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Bhuwal Vs. Deputy Director of Consolidation, Pratapgarh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 234 of 1976
Judge
Reported inAIR1977All488
ActsUttar Pradesh High Courts (Amalgamation) Order, 1948; Constitution of India - Articles 214, 226, 227, 228, 230 and 231
AppellantBhuwal
RespondentDeputy Director of Consolidation, Pratapgarh and anr.
Appellant AdvocateBrij Bhushan Paul, Adv.
Respondent AdvocateS.C.
Excerpt:
.....to deal with the questions referred to this bench in the order in which they have been posed, we would like to mention that a full bench of this court in nirmal dass khaturia v. lucknow (air 1972 all 200 (fb)) the nature and extent of the jurisdiction enjoyed by a court and the manner in which that jurisdiction will be exercised are two distinct matters. it is a jurisdiction enjoyed by every judge of the high court and extends to all cases throughout the territories of the state. state transport (appellate) tribunal (air 1972 all 200) (pb) (supra), that it is open to the chief justice to reduce the areas under the lucknow bench from time to time was disapproved by the supreme court in nasiruddin v. therefore, it is said the judges at lucknow enjoy no greater power than they did..........the constitution after its enforcement on 26-1-1950? 2. whether the jurisdiction and power of the allahabad high court, conferred on the judges sitting at lucknow under clause 14 of the u. p. high courts (amalgamation) order, 1948, include the jurisdiction and power under article 226 of the constitution ?since the constitutionality of an order issued by the governor general was in question, notice was issued to the learned attorney general of india. notices were also issued to the allahabad high court bar association and to the oudh bar association which are vitally interested in the questions referred to this bench.2. we have heard learned counsel for the parties as well as the counsel who represented the two bar associations. before proceeding to deal with the questions referred to.....
Judgment:

Yashoda Nandan, J.

1. The following two questions have been referred to this Bench for its opinion :

1. Whether the first proviso to Clause 14 of the U, P. High Courts (Amalgamation) Order, 1948, is in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts (namely, Articles 214, 230, 231) and the Scheme contemplated therein, and is saved by Article 226 or Article 372 or any other Article of the Constitution after its enforcement on 26-1-1950?

2. Whether the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Article 226 of the Constitution ?

Since the constitutionality of an Order issued by the Governor General was in question, notice was issued to the learned Attorney General of India. Notices were also issued to the Allahabad High Court Bar Association and to the Oudh Bar Association which are vitally interested in the questions referred to this Bench.

2. We have heard learned counsel for the parties as well as the counsel who represented the two Bar Associations. Before proceeding to deal with the questions referred to this Bench in the order in which they have been posed, we would like to mention that a Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal U. P. Lucknow (AIR 1972 All 200 (FB)), referred to the various provisions of the United Provinces High Courts (Amalgamation) Order 1948 as 'clauses' but the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331), preferred to describe them as 'paragraphs'. We shall also consequently refer to the various provisions of the aforesaid Order as 'paragraphs.'

3. As far as the first question is concerned, Sri S. P. Gupta counsel for the petitioner, submitted that the first proviso to paragraph 14 of the United Provinces High Courts (Amalgamation) Order, 1948 hereinafter referred to as the Order, is consistent (sic) (inconsistent?) with Articles 214, 226, 227 and 228 of the Constitution and also the general scheme of the constitution of the High Courts under the Constitution. It was contended that Article 214 of the Constitution provides for the existence of a single High Court in each State and there cannot be two separate judiciaries in the same State. It was urged that the test of singularity of a High Court, as contemplated by the Constitution, in a State should be its Capacity to judicially function throughout its territory from the place where it is erected. The singularity of the Chief Justice or common set of Judges or a common seal should not be the correct test to find out the constitutionally contemplated singularity. It was submitted that according to the decision of the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) on a correct interpretation of the first proviso to paragraph 14 of the Order, the Judges at Lucknow have exclusive jurisdiction in respect of cases arising in the areas in Oudh and the Judges and Division Benches sitting at Allahabad High Court have no jurisdiction to entertain cases in respect of the areas of Oudh. This, it was contended, in substance amounted to the existence of two separate judiciaries in the same State and ran counter to Articles 214, 226, 227 and 228 of the Constitution. The contention was hotly disputed by Sri H. N. Tilhari who appeared before us on behalf of the Oudh Bar Association.

