whole order invalid.
37. In the instant case the Chief Justice had the requisite power to determine the territorial jurisdiction of the Bench sitting at Lucknow vide para. 14 of the Amalgamation Order. In exercise of that power he passed an order on 26th July, 1948. That order in so far as it specified the whole area of Avadh for the exercise of jurisdiction by the Judges of this Court sitting at Lucknow was perfectly valid and in accordance with law. The ambit of his power would have been exceeded had he included any area of the erstwhile Province of Agra within the territorial jurisdiction of the Lucknow Bench, but if he made the order with regard to the area of Avadh he did not gobeyond the limits of his power. The Chief Justice had, however, said in the aforesaid order that it shall remain operative 'until further orders'. But he had no jurisdiction to make any further order in that behalf. Hence, even if any further order was contemplated to be made or in fact made, it would have no nullifying effect on the original order. If a condition with regard to the duration of the order is imposed under a mistaken view that he had such power or in ignorance of the fact that he had no such power, that portion of the order imposing that condition would be liable to be ignored having no legal validity. The order dated 26th July, 1948, is, therefore, valid and operative. All subsequent orders modifying the first order dated 26th July, 1948, were obviously passed without jurisdiction, hence were bad and invalid.
38. It was also urged that under para. 14 of the Amalgamation Order the Chief Justice could not direct that the Judges sitting at Lucknow shall exercise their jurisdiction in cases arising in the 'whole area of Avadh'. The argument was that the expresson 'cases arising in such areas in Oudh as the Chief Justice may direct' connotes that the area which could be directed to be allocated to Lucknow Bench would not be the whole of Avadh but less than the whole and that the Chief Justice should have specified the districts or the area. I find myself unable to accept this interpretation of para. 14 of the Amalgation Order. The Chief Justice could direct that all the twelve Districts comprising 'the whole of Avadh' or a few of those districts would constitute the territorial jurisdiction of the Lucknow Bench of this Court. The Chief Justice Chose to direct that the Judges sitting at Lucknow shall exercise their jurisdiction over cases arising in the 'whole of Avadh'. The term 'whole of Avadh' obviously meant all the twelve districts which comprised Avadh. The Chief Justice instead of naming separately all the said twelve districts chose to say 'whole of Avadh.' It would be incorrect to say that he had not specified the area. That part of the order dated 26th July, 1948 does not suffer from the vice of vagueness or indefiniteness and is perfectly legal. Only the duration of that order was made indefinite by using the words 'until further orders' but that indefiniteness in the tenure of the order would not, as pointed out hereinabove, render it invalid.
39. For the discussion in the foregoing, I am of the view that the Bench of the High Court at Lucknow and not the Bench at Allahabad has jurisdiction and power in respect of cases arising in the whole of erstwhile Oudh, which comprised of the twelve districts, including the district of Faizabad, referred to hereinabove. The present appeal was, however, filed in this Court before the Bench sitting at Allahabad. The appellants did approach this Court but presented their appeal before a wrong Bench of the Court. The defect can, however, be cured. In my opinion, the ends of justice would be met if the appeal is sent to the Bench of this Court sitting at Lucknow to have it registered there and deal with it further in accordance with law.
40. Let the appeal be now listed before the Bench concerned with this opinion for further orders according to law.
R.B. Misra, J.
I also agree and have nothing more to add.
H.N. Seth, J.
S.B. Malik, J.
I concur and have nothing to add.