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Gulabchand Kapurchand JaIn and ors. Vs. Rukmanidevi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 6 of 1960
Judge
Reported inAIR1971MP40; 1970MPLJ794
ActsStates Reorganisation Act, 1956 - Sections 51(2)
AppellantGulabchand Kapurchand JaIn and ors.
RespondentRukmanidevi and ors.
Appellant AdvocateR.S. Dabir, as amicus curiae;S.D. Sahgal, Adv.; S.L. Garg, Adv.
Respondent AdvocateG.M. Chaphekar, Adv.
Cases ReferredYamunabai Reshimwale v. Municipal Corporation
Excerpt:
.....objection on behalf of the appellant raised precisely the same question and, in the circumstances, that is the only question arising for consideration by the full bench, especially when the division bench did not formulate any question for consideration by the full bench. but if the contention were correct, then, having regard to the effect these statutory notifications would have on the power and jurisdiction of the chief justice in regard to certain cases, their meaning must be gathered in accordance with the well established principles of construction of statutes. henry callander 1901 ac 305: before giving such a construction to an act of parliament one would require that it should either appear very clearly in the terms of the act, or arise by necessary and distinct..........zakir husain, 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, 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.....
Judgment:

Pandey, J.

1. This case comes before us on account of somewhat divergent views expressed by S. B. Sen, J. and Oza J. about the competence of the President to issue under Section 51(2) of the States Reorganisation Act, 1956 any notification in so far as it may be regarded as (i) taking away the power of the Judges, sitting for the time being at the seat of one of the permanent Benches, to hear a case arising in a Revenue District, the jurisdiction and power in regard to which are not given by the notification to that permanent Bench or (ii) as restrictively limiting the jurisdiction of a permanent Bench to cases mentioned in the notification relating to its constitution.

2. In the course of his order Sen J. stated:

'From what we have stated earlier, It is clear that the notification of the President, so far as it relates to the restriction of the High Court Judges to hear cases from areas other than those mentioned in the notification is beyond the scope of Section 51(2) of the States Reorganisation Act.'

Oza J., however, had in mind another aspect of the question when he stated:

'In the light of the discussion above, It appears that the contention that the President, acting under Section 51(2) of the Act, had no power to prescribe the jurisdiction of the permanent Bench is without force.'

3. The relevant notification relating to the permanent Bench at Indore reads:

'In exercise of the powers conferred by Sub-section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), I, Zakir Husain, 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, 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.'

It would appear that there is nothing in this notification which precludes the Judges constituting for the time being the permanent Bench at Indore from hearing cases other than those indicated In the notification. For example, if a case which should ordinarily be heard at the main seat of the High Court, is directed by the Chief Justice to be heard by the permanent Bench at Indore, the notification cannot stand in the way of the Bench hearing it. In other words, the notification purports to provide that the power and jurisdiction in regard to certain cases therein specified would be exercisable unless the Chief Justice acting under the Proviso otherwise directs, by the permanent Bench sitting at Indore. But it is silent about the power and jurisdiction of that Bench in regard to all other cases and those must, therefore, be regarded as remaining unaffected and unimpaired. There is also another notification relating to the establishment of a permanent Bench at Gwalior which contains identical provisions and that too should be similarly construed. It follows that the question in this case is not whether the power and jurisdiction of certain Judges to hear cases from other areas have been taken away or whether the President has, under Section 51(2) of the States Reorganization Act, power to limit the jurisdiction of a permanent Bench to certain specified cases. The question is Whether the permanent Bench at Indorecould hear a case which arose from one of the Revenue Districts mentioned in the notification relating to the permanent Bench at Gwalior. The preliminary objection on behalf of the appellant raised precisely the same question and, in the circumstances, that is the only question arising for consideration by the Full Bench, especially when the Division Bench did not formulate any question for consideration by the Full Bench.

4. The suit, out of which this appeal arises, was filed in the princely State of Gwalior on August 5, 1929. After it was decided by the District Judge, Guna, on September 22, 1955, this appeal was filed. It transpired that subsequently the appeal came up for hearing before A. H. Khan and Sheodayal JJ. Khan J. had already dealt with the case earlier in another capacity. Sheodayal J. had been a counsel for one of the parties. Thus both the Judges then sitting at Gwalior were unable to hear the appeal. Therefore, the appellant made an application for transfer of the appeal either to Jabalpur or to Indore. The Chief Justice, by an order dated November 16, 1959, transferred the appeal to the Indore Bench for disposal. Thereafter, in accordance with the roster prepared under the directions of the Chief Justice, the appeal was being listed before that Bench.

5. At the time when this appeal was transferred, only temporary Benches had been established under Section 51(3) of the States Reorganization Act by an order dated November 1, 1956, which reads:

'In exercise of the powers conferred by the Sub-section (3) of Section 51 of the States Reorganization Act, 1956 (No. 37 of 1956) and with the approval of the Governor of Madhya Pradesh, the Honourable the Chief Justice of the Madhya Pradesh High Court is pleased to direct that temporary Benches of the High Court of Madhya Pradesh will also sit temporarily at Indore and Gwalior, until further orders'.

