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Mehta Amritlal Gokaldas and ors. Vs. the State of Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal Nos. 2, 8, 9, 10, 16 and 17 of 1960
Judge
Reported inAIR1965Guj87; (1964)10GLR769
ActsStates Reorganization Act, 1956 - Sections 2, 49, 50, 52, 59(3) and 199; High Court of Judicature Ordinance for State of Saurashtra, 1948 - Schedule - Sections 22 and 22-A (2)
AppellantMehta Amritlal Gokaldas and ors.
RespondentThe State of Bombay and ors.
Appellant Advocate K.G. Vakharia, Adv. for; M.G. Sinroja, Adv.,; D.U. Shah
Respondent Advocate B.R. Sompura, Asst. Government Pleader,; J.R. Nanavaty,;
Cases ReferredHanuman Chamber of Commerce Ltd Delhi v. Jassa Ram Hira Nand
Excerpt:
constitution - administration of justice - sections 2, 49, 50, 52, 59 (3) and 199 of states reorganization act, 1956 and sections 22 and 22-a (2) of schedule of high court of judicature ordinance for state of saurashtra, 1948 - competency of appeals questioned by respondent - though appeals lies under section 22-a from judgment delivered in all aforesaid appeals appeals have been wrongly designated as letters patent appeals - necessary certificates not given - certificate is either restriction on right of further appeal or a condition precedent for preferring such appeal - appeal incompetent in absence of certificates - defects in administration of justice found - appeal dismissed on preliminary grounds. - - the last part of the section clearly refers to the high courts of bombay,.....miabhoy, j.(1) in this group of six appeals, a preliminary objection has been raised for decision. the objection was first raised when letters patent appeal no. 8 of 1960 was called out for hearing. as the objection affected a number of other letters patent appeals, we adjourned the hearing of the appeal and directed that all other letters patent appeals in which the same objection was likely to be raised should be fixed for hearing them together so that the preliminary objection, if raised, could be decided after hearing all the learned advocates appearing therein. it is in pursuance of that order that all the above appeals are fixed for hearing the preliminary objection if the same happens to be raised. this judgment will dispose of the preliminary objection which is raised by all the.....
Judgment:

Miabhoy, J.

(1) In this group of six appeals, a preliminary objection has been raised for decision. The objection was first raised when Letters Patent Appeal No. 8 of 1960 was called out for hearing. As the objection affected a number of other Letters Patent Appeals, we adjourned the hearing of the appeal and directed that all other Letters Patent Appeals in which the same objection was likely to be raised should be fixed for hearing them together so that the preliminary objection, if raised, could be decided after hearing all the learned Advocates appearing therein. It is in pursuance of that order that all the above appeals are fixed for hearing the preliminary objection if the same happens to be raised. This judgment will dispose of the preliminary objection which is raised by all the learned Advocates for the respondents in all the appeals.

(2) The preliminary objection is that the present appeals are incompetent without the certificate of the learned Judgers of he Bombay High Court whose Judgments the Letters Patent Appeals purport to have been filed.

(3) The litigation in each of the aforesaid appeals started before the 1st Nov ember 1956 in the Saurashtra area. The original suits in Letters Patent Appeals Nos. 2 of 1960, 8 of 1960 and 10 of 1960 were all decided before the Letters Patent Appeals Nos. 9 of 1960, 16 of 1960 and 17 of 1960 were decided after the 1st November 1956. First appeals were preferred from the original decreed in Letters Patent Appeals nos. 2 of 1960 and 8 of 1960 to the then High Court of Saurashtra. Whilst the first appeals were pending in the High Court of Saurashtra, and the original suits in the other cases were pending in their respective Courts, the State Reorganisation Act, 1956 (hereafter called 'the Reorgasnization Act') was passed. Under that Act, the States of Saurashtra and Kutch and parts of some other states were merged and the new State of Bombay was created, the High Court o Saurashtra was abolished and the High Court of Bombay was established as the High Court from the new State of Bombay. Under Section 59, sub-section (3), the first apppeals from which Letters Patent Appeals Nos. 2 of 1960 and 8 of 1960 arise were transferred to the High Court of Bombay. The original suit Letters Patent Appeal No. 10 of 1960 came to be decided before the commencement of the Reorganization Act and the original suits in the other cases came to be decided after the 31st of October 1956, the date on which the Reorganization Act commenced. First appeals were filed in the High Court of Bombay at Rajkot from the decisions recorded in those other original suits. Under the rules framed by that High Court for the disposal of its business, the first appeals in all the aforesaid is cases decided by a single Judge of the High Court of Bombay sitting at Rajkot. Letters Patent Appeals were filed by appellant or appellants in each case from the decision of that learned single judge. When all these letters Patent Appeals were pending in the High Court of Bombay, the Bombay Reorganization Act, 1969, was passed and, under Section 28 thereof, the present High Court was created and under Section 37 of the Bombay Reorganization Act, 1960, all the aforesaid Letters Patent Appeals were transferred to this Court for disposal and they were given in this High Court the numbers which now bear. Each appeal had been taken cognizance of under the Letters Patent jurisdiction of the High Court of Bombay, derived by that Court from clause 15 of its Letter Patent. Under that clause, an appeal lies from a judgment of a single judge to the High Court of Bombay without certificate from the learned Judge who decides the first appeal. The objection which is raised on behalf of the respondents in each of the aforesaid Letters Patent Appeals is that no appeal lies under clause 15 of the Letters Patent, but that an appeal lies in each case only under Section 222-A of the High Court of Judicature Ordinance for the State 1948 by which the High Court of Saurashtra was created. That Section 22-A requires that a further appeal from a first appeal shall lie if theJudge who decides the first appeal certifies that the case is fit for further appeal. It is an admitted position that in none of these appeals was a certificate obtained by any one of the respective appellants. Therefore, the contention is that, as all the aforesaid further appeals from the decisions of the learned single judge could only be under Section 22-A of the Ordinance of 1948, the further appeals were not competent without the necessary certificates and that, thereof, all the present appeals deserve to be dismissed. That is the question which has been raised for decision this group of Letters Patent Appeals.

(4) Now, inorder to understand and appreciate the rival contentions of both the sides, it is necessary to mention some of the provisions of the Ordinance of 1948 and the Reorganization Act. The Ordinance of1948 established a High Court of Judicature for the State of Saurashtra a High Court of Judicature for the State of Saurashtra. Under Section 21 of the Ordinance of 11948, the High Court of Saurashtra was constituted the highest court of appeal and was given jurisdiction to entertain and dispose of 'such appeals .....civil or criminal, as it ma be empowered to do under this Ordinance or any enactment in force in the State'. Section 22-A of the Ordiance of 1948, which was introduced by Ordinance N0. 5 of 1950,provided in sub-section (1) thereof for appeals from decrees and orders passed by a single Judge of he High Court to a Division Bench consisting of two other Judges of the High Court. Sub-section (2) of Section 22-A of the Ordinance of 1948 provided for an appeal from a judgment of one Judge of the High Court of Saurashtra in respect in respect of decrees or orders made in exercise of Appellate Jurisdiction to a Bench consisting of two other Judges of the same High Court 'if the Judge who made the decree or order certifies that the case is a fit one for appeal'. After the establishment of the High Court of Saurashtra, theState of Saurashtra was constituted a 'B' State under the Constitution of India. Under Art. 214 read with Art. 238 thereof, the High court of Saaurashtra become the high Court of a 'B' State. The result of this was that Part VI of the Constitution with certain modifications in Art. 238 became applicable to the High Court of Saurashtra.under Art. 225, subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution, the jurisdiction, of and the law administered in, any existing HighCourt, and the respective powers of the Judges thereof in relation to the administrative of justice in the court were to be the same as immediately before the commencement or the Constitution.therefore, it is common ground that, even after Saurashtra was constituted a 'B' State and the provision of Part VI of the Constitution were applied. The appellate jurisdiction of the High Court of Saurashtra was regulated by Secs. 21 and 22-A of the Ordinance of 1948 aforesaid. Under that Act, several new Part 'A'states were created in India, one of the States being the new State of Bombay. Under Section 8 of the Reorganization Act, 1956, the new State, of Bombay comprised some parts of the former State of Bombay, Madhya Pradesh and Hyderabad and the whole of the States of Saurashtra and Kutch. In section 2, clause (I), 'a new State' was defined as a Part 'A' State formed by the provisions of Part II in which Sec. 8 occurs. Therefore, underthe Reorganization Act, 1956, the new State of Bombay is described as a new 'State'. Section 2(d) of the Reorganization Act, 1956, defines a 'corresponding new state' means in relation to the old state of Bombay the new State with the same name. The old State of Bombay is designated under Sec. 2(g) of the Reorganization Act as an existing State. That clause defines an 'existing state' as a State specified in the First Schedule to the Constitution at the commencement of the Reorganization Act. A 'corresponding State' is defined in the same Act in relation to the new State of Bombay. Section 2(h) of the Reorganization Act defines 'law' as including

'any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India'.

From the aforesaid provisions of the Reorganization Act, it is quite clear that the new State of Bombay comprised some parts of the old states of Bombay, Madhya Pradesh and Hyderabad and the whole of the States of Saurashtra and Kutch. In Section 2(a), 'appointed day' has been defined as the 1st November, 1956. Under Section 49 of the Reorganization Act, the High Court exercising, immediately before the appointed day, jurisdiction in relation to the existing State of Bombay is deemed to be the High Court for the new State of Bombay. Section 50 of the same Act abolishes, inter alia, the High Court of all the existing 'B' States and the Courts of Judicial Commissioners. The effect of this section was so far as the new State of Bombay was concerned, that the High Court of Saurashtra and the Judicial Commissioner's Court for Kutch were abolished. Section 52 provides for the jurisdiction of the High Courts for the new States including the State of Bombay. we shall have to read this section in full at a later stage when we consider the rival contentions of the parties in relation to the preliminary objection. Broadly speaking, Sec. 52 provides that the High Court for a new State shall have, in respect of any part of the territories included in that new State of Bombay, all such jurisdiction as was exercisable under the law immediately before the 1st November, 1956 in respect of that part of the said territories 'by any High Court or Judicial Commissioner's Court for an existing state'. Section 53 provides for the power of the High Court to approve, admit, enrol, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys. It enacts that the law governing the matters will be the same as the law in force immediately before the 1st of November 1956 in the High Court for the corresponding State, i.e. the old State of Bombay. Section 54 provides for the practice and procedure of the High Court for the new State. Section 55 provides for the custody off the seal and Section 56 provides for forms of writs and other processes of the High Court. Section 57 deals with the powers of the Chief Justice, the single Judges and Division Courts of the High Court for the new State. That section is important also and we shall have to read it in full when we deal with the rival contentions of the on the preliminary objection. As regards all these powers relating to advocates, practice and procedure, custody of seal and forms of writs and other processes and powers of the judges, the sections say that the law which was applicable to the High Court of Bombay of the old Bombay State shall be the law applicable in regard to those matters to the High Court for the new State. Section 59, sub-section (3), provides for an automatic transfer of all proceeding pending in the High Court of Saurashtra or in the Court of the Judicial Commissioner for Kutch to the High Court of Bombay for the new State. Section 119 of the Reorganization Act provides for the territorial extent of laws. It enacts that the provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force before the appointed day extended or applied. Section 120 confers powers upon the appropriate Government to make before the expiration of one year from the appointed day such adaptations and modifications of the law as it may deem to be necessary or expedient. The 'appropriate Government' in this section means

'as respects any law relating to a mater enumerated in the Union List, the Central Government; and as respects of other law, - in its application to a part ' A' State, the State Government, and in its application to a Part 'C' State, the Central Government'.

In pursuance of the power conferred upon the Central Government by Section 120 aforesaid, the Saurashtra (Adaption of Laws on Union Subjects) Order, 1957, was promulgated by the Central Government. By clause 3 of this order, it was directed that the Ordinance II of1948 shall stand replaced with effect from the 1st November 1956. The High Court of Bombay for the new State added rules 252-A a d 252-B to the Rules of the High Court of Judicature at Bombay, Appellate Side, 1950. Rule 252-A says that.

'Rules and orders relating to practice and procedure in the High Court in force immediately prior to the appointed day in the High Court of Bombay shall, subject to modifications made from time to time thereto, apply to the Practice and procedure in the High Court.

Rule 252-B says that 'Rules and orders relating to practice and procedure in the High Court framed by the High Courts of Nagpur, Hyderabad, and Saurashtra and judicial Commissioner's Court, Kutch, shall stand abrogated as from the 1st November 1956 in the areas of the new State of Bombay which before the1st November 1956 were parts of the State of Madhya Pradesh, Hyderabad, Saurashtra and Kutch'.

(5) Now, the argument that Section 22-A of the Ordinance of 1948 applied to all further appeals to the High Court of Bombay and applies to similar appeals to the High Court in cases from the territories of he former Saurashtra State and that, therefore, a certificate of fitness to appeal is necessary in each such case, is based upon Section 52 of the Reorganization Act of 1956 which is as follows:

'The High Court for a new State have, I respect of any part of the territories in that new State, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of that paart of thesaid territories by any High Court or judicial Commissioner's Court for an existing State'.

For the sake of clarity, we will analyze the section from the point of view of the jurisdiction of the High Court of Bombay State. It is crystal clear that the section deals with the question of jurisdiction of the High Court of Bombay for the new State. The jurisdictions which are dealt with all kinds of jurisdiction, original, appellate and otherwise. The questions of jurisdiction dealt with territory-wise. The question of the various jurisdiction is dealt with from the point of view of all the territories comprised in the new State of Bombay. The section means that the jurisdiction of the High Court of Bombay for the new State shall be the same as the jurisdiction which the High Courts or the Judicial Commissioner's Court had in their respective territories. This, the law as to jurisdiction of the High Court of Bombay for the new State was crystallized in each of the aforesaid territories in which the forner High Court or the Judicial Commissioner's Court exercised the jurisdiction. This is indicated by several matters embodied in the section. The first part of the section refers to 'any part of the territories included in that new state'. The last but one part also emphasizes the same point. The last part of the section clearly refers to the High Courts of Bombay, Nagpur, Saurashtra and Hyderabad and the Judicial Commissioner's Court so far as the State of Bombay is concerned. Thus, in respect of the area of the former Bombay State, the Bombay High Court got the same jurisdiction which the old High Court of Bombay possessed and in respect of the Saurashtra area, the Bombay High Court got the same jurisdiction which the High Court of Saurashtra possessed and, in respect of the Kutch area, the Bombay High Court got the same jurisdiction which the Judicial Commissioner's Court possessed. The jurisdiction was to be regulated with reference to the law which was in force on the appointed day, that is, on the 1st November 1956. Having regard to the admitted position as to what the jurisdictions of the High Court of Saurashtra was, the appellate jurisdiction of the High Court of Bombay in relation to the Saurashtra area will be the same which the Saurashtra High Court had in that area immediately before the 1st November 1956. , in other words, the appellate jurisdiction of the High Court of Bombay for the new State will be regulated in relation to the new state will be regulated in relation to the Saurashtra area by Secs. 21 and 22-A of the Ordinance of 1948. The repeal of this Ordinance with effect from the 1st November 1956 by the Saurashtra (Adaption of Laws on Union Subjects) Order, 1957, will not make any difference because that order repeals that Ordinance with effect from 1st November 1956. Section 52 had already crystalized those two sections inasmuch as that section stated that the appellate jurisdiction of the High Court of Bombay for the new State shall be the same under as 'under the law in force immediately before the appointed day'. Therefore, the object of Section 52 appears to be to preserve the law relating to all kinds of jurisdiction, including original and appellate jurisdiction, of the High Court of Saurashtra for the High Court of Bombay for the new State as that law stood immediately before the appointed day in relation to the Saurashtra area. A perusal of Secs. 52 to 57 discloses that the Legislature has made a clear-cut distinction between the law relating to jurisdiction of the High Court and the other laws, such as the power to enroll advocates, practice and procedure of the Court, the custody of the seal, forms of writs and other processes and powers of Judges. In respect of the law as to jurisdiction, section 52 has, in terms, preserved the old law and, with respect to the other matters aforesaid, the old law has been changed and the law prevailing for the 0ld High Court of Bombay has been by express words extended to the Saurashtra, Kutch and other areas merged with the old State of Bombay. Mr. I.M.Nanaavaty saw the force inherent in the aforesaid distinction and probably, therefore, he did not contend that the law relating to jurisdiction was not preserved so far as the Saurashtra area was concerned. However, Mr.I.M.Nanavaty contends that the expression 'appellate jurisdiction' used in Section 52 of the Reorganization Act applies only to the appellate jurisdiction referred to in Section 21 of the Ordinance of 1948 and that it does not take within its ambit Section 22-A of that Ordinance. Mr. I>M>Bnanavati's contention is that the proper reading of Section 52 is that the appellate jurisdiction which the High Court of Saurashtra enjoyed qua the subordinate Courts was only intended to be preserved and that the jurisdiction which was dealt with by Section 22-A of the Ordinance of 1948 was not included in that expression. In fact, the argument is that, when Section 22-A provides, in terms, for an appeal from the judgment of a single judge to a bench of two other Judges, it does not , infact, provide for an appeal but that it provides only for a review of thej8dgment of a single Judge by a bench of two other Judges. It is the validity of this argument, which requires to be considered in the first instance.

(6) Now, in the first instance, we cannot agree that Section 22-A does not provide an appeal from the judgment of a single Judge of the Saurashtra High Court and that what Section 22-A provides for is really a review of the judgment of a single Judge. Section 22-A states, in terms, that an appeal shall lie (1) from an original decree, (2) from an order against which an appeal is permitted by any law for the time being in force, (3) from an order under Art. 226 of the Constitution of India, and (4) from a decree or order made in the exercise of the appellate jurisdiction. It says, in terms, that, in each of the aforesaid cases, by a single Judge, an appeal shall lie to a bench consisting of two other Judges of the Saurashtra High Court and further provides that, in case of a further appeal from an appellate decree or order passed by a single judge a certificate from that single Judge shall be necessary. The argument of Mr. I.M.Nanavati is really based on the assumption that an appeal contemplates a different forum. His contention is that an appeal postulates superior and inferior and that a proceeding is a proceeding in appeal only when an appeal is permitted from a decree or an order of an inferior Court to its Superior Court. His contention is that every High Court is a single Court and that a decree or an order by a single judge is really a decree or an order of the High Court itself and that, therefore, when Section 22 -A of the Ordinance of 1948 provides for an appeal from the judgment of a single judge, it cannot be said to provide for an appeal in law, but that it provides for a review of the judgment given by a single Judge of the High Court by a Bench of two other Judges. The argument is really based on that there cannot be an appeal from a judgment of one Court to the same Court over again. Now, in our judgment, there is nothing in law which prevents the Legislature from providing for an appeal from a decree or an order passed by a Court to the same Court to be determined by a certain no of Judges of that Court. A similar argument came up for consideration before their Lordships of the Supreme Court in the case of The Union of India v. The Mohindra Supply Co., reported in : [1962]3SCR497 in connection with the interpretation of Sec. 39, sub-section (1) and sub-sec (2) of the Indian Arbitration Act of 1940. The following observations which there Lordships made in repelling a similar argument or quite apposite and apply to the facts of the present case

'The Punjab High Court in Banwari Lal v. Hindu College Delhi, ILR (1948) EP 159: (AIR 1949 EP 165) and the Lahore High Court in Hanuman Chamber of Commerce Ltd Delhi v. Jassa Ram Hira Nand, AIR 1948 Lah 64 held that the appeals contemplated by S. 39 are appeals to superior Courts and not 'intra Court appeals' and, therefore, the right to appeal under the Letters Patent was not restricted by sub-sec (1) and (2). But a little analysis of this argument is likely to execute the somewhat startling consequences. If the appeal contemplated by S. 39(1) is only an appeal to a superior Court orders passed by a subordinate Court decisions whereof are made appealable to the same Court will not be appealable at all under the Arbitration Act. For instance, under the Bombay Civil Courts Act, appeals against his orders and decrees in certain cases lie to the District Court. If the argument that an appeal under Clause (1) of Section 39 means an appeal superior Court be accepted, an appeal from an order under Section 39(1) by an Assistant Judge will not lie at all. There are similar provisions in the Civil Courts Acts in other states as well. The qualifying expression ' to the Court authorised by law to hear appeals from original decrees of the Court passing the order' in sec 39(1) does not import the concept that the appellate Court must be distinct and separate from the Court passing the order or the decree.

It may be interesting to note that the concept of an appeal from the decree or other of a High Court has been recognized by the Legislature by making a provision in Art. 117 in the second division of the Indian limitation Act, 1963, Act of 36 of 1963. That Article makes a provision for an appeal 'from a decree or order of any High Court to the same Court'. For the above reasons, in our judgment, Section 22-A of the Ordinance of 1948 provides for an appeal from the judgments of a single Judge to a bench consisting of two other Judges of the Saurashtra High Court and regulates the appellate jurisdiction of the Saurashtra High Court. Under the circumstances, when Section 52 of the Reorganization Act, preserved for the High Court of Bombay for the new State, original appellate and other jurisdiction of the Saurashtra High Court, it preserved not only the jurisdiction embodied in Section 21 of the Ordinance of 1948 but also the jurisdiction embodied in Section 22-A of the said Ordinance.

(7) The next ground on which Mr. I.M.Nanavati contends that Section 52 of the Reorganization Act does not apply to the facts of the present cases the question falls within the purview of Section 57 and not Section 52 at all. The argument is that the question really relates to other power of a single judge or a Division Bench of the High Court of Saurashtra and that it does not pertain to the appellate jurisdiction at all,. In our judgment, there is no merit in this argument either. It is quite-clear that Section 22-A of the Ordinance of 1948 deals with the right of appeal of a litigant. Section 22-A in terms, confers a right of appeal from the kind of original or appellate decrees and orders mentioned therein. The right which is concerned on the litigant by section is, from the point of view of the High Court, the extent of its authority to entertain and disposes of a proceeding thereunder. The question of exercise of the powers of individual Judges of Division Benches of the High Court therein can arise only after an appeal has been entertained, that is, after the jurisdiction of the High Court is invoked. The question as to whether the High Court is, or is not, entitled to entertain an appeal does not relate to the question of the power of the individual Judges or of Division Benches of the High Court. Broadly speaking, the question as to whether the High Court has jurisdiction, that is, has authority, to entertain an appeal is a question which is determined by the law of the land and is as to how and in what manner a proceeding so entertained shall be disposed of is a question relating t the power of the High Court or its components. It is only after the High Court has had its jurisdiction invoked that the question of the exercise off powers by individual Judges or Division Benches thereof can arise. In the present appeals, when the first appeals were preferred to the High Court the jurisdiction of the High Court was invoked for remedying the grievance which the appellants had an account of what they alleged to be a wrong decree or order. The rules of the Saurashtra High Court permitted those appeals to be disposed of by a single Judge. That was the power of the single Judge and when the single Judge disposed of the matter, then, the jurisdiction of the High Court in relation to that first appeal came to an end. Now, if any person was aggrieved by a decree or an order passed by a single Judge of the High Court, then, there was no question of any further exercise of the powers of the same High Court, whether by a single Judge or by a Bench of two or more Judges of the same High Court. The powers had been exercised and had become exhausted in relation to that first appeal. If any, person was aggrieved by that order or decree, then, the first thing which it was necessary for that aggrieved person to do was to invoke the further appellate jurisdiction of the High Court and that he could done by resorting to Section 22-A of the Ordinance of 1948, and, when once that further appellate jurisdiction was invoked, then, the question of the exercise of the powers off the Judges would again arise but in relation to the further appeal and not the first appeal. Section 22-A of the Ordinance of 1948, in terms, provides that the power of disposing of such further appeal lies with a bench constituting of two other Judges of the High Court. It is true that, in some cases, the expression 'jurisdiction' and 'power' are used as synonyms. But, having regard to the content in which the two words, viz, 'jurisdiction' and 'power' have been used in Secs. 52 and 57 of the Reorganization Act, we have no doubt whatsoever that the words have a distinct meaning and it is only giving them such distinct meaning that one or other sections will not be rendered nugatory. It is quite clear that, if the word 'power' were to be construed in the sense for which Mr.Nanavati contends, then, the whole of Section 52 of the Reorganization Act would be rendered nugatory. There is a number of statutes in which the word 'jurisdiction' is used in contradistinction to the word 'power'. For example, in the Letters Patent of the Bombay High court, the term 'jurisdiction' is used in relation to the extent of the authority of the High Court in relation to such matters as civil and criminal, admiralty and vice-admiralty, testamentary and intestate, insolvency and matrimonial matters. The term is also used to designate the original and appellate jurisdiction of that Court. The expression 'power' is used in those Letters to designate such things as the power t o issue summonses or notices, to deliver judgments or to pass decrees or orders in the exercises of the above kinds of jurisdiction. The former relates to the substantive law of the land. The latter relates to the practice and procedure. Once the High Court has got jurisdiction over a matter, then the question as to how that matter shall be dispose of and by whom, is a matter which can be regulated by the High Court by its own rules. Clause 36 of the Letters Patent ordains that any function which is directed to be performed by the Letters Patent by the High Court of Judicature at Bombay may be performed b any Judge or by any Division Court. However, it makes it clear that this function is to be exercised in its original appellate jurisdiction, which means that jurisdiction is something different from the power of a single Judge or that of a Division Bench. In Art. 225 of the Constitution of India, the word 'power' has been used by side by side with the word 'jurisdiction' it is hardly probable that the word 'power' would have been soused if really the word 'jurisdiction' had the same connotation as the word 'power'. In section 23 of the Ordinance II of 1948 also, the word 'power' has been used. That section enacts the 'The power of the High Court maybe exercisable by a bench of single judge as directed by the Chief Justice'. It is quire clear from the context, that the word 'power' used here is not synonymous with 'jurisdiction'. Under the circumstances, we have come to the conclusion that there is a vital distinction between the jurisdiction of a Court and powers exercisable by that Court and, when section 52 of the Reorganization Act that appellate jurisdiction of the High Court of Bombay for the new State shall in relation to the Saurashtra are be the same as the jurisdiction which the Saurashtra High Court possessed, it means that the High Court of Bombay has the same jurisdiction which the High Court of Saurashtra had, the latter question is entirely different from the question the relating to the powers of the individual Judges or of the Division Bench of the High Court.

(8) The next contention of Mr. I.M.Nanavati is that section 52 crystalizes the law only with respect to the territorial jurisdiction of the Saurashtra High Court and does not crystallize any other kind of jurisdiction. We cannot agree with this contention also. In our judgment, it is Section 49 of the Reorganization act of 1956 which deals with territorial jurisdiction of the High Court of Bombay for the new state. It is that section which extends the territorial jurisdiction of the High Court of Bombay to the Saurashtra and other areas. That being so, the jurisdiction which is referred to in section 52, cannot be said is not territorial jurisdiction. Section 52, in terms, speaks of original and appellate jurisdiction which is quite different from territorial jurisdiction. Besides original and appellate jurisdiction, the section also speaks of other jurisdictions. The latter expression comprises such other jurisdictions as civil, and criminal. testamentary and intestate, matrimonial, divorce, insolvency and admiralty which the High Court of Saurashtra possessed under cl., (b) of Section 4 of the Ordinance II of 1948.

(9) Mr.I.M.Nanavati places reliance upon the expression in respect of that part of the territories used twice in Section 52 of the Reorganization Act. he contends that this expression is intended to restrict the jurisdiction to the territory of the High Court and is intended to convey that the other kinds of jurisdiction are excluded. We cannot, agree. In our judgment, that 3expression is used in Section 52 to emphasize that the law relating to the jurisdiction in respect of each of the transferred territories is preserved intact.

(10) Then Mr. I>M>Nanavati contends that the phraseology used in Section 22-A of the Ordinance of 1948 is not introduced and is not even referred to in Section 52 of he Reorganization Act, that this indicates that section 232-A is not preserved. We cannot agree. Section 52 is a general section intended to apply not only to the High Court of Bombay for the new State, but, also to other High Court for the other new States which were established under the Reorganization Act, such as the High Courts of Kerala, Mysore, Madhya Pradesh, Rajasthan and Punjab. Therefore, the Legislature had, per force, to use general language which would take in its ambit not only the law in force for the High Court of Saurashtra but also of those other High Courts.

(11) Mr. I.M.Nanavati then relies upon the provisions contained in Section 119 of the Reorganisation Act. he contends that that section is introduced with a view to preserve all the laws prevailing in each of the territories. It is difficult to appreciate as to how this section can help the contention of Mr.I.M.Nanavati. If the argument is that Section 119 is intended to preserve the law prevailing in the transferred territory, then ex hypothesi, such would be the intention of the Legislature in relation to the law relating to the jurisdiction of the High Court also. However, in our judgment, secs. 49 to 69. Section 119 providesfora fiction in relation to the change of law which maybe contended for an account of the provisions contained in Part II of the Reorganization act. it does not provide for any fiction in relation to anything enacted in any part other than Part II. Sections 49 to 69 are all included in Part V. under the circumstances, in our judgment, Section 119 cannot come to the aid of Mr. Nanavati at all. On the contrary, as we shall presently show, that section runs counter to the contention of Mr. Nanavati. In any case, having regard to the vital difference in the language used by the Legislature in Secs. 53 to 58 on the one hand and the language used in section 52 on the other hand, the intention of the Legislature is unmistakably clear that it intends to preserve intact the law relating to jurisdiction in each of the transferred territories and that it intends to change the law in relation to the matters provided for in Secs. 53 to 58.

(12) The last argument of Mr.Nanavati is that, even if the law regulating the jurisdiction of the Saurashtra High Court is crystalized in Section 52, the jurisdiction conferred on the High Court of Bombay by clause 15 of the Letters Patent is also crystallized under the Reorganization Act, and that the effect of this crystallization is that litigants from the Saurashtra and other transferred areas will have the benefit of that clause along with the litigants from the Bombay for the new State carries its own charter with it and that charter will get automatically extended to all the new areas which may happen to be transferred to the High Court of Bombay. In our judgment, Mr. I>M>Nanavati's contention is partially correct, but not wholly. Mr. I>M>Nanavati is right in contending that the Letters Patent jurisidction of the High Court of Bombay for the old State is preserved under the States, Reorganization Act. but, having regard to the provision contained in Section 52 and, as interre5ed by us, there is no doubt whatever that this jurisdiction is restricted only to the Bombay area. The question, however, for consideration is as to whether this jurisdiction which, before the appointed day, was restricted only to the Bombay area got extended to non-Bombay area as well. Mr.I.M.Nanavati is unable to point out any provision in the States Reorganization Act, which In express terms, extends the Letters Patent jurisdiction of the High Court of Bombay to the anything in the Reorganization Act which, by necessary implication, provides for any such extension. However, Mr. I.M.Nanavati contends that there are provisions in the Letters Patent themselves which would get automatically extended to the new areas which may be placed within the jurisidction of the old High Court of Bombay. In support of this proposition, Mr.Nanaavati relies upon the decision of Shakuntala v. M>B>Jaisoorya, reported in : AIR1961AP390 . In that case, the question arose for decision as to whether the Letters Patent Appeal lay, under clause 15 of the Letters Patent of the Madras High Court, from the decision of a single Judge of the Andhra High Court in a case which arose from a territory which had been transferred to the Andhra Pradesh under the Reorganization Act of 1956. A division Bench of the Andhra Pradesh High Court decided that the Letters Patent appeal did lie. The ratio of the decision is that the necessary consequence of he abolition of the Hyderabad High Court and the extension of the jurisdiction of the old Andhra Pradesh High Court to the Telangana area was that the Letters Patent clause which governed the appeal in the High Court applied to the Andhra Pradesh High Court also. Their Lordships observed that Clause 15 of the Letters Patent conferred a right of appeal on a party against the judgment of a single Judge of the High Court where leave was granted and that a right of appeal was, therefore, provided in all cases decided by a Judge of the Andhra Pradesh High Court provided he granted leave. Leave in that case was necessary because the appeal was against the judgment delivered in a second appeal. The learned counsel for the respondents in that case relied upon secs, 119 and 120 of the state Reorganization Act. this argument was repelled by the High Court on the ground that they had no relevancy on the question as to whether an appeal would lie under clause 15 of the Letters of patent against the judgment of a judge of the High Court of Andhra Pradesh. Mr.I.M.Nanavati contends that the case was decided under the Reorganization Act and that therefore, it is on all fours with the present case. In our judgment there is a vital distinction between that case and the present case. The case is distinguishable because the scheme in the Reorganization Act for transferring to the Andhra Pradesh vitally differs from the scheme formulated in the same Act for transferring territories to the new State of Bombay. Section 3 of the Reorganization Act does not create a new State of Andhra Pradesh as Section 8 of creates the new State of Bombay. Section 3 only adds to the existing State of Andhra Pradesh certain territories comprised in certain districts or talukas of the Hyderabad State. It does not create new State but only alters the name of the State of but only alters the name of the State of Andhra to that of the State of Andhra Pradesh. Moreover, part V of the Reorganization Act which deals with High Court does not either create a new High Court, nor does it, by fiction, create a new High Court for the State of 'Andhra Pradesh. Section 65 of the Reorganization Act is the only section which deals with the High Court of Andhra Pradesh and that section provides that as from the appointed day, the jurisdiction of the High Court of the existing State of Andhra Pradesh extend to the whole of the territories transferred to that State from the existing State of Hyderabad. Therefore, so far as the Andhra Pradesh High Court is concerned, the Reorganization act keeps the Andhra Pradesh High Court intact and extends its jurisdiction to the new terrritories.moreover, sec. 52 does not apply to the Andhra Pradesh High Court. It is for reasons aforesaid that there is no reference to that section in AIR 1951 Andhra -Pra 390 and the non-application of Section 52 makes a vital difference to the law relating t the jurisdiction of the Andhra Pradesh High Court. A perusal of Section 65 makes it clear that the High Court of Andhra Pradesh remains intact and extends its jurisdiction to the new territories. The conclusion was reached that the Letters Patent jurisdiction of the Andhra Pradesh High Court extended the jurisdiction of the Andhra Pradesh High Court to the new territories and did not preserve he law relating to the jurisdiction of the abolished High Court of Hyderabad which law formerly regulated in that transferred territory the right of further appeal. Because of this difference in scheme. Secs. 53 to 58 also are not applied to the Andhra Pradesh High Court. In our judgment, even if there was any scope for the application of the ratio of Shakuntala's case : AIR1961AP390 the same must be negatived because Section 52 aforesaid is a clear legislative provision indicating that a new jurisdiction was not intended to be given to the High Court of Bombay for the new State in addition to that which the High Court of Saurashtra possessed before the appointed day. In this connection, it is relevant to notice Clause 44 of the Letters Patent of the Bombay High Court. That clause ordains that all provisions of the Letters Patent are subject to the legislative powers of the authorities mentioned therein. By enacting sec. 52, the Legislature in clearest terms has provided that the jurisdiction of the Saurahstra High Court is preserved for 6the Saurashtra area for the Bombay High Court of the new State. Moreover, we do not find any jurisdiction for Mr.I.M.Nanavati's contention that the Letters Patent necessarily applies to new areas added to the High? Court of Bombay. The preamble of the Letters Patent says that the Sovereign constitutes and establishes at Bombay a High Court of Judicature 'for the Presidency of Bombay'. The reference apparently is to the establishment of the High court under the Act of Parliament (24 and 25 Vict,. Chap 104). Section 1 of that enactment provides for the erection and establishment of the High Court at Bombay for the Presidency of Bombay. It is not necessary for us to pursue this matter further, because, even if there is any substance in the aforesaid argument, as we have already pointed out, the application of Clause 15,Letters Patent jurisdiction of the High Court of Bombay, is excluded by the express terms of Section 52 of the Reorganization Act.

(13) Mr. I.M.Nanavati further presses into service the same argument, based on upon the fact that this was an intra-court appeal, in relation to Clause 15 which he had pressed into service in relation to the interpretation of S. 22-A and which argument we have already rejected. In our judgment, Clause 15 makes it still more clear what is provided therein is a right of appeal from the judgment of a single Judge and not that a review is provided for. The whole scheme of a Letters Patent makes it abundantly clear that when a judgment is delivered by a single Judge, it is the judgment of the High Court and that an appeal lies from that judgment to the same High Court. Clause 15 of the Letters Patent provides:

'And we do further ordain that an appeal shall lie to thesaid High Court of Judicature at Bombay from the judgment.... Of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India act, and that not withstanding herein before provided an appeal shall lie to the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act.....