4. Having heard learned counsel for the parties and examining the decisions cited before us, we are of the opinion that there is no force in the contentions advanced by Sri S. P. Gupta.

5. As a result of paragraph 3 of the Order, as from the 26th July, 1948, the then High Court at Allahabad and the erstwhile Chief Court in Oudh stood amalgamated and a new High Court was constituted by the name of the High Court of Judicature at Allahabad. By reason of paragraph 4, the permanent Judges of the two erstwhile Courts and their additional Judges became permanent or additional Judges of the new High Court. In stead of there continuing to remain two Chief Justices, the erstwhile Chief Justice of Allahabad High Court became the Chief Justice of the new High Court. Paragraph 7 (1) provides that:

'The new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts.'

The submission made by Sri Gupta loses sight of a clear distinction that exists between the High Court as such and the Judges who constitute it. As held by the majority of the Judges constituting the Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal, U. P. Lucknow (AIR 1972 All 200 (FB)) the nature and extent of the jurisdiction enjoyed by a court and the manner in which that jurisdiction will be exercised are two distinct matters. How and where the jurisdiction will be exercised by the Judges are matters governed by the practice and procedure prescribed by law and the place of sitting appointed for them. In our opinion while paragraph 7 of the Order defines the jurisdiction of the new High Court, paragraph 14 is concerned with the manner in which that jurisdiction is to be exercised. It was not disputed before us that it is open to the Chief Justice under the Rules of the Court to allocate different classes of cases to individual Judges or Division Benches of this Court Thus the Chief Justice has the power to order that individual Judges or Division Benches of this Court will entertain cases arising outof separate districts of the State. In the event of such an order being passed, it cannot be contended that in substance the High Court had been split up merely because by reason of an order of the Chief Justice other Judges of the Court do not have jurisdiction to entertain and decide cases arising out of a district allocated to a particular Judge or Division Bench. The first proviso to paragaph 14, in our opinion, amounts to no more than a statutory allocation of cases arising out of certain district to the Judges of this Court sitting at Lucknow and is in no fashion, in conflict with Articles 214, 226, 227 or 228 or any other provisions of the Constitution.

6. While considering this question it must be borne in mind that it has been held by the majority Judges constituting the Full Bench in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (AIR 1972 All 200 (FB)) (supra) that if a case arising out of the specified areas in Oudh is inadvertently presented at Allahabad the Judges at Allahabad cannot summarily dismiss it only for that reason and the case should be returned for filing before the Judges at Lucknow, and where the case has been mistakenly entertained at Allahabad a direction should be made to the High Court office to transmit the papers of the case to Lucknow. This view was not dissented from by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) (supra). If the contention is accepted that the first proviso to paragraph 14 of the Order results in bringing into existence two separate High Courts in the same State, the answer of the majority of Judges constituting the Full Bench in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (supra) to question No. 2 before that Bench could not have been upheld by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (supra).

7. The view expressed by us above is in consonance with that expressed by the majority of the Judges in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (AIR 1972 All 200 (FB)). In that decision the first proviso to paragraph 14 has been described 'as amounting in substance to a statutory allocation of the category of cases mentioned therein to the Judges at Lucknow'. Mootham, C. J. and A. P. Srivastava, J. in the Union of India v. Chheda Lal Ramautar (AIR 1958 AH 652) (FB), held that in respect of cases arising in the specified Oudh areas not only the Judges at Lucknow but also the Judges at Allahabad could exercise jurisdiction. Their conclusion proceeded on the assumption that a contrary construction of the first proviso to paragraph 14 would result in splitting up the High Court into two Courts and that was a result wholly opposed to the very object of the Order and to Article 214 of the Constitution providing for a single High Court in the State, pathak, J. (as he then was) delivering the majority judgment for himself, G. C. Mathur, Satish Chandra and G. S. L. Srivastava, JJ. held that, this assumption was legally unjustified. It was observed that (at pp 207, 208 of AIR):

'Now, with profound respect to Mootham, C. J. and A. P. Srivastava, J. we are unable to subscribe to the view that if cases arising in the Oudh areas are to be heard at Lucknow alone it would in effect result in splitting up the High Court into two Courts. From the provisions of the Amalgamation Order already set out, it is clear that there is only one High Court, with one seal, one Chief Justice and a single body of judges, and a single code of rules and orders relating to practice and procedure which except for a few transitional provisions operates in respect of the entire Court. The jurisdiction defined by Article 7 vests in the entire body of judges. It is a jurisdiction enjoyed by every judge of the High Court and extends to all cases throughout the territories of the State. Where that jurisdiction will be exercised is a matter determined under Article 14. It may be exercised at Allahabad or it may be exercised at Lucknow or at any other place appointed by the Chief Justice under Article 14. But wherever exercised it is exercised by a judge, who equally with all the other judges represents the High Court,

The judges at Lucknow are part of the same High Court as those at Allahabad. Whether the judge sits at Allahabad or at Lucknow, he remains a Judge of the same High Court. A judge sitting at Lucknow may sit at Allahabad and vice versa. It is only the work entrusted to him at the two places which will differ. A judge of the High Court at Lucknow will hear cases arising in the specified areas of Oudh except cases transferred to Allahabad, while a judge at Allahabad will exercise jurisdiction in respect of all remaining cases. The writ of the High Court runs throughout the territories of the State, and the law laid down whether by the Judges at Lucknow or the Judges at Allahabad is binding on all throughout the State, the Judges and the lay public alike.....

The submission that two High Courts are created in the State cannot be sustained also when regard is had to the instability inherent in the arrangement provided by the first proviso to Article 14.....'

Though the view taken by the majority Judges in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (AIR 1972 All 200) (PB) (supra), that it is open to the Chief Justice to reduce the areas under the Lucknow Bench from time to time was disapproved by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) (supra) its decision to the effect that the first proviso to paragraph 14 did not result in splitting up the High Court into two Courts was not dissented from. We are in complete agreement with the majority view in Nirmal Dass Khaturia v. State Transport Appellate Tribunal (supra) with regard to this aspect of the interpretation of the first proviso to paragraph 14 of the Order,

8. The Second question referred to us was specifically considered by the Full Bench in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (AIR 1972 All 200) (FB) and was dealt with as follows (at pp 209, 210 of AIR) :

'A contention has been raised that the judges sitting at Lucknow are not competent to exercise the jurisdiction conferred by Article 226 of the Constitution. It is urged that when the first proviso to Article 14 declares that the judges at Luc-know shall exercise 'the jurisdiction and power for the time being vested in the new High Court' those judges are limited to the jurisdiction and power residing In the new High Court on the date of the Amalgamation Order. The expression 'far the time being', it is contended, refers to that point of time and is confined to it. It is urged that Article 225 of the Constitution confines the judges to the powers exercised by them before the Constitution came into force. Therefore, it is said the Judges at Lucknow enjoy no greater power than they did when they first sat under the Amalgamation Order. The contention, in our opinion, 'ignores important and fundamental consideration..........

The first proviso to Article 14 employs the expression 'for the time being' and it appears to us that what is intended is 'from time to time'. In other words, when a question arises as to the jurisdiction and power of the High Court at any point of time, the range of jurisdiction and power at that point of time must be considered, whether it may have expanded or contracted since the framing of the Amalgamation Order. It is now well accepted that the language of a statute is generally extended to new things, which were not known and could have been contemplated when the Act was passed, when the Act deals with a genus and the things which afterwards come into existence is a species of it (Maxwell on the Interpretation of Statutes: 12th Edn. p. 102). We are, therefore, of definite opinion that the judges at Lucknow are competent to exercise jurisdiction under Article 226 of the Constitution. For the reasons given above, our answers to the two questions referred are as follows ;

1. The first proviso to para. 14 of the U. P. High Courts (Amalgamation) Order,! 1948, is not in conflict with any provision of the Constitution and was not rendered invalid on that account on the coming into force of the Constitution.

2. The jurisdiction and power of the Allahabad High Court conferred on the Judges sitting at Lucknow under paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Article 226 of the Constitution.

B.B. Misra, J.

9. I agree.

H.N. Seth, J.

10. I agree.

S. Malik, J.

11. I agree.

T.S. Misra, J.

12. I agree.


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