Actually, under the aforesaid provision, Indore and Gwalior were mere places of sitting of Judges and Division Courts of the High Court. Further, in regard to the cases to be taken up by them, the Chief Justice had, by an order passed on even date, directed as follows:

'The jurisdiction of the Indore and Gwalior Benches temporarily constituted at those places shall be as they were immediately before the appointed day, with the addition that the Gwalior Bench shall deal temporarily with cases instituted there from Sironj sub-division of Kotah district in the State of Rajasthan and the Indore Bench shall temporarily exercise the same jurisdiction in respect of cases arising from the territories comprised in the old Bhopal State.'

This order was modified from time to time by the Chief Justice but, until November 16, 1959, the jurisdiction in regard to this appeal remained with the temporary Bench at Gwalior. It was in this setting that the Chief Justice passed the order transferring the appeal to the Indore Bench for disposal. There can be no question, and it is not disputed either, that prior to the creation of two permanent Benches by the two notifications dated November 28, 1968, the Chief Justice had full power to make over to, or withdraw from, any Judge or division court of the High Court, any case or class of cases. As shown, the Chief Justice also frequently exercised this power.

6. It has been argued that the two notifications creating the permanent Benches at Indore and Gwalior have the effect of taking away the power and jurisdiction of the Chief Justice to deal with the cases therein mentioned except to the extent and in the circumstances mentioned in the Proviso thereto. For the purpose of this case, it is not necessary to express any opinion on that controvertial question which was debated at the Bar at some length. But if the contention were correct, then, having regard to the effect these statutory notifications would have on the power and jurisdiction of the Chief Justice in regard to certain cases, their meaning must be gathered in accordance with the well established principles of construction of statutes. For the purpose of this case, it may not be necessary to decide whether those statutory notifications issued in exercise of the powers delegated under Section 51(2) of the States Reorganization Act can be retrospective in operation. The question is, whether, having regard to the language therein employed, they are, or must be construed to be, retroactive. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Nova Constitutio Futuris Formam Imponere Debet Non Praeteritis. (A new law ought to be prospective and not retrospective in operation). In other words, retrospective operation is not to be taken as intended unless the intention is manifested by express words or necessary intendment. So it was observed in David W. E. Smith v. Henry Callander 1901 AC 305:

'...... before giving such a construction to an Act of Parliament one would require that it should either appear very clearly in the terms of the Act, or arise by necessary and distinct implication.'

In State of Bombay v. Vishnu Ram-chandra, AIR 1961 SC 307, the Supreme Court recalled with approval the observations of Erle, C. J., in Midland Rly. Co.v. Pye, 1861-10 CBNS 179 at p. 191 to theeffect that those whose duty it was to administer the law very properly guarded against giving to an Act of Parliament a retrospective operation, unless the intention of the Legislature that it should be so construed was expressed in clear, plain and unambiguous language.

7. In the light of the principle of construction of statute just mentioned, we have carefully considered the language employed in the two notifications and we do not find therein anything to indicate that they were intended to be retroactive in the sense that all contrary orders passed earlier by the Chief Justice in the exercise of his undoubted powers were thereby rendered retroactively ineffective, the Benches other than permanent Benches to which the cases had been made over in the exercise of those powers were thereby deprived of their power and jurisdiction to hear and dispose of those cases and the pending cases stood transferred to the new permanent Benches. If, as contended, the existing jurisdiction in regard to these cases was intended to be altogether taken away, there would have been, as usual, an enactment providing for a change over of proceedings to the new jurisdiction such as the one found in Article 374(4) of the Constitution, which reads:

'On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State specified in Part B of the First Schedule to entertain and dispose of appeal and petitions from or in respect of any judgment, decree or order of any court within that State shall cease, and all appeals and other proceedings pending before the said authority at such commencement shall be transferred to, and disposed of by, the Supreme Court.'

Further, neither public policy nor the reason of the rule nor perhaps even the interest of the litigants requires that the notifications should be given a retrospective operation in this sense so as to disturb the existing arrangements for the hearing and disposal of cases instituted before the notifications. Nay, the language of the notifications also easily, and without doing any violence to the meaning of the words therein employed, lends itself the construction that they are intended to operate prospectively, that is to say, the permanent Benches are Intended, subject to the Proviso, to exercise power and jurisdiction in respect of cases instituted on and from the date of those notifications. The expression 'in respect of cases arising in the Revenue Districts of .........' used in the notifications is merely a compendious description of the cases to which the notifications apply prospectively. It would thus appear that the notifications are prospectivein operation and that they do not affect either the order of transfer of the appeal dated November 16, 1959 or the jurisdiction of the Indore Bench to hear it.

8. In the referring order, S. B. Sen J. mentioned the order passed by a Division Bench in Yamunabai Reshimwale v. Municipal Corporation, Indore, First Appeal No. 16 of 1963, D/- 19-4-1969 (M. P.). In that order, it was assumed, without giving any reasons, that the notifications were retrospective in operation rendering 'ineffective' the earlier order of the Chief Justice. It was further similarly assumed that the orders passed by the Chief Justice under the Proviso to the notification on November 30, 1968 retroactively superseded his earlier orders. It is plain enough that, like the notifications themselves, the orders passed under the Proviso would be prospective in operation in the sense that they affected cases thereafter instituted. We are, with respect, unable to share the opinion of the Division Bench.

9. For the reasons given by us in the foregoing paragraphs, we are of the opinion that the notifications do not affect either the order dated November 16, 1959, by which the appeal was transferred, or the power and jurisdiction of the Indore Bench, to which it was transferred, to hear and dispose of the appeal. That being so, the question referred to at the end of paragraph 3 above does not really arise in this case and it is not necessary for us to express any opinion thereon.


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