The letters Patent themselves make a distinction between an appeal and a review for example, whereas when dealing with the criminal jurisdiction of the High Court of Bombay, it provides for appeals from the decisions of the subordinate Courts, it expressly enacts in Cl.25 that 'no appeal to the said High Court of Judicature at Bombay from any sentence or order passed or made in any criminal trial before the Court of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court' shall lie. The same clause provides for the reservation of any point or points of law for the opinion of the High Court and Clause 26 ordains that on such point or points being so reserved or certificated by the advocate General, the HighCourt shall have the full power and authority to review, the case. Under the circumstances, in our judgment, when Clause 15 provides for an appeal from a judgment of a single Judge, it regulates the appellate jurisdiction of he High Court of Bombay and that Sec. 52 will remains confined to the non-Bombay area after the Saurashtra and Kutch areas were amalgamated with the Bombay area and the new State of Bombay was created.

(14) Before we part with this case, we may mention the difference between Section 22-A of the Ordinance 1948 and Clause 15 of the Letters Patent. Under Clause 15 where a judgment is delivered by a single Judge of the Bombay High Court in a first appeal, a Letters Patent Appeal lies without any special leave or cetificate from that single Judge. However, if the judgment is delivered in a second appeal, then also a Letters Patent Appeal lies under the same Clause; but, in that case, the certificate of the learned Judge who decides the second appeal is necessary. Under the Saurashtra law, no Letters Patent Appeal as such lies because that Court was the creation of statute and not any Letters Patent. But as already stated, under Section 22-A of the Ordinance of 1948, a further appeal lies from the judgment of a single Judge, whether delivered in a first or a second appeal. But, in each case the certificate of the learned single Judge who decides the case is necessary.

(15). Mr. D.U.Shah appearing for the some of appellants raises a few more points. His contentions is that Sec. 52 of the Reorganization act gives jurisdiction to the High Court of Bombay over the Saurashtra area in addition to the jurisdiction which it already possessed and that the latter jurisdiction automatically extends to the new areas transferred to the old State of Bombay. We cannot accept this contention. The correct interpretation of Section 52 is that it crystalize the jurisdiction for each of theare as comprised in the new State of Bombay for the High Court of Bombay. If the Legislature extends the jurisdiction which the abolished High Courts possessed, the result will be odd and confusing. There will be conflicts of jurisdictions. Moreover, if such was the intention, then, there was no reason why the Legislature should have made a distinction between the law relating to the jurisdiction of the Bombay High Court and the law relating to the other matters provided in Secs. 53 to 58.

(16) The next contention ofMr. Shah is that, in any case, the requirement of the certificate of a single Judge is only a procedural requirement and that the non-obtaining of the certificate is not fatal to the entertainment of the appeals. We are unable to agree with this contention. In our judgment, the right which has been given by Section 22-A of the Ordinance of 1948 to prefer an appeal from the decrees or orders mentioned therein is not absolute right. The right is limited or restricted by the condition that prior to the institution of the appeal, a certificate is obtained from the learned who actually decides the first appeals from which further appeal is sought to be preferred.

(17) For the aforesaid reasons, we have come to the conclusions that, though further appeals did lie under Section 22-A of the Ordinance of 1948 from the judgments delivered in all the aforesaid appeals, the appeals have been wrongly designated as Letters Patent Appeals. All these must be regarded as further appeals under ordn II of 1948. However, all the appeals are incompetent as he necessary certificates were not given by the learned single Judge who decided the first appeal s. the certificate is either a restriction on the right of further appeal or a condition precedent for preferring such appeal, Whichever view is taken, the appeals are incompetent in the absence of certificates from the learned single Judge. In the result, the preliminary objection will have to be allowed and the present appeals will have to be dismissed on the ground of want of necessary certificates.

(18) Our conclusion reveals a defect in the administration of justice. The Legislature may have had a good reason for preserving intact the old jurisdiction of the Saurashtra a High Court in regard to the pending cases. However, our conclusion affects cases instituted after the Reorganization Act came into force. In our judgment, there is no reason why the litigants from the Saurashtra and Kutch areas should now be treated on a different footing from the litigants in the old Bombay area. In our judgment, the rights of appeal of litigants in all the areas should now be placed on he same footing. We would recommend to the authorities concerned to examine this question and, if so advised, to undertake the necessary legislation so as to confer the same rights of appeal to the litigants from the Saurashtra and Kutch areas as are given to the litigants from there rest of the State of'Gujarat.

(19) Before the above preliminary objection was raised, it appears that the view prevailed at he bar that the Letters Patent jurisdiction of the High Court of Bombay applied to the Saurashtra and Kutch areas too. It also appears that the office also did not require the appellants to file the certificates of leave with the memos of appeals. It also appears that all along it was presumed that Section 22-A of the Ordinance did not apply to further appeals from the judgments in first appeals by single judges.

(20) Having regard to the above considerations and the fact that the preliminary objection came to be raised at late stage of the appeals, in our judgment, the fairest order as to costs will be that each party shall bear its own costs.

(21) The preliminary objection is upheld. All the appeals are dismissed on the ground that they were incompetent without the necessary certificates from the learned Judges who decided the first appeals. Each party will bear its own costs.

(22) Appeal dismissed on preliminary objection.


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