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Kishenlal and ors. Vs. Bhanwarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberAppeal (Ijlas-i-Khas) Nos. 6 and 8 of 1950
Judge
Reported inAIR1951Raj1
ActsConstitution of India - Article 374(4); Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949 - Sections 4; Rajasthan Appeals and Petitions (Discontinuance) (Amendment) Ordinance, 1950
AppellantKishenlal and ors.
RespondentBhanwarlal and anr.
Appellant Advocate Sohanlal, Adv. in Case No. 1 and; Chandmal, Adv. in Case No. 2
Respondent Advocate Inder Nath, Adv. in Case No. 1 and; Roshanlal, Adv. in Case No. 2
Cases ReferredSecy. of Board of Revenue v. Madras Export Co.
Excerpt:
- - it is admitted that in the absence of a legislature in this state, the only authority competent to legislate for the time being is his highness the raj pramukh and, he, therefore, bad the power and the authority to promulgate the ordinance under which the ijlas-i-khas ceased to exist and powers were conferred on the high court to hear and dispose of appeals which lay to the ijlas-i-khas. according to article 10, until the constitution was framed, the legislative authority of the united states voated in the raj pramukh who was authorised to make and promulgate ordinances for the peace and good government of the state and any ordinance so made had the same force of law as an act passed by the legislature of the state. thus, from a bare perusal of the provisions of the constitution as.....nawalkishore, c.j.1. this reference to the full court raises a question of considerable importance. a number of appeals are pending which according to the procedure prevailing at one time could have been disposed of by the ijlas-i-khas, jodbpur but under an ordinance promulgated by his highness the raj pramukh to which detailed reference will be made liter, the high court of rajasthan has been authorised to hear, determine and dispose them of. accordingly on 26--1-1950, then the constitution of india came into force, these appeals were available for disposal in the high court. it has however, been urged on behalf of the appellant that according to article 374(4) of the constitution, these appeals should be transferred to and disposed of by the supreme court. article 374(4) runs as follows.....
Judgment:

Nawalkishore, C.J.

1. This reference to the Full Court raises a question of considerable importance. A number of appeals are pending which according to the procedure prevailing at one time could have been disposed of by the Ijlas-i-Khas, Jodbpur but under an ordinance promulgated by His Highness the Raj Pramukh to which detailed reference will be made liter, the High Court of Rajasthan has been authorised to hear, determine and dispose them of. Accordingly on 26--1-1950, then the Constitution of India came into force, these appeals were available for disposal in the High Court. It has however, been urged on behalf of the appellant that according to Article 374(4) of the Constitution, these appeals should be transferred to and disposed of by the Supreme Court. Article 374(4) runs as follows :

'On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Counsil in a state specified in Part B of Seh. 1 to entertain and dispose of appeals 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.'

2. The question which calls for a determination is whether in respect of the above mentioned appeals the High Court of Rajasthan could be deemed to be functioning as the Privy Council, for, in that case, there would be no alteruative but to hold that they cannot be heard and disposed of here and that the records relating to them should be transferred to the Supreme Court.

3. In connection with the above question, it will be pertinent to refer to the various Ordinances which have a bearing on its determination. On 18-11-1949, The Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, was published in the Rajpatra, providing for the repeal of such laws as related to the presentation of appeals, revisions, reference and petitions to the Rulers of Covenanting States, for the discontinuance of the future presentation of such appeals, revisions etc. and also for the disposal of such of them as had already been preferred, brought, made or presented. According to Section 3 of this Ordinance, it was specifically provided that appeals etc., which lay to the Ruler and had been preferred to him or to any authority known by the designation of Ijlas-i-Khas or Judicial Committee shall not so lie or be so preferred after the commencement of the Ordinance from or against any decision of a High Court. As regards pending appeals, Section 4 of the Ordinance provided that they shall be heard, determined and disposed of by a Special Court to be constituted by the Raj Pramukh by notification in the Rajasthan Gazette. This Ordinance was amended by Ordinance XII [12] of 1950 and in Section 4, subs. (1) cl. (a) for the words 'by a Special Court to be constituted by the Raj Pramukh by notification in the Rajasthan Gazette', the words and figures 'by the High Court of Judicature for Rajasthan established under the Rajasthan High Court Ordinance, 1949,' were substituted. It is under the provisions of this amending Ordinance that the appeals which lay to the Ijlas-i-Khas and were pending, they were all transferred to the High Court of Rajasthan, By the express language of Section 3 of the Ordinance published on 18-11-1919, the Ijlas-i-Khas ceased to exist and His Highness the Raj Pramukh conferred powers upon the High Court of Rajasthan for the purpose of hearing appeals which had been preferred from the judgments and decrees passed by the High Court of Jodhpur. Under Sections 18 and 19, Rajasthan High Court Ordinance of 1949, power to hear appeals in the ordinary course was conferred on the High Court, and although according to Section 39 of this Ordinance, the Raj Pramukh had the power to constitute a Court to hear appeals from the judgments, decrees or orders of the High Court, according to Section 40 until such Court was constituted, the High Court; of Rajasthan was to remain the highest Court of appeal, reference and revision. Section 40, further provided that the High Court shall have jurisdiction to entertain and dispose of such appeals, revisions, references, cases and other proceedings as it was empowered to entertain and dispose of under this Ordinance or any enactment or law in force in the State. According to Section 45, the jurisdiction, powers, and authority of the High Court were subject to the legislative powers of any authority competent to legislate for the time being for the State. It is admitted that in the absence of a Legislature in this State, the only authority competent to legislate for the time being is His Highness the Raj Pramukh and, he, therefore, bad the power and the authority to promulgate the Ordinance under which the Ijlas-i-khas ceased to exist and powers were conferred on the High Court to hear and dispose of appeals which lay to the Ijlas-i-khas. According to Article 6 of the Covenant entered into by the Rulers of the Covenanting States for the reconstitution of the United States of Rajasthan, the Rulers of each Covenanting State made over the administration of State to the Raj Pramukh and thereupon, all rights, authority and jurisdiction belonging to the ruler which appertained or were incidental to Government of the Coven. anting State vested in the United Stales of Rajasthan and were exercisable only as provided by the Covenant or by the Constitution to be framed thereunder. According to Article 10, until the Constitution was framed, the legislative authority of the United States voated in the Raj Pