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Balkishandas Vs. Har Narayan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 107 of 1979
Judge
Reported inAIR1980MP43a
ActsMadhya Pradesh High Court Rules - Rule 12; Madhya Pradesh High Court Order; Constitution of India - Articles 226 and 227; States Reorganisation Act, 1956 - Sections 51(2)
AppellantBalkishandas
RespondentHar Narayan and ors.
Appellant AdvocateA.L. Halve, Adv.;P.W. Sahastrabudhe, ;A.B. Mishra and ;Haridass Gupta, Advs. ;B.L. Parecha and ;S.D. Singh, Advs. ;Y.S. Dharmadhikari and ;Gulab Gupta, Advs.
Respondent AdvocateL.S. Baghel, Dy. Adv. General for ;Adv. General
Cases ReferredJanved Singh v. Union of India
Excerpt:
- - sd/- shiv dayal chief justice 5-2-1976.'3. the validity of the above-quoted order dated 5-2-1976 passed by the chief justice was unsuccessfully challenged in a writ petition in this court. union of india, 1976 mplj 767: air 1977 madh pra 116 upheld the validity of the president's notification issued under section 51(2) of the states reorganization act as well as the chief justice's order made under the proviso to the president's notification. , jabalpur, indore and gwalior, would be interested in the decision of this question and that they may like to canvass their points of view, notices were issued to the learned advocate-general and bar associations at jabalpur, indore and gwalior. these provisions relate to cases pending in a court subordinate to the high court and not to a.....j.s. verma, j.1. the question referred to us for decision in the following viz.,--'whether in compliance with the order dated 5-2-1976 passed by the then chief justice (shiv dayal, c. j.), it is not necessary to list a petition under articles 226/227 of the constitution filed in any of the bench registries raising the question of vires of any enactment, rule, order or notification etc. also for motion hearing at the principal seat of the high court?'2. the identical orders dated 5-2-1976 were passed by shiv dayal, c. j. which read as under:--'in exercise of the powers conferred on me by the proviso to the notification no. 16/20/68-judl. iii, dated november 28, 1968, issued by the president under section 51(2) of the states reorganisation act, 1956, (no. 36 of 1956), establishing a.....
Judgment:

J.S. Verma, J.

1. The question referred to us for decision in the following viz.,--

'Whether in compliance with the order dated 5-2-1976 passed by the then Chief Justice (Shiv Dayal, C. J.), it is not necessary to list a petition under Articles 226/227 of the Constitution filed in any of the Bench Registries raising the question of vires of any enactment, rule, order or notification etc. also for motion hearing at the principal seat of the High Court?'

2. The identical orders dated 5-2-1976 were passed by Shiv Dayal, C. J. which read as under:--

'In exercise of the powers conferred on me by the proviso to the Notification No. 16/20/68-Judl. III, dated November 28, 1968, issued by the President under Section 51(2) of the States Reorganisation Act, 1956, (No. 36 of 1956), establishing a permanent Bench of the Madhya Pradesh High Court at Gwalior, And in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso, I hereby order that with effect from February 5, 1976, till further orders, only the following cases arising from the Revenue Districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhelsa), Bhind and Morena, except those cases for which I may otherwise order, shall be heard at Jabalpur:--

(1) All petitions under Article 226/227 of the Constitution challenging the vires of any Act or statute or any order or rule or regulation made under any Act or statute;

(2) All individual cases which I may hereafter order to be heard at Jabalpur.

Sd/-

Shiv Dayal

CHIEF JUSTICE

5-2-1976.'

XXXXXX 'In exercise of the powers conferred on me by the proviso to the Notification No. 16/20/68/Judl-III, dated November 28, 1968, issued by the President under Section 51(2) of the States Reorganisation Act, 1956 (No. 36 of 1956), establishing a permanent Bench of the Madhya Pradesh High Court at Indore,

And in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso,

I hereby order that with effect from February 5, 1976, till further orders, only the following cases arising from the Revenue Districts of Indore, Ujjain, De-was, Dhar, Jhabua, Ratlam, Mandsaur, West Nimar (Khargone), Shajapur and Rajgarh, except those cases for which I may otherwise order, shall be heard at Jabalpur:--

(1) All petitions under Article 226/227 of the Constitution challenging the vires of any Act or statute or any order or rule or regulation made under any Act or statute;

(2) All individual cases which I mayhereafter order to be heard at Jabalpur.

Sd/-

Shiv Dayal

CHIEF JUSTICE

5-2-1976.'

3. The validity of the above-quoted order dated 5-2-1976 passed by the Chief Justice was unsuccessfully challenged in a writ petition in this Court. A Full Bench of five Judges in Abdul Taiyab v. Union of India, 1976 MPLJ 767: AIR 1977 Madh Pra 116 upheld the validity of the President's Notification issued under Section 51(2) of the States Reorganization Act as well as the Chief Justice's order made under the proviso to the President's Notification. The view of the majority is contained in the opinion of Oza J. with whom Vyas and Sharma JJ. entirely agreed. In Abdul Taiyab's case, the historical background relating to the constitution of two permanent Benches at Indore and Gwalior in 1968 and the relevant stages till the making of the Chief Justice's order dated 5-2-1976 have been given at length. It is, therefore, not necessary for us to reiterate the same. However, a brief resume thereof has to be given only to facilitate appreciation of the present controversy.

4. The new State of Madhya Pradesh was constituted with effect from 1-11-1956 under the States Reorganisation Act, 1956. It comprised substantially of Mahakoshal area of the old State of Madhya Pradesh, the State of Madhya Bharat and the Part C States of Vindhya Pradesh and Bhopal. Section 49 of the States Reorganisation Act declared that the existing High Court of Madhya Pradesh, i.e. the Nagpur High Court, shall from the appointed day, viz., 1-11-1956, be deemed to be the High Court of the new State of Madhya Pradesh. By Section 50 of that Act, the High Court of Madhya Bharat and the Judicial Commissioner's Courts in Vindhya Pradesh and Bhopal were abolished with effect from 1-11-1956. Section 52 of the Act further provided that the jurisdiction of the new High Court would extend to the entire territory within the new State of Madhya Pradesh. Under Sub-section (1) of Section 51 of the Act, the President issued an order appointing Jabalpur to be the principal seat of the new High Court with effect from 1-11-1956. Under Sub-section (3) of Section 51, for the sake of facility and continuity, the Chief Justice issued an order dated 1-11-1956 directing that temporary Benches at Indore and Gwalior will sit until further orders.

5. These temporary Benches which came into existence by virtue of the Chief Justice's order under Section 51(3) of the States Reorganization Act continued to function till 1968 when they were converted into permanent Benches by the President of India in exercise of his powers under Sub-section (2) of Section 51 of the Act by two identical notifications dated 28-11-1968 which read as under:---

'In exercise of the powers conferred by Sub-section (2) of Section 51 of the States Reorganization Act, 1956 (37 of 1956), I Zakir Hussain, President of India, after consultation with the Governor of Madhya Pradesh and the Chief Justice of the High Court of Madhya Pradesh, hereby establish a permanent Bench of the Madhya Pradesh High Court at Gwalior and further direct that such Judges of the High Court of Madhya Pradesh, being not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Gwalior in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), Bhind and Morena:

Provided that the Chief Justice may, for special reasons, order that any case or class of cases arising in any such district shall be heard at Jabalpur.'

XXX XX 'In exercise of the powers conferred by Sub-section (2) of Section 51 of theStates Reorganisation Act, 1956 (37 of 1956), I Zakir Hussain, President of India, after consultation with the Governor of Madhya Pradesh and the Chief Justice of the High Court of Madhya Pradesh, hereby establish a permanent Bench of the Madhya Pradesh High Court at Indore and further direct that such Judges of the High Court of Madhya Pradesh, being not less than four in number, as the Chief Justice may from time to time nominate, shall sit at Indore in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the revenue districts of Indore, Ujjain, Dewas, Dhar, Jhabua, Ratlam, Mandsaur, West Nimar (Khargone), Shajapur and Rajgarh;

Provided that the Chief Justice may, for special reasons, order that any case or class of cases arising in any such district shall be heard at Jabalpur.' Subsequently, in 1971, by order dated 23-6-1971, the proviso to the earlier order dated 28-11-1968 made by the President was amended by omitting the words 'for special reasons' so as to do away with the requirement of giving special reasons by the Chief Justice while issuing an order in exercise of the powers conferred on him by the proviso to the President's notification.

6. P. V. Dixit, C. J. issued orders dated 30-11-1968 in exercise of the powers conferred by the proviso to the President's notification directing that certain classes of cases arising within the jurisdiction of the two Benches shall be heard at Jabalpur, the principal seat. The subsequent Chief Justices also issued similar orders from time to time.

7. Shiv Dayal, C. J. issued the above quoted orders dated 5-2-1976 in supersession of all previous orders issued by the Chief Justice under the proviso to the President's orders. This order continues in force because it has not yet been superseded by any order issued by the subsequent Chief Justices viz. A. P. Sen, C. J. (as he then was) and G. P. Singh, C. J. The position, therefore, is the same as interpreted by the Full Bench in Abdul Taiyab's case. The effect of this order passed by Shiv Dayal, C. J. is that except for one class of cases specified therein viz. petitions in which vires of any enactment etc. is challenged all other cases are to be heard at the Benches only unless any individual case is directed by the Chief Justice to be heard at Jabalpur. Earlier many other class of cases were also heard at Jabalpur instead of at the Benches.

8. The only question before us is whether the meaning of the word 'heard' used in the Chief Justice's order does not require that all petitions of the class specified therein arising from the areas falling within the jurisdiction of the Indore and the Gwalior Benches and filed there should be listed also for 'motion hearing' at Jabalpur, the principal seat of the High Court. There is no controversy that all such petitions are undoubtedly required to be listed for 'final hearing' at Jabalpur.

9. In Janved Singh v. Union of India, M. P. No, 515 of 1978 decided on 24-8-1978, the writ petition fell in the above class of cases which, according to the Chief Justice's order dated 5-2-1976, was required to be heard at Jabalpur. The petition was filed at the Gwalior Bench and the record thereof was therefore transmitted to Jabalpur for the case to be. heard at Jabalpur. The petition was then listed in motion hearing for admission and grant of interim relief before a Division Bench (Tankha and C. P. Sen JJ.). The petition was dismissed summarily rejecting the contentions raised therein as untenable and it was also held that 'hearing includes motion hearing'. This decision was obviously necessary to be reached by that Division Bench because upon it depended the jurisdiction of the Division Bench sitting at Jabalpur to hear that petition in motion hearing.

10. Inderbai v. State of M. P., M. P. No. 5 of 1979, filed at the Gwalior Bench was another such petition which was required to be heard at Jabalpur in accordance with the aforesaid order of the Chief Justice dated 5-2-1976. According to the Full Bench decision in Abdul Taiyab's case (supra) and the Division Bench decision in Janved Singh's case (supra), the record of that petition had to be transmitted to Jabalpur for being listed for motion hearing for admission and grant of interim relief before the appropriate Bench at Jabalpur and for this purpose no direction from the Court was necessary. However, departing from the existing procedure, this writ petition was listed before a Division Bench (A. R. Navkar and H. G. Mishra, JJ.) at Gwalior for motion hearing for the purpose of admission and grant of interim relief. A preliminary objection appears to have been raised that the petition had to be listed for motion hearing also at Jabalpur in accordance with the Chief Justice's order dated 5-2-1976 in view of the earlier Division Bench decision in Janved Singh's case (supra). The Division Bench rejected the preliminary objection and held by its order dated 27-2-1979 which is reported in 1979 Jab LJ 208, that the decision on this point in Janved Singh's case was not necessary for deciding the questions raised by that petition and as such the view expressed on this point in Janved Singh's case was obiter dictum. The Division Bench accordingly felt that it was not bound by the view taken in Janved Singh's case and held that the petition was rightly listed for motion hearing before the Division Bench at Gwalior. It was also held therein that a procedure similar to that indicated in the Full Bench decision in Brij Gopal Ganga v. State of Madhya Pradesh 1978 MP LJ 70: AIR 1978 Madh Pra 122 relating to Article 228A of the Constitution of India had to be followed in such cases.

11. The conclusions reached by the Division Bench in Inderbai's case and the relevant extracts are as under :--

'From the aforesaid ratio the position of law which emerges and the procedure which has to be followed is to the following effect:--

(i) When a writ petition raising question of constitutional validity of a State law has been presented in Bench Registry, it has to be placed for admission before the Judges constituting a Division Bench in the first instance;

(ii) The Division Bench, before which the petition is listed for 'motion hearing' is competent to admit it and also grant interim relief, such as stay, injunction etc;

(iii) The Division Bench can dismiss petition even at admission stage in the following cases:--

(1) When the question is irrelevant and, therefore, does not arise for determination:

(2) When the question has already been determined by the Supreme Court;

(3) When the question has already been determined by a Bench of at least five Judges of the High Court, and the Division Bench does not feel reconsideration of the decision by a larger Bench to be necessary:

(4) In case not falling within the above said exceptions, the petition will have to be laid for hearing at the Principal Seat, since in that event rejection will mean 'hearing for determination'.

(5) After admission of the writ petition by this Bench, it will have also to be laid for final hearing at the Principal Seat

***** Accordingly, after being presented writ petition involving challenge to the vires of a State law will have to be placed, by the Bench Registry, before a Division Bench for admission and/or grant of interim relief. The Bench Registry cannot send such a petition directly to the Principal Seat, because it is not the opinion of the Bench Registry, which is postulate of the law, but it is for the Judges sitting in Division Bench, before which the petition has been laid for hearing on admission, to decide, whether to admit the petition and/or to grant interim relief or to reject it on the grounds indicated in para 77 of the case of Brij Gopal (supra) or to direct it to be sent to the Principal Seat to be laid for being dealt with in accordance with the procedure laid down by the Full Bench case in Brij Gopal (supra). -

As is clear from the order passed in Janved Singh's case (supra), the petition was heard on admission at the Principal Seat; and while rejecting the petition in limine, the Hon'ble Division Bench in para 6 of its order dated 24-8-1978 has given decision on a point, which was not necessary for the decision of the questions raised by that petition. As such, the decision in para 6 of Janved Singh's case, in our humble opinion, is an obiter dictum. Even agreeing with the dictum of the Janved Singh's case (supra) that 'hearing' includes 'motion hearing' also, in the light of the ratio of Brij Gopal's case (supra) it has to be held that the procedure indicated in para 77 thereof has to be followed and the Bench Registries cannot send writ petition containing a challenge to the constitutional validity of a State law directly to the Main Registry.'

The order of the Division Bench contains no other discussion for the purpose of finding out the meaning of the word 'heard' occurring in the Chief Justice's order dated 5-2-1976. In substance, the only reason given by the Division Bench for reaching the above conclusion is the view taken in Brij Gopal's case in relation to Article 228A of the Constitution,

12- The present writ petition out of which this reference arises is another such case admittedly governed by the Chief Justice's order dated 5-2-1976. It was instituted at the Gwalior Bench on 17-11-1978. Apparently, in accordance with the existing procedure as clarified by the Full Bench in Abdul Taiyab's case and the decision in Janved Singh's case, the record of this petition was transmitted to Jabalpur for listing the petition before the appropriate Bench at Jabalpur for motion hearing. Before this petition could be listed for motion hearing for the purpose of admission, an application was filed at Jabalpur in this petition by the petitioner on 10-3-1979 praying that the record of this petition be sent back to Gwalior for the purpose of listing the petition before a Division Bench at Gwalior for motion hearing. This application was made placing reliance on the order in Inderbai v. State of Madhya Pradesh, M. P. No. 5/1979 decided on 27-2-1979; 1979 Jab LJ 208, by a Division Bench at Gwalior. This application was listed for orders before a Division Bench at Jabalpur where the writ petition was pending. Faced with the conflicting views expressed by two earlier Division Benches of this Court in Janved Singh's case and in Inderbai's case, the Division Bench stated that instead of adopting the hazardous course of choosing between the two conflicting views, it preferred to adopt the more appropriate course of referring the question involved for decision by a larger Bench. This is how the above question comes before us.

13. In view of the fact that members of the Bar at all the three places, viz., Jabalpur, Indore and Gwalior, would be interested in the decision of this question and that they may like to canvass their points of view, notices were issued to the learned Advocate-General and Bar Associations at Jabalpur, Indore and Gwalior. Shri S. D. Sanghi and Shri B. L Pavecha appeared on behalf of the Indore Bar Association, Shri Sahasrabudhe on behalf of the Gwalior Bar Association, and Shri Y. S. Dharmadhikari and Shri Gulab Gupta on behalf of the Jabalpur Bar Association. Shri L. S. Baghel, the learned Dy. Advocate-General, appeared only to inform us that he had nothing to say on behalf of the Advocate-General.

14. Shri A. L. Halve, learned counsel for the petitioner, canvassed substantially for acceptance of the view taken in Inderbai's case. He argued that such a petition on being filed at any of the two Benches was required to be listed before a Division Bench at that very place and the case could come to Jabalpur for motion hearing only if so directed by the Division Bench before which the petition is listed for motion hearing and not otherwise. He says that in spite of the Chief Justice's order dated 5-2-1976, the Registry has no power to transmit the record from any of the Benches to the principal seat without obtaining a judicial order at the place of filing by listing it there for motion hearing.

15. On behalf of the Indore Bar Association, two arguments were advanced, viz., (1) that even though the word 'heard' occurring in the Chief Justice's order dated 5-2-76 according to its ordinary grammatical meaning is wide enough to include both 'motion hearing' and 'final hearing', yet the context in which it appears in the present case requires that the word 'heard' should be construed narrowly so as to confine it only to final hearing and motion hearing of only those cases which have not been found fit for admission by the Division Bench hearing it at the motion stage at the two Benches at Indore and Gwalior, and (2) that the order of the Chief Justice dated 5-2-1976 applies only to all cases governed by it which were pending on the date of order and not those which were instituted at the two Benches after 5-2-1976. In substance, the view taken in Inderbai's case has been supported with the addition that only cases pending on 5-2-1976 are stated to be governed by the Chief Justice's order issued that day and not those instituted later at the Benches.

16. Shri Sahasrabudhe on behalf of Gwalior Bar Association has taken the extreme position and contended that since the two permanent Benches have exclusive jurisdiction in respect of cases arising within their jurisdiction, the Chief Justice has no power by virtue of the proviso to the President's order constituting the two Benches to direct any class of cases arising within the jurisdiction of the Benches to be heard at Jabalpur. He argues that the Chief Justice's order dated 5-2-1976 is, therefore, ineffective. He says that there is only a recognition of the administrative power of the Chief Justice by this proviso and no conferral of any new power thereby. On merits this, in substance, is his argument. This argument being contrary to the Full Bench decision in Abdul Taiyab's case, relying on Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331 has to be rejected. Obviously for this reason no other counsel took this stand.

17. Shri Dharmadhikari and Shri Gulab Gupta have contended that the word 'heard' used in the Chief Justice's order dated 5-2-1976 requires that record of all such petitions instituted at the two Benches should be transmitted to Jabalpur for being listed before the appropriate Bench at Jabalpur and such a petition cannot be listed for any purpose even in motion hearing at any of the Benches. It is contended that such a duty is enjoined on the Additional Registrars of the two Benches by the High Court Rules and Orders, particularly Rules 4, 5, 6 and 16 in Chapter II, Part II, of 'Rules for proceedings under Article 226, Constitution of India', corresponding Rules 4, 5 and 9 in Chapter III of Rules for Application under Article 227, Constitution of India' read with Rule 4 of Chapter V relating to 'Procedure after Presentation', and settled by the Full Bench decision in Abdul Taiyab's case (supra). The argument is that not only the ordinary grammatical meaning of the word 'heard' but also the context in which it appears in the Chief Justice's order dated 5-2-1976 requires that the entire process commencing on the institution of such petition at the two Benches and ending with the final disposal thereof must be at Jabalpur for which purpose the record of each such case on its institution at any of the two Benches must be transmitted forthwith by the Additional Registrars to Jabalpur, there being no further requirement of any judicial order for that purpose. Their other contention is that the Chief Justice's order dated 5-2-1976 operates the moment such a petition is instituted after 5-2-1976 and its operation is not confined merely to petitions pending on the date of that order.

18. We shall first consider a preliminary objection to the validity of this reference raised only by Shri Sahasrabudhe appearing for the Gwalior Bar Association. In reply to our query whether such a preliminary objection was taken by anyone else, we were expressly told by the other counsel that they had no such objection to raise.

19. The preliminary objection raised by Shri Sahasrabudhe to the validity of this reference is on several grounds. His first contention is that there is actually no conflict between the two Division Bench decisions in Janved Singh's case and Inderbai's case because the decision given in Janved Singh's case was in motion hearing on account of which it was only obiter. It is argued that Rule 12 of Chapter I of the High Court Rules and Orders enables the making of a reference to a larger Bench only where there are two conflicting decisions of equal authority and the decision in Janved Singh's case being merely obiter, it cannot be said that there are two conflicting decisions on the same point. Such an argument has no merit. It may be seen that the decision in Janved Singh's case and that in Inderbai's case were both in motion hearing. Moreover, Janved Singh's case being dismissed summarily in motion hearing amounted to a final determination by this Court of that petition and the question raised therein, whereas in Inderbai's case the order taking a different view did not have the effect of finally determining that petition for the purpose of this Court. The aforesaid order passed in Inderbai's case was, therefore, not of a higher authority than the decision finally disposing of Janved Singh's case by this Court. We have indicated earlier that the decision on this point in Janved Singh's case was necessary for the purpose of enabling the Division Bench to hear the petition in motion hearing and therefore it was a decision relating to assumption of jurisdiction and It cannot be aid that the decision of this point by that Division Bench was unnecessary for the purpose of deciding that case. In Brij Gopal's case 1978 MP LJ 70 (FB), it was held by Shiv Dayal, C. J. who delivered the majority opinion that when a case is dismissed at the admission stage, the questions raised are determined conclusively so far as this Court is concerned; that dismissal at the admission stage has the same force and effect as dismissal after hearing parties, and that dimissal of a petition at the admission stage or on hearing parties makes no difference so far as its effect is concerned. It is, therefore, difficult for us to appreciate as to how the decision at this point by the Division Bench in Janved Singh's case can be treated as obiter dictum or be ignored on that basis.

20. Moreover, the existence of two conflicting earlier decisions on the same point is not a condition precedent to the validity of a reference of any question for decision by a larger Bench. All that is necessary is that the Division Bench before which the question arises should be of the view that the question is at such importance that it requires to be decided by a larger Bench. Accepting such a recommendation made by the Division Bench which refers the question if a larger Bench is constituted by the Hon'ble the Chief Justice for that purpose, that alone is sufficient for a valid reference of the question to a larger Bench. It is significant that Abdul Taiyab's case (supra) was referred to a larger Bench in view of the importance of the question involved without there being any earlier decision on the point. On this recommendation of the Division Bench before which the petition had come up for motion hearing, the Chief Justice constituted a Full Bench of five Judges to hear the same. The validity of that reference was challenged before the Full Bench on several grounds which were all rejected and it was held that the reference was valid. There was unanimity amongst all the five Judges constituting that Full Bench on this point. Raina J., who considered this point at length, held in para 23 of his opinion that irrespective of the consideration whether the reference to the Chief Justice was governed by any particular rule or not, it is clear that the Chief Justice was competent to constitute the Full Bench and the objection raised to its constitution is baseless. In our opinion, this point is concluded not only on the basis of general principles but also by that Full Bench decision.

21. Shri Sahasrabudhe also contended that the Full Bench decision in Abdul Taiyab's case having held that the two Benches have exclusive jurisdiction the question referred to this Full Bench does not arise for consideration. It is nobody's case that the question referred to us has been decided by the Full Bench in Abdul Taiyab's case. On the contrary, it is common ground that this question neither arose for decision nor was it decided in Abdul Taiyab's case. It is, therefore, difficult to appreciate such an argument.

22. It was next contended by Shri Sahasrabudhe in support of the preliminary objection that the point in question was decided in Janved Singh's case on invitation of some members of the Jabalpur Bar Association who had no Jocus standi in the matter. As earlier pointed out, the decision of this point in Janved Singh's case was necessary to decide the jurisdiction of that Division Bench to hear the case in motion hearing. Simply because some members of the Bar also appeared and were heard, that does not alter the character of the decision. In this very case all the Bar Associations had been noticed and they have been heard and Shri Sahasrabudhe himself appears not for any party in the case but for the Gwalior Bar Association. The authority of Janved Singh's case is not affected for this reason. We may add that in Inderbai's case also Shri Sahasrabudhe himself with Shri A, B. Mishra appeared as 'amicus curiae' to argue against the view taken in Janved Singh's case and they were heard. Sahasrabudhe says nothing why a different standard should be applied only to the decision in Janved Singh's case. Obviously, there is no cogent reason for making such a distinction.

23. In support of the preliminary objection the last contention was that the Full Bench decision in Brij Gopal's case covers the point because the case is of the type referred to in Section 113 of the Code of Civil Procedure and Article 228 of the Constitution. These provisions relate to cases pending in a Court subordinate to the High Court and not to a situation like the present where the case is in the High Court itself. Moreover, as we shall show hereafter, Brij Gopal's case was with respect io the meaning of the narrower word 'determine' occurring in Article 228A of the Constitution while we are concerned with meaning of the wider word 'heard' used in the Chief Justice's order. It is difficult to appreciate how these provisions help for advancing the argument that the reference is bad. We have no doubt that the preliminary objection raised to the validity of the reference has no merit and is totally misconceived. That objection is, therefore, rejected. We shall now consider the arguments on merits.

24. Since it is common ground before us that the Supreme Court decision in Nasiruddin v. State Transport Appellate Tribunal AlR 1976 SC 331 and the Full Bench decision of this Court in Abdul Taiyab v. Union of India 1976 MPLJ 767 decide some points in the light of which we have to answer the reference, it would be useful to first summarise the conclusions reached in these two decisions in so far as they are material for our purpose. In fact, these decisions were relied on with equal vehemence for supporting the rival contentions.

25. As earlier stated, in Abdul Taiyab v. Union of India, 1976 MPLJ 767: AIR 1977 Madh Pra 116 (KB) the majority view is contained in the opinion of Oza, J., and reference to that alone is necessary. The conclusions reached by Oza J., which is the majority opinion, are as follows;--

(1) Section 51(2) of the States Reorganisation Act as well as the President's notifications constituting two permanent Benches at Indore and Gwalior are not ultra vires.

(2) The President's notifications issued under Section 51(2) of the States Reorganization Act contemplated exclusive territorial jurisdiction with these Benches in respect of the areas mentioned in the President's order.

(3) The powers given to the Chief Justice under the proviso to the President'9 notifications were not exhausted with the issue of the first notification thereunder by the then Chief Justice and the impugned order dated 5-2-1976 passed by Shiv Dayal C. J. in exercise of that power was validly issued.

(4) In pursuance of the orders dated 5-2-1976 passed by Shiv Dayal C. J., it cannot be doubted that the Registry would list the cases in the light of those orders passed by the Chief Justice and as construed by the Full Bench, before the appropriate Benches. The contention that even after the orders dated 5-2-1978 passed by Shiv Dayal C. J. the record ot cases covered by those orders could not be transmitted from one place to another for being heard there without any express order in each case of the court at the place where those cases had been instituted. though accepted by Raina J., In his minority opinion, with whom Baipai J. agreed on this point, was expressly rejected in the majority opinion.

(5) The language used in para 14 of the United Provinces High Courts (Amalgamation) Order 1948, is in part materia with the language of the President's notifications issued under Section 51(2) of the States Reorganization Act constituting the two Benches at Indore and Gwalior, and, therefore, the construction made by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331 of para 14 of the Amalgamation Order, equally applies to the interpretation of the language used in the President's notifications. These are the main conclusions reached by Oza J. in his majority opinion.

26. The conclusions reached by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331 while construing the two provisos to para 14 of the United Provinces High Courts (Amalgamation) Order, 1948, are summarised in para 37 of the judgment and may be stated as under:--

(1) There is no permanent seat of the High Court at Allahabad.

(2) The areas in Oudh having been determined once by the Chief Justice under the first proviso to para 14 of the Amalgamation Order, that power is exhausted and therefore there is no scope left for changing that area.

(3) The Chief Justice has power under the second proviso to para 14 of the Amalgamation Order to direct in his discretion that any case or class of cases arising in Oudh area shall be heard at Allahabad.

The meaning of the word 'heard' used in the Second Proviso to para 14 of the Amalgamation Order has been explained to include the entire process in disposal of a case commencing on its institution till its conclusion in that court.

(4) It is open to the litigant to institute civil cases including petitions under Article 226 of the Constitution at Luck-now or Allahabad according to the cause of action arising wholly or in pan within either of the areas.

(5) A criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code and that will attract the jurisdiction of the Court at Allahabad or Lucknow. The Supreme Court then proceeded to say in para 39 of its judgment that the answers given by the Allahabad High Court to the first three questions are correct, save as modified by the above conclusions. The questions referred for decision to the Full Bench of the Allahabad High Court are contained in para 12 and their answers are in para 13 of the Supreme Court Judgment. The first three questions and their answers according to the majority view of the Full Bench, which were affirmed by the Supreme Court, are as under:--

Questions :

Answers :

(3) Can a case falling within the jurisdiction of theLucknow Bench of this Court bepresented at Allahabad?

A case falling withinthe jurisdiction of Judges at Lucknow shouldbe presented at Lucknow and not at Allahabad.

(2) Can the Judges sitting at Allahabad summarily dismissa case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench?

If such a case ispresented at Allahabad, the Judges at Allahabad cannot summarily dismiss it onlyfor that reason. The case shouldbe returned for filing before the Judges at Lucknow and where the case hasbeen mistakenly or inadvertently entertained at Allahabad, a direction should be made to the HighCourt Office to transmit the paper of the case to Lucknow.

(3) Can a case pertaining to the jurisdiction ofLucknow Bench, presented and entertainedat Allahabad, be decided finally by the Judges sitting at Allahabad, withoutthere being an order as contemplated bythe second proviso to Article 14 ofthe U. P. High Court (Amalgamation) Order, 1948?

A case pertaining to thejurisdiction of the Judges at Lucknow and presented before the Judges atAllahabad cannot be decided by the Judges at Allahabad in the absence of an order contemplated by the second proviso to Art. 14 of the Amalgamation Order,1948.

27. It is on the basis of the above conclusions reached by the Full Bench of this Court in Abdul Taiyab's case and the Supreme Court in Nasiruddin's case that the merits of the rival contentions advanced before us have to be considered.

28. The contention of Shri Sahasrabudhe on the merits, though differently worded, amounts to challenging the validity of the Chief Justice's order dated 5-2-1976. The only difference is that he calls the order 'ineffective' instead of 'invalid'. That is merely a difference in form and not substance. The validity of the Chief Justice's order, its effectiveness and the existence of such a power in the Chief Justice by virtue of the Proviso to the President's notification, having been expressly upheld by the Full Bench in Abdul Taiyab's case, the same cannot be reagitated. Following that decision, we reject the argument.

29. The first contention of the learned counsel relates to the precise question referred to us for decision. The question is whether 'hearing' includes 'motion hearing' or not. The arguments of Shri A. L. Halve and Shri S. D. Sanghi and Shri B. L. Pavecha clearly concede that hearing includes not only final hearing but in some cases at least where the petition has not been admitted, it also inculdes 'motion hearing' for the purpose of admission. In fact, the contention of Shri Sanghi and Shri Pavecha is that the ordinary grammatical meaning of the word 'heard' occurring in the Chief Justice's order dated 5-2-1976 is wide enough to include motion hearing and not only final hearing, but the suggestion is that the word should be construed narrowly for the sake of practical convenience and the object of constitution of the two permanent Benches. It may be stated at the very outset that the dichotomy suggested by learned counsel for including motion hearing in some cases only and not the others within the ambit of the word 'heard' is not indicated by either the contents of the Chief Justice's order or the context in which it has to be read. In our opinion, no such dichotomy can be made and the answer has to be clearly one way or the other i.e. either 'motion hearing' is included in the word 'heard' in each case or it is not.

30. In our opinion, this question is concluded by the construction made of the word 'heard' in Nasiruddin's case (supra) in a similar situation and in similar context. Their Lordships construed the meaning of the word 'heard' occurring in the second proviso to para 14 of the Amalgamation Order as under:--

'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'.

It is clear from this construction made by the Supreme Court of the word 'heard' that the entire process in the disposal of a case commencing on the institution or filing thereof and ending with its conclusion in that Court is included within the meaning of the word 'heard' appearing in this context, This construction made of the word 'heard' together with affirmance of the above quoted third conclusion of the Allahabad High Court clearly shows that when the Chief Justice directs a case to be 'heard' at a particular place, it means that on its institution at a different place, the record thereof must be transmitted to the place where it is to be heard for being listed there only from the very first stage when it has to be placed for orders of the Court. It cannot, therefore, be 'doubted that where, as in the present case, the Chief Justice has made an order directing a class of cases to be heard at Jabalpur, every stage subsequent to the institution or filing of such a case at any of the two Benches must be at Jabalpur and obviously for that purpose the record of the case on its institution at any of the two Benches must be transmitted forthwith to Jabalpur for the purpose of being heard at Jabalpur. It is equally obvious that for every order required to be made by the Court such a case has to be listed before the appropriate Bench at Jabalpur and there is no occasion whatever to list the same before the Court at any of the two Benches. It follows necessarily that the Court sitting at any of the two Benches will have no jurisdiction to pass any order in any such case for the simple reason that it cannot be listed for hearing including motion hearing for admissior or interim relief etc, at any of the two Benches.

31. In this connection it may also be observed that according to the majority view contained in the opinion of Oza, J., in Abdul Taiyab's case (supra), the Registry is bound to list the cases in the light of the Chief Justice's order dated 5-2-1976 before the appropriate Bench, which in the present case would mean the appropriate Bench sitting at Jabalpur and not at Gwalior or Indore and that this is required to be done without obtaining any order from the Court at Gwalior or Indore, as the case may be, depending on the place where the case has been instituted. This position is clear and beyond controversy after the view expressed by the majority in Abdul Taiyab's case, placing reliance on Nasiruddin's case (supra).

32. The practical convenience suggested by Shri Pavecha and Shri Sanghi of, listing such cases for motion hearing and interim relief at Indore or Gwalior is of no consequence in view of the plain language of the Chief Justice's order dated 5-2-1976 and the clear and unambiguous meaning of the word 'heard' used therein. In Nasiruddin's case itself, the rule' of construction to be adopted in such a situation was indicated by their Lordships as under:

'If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. The mere fact that the results of a statute may be unjust does not entitle a court to refuse to give it effect............Where the words are plain the Court would not make any alteration.'

In our opinion, the meaning of the word 'heard' being plain and unambiguous and incapable of two different interpretations, it has to be construed according to its ordinary grammatical meaning and it is not open to the Court to make the alteration suggested therein by Shri Halve, Shri Sanghi and Shri Pavecha.

33. We may add and it is of significance that Shiv Dayal C. J., who passed the aforesaid order dated 5-2-1976 in which the word 'heard' occurs and requires construction, himself understood hearing to include motion hearing as is evident from his opinion, which is the majority opinion, in Brij Gopal v. State of M. P. 1978 MPLJ 70. The word coming up for construction in Brij Gopal's case was 'determine' used in Article 228A introduced in the Constitution by the Constitution (42nd Amendment) Act. Referring to the High Court Rules and Orders read along with the rules framed by the High Court for petitions under Article 226 of the Constitution, Shiv Dayal C. J. said that the practice in this High Court is to give a hearing to the first party at the admission stage; and that the dismissal of a petition at the admission stage or after hearing parties makes no difference so far as its effect is concerned. It is clear from the opinion of Shiv Dayal C. J. himself given in the decision that he understood hearing to include motion hearing as well inasmuch as a case is heard also at the stage of motion hearing for admission and not only at the stage of final hearing or hearing parties. There is no reason to hold that Shiv Dayal C. J. used the word 'heard' in his order dated 5-2-1976 differently and having a narrower meaning, as now suggested by learned counsel when he himself understood that word to include motion hearing as well.

34. The order in Inderbai v. State of M. P. M. P. No. 5 of 1979 decided on 27-2-1979 rejecting the preliminary objection to the hearing of that case at Gwalior does not indicate as to why that petition was listed for hearing at Gwalior in spite of the settled position pointed out earlier. We have, therefore, looked into the record of that petition for ascertaining the reason why the Additional Registrar at Gwalior instead of transmitting the record of that case to Jabalpur listed it for hearing at Gwalior. That petition dated 11-12-1978 was presented at the Gwalior Bench Registry by the petitioner's counsel on 5-1-1979 to the Additional Registrar together with an application (I.A. No. 124/79) for issuance of an ad interim writ in the petitioner's favour and an application for early hearing. The application for ad interim writ (I.A. No. 124/79) is dated 11-12-1978 like the petition and so also the two affidavits filed in support of the main petition and the application for ad interim writ. Both these affidavits were sworn before the Additional Registrar at Gwalior on 14-12-1978. All the same, the petition together with these applications claiming urgency in the matter were all filed only on 5-1-1979. On presentation of the petition together with these applications on 5-1-1979, a note-sheet of the same date was prepared by the Reader to the Additional Registrar proposing that the case be laid in chambers before the seniormost Judge at Gwalior to specify the date on which it should be listed for motion hearing before a Division Bench, The Additional Registrar then signed that note-sheet on the same date as a token of his approval. No mention was made in the note-sheet showing that the petition was governed by the Chief Justice's order dated 5-2-1976 which required it to be heard at Jabalpur. This fact appears to have been totally overlooked by the Additional Registrar and there is nothing to indicate why like similar earlier petitions it was not sent to Jabalpur. There is then an endorsement made by Reader (it is not clear whose Reader he was) of the same date saying that the case be put up on 8-1-1979.

35. The petition was then listed for motion hearing and order on the application for ad interim writ (I.A. No. 124/ 79) before a Division Bench (A. R. Navkar and H. G. Mishra, JJ.) at Gwalior on 8-1-1979. The order-sheet of the Division Bench indicates that the omission of the Additional Registrar was noticed by the Division Bench which asked the petitioner's counsel how that petition had come up for motion hearing at Gwalior in view of the earlier decision of the Court in Janved Singh's case. Petitioner's counsel was granted time to answer this question. However, on the application for ad interim writ (I.A. No. 124/79), notice was issued to the other side and an interim writ in petitioner's favour was issued the same day. The case was then directed to be listed for further hearing on 19-1-1979 on the question of admission and grant of interim writ. The order-sheets further show that on 19-1-1979 the case came up again in motion hearing before the same Bench when it was partly heard on the question whether it could be heard for admission at Gwalior. Further time was granted to counsel and on another application (I.A. No. 292/79) filed the same day by the petitioner, the interim writ issued earlier on 8-1-1979 was continued. The case was directed to be listed for further hearing on 9-2-1979. In the meantime, on 7-2-1979 the petitioner filed an application (I.A. No. 406/79) stating that she had compromised her dispute with the respondent out of Court and removed her possession from the disputed land on account of which she did not want to prosecute that petition and prayed that the writ petition be, therefore, dismissed. This application was signed by the petitioner as also by her counsel. After this application was made on 7-2-1979, the case was listed again before the same Division Bench on 9-2-1979 as directed in the previous order. On that date the petitioner's counsel did not press the application dated 7-2-1979 praying for dismissal of the writ petition. Accordingly, that application was dismissed as not pressed. The petitioner's counsel also did not press the earlier application (I.A. No. 124/79) for issuance of an ad interim writ filed with the petition on which an interim writ had been issued on 8-1-1979 and then continued on 19-1-1979. Accordingly, that application was also dismissed and the interim writ granted earlier by the Division Bench was vacated. Further arguments were then heard and the case was adjourned for further hearing to 16-2-1979. In the meantime on 15-2-1979 another application (I.A. No. 897/79) wai filed by the petitioner signed by her and her counsel repeating that in view of the compromise made by her she did not want to pursue the writ petition and, therefore, the writ petition be dismissed. On 16-2-1979 arguments on the preliminary question, viz., whether the petition could be heard in motion hearing at Gwalior, were heard and order thereon was reserved. It was also ordered that the case be listed for further hearing on motion on 23-2-1979. On 23-2-1979 none appeared for any of the parties and the case was adjourned to 26-2-1979 for further hearing. On 26-2-1979 the case was not reached and it was adjourned to next Friday, ie. 2-3-1979. On 27-2-1979 the aforesaid order was passed on the preliminary objection rejecting the same taking the view that the petition was properly laid for hearing on admission before that Division Bench at Gwalior which had jurisdiction to hear the same. Thereafter, on 2-3-1979 counsel for the petitioner stated that the dispute on the merits between the parties stood compromised and on that account the petitioner reiterated her prayer not to press the petition. The Division Bench then allowed the application dated 15-2-1979 (I.A. No. 697/79) dismissing the writ petition as not pressed. These are the facts which emerge from the record of the case and the order-sheets therein.

36. It is obvious that the petitioner had clearly indicated in her two applications dated 7-2-1979 (I.A. No. 406/79) and dated 15-2-1979 (I.A. No. 897/79) that she had compromised her dispute out of Court and that she did not want to press the petition. It is actually the application dated 15-2-1979 (I.A. No, 897/79) which was allowed on 2-3-1979 while dismissing the petition as not pressed. If we may say so, with due respect, at least on 15-2-1979 when the petitioner repeated her earlier request made on 7-2-1979 stating that she did not want to press the writ petition, the preliminary question which the Division Bench was considering had at best become academic and there was no occasion to decide the same, the petitioner being no longer in need of any relief and expressly praying that her petition be dismissed as not pressed.

37. After giving our most anxious consideration to the view taken by the Division Bench in its order dated 27-2-1979 passed in Inderbai v. State of M. P. M. P. No. 5 of 1979, we regret our inability to hold that the view expressed therein is in consonance with the earlier Full Bench decision of this Court in Abdul Taiyab's case or the other decisions referred therein. The decisions referred in that order are Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331, Abdul Taiyab v. Union of India 1976 MPLJ 767 (FB), Ram Rakh Vyas v. Union of India AIR 1977 Raj 243, and Brij Gopal v. State of M. P. 1978 MPLJ 70 (FB). The reliance is mainly on the decision of the Full Bench of this Court in Brij Gopal's case and that actually is the mam reason given for the view taken by the Division Bench. In our opinion, this reason does not assist in reaching the conclusion that was reached by the Division Bench. In Brij Gopal's case, the question was of finding the meaning of the word 'determine' occurring in Article 228A of the Constitution inserted by the Constitution (42nd Amendment) Act, 1976. The conclusion reached therein was not in respect of the word 'heard' with which wa are concerned. All the same, we have already referred to the opinion of Shiv Dayal, C. J. in Brij Gopal's case, which is the majority opinion, to show that even in that opinion, hearing was construed to include motion hearing of petition. There can be no doubt and it is also not disputed before us that scope of the word 'determine' is much narrower than that of the word 'heard'. It is obvious that there may be a hearing even though nothing is determined as a result thereof but there can be no determination without a hearing. To illustrate the point, a motion hearing resulting in admission of a petition for hearing parties does not result in determination of any question involved in the petition but a motion hearing resulting in dismissal of the petition involves determination of the points raised therein. It is, therefore, not correct to say that the word 'heard' has the same meaning as the word 'determine', the latter being admittedly of a narrower scope. Brij Gopal's case is, therefore, of assistance to the extent we have already indicated inasmuch as it shows that hearing includes motion hearing but the conclusion reached therein while finding the meaning of the word 'determine' cannot be the conclusion when the word for construction is 'heard' and not 'determined'. This being the only reason given by the Division Bench for reaching its conclusion in Inderbai's case there is nothing else therein which requires any further consideration,

38. We have also indicated why the decision in Janved Singh's case that hearing includes motion hearing cannot be treated as obiter dictum and that in Inderbai's case it was not necessary to decide this point since the petitioner had prayed for dismissal of the petition as not pressed. It is significant that the view taken in Inderbai's case itself concedes that in case of a petition not admitted in motion hearing at any of the Benches, the petition will have to be laid for hearing at the principal seat, i.e. for motion hearing on the question of admission. This itself shows that at least in the case of such a petition which has not been admitted at the Bench, the motion hearing thereof even for the purpose of admission has to be at the principal seat, i.e. Jabalpur. To this extent, the view taken in Inderbai's case also accepts that motion hearing is included in hearing, or in other words, the word 'heard' occurring in Chief Justice's order dated 5-2-1976 includes motion hearing also. With respect, we may add that even though the Full Bench decision in Abdul Taiyab's case, is referred to in Inderbai's case, yet the conclusion reached therein requiring the Bench Registry to first list the case before a Division Bench sitting at Gwalior or Indore and not to transmit the record of such petitions directly to Jabalpur is contrary to the majority view contained in the opinion of Oza, J., in Abdul Taiyab's case. We have already pointed out that such a contention raised therein which had found favour with Raina and Bajpai JJ. had been expressly rejected by Oza J. in his opinion with whom Vyas and Sharma JJ. entirely agreed. Nothing has been stated by the Division Bench as to how it had overcome the majority view in Abdul Taiyab's case on this point. Nasiruddin's case (supra) which has also been referred in Inderbai's case does not support the view reached by the Division Bench, We have already shown how Nasiruddin's case lays down the meaning of the word 'heard' to include also motion hearing.

39. With respect, we are of the opinion that the view taken by the Division Bench in the aforesaid order passed in Inderbai's case is in conflict with the Supreme Court's decision in Nasiruddin's case and the two Full Bench decisions of this Court which are referred to therein. After giving our most anxious consideration to the question, we have come to the conclusion that the view taken by the Division Bench in Inderbai's case in its order dated 27-2-1979 is not correct and that the conclusion reached in Janved Singh's case that 'hearing includes motion hearing' is the correct view.

40. The above conclusion on the main point leaves for consideration only the second contention of Shri B. L. Pavecha and Shri S. D. Sanghi. Their contention, in short, is that even if the word 'heard' occurring in the Chief Justice's order dated 5-2-1976 includes motion hearing, that order can apply only to cases governed by it which were pending on 5-2-1976, the date of the Chief Justice's order and it cannot govern any case instituted after that date. The logical corollary to such an argument is that the power of the Chief Justice in accordance with the proviso to the President's order enables him to direct any case instituted at Indore or Gwalior to be heard at Jabalpur only after it has been instituted and no such order can be made in exercise of that power specifying any class of cases to be heard at Jabalpur so as to govern the hearing of those cases instituted at the Benches after the date of the Chief Justice's order. Learned counsel with their usual fairness frankly conceded that such an argument has been advanced for the first time and that so far the Chief Justice's power under the proviso to the President's notification has been understood to mean that such an order, issued by the Chief Justice, governs pending as well as future cases covered by it.

41. While advancing the above contention, learned counsel conceded that the main part of the President's notification issued under Section 51(2) of the States Reorganization Act constituting the two permanent Benches governs not only the pending cases on that date but also the future cases instituted thereafter so that the jurisdiction of the two Benches extends to hearing pending as well as future cases. However, it is contended that even though the main part of the President's notification extends also to future cases, the power conferred on the Chief Justice by the proviso thereunder is further limited to govern only pending cases and not those to be instituted thereafter.

42. In our opinion, there is no merit in this contention. The language used in the President's notification shows that the proviso was not further limited in the manner suggested by learned counsel and that the cases governed by the main part of the notification fall also within the ambit of the proviso conferring power on the Chief Justice. The main part of the notification conferring jurisdiction on the Benches specifies that their jurisdiction would be 'in respect of cases arising in the revenue districts of...............'. The proviso while conferring power on the Chief Justice to direct any such case instituted or filed at the Benches to be heard at Jabalpur, uses the same expression 'any case or class of cases arising in any such district' to specify the extent of Chief Justice's power. It is significant that the word 'arising in' are used in the main part of the notification as well as in the proviso. There is no reason to construe this expression differently in the two parts of the same order. It being common ground that the expression 'arising in the revenue districts,........' used in the main part of the notification conferring jurisdiction on the two Benches relates not only to pending cases but also to those instituted later, the same meaning must be given to that expression used in the proviso. The proviso confers power on the Chief Justice to make an exception to the general rule contained in the main part which gives jurisdiction to the Benches in respect of cases arising within its jurisdiction.

43. The net result is that ordinarily the two permanent Benches have jurisdiction to hear all cases arising within their jurisdiction but it is open to the Chief Justice to direct that any such case or class of cases falling ordinarily within the jurisdiction of the Benches shall be heard at Jabalpur. All cases i.e. not only pending cases but those to be instituted later and arising in the specified areas, fall within the jurisdiction of the Benches and therefore all of them equally fall within the powers of the Chief Justice given by the proviso.

44. If this novel argument advanced as a last resort were to be accepted, the result would be that unless a case has been instituted at any of the Benches, the Chief Justice cannot direct it to be heard at Jabalpur. Such a conclusion would result in great inconvenience to the litigant public since a case which has to be heard urgently will be unnecessarily delayed till the Chief Justice's order has been obtained after its institution. The practice followed so far without challenge from any quarter and which has been uniformly understood to be the Chief Justice's power has been to specify a particular class of cases in the Chief Justice's order required to be heard at Jabalpur. According to the Chief Justice's order, any case instituted at the Benches and falling within the class specified therein, is required to be transmitted forthwith to Jabalpur for being heard there. In our view, this is the only correct interpretation of the Chief Justice's power under the proviso to the President's notification.

45. Reliance was placed on certain portions of the decision in Nasiruddin's case (supra) to support this contention. We have no doubt that Nasiruddin's case cannot be read in that manner. Learned counsel placed reliance particularly on certain portions in paragraphs 19, 37 and 39. It is suggested that these portions show that their Lordships were of the view that the Chief Justice of Allahabad High Court could not make an order In exercise of his power under the second proviso to para 14 of the Amalgamation Order directing a case filed at Lucknow after the date of the Chief Justice's order to be heard as Allahabad. It is difficult to accept this argument.

46. In para 19 their Lordships stated the decision of the Allahabad High Court on the aforesaid third question raised before it, in para 37 their Lordships' conclusions on all the questions were summed up and in para 39 it was said that the answers given by the Allahabad High Court to the first three questions are correct, save as modified by their Lordships' conclusions summarised earlier. It is, therefore, in the context of the third question and its answer that the contents of paragraphs 19, 37 and 39 of the Supreme Court's decision in Nasiruddin's case have to be understood. The third question was whether a case pertaining to the jurisdiction of Lucknow Bench being presented and entertained at Allahabad could be decided finally by the Judges sitting at Allahabad without there being an order of the Chief Justice as contemplated by the second proviso to para 14 of the Amalgamation Order. The answer given by the Allahabad High Court to this question, which has been affirmed by the Supreme Court, was that such a case could not be decided at Allahabad in the absence of an ordor of the Chief Justice contemplated by the second proviso to para 14 of the Amalgamation Order. It was clearly implied that such a case could be heard and decided at Allahabad if there was an order of the Chief Justice issued under the second proviso to para 14 and not otherwise. This conclusion of the Allahabad High Court was expressly upheld in para 37 where the third conclusion of their Lordships is that 'The Chief Justice has power under the second proviso to para 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'.

47. The further observations of their Lordships in para 37 and at the end of para 19 relied on in support of this contention relate to the Chief Justice's power under the second proviso to prohibit even the institution or filing of cases governed by his order at Lucknow Bench after the date of the order in spite of the fact that they arise out of the Oudh areas falling within the jurisdiction of the Lucknow Bench. In this respect, their Lordships held that the Chief Justice while directing the cases arising in the Oudh areas to be heard at Allahabad had no power under the second proviso to prohibit even institution of those cases at Lucknow and the Chief Justice's order would operate to govern the hearing of those cases the moment they were instituted or filed at Lucknow. This position has been explained by their Lordships after stating the third conclusion quoted earlier, in para 37 as follows:--

'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 -- to be heard at Allahabad.'

48. It is the above extract from para 37 which is strongly relied on in support of this contention. Read in the context there is no ambiguity in the above extract from their Lordships' observations. The above observations appear to explain the third conclusion stated in para 37 before proceeding to state the fourth conclusion. There can be no doubt that these observations have, therefore, to be read in the context of the third question and its answer given by their Lordships. All that the above observations of their Lordships mean is that the power of the Chief Justice being merely to direct cases arising out of the Oudh areas to be 'heard' at Allahabad, the Chief Justice could not direct that the cases arising in the Oudh areas shall not even be instituted at Lucknow and that all such cases could be filed only at Allahabad. Their Lordships then proceeded to explain the meaning of the word 'heard' as including the entire process commencing on the institution or filing of a case and not taking within its ambit also the stage of institution or filing. This was obviously done to indicate that the Chief Justice's power being to direct such cases to be 'heard' at Allahabad instead of Lucknow, he could not in exercise of that power prohibit also the institution or filing of the cases at Luck-now even though thereafter they had to be heard and disposed of only at Allahabad.

49. There can be no doubt that in Nasiruddin's case also their Lordships were dealing with the Chief Justice's power under the second proviso to para 14 to direct that all cases instituted after the date of the order and falling within the Lucknow jurisdiction were to be heard at Allahabad. That power was not construed as being confined only to govern pending cases which had been already instituted before the date of the Chief Justice's order. It is obvious that there would have been no occasion to decide this point and say that the stage of institution or filing is not included within the meaning of the word 'heard' and therefore the Chief Justice's power to also prohibit institution or filing of cases at Lucknow was not available, if the Chief Justice's power was construed as confined only to pending cases. If the Chief Justice's power under the second proviso to para 14 was confined only to pending cases and did not extend to future cases also, then it was sufficient for their Lordships to say that the power of the Chief Justice under the second proviso to para 14 being confined only to pending cases on the date of his order, the Chief Justice had no power to make any direction with regard to the place of institution of a future case. What has been held by their Lordships is that future institution at Lucknow Bench could not be prohibited by the Chief Justice even though he could direct those future cases to be heard at Allahabad after they were filed at Lucknow.

50. We have no doubt that their Lordships could not have overlooked an obvious and easy solution to the problem and undertaken the needless trouble of reaching their conclusion by the elaborate process of finding the meaning of the word 'heard' to decide the scope of Chief Justice's power, if the second contention of Shri Sanghi and Shri Pavecha be correct. In our opinion, Nasiruddin's case itself is an authority to show that the power of the Chief Justice under the proviso to the President's notification which has been held by the Full Bench in Abdul Taiyab's case to be in pan materia with the second proviso to para 14 of the U. P. High Court (Amalgamation) Order, 1948 is undoubtedly available to govern cases to be instituted after the date of the order and is not confined only to pending cases on the date of his order.

51. We may also add that in Ram Rakh Vyas v. The Union of India, AIR 1977 Raj 243, A. P. Sen J. (as he then was), following the Full Bench decision of this Court in Abdul Taiyab's case (supra) has reached certain conclusions which support our view. In para 35 it was held that it was not correct to say that cases instituted at the Jaipur Bench after 31-1-1977 shall be heard only at the Jaipur Bench because that is contrary to the proviso to the President's notification constituting the Jaipur Bench, It was added that the proviso to the President's order enabled the Chief Justice to withdraw a case or class of cases from the permanent Bench at Jaipur to the main seat at Jodhpur. The validity of a similar order passed by the Chief Justice of the Rajasthan High Court prior to the inauguration of the Jaipur Bench with effect from 31-1-1977 was upheld, The order issued by the Chief Justice prior to 31-1-1977 in exercise of the power conferred on him by the proviso to the President's notification was clearly held to cover the cases instituted at the Jaipur Bench even after 31-1-1977. There is thus neither reason nor principle nor even authority to support the second contention of Shri Sanghi and Shri Pavecha. In fact the indication is to the contrary as already pointed out. This contention also, therefore, fails and is rejected,

52. As a result of the above discussion our answer to the question referred is as under:--

'In compliance with the order dated 5-2-1976, passed by the then Chief Justice (Shiv Dayal, C. J.), it is necessary to list a petition under Articles 226/227 of the Constitution instituted at any of the Bench Registries raising the question of vires of any enactment, rule, order of notification etc. even for motion hearing for admission and for any interim order, at Jabalpur, the principal seat of the High Court; for this purpose, it is the duty of the Additional Registrar at the two Benches to transmit the recort thereof forthwith to Jabalpur on its institution; and this order of the Chief Justice governs not only pending cases but also cases instituted after the date of his order.'

53. The case shall now be laid before the appropriate Division Bench at Jabalpur for further orders in accordance with the above opinion.

U.N. Bhachawat, J.

54. I have the advantage of reading the opinion recorded by the learned brother J.S. Verma, J. in his inimitable style in a comprehensive and compendious manner. I agree with the answer to the question referred; but I think it necessary to say something on my own and append my own reasons.

55, It would be useful to briefly state the facts leading to the present reference. One Janved Singh filed a Miscellaneous Petition being No. 515 of 1978 under Article 226 of the Constitution of India for the issuance of a writ of certiorari or any other suitable writ or direction or order for quashing the order of Honourable the Chief Justice whereby he had directed the Bench Registry at Gwalior to remit all the pending petitions wherein questions of vires of the M. P. Gram Panchayats (Amendment) Act, 1978 (No. 135 of 1978) were raised. When this petition came up for motion hearing before a Division Bench consisting of Late Honourable R. K. Tankha and C. P. Sen, JJ. at Jabalpur, Shri Y. S. Dharmadhikari, on behalf of respondents Nos. 4 and 5, and Shri Gulab Gupta, on behalf of the High Court Bar Association of Jabalpur entered appearance and sought permission to intervene which was granted. The petition was not admitted and dismissed in limine.

56. At the time of hearing, as it appears from the order, the counsel for the petitioner, at the hearing on admission had raised three contentions; First that the Sub-section (1) of Section 51 of the States Reorganisation Act, 1956 it ultra vires; second all these notifications and orders issued by the President and the Chief Justices of M. P. High Court, which were the subject-matter of consideration in Abdul Taiyab v. Union of India, AIR 1977 Madh Pra 116, were not valid and third, the President's order dated 27-10-56 notifying Jabalpur as principal seat of the M. P. High Court was invalid. All these contentions were rejected by the Bench vide order dated 24-8-78.

57. It appears from the tenor of the order that, after hearing, when the order was under dictation, the learned counsel for respondents Nos. 4 and 5, Shri Y. S. Dharmadhikari, brought to the notice that some confusion was persisting at the two Benches at Indore and Gwalior regarding the motion hearing of petitions raising questions of vires, whereupon the Bench clarified the legal position holding that even the motion hearing of such petitions has to be held at Jabalpur in view of the order of the Hon'ble the Chief Justice, Shri Shiv Dayal The relevant parts of the order are extracted hereinbelow:

'By this petition under Article 226 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari or any other suitable writ, direction or order for the purpose of quashing the order passed by Hon'ble the Chief Justice (respondent No. 3) calling all the writ petitions involving the question of vires with regard to the Madhya Pradesh Gram Panchayats (Amendment) Act, 1978 (No. 135 of 1978), which have been pending at the Gwalior Bench of this High Court.'

XX XX XX XX 'Shri Y. S. Dharmadhikari, counsel for respondents 4 and 5, and Shri Gulab Gupta, on behalf of the High Court Bar Association at Jabalpur sought permission to intervene. The learned counsel for the petitioner did not object for their intervening. As such we thought that it would be proper that the interveners also may be given an opportunity to be heard at this stage, more so when there was a prayer also for issuance of an ad interim writ. They were accordingly also heard.'

XX XX XX XX 'Under the second contention learned counsel appearing for the petitioner has challenged the various notifications and orders issued by the President and the Chief Justice, which were the subject-matter of decision by a Bench of five Judges of this Court in Abdul Taiyab v. Union of India, AIR 1977 Madh Pra 116 and their validity has been upheld, we are afraid that the validity of these orders cannot be examined by this Court and the decision of the Full Bench is binding. Moreover, the matter is pending before the Supreme Court and it is sub judice. In view of the Full Bench decision, we are also of the opinion that the President of India had the power to issue the notification in question, regarding the matters enumerated in his order empowering the Chief Justice. We may also refer to the observations in the aforementioned Full Bench case that the Chief Justice alone has the power to fix the rosters and assign cases for hearing before appropriate Benches.'

'It was also brought to our notice by Shri Y. S. Dharmadhikari at this stage that some confusion seems to have been persisting at the two Benches at Indore and Gwalior regarding Motion Hearing of petitions involving the question of vires. It cannot be doubted in any manner that even in the Motion Hearing the petition has to be heard and if it is dismissed, it decides the matter finally, so far as this Court is concerned. That being so, it cannot be said that Motion Hearing does not mean a hearing of a case. In this connection we may refer to the Rules framed by the High Court under Article 226 of the Constitution of India, 'Motion Hearing' has been included in the hearing. Even in the Stroud's Judicial Dictionary (Fourth Edition Vol. 2), it has been mentioned as under:

'to 'hear' cause or matter means to hear and determine.'

However, a Full Bench of five Judges in 'Brijgopal v. State of M. P., AIR 1978 Madh Pra 122 has held that 'hearing includes Motion Hearing'. Therefore, we are of the view that any writ petition under Articles226/227 of the Constitution of India raising the question of vires of any enactment, rule, orders or Notifications has to be placed for Motion Hearing at the Principal Seat in view of the Hon'ble the Chief Justice's order dated 5-2-1976.

The last and the third contention raised by the learned counsel for the petitioner is about the validity of the Presidential Order dated 27-10-1956, notifying Jabalpur to the Principal Seat of the Madhya Pradesh High Court, as per Section 51(1) of the said Act......'

XX XX XX XX

'As all the three contentions have been rejected by us as untenable, we find no substance in entertaining this petition, which is' being dismissed summarily.

In view of the petition being dismissed, the application for issue of an ad interim writ (I.A. No. 2770/78) is also rejected.'

58. Thereafter a Division Bench Gwalior (Consisting, of Hon. A. H. Naokar and H.G. Mishra, JJ.) in Inder Bai v. State of M. P., M. P. No. 5 of 1979 in an order on Motion Hearing took a different view from the view that was taken in Janved Singh's case (supra) and gave a general direction to the Registry about the listing of the Miscellaneous Petitions raising questions of constitutional validity of a State Law for admission, The relevant extracts from the order are set out below:

'From the aforesaid ratio the position of law which emerges and the procedure which has to be followed is to the following effect:--

(i) When a writ petition raising question of constitutional validity of a State law has been presented in Bench Registry, it has to be placed for admission before the Judges constituting a Division Bench in the first instance;

(ii) The Division Bench, before which the petition is listed for 'motion hearing' is competent to admit it and also grant interim relief, such as stay, injunction etc.;

(iii) The Division Bench can dismiss petition even at admission stage in the following cases;--

(1) When the question is irrelevant and, therefore, does not arise for determination;

(2) When the question has already been determined by the Supreme Court;

(3) When the question has already been determined by a Bench of at least five Judges of the High Court, and the Division Bench does not feel reconsideration of the decision by a larger Bench to be necessary?

(4) In case not falling within the above said exceptions, the petition will have to be laid for hearing at the Principal Seat, since in that event rejection will mean 'hearing for determination'.

(5) After admission of the writ petition by this Bench, it will have also to be laid for final hearing at the Principal Seat.

XX XX XX XX Accordingly, after being presented a writ petition involving challenge to the vires of a State Law will have to be placed, by the Bench Registry, before a Division Bench for admission and/or grant of interim relief. The Bench Registry cannot send such a petition directly to the Principal Seat, because it is not the opinion of the Bench Registry, which is postulate of the law, but it is for the Judges sitting in Division Bench, before which the petition has been laid for hearing on admission, to decide, whether to admit the petition and/or to grant interim relief or to reject it on the grounds indicated in para 77 of the case of Brij Gopal (supra) or to direct it to be sent to the Principal Seat to be laid for being dealt with in accordance with the procedure laid down by the Full Bench case in Brij Gopal (supra).

As is clear from the order, passed in Janved Singh's case (supra), the petition was heard on admission at the Principal Seat; and while rejecting the petition in limine, the Hon'ble Division Bench in para 6 of its order dated 24-8-1978 has given decision on a point, which was not necessary for the decision of the questions raised by that petition. As such, the decision in para 6 of Janved Singh's case, in our humble opinion, is an obiter dictum. Even agreeing with the dictum of the Janved Singh's case (supra) that 'hearing' includes 'motion hearing' also, in the light of the ratio of Brij Gopal's case (supra) it has to be held that the procedure indicated in para 77 thereof has to be followed and the Bench Registries cannot send writ petition containing a challenge to the constitutional validity of a State law directly to the Main Registry.'

39. The facts, right from the institution leading up to the hearing of the arguments on admission of Inderbai's case (supra) by the Bench at Gwalior, have been elaborately enumerated in paragraphs 34 and 36 of the opinion recorded by Hon. J. S. Verma, J. and I do not propose to repeat them here again.

40. When the instant Miscellaneous Petition involving the question of vires came up for hearing before the Division Bench of this Court at Jabalpur relying on decision in Inder Bai's case of Gwalior Bench, an application was moved by the petitioner on 10th March, 1979 that the records of this petition be sent back to Gwalior for the purpose of listing it for Motion Hearing at Gwalior. The Division Bench in view of the two conflicting views thought it fit to refer the following question for the opinion of a larger Bench:--

'Whether in compliance with the order dated 5-2-1976 passed by the then Chief Justice (Shiv Dayal C. J.) it is not necessary to list a petition under Articles 226/227 of the Constitution filed in any of the Bench Registries raising the question of vires of any enactment, rule, order or notification etc. also for motion hearing at the principal seat of the High Court.'

The answer to the aforesaid question involves the interpretation of the order dated 5-2-1976 of the then Chief Justice (Shiv Dayal C. J.) passed in exercise of the powers conferred on the Chief Justice under the proviso to the notification No. 16/20/68-Judl.III, dated the 28th November, 1968 issued by the President under Section 51(2) of the States Reorganisation Act, 1956 (No. XXXVII of 1956) establishing the permanent Benches of the Madhya Pradesh High Court at Indore and Gwalior.

The Chief Justice had passed two separate orders on this date in identical terms each relating to the Bench of this Court at Gwalior and Indore. I propose to reproduce only one order relating to the Bench at Gwalior. It reads as under:

'In exercise of the powers conferred on me by the proviso to the Notification No. 16/20/68-Judl.III, dated November 28, 1968, issued by the President under Section 51(2) of the States Reorganization Act, 1956 (No. 37 of 1956), establishing a permanent Bench of the Madhya Pradesh High Court at Gwalior.

And in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso, I hereby order that with effect from February 5, 1976, till further orders, only the following cases arising from the Revenue Districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), Bhind and Morena, except those cases for which I may otherwise order, shall be heard at Jabalpur:--

(1) All petitions under Articles 228/ 227 of the Constitution challenging the vires of any Act or statute or any order or rule or regulation made under any Act or statute;

(2) All individual cases which I may hereafter order to be heard at Jabalpur.

Sd/-

Shiv Dayal

CHIEF JUSTICE

5-2-1976.'

61. Mr. Shahastrabudhe, learned counsel appearing on behalf of the Bar Association, Gwalior had raised some preliminary objections to the validity of the present reference; Mr. Halve, learned counsel for the petitioner in the instant case had contended that the petitions under Articles 226/227 of the Constitution, challenging the vires of any Act or statute or any order or rule or regulation made under any Act or Statute, instituted at the Benches, should be listed before the Court at the places of institution and if the Court orders its transmission to Jabalpur then alone it should be transmitted by the Registry. The Additional Registrar has no power in absence of a judicial order to transmit the case for being listed for Motion Hearing at Jabalpur.

62. Without dealing with these arguments at first, I shall come down to the brass tacks, which is the interpretation of the forequoted order of the Chief Justice dated 5-2-1976 (hereinafter referred to as 'the order in question').

63. For an intelligent understanding and proper appreciation of the question at hand I would like to set out hereinbelow the Notification No. 16/20/68 Judl. III dated November 28, 1968 (hereinafter referred to as 'Notification') issued by the President under Section 51(2) of the States Reorganisation Act, 1956 (XXXVII of 1956). The order in question has been issued in exercise of the powers granted by the proviso in this Notification;

'In exercise of the powers conferred by Sub-section (2) of Section 51 of the States Reorganisation Act, 1956 (XXXVII of 1956), I, Zakir Hussain, president of India, after consultation with the Governor of Madhya Pradesh and the Chief Justice of the High Court of Madhya Pradesh, hereby establish a permanent Bench of the Madhya Pradesh High Court at Gwalior and further direct that such Judges of the High Court of Madhya Pradesh, being not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Gwalior in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), Bhind and Morena:

Provided that the Chief Justice may for special reasons, order that any case or class of cases arising in any such district shall be heard at Jabalpur.'

It may be pointed out that the words 'for special reasons' in the proviso were subsequently deleted vide the order dated 23-6-1971 of the President.

64. The arguments and the counter arguments of the learned counsel appearing on behalf of the Indore and Jabalpur Bar Associations pose the following two questions, on the decisions of which depends the answer to the question referred to us.

(1) Whether the word 'heard' in the order in question means only final hearing and motion hearing of only those petitions which have not been found fit for admission by the Division Bench hearing it at the place of its institution and therefore the 'petition challenging the vires has after its institution first to be listed for motion hearing before the Division Bench at the place of its institution?

(ii) Whether the order in question on Its true construction is applicable only to petitions which were pending on the date the order was issued and does not apply to petitions instituted or to be instituted thereafter.

I shall proceed to consider the aforesaid questions ad seriatim,

65. Question No. 1. -

The learned counsel for the Indore Bar Association submitted that the object behind establishing permanent Benches was the convenience of the litigants of the regions allotted to the respective Benches, vide the Notification while defining the limits of their respective territorial jurisdiction. He further submitted that one cannot be oblivious to this fact that there are certain petitions accompanied by an application for ad interim writ which need immediate hearing without even a day's lapse of time; such petitions if are to be listed for Motion Hearing or for orders on application for ad interim writ at Jabalpur, by the time it is laid before the Court and heard in Motion Hearing, purpose or object for which the petition was filed, may be and the petition itself may become infructuous. He submitted that this possibility cannot be avoided even if the petitioners in order to save the period that may be consumed in the transmission of the record of the case for Motion Hearing from the place of institution to Jabalpur, were to institute the petition directly at Jabalpur as time will be consumed also in pe-titioners' travelling up to Jabalpur. It was submitted that these are the consequences to avoid which the Benches were established. On these submissions, it was argued that in the context of the object behind the establishment of Benches the word 'heard' should not be construed in its normal grammatical meaning which would include Motion Hearing also. It should be construed in its restricted sense so as to mean final hearing or hearing in motion of these cases which the Division Bench at the place of institution was not inclined to admit at the time of Motion Hearing. It was argued that such an interpretation would be consistent with the object behind the establishment of permanent Benches vide the aforesaid Notification. Placing reliance on the decision in Brijgopal v. State of M. P. 1978 MPLJ 70 (FB) it was argued that simply by admitting and/or passing an ad interim order in the petition, there would be no determination of the point involved in the petition. II would amount to a determination if the petition is dismissed in Motion Hearing and, therefore, the restricted meaning as suggested perfectly fits in with the context and purpose of the Notification,

66. The learned counsel appearing on behalf of the Jabalpur Bar Association in their arguments in counter submitted that the word 'heard' should be read in its grammatical sense; neither the context justifies any other interpretation nor any assistance can be drawn from Brijgopal's case as it relates to the interpretation of the word 'determining' and that too in a different context. It was also argued that as interpreting the word 'heard' in its natural, popular sense in which it is used leads to no ambiguity or absurdity, according to well settled canons of interpretation on the alleged ground of hardship, no different meaning can be assigned to it. It was also contended that accepting of the interpretation put by the Indore Bar Association would not only be in violation of the plain language of the order in question but would be evolving a procedure contrary to the one provided in Rules 4, 5, 6 and 16 in Chapter II Part II of the High Court Rules and Orders.

It would be pertinent to mention here that by a decision of the Full Bench of five Judges of this Court in Abdul Taiyab Abbas Bhai v. Union of India 1978 Jab LJ 706 the Notification and the Order in question have been held to be valid,

67. The effect of the order in question is that it excepts out, the hearing atthe Benches of all the petitions under Articles 226/227 of the Constitution of India challenging the vires of any Act or statute or any order or rule or regulation made under any Act or Statute, which but for it would have been heard at the Bench in view of the main part of the Notification, To put it differently such petitions should not be heard at the Benches but at Jabalpur,

68. The expression used in the proviso to the Notification which is the fountain of power of the Chief justice to order hearing of a case or class of cases at Jabalpur, and the order in question is In identical words. To quote, 'shall be heard at Jabalpur',

It is unquestionable position that In the event of no order by the Chief Justice in exercise of his powers under the proviso to the Notification all the cases would be instituted and heard which include hearing for admission at the place of the Bench.

69. It is a well settled position in law that the function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion, which but for the proviso would fall in the main. In view of this settled position in law, as to the effect of a proviso, it passes my comprehension how can it be held that, a class of cases which could be heard for admission at the Benches, had there not been an order of the Chief Justice in exercise of his powers under the proviso to the Notification, cannot be heard for admission at the Bench, when there are no words of limitation in the order in question and it has used the unqualified expression 'shall be heard' an expression which has been used in the proviso to the Notification. The expression 'shall be heard' in the proviso to the Notification must embrace the field of hearing which is covered in the main part of the Notification and as a sequel the expression 'shall be heard' in the order in question.

70. The argument of the learned counsel is that reading the word 'heard' in the context of public convenience, a restrictive meaning, so as to exclude motion hearing is justifiable. In my opinion this argument is devoid of substance,

71. The establishment of Benches under the Notification was itself in context of public convenience, a scheme whichwas intended in the States Reorganization Act, 1956 and in that very Notification a provision has been made authorising the Chief justice to carve out, a case or class of cases arising within the areas attached to the respective Benches, for hearing at Jabalpur, and the expression 'shall be heard at Jabalpur' has been used without being prefixed or suffixed by any other word so as to justify giving a restricted meaning 60 the word 'heard'. Thus when the very authority, which established the Benches, being alive to the object behind the establishment of Benches has delegated its power to the Chief Justice to order' the 'hearing of any case or class of cases at Jabalpur' without qualifying the expression 'shall be heard' it is clearly borne out that the intendment of the author of the Notification was that the expression 'shall be heard' should have its ordinary meaning and embrace the same field which it would have embraced if the cases were to be heard at the Benches in absence of the proviso or the order of the Chief justice under the proviso. To iterate the expression in identical words 'shall be heard at Jabalpur' has been used in the order in question and as such there is no justification for giving restricted meaning to the word 'heard' used in the order in question.

72. As already stated above, it is undisputed that the word 'heard' in its ordinary grammatical meaning and in common parlance includes motion hearing. It is true that as observed by Justice Holmes a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary according to circumstances and the time in which it is used,' but in the instant case as discussed hereinabove there is nothing to suggest in the context in which the word 'heard' has been used in the order in question, to deviate from its ordinary meaning and give a restricted meaning so as to exclude motion hearing from its ten; on the contrary it has been used to convey its ordinary grammatical meaning, so as to embrace within it 'motion hearing'. There is yet another significant reason to discard the interpretation put by the learned counsel appearing on behalf of the Indore Bar Association, the case Nasiruddin v. State Transport AIR 1976 SC 331 was decided on 29-8-1975 that is, much before the order in question. In this decision, the word 'heard'used in similar context has been interpreted to mean the hearing after institution, which necessarily includes motion hearing.

73. In Nasiruddin's case (supra) their Lordships were construing paragraph 14 of the 'United Provinces High Courts (Amalgamation) Order, 1948 (for short hereinafter referred to as 'Amalgamation Order'). The second proviso to this paragraph 14 is in pari materia to proviso to the Notification, I would like to place both the provisos herein below in juxtaposition to facilitate their comparison.

Second Proviso toparagraph 14 of Amalgamation Order,

Proviso to Notification.

Provided further thatthe Chief Justice may in hisdiscretion order that any case orclass of cases arising id thesaid area shall be heard atAllahabad.

Provided that the Chief Justicemay, for special reasons, orderthat any case or class of cases arising inany such district shallbe heard at Jabalpur.

The Supreme Court, as already said hereinabove in the preceding paragraph, interpreted the word 'heard' to include motion hearing. The relevant excerpt is set out below.

'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.'

From the above observation, it is clear that the Supreme Court construed the word 'heard' to include the complete process after institution till final disposal and thus it included motion hearing.

74. It has been held in A. T. Abbasbhai's case (supra) that Amalgamation Order and the Notification read with Section 51(2) of the States Reorganisation Act, 1956, both have been enacted to meet similar situation and with regard to a similar subject and the context also is similar. Thus when the Chief Justice used the very expression 'shall be heard' in the order which was already construed by the Supreme Court in Nasiruddin's case (supra), it can well be said that he intended the same meaning of the word 'heard' as was construed by the Supreme Court. At this stage I would like to quota with benefit the following observation from Craies in his work on Statute Law (fifteenth Edn) which has been approved in A. T. Abbasbhai's case (supra).

'It has been held that where the Legislature has given to words a statutory definition in one statute, and has used the same words in a similar connection in a later statute dealing with the same subject-matter, it may be presumed, in the absence of any context indicating a contrary intention, that the same meaning attaches to the words in the later as is given to them in the earlier statute.'

75. I would also like to mention that Brijgopal's case (supra) does not support the interpretation canvassed by the learned counsel for the Indore Bar Association; but as discussed by J. S. Verma. J. in his opinion, it supports the interpretation that the word 'heard' includes motion hearing,

76. In the light of the foregoing discussion, the irresistible conclusion is that the word 'heard' in the order in question includes motion hearing and, therefore, the petitions under Articles 226/227 of the Constitution of India challenging the vires of any Act or Statute or any order or regulation made under any Act of Statutes has to be listed for motion hearing also in view of the order, at Jabalpur.

77. I now proceed to consider the second question. The second question is as under:

'Whether the order in question on its true construction is applicable only to petitions which were pending on the date the order was issued and does not apply to petitions instituted or to be instituted thereafter.'

78. The argument of the learned counsel was that the order applies only to the cases that were pending on the date of order. While raising this contention, the learned counsel for the Indore Bar Association had submitted that the main part of the Notification applied to the cases that were existing on the date of the Notification as well as to the cases instituted thereafter; but the proviso to the Notification authorised the Chief Justice to order for the hearing of the case or class of cases which were already instituted at the time of making the order, The first argument was that this has to be so interpreted as the proviso to the Notification gives a discretionary power to the Chief Justice as the words are 'the Chief Justice may order'. It was submitted that it is only when the cases are instituted, that the Chief Justice, may it be for clearing the arrears or for uniformity of decision in particular class of cases of general importance or for the ready availability of the Advocate-General, at the Principal Seat, who is to be noticed in particular class of cases, or such other reasons will be in a position to apply his mind and be able to exercise his discretion. There can be no exercise of discretion unless the facts and circumstances 'calling for the exercise of the discretion, are in existence.

79. The second argument of the learned counsel was that the construction put by the Supreme Court on the word 'heard' in Nasiruddin's case also warrants the submission. The reliance was on the observation of the Supreme Court, 'cases which have already been instituted or filed'.

80. In my opinion the arguments though put with great ability and ingenuity, do not merit to be accepted.

First; for the parity of reasons given by me while dealing with the question of moaning of the word 'heard', I see no reason to hold that the proviso to the Notification does not embrace the same field which is embraced by the main part of the Notification.

81. In Volume 27 of Corpus Juris Secundum, at page 290 it has been said 'In a legal sense discretion is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists.'

82. Now it cannot be gainsaid that a Chief Justice with the background of his past experience, can well make Up his mind as to what class of cases should be heard at the Principal Seat. It is a matter of common knowledge that a person chalks out a future course of action for meeting a particular situation in the light of his experience in the past of such situation and a man can also visualise the difficulties or the necessities of the future and make arrangements to meet out these eventualities. The Notification and the order in question are the legislation in exercise of delegated power. It cannot be disputed that the law is enacted to meet the situation existing at the time of enacting it and/or to the situation that may arise subsequently.

83. Section 51(2) of the States Reorganisation Act, 1956 reads as under:

'51. Principal Seat and other places of sitting of High Courts for new States -

(1)

(2) The President may, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order provide for the establishment of a permanent Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith.'

On a plain reading of this sub-section, it is clear that an order for providing the establishment of a permanent Bench or Benches of the High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith, has been left to the discretion of the President. The President by one composite order, may order the establishment of a Bench or Benches in a State and also provide that a particular class of cases though arising in the areas attached to the Bench or Benches, shall be heard at the principal seat of the High Court. It is also clear that the President can establish Bench or Benches at a place where there was never a seat of High Court or a Bench. Thus there may not be any cases pending at the Bench or Benches so established by the President Now, if the interpretation put by the learned counsel for the Indore Bar Association is accepted, despite the order of the President, the particular class of cases, which the President had directed to be heard at principal seat, shall not be heard at the principal seat as they would be instituted at the Bench or Benches so established after the order. In other words if the interpretation of the learned counsel for the Indore Bar Association is accepted, it would in effect mean that the president has no power while establishing the Bench or Benches to order the hearing of a particular class of cases at the principal seat. His power to so order shall remain suspended till cases are instituted at the Bench or Benches as the case may be. It would tantamount, to reading a condition precedent in the section for such exercise of power by the President. In my opinion, the Legislature in its wisdom would have never intended so. As a sequel to this it follows that the President while issuing the Notification cannot be attributed the intention to confine the powers of the Chief Justice to order the hearing of a particular class of cases at the principal seat from amongst those cases only which were already pending on the date of making the order,

84. The significant expression in the main part of the Notification as well as the proviso is 'cases arising'. This expression in its grammatical sense includes the cases which had arisen and which may arise in future. It is the present, past and future perfect continuous tense. It would thus include the cases which were instituted prior to the date of the passing of the order; instituted on date of the order and that may be instituted thereafter; and there is nothing in the context to justify that to the words 'cases arising' a restricted meaning so as to mean the cases which were already instituted prior to the making of the order should be given,

85. Great reliance was placed in support of the arguments that the order in question applies to the cases which were already instituted and pending at the time of the making of the order in question on the meaning assigned to the construction of the word 'heard' by the Supreme Court in Nasiruddin's case (supra).

86. The argument of the learned counsel was that when the Supreme Court has construed the word 'heard' to mean 'the cases which have already been instituted or filed', it necessarily follows that the order in question applies to cases which were already instituted at the time of making the order in question. In my view the construction of the word 'heard' by the Supreme Court does not advance this proposition of the learned counsel for Indore Bar Association. The question before the Supreme Court in Nasiruddin's case (Supra) was as to whether the word 'heard' means actual hearing of cases after institution or includes the stages preceding that, that is, institution also.

87. The Full Bench of the Allahabad High Court had held that the word 'heard' is not confined only to the actual hearing of the case, it included even filing. The Supreme Court disagreeing with this meaning of the word 'heard' held that the word 'heard' means that cases which have already been instituted or filed at Lucknow. It was in the context of the controversy that the Supreme Court had used the word 'have already been instituted' while construing the word 'heard'. The Supreme Court did not intend to hold thereby that an order under second proviso to paragraph 14 of the Amalgamation Order cannot apply to the cases to be instituted after the making of the order by the Chief Justice.

88. As a result of the foregoing discussion, in my opinion, the order in question operates with regard to those petitions also which were filed or instituted on the date the order in question was issued and to be filed and instituted thereafter.

89. I would now turn to the preliminary objections that were raised by Mr. Sahastrabudhe, learned counsel for the Gwalior Bar Association, His arguments have been dealt with at length in the order of brother J. S. Verma, J. with which, I entirely agree except with that part of the finding that in Janved Singh v. Union of India, Misc. Petn. No. 515 of 1978, decided on 24-8-1978 it was necessary to decide the question as to whether the word 'hearing' includes 'Motion Hearing'. As would be indicated from the discussion in paragraphs 3 and 4 of my opinion, that question was not necessary to be decided in the light of the contentions that were raised by the learned counsel for the petitioner in that case; but as the learned counsel for the respondent urged for clarification of some confusion, which, according to him, was prevailing at the Benches, the Court expressed its opinion. Similarly in the light of the circumstances, enumerated in the opinion of J. S. Verma, J. there was no occasion to decide the question in Inderbai's case (supra). However, this position would not invalidate the reference. The fact remains that the Benches have expressed conflicting views. Further, as discussed in J. S, Verma, J.'s opinion conflicting earlier decision on the same point is not a condition precedent to the validity of a reference of any question for decision by a larger Bench. All that is necessary is that, that Division Bench before which the question arises, should be of the view that the question is of such importance that it requires to be decided by a larger Bench. Further except what I have said above, I have nothing to add to the reasonings given by J. S. Verma, J. for rejecting the preliminary objections raised by Mr. Sahasrabudhe, learned counsel for the Gwalior Bar Association.

90. Similarly I have nothing to add with regard to the arguments of Mr. Halve, learned counsel for the petitioner than what has been said by J. S. Verma, J. In the light of the foregoing discussion, as I have already stated at the very inception of this opinion, I agree, for the reasons recorded, with the answer to the questions referred, given in the opinion of J. S. Verma, J.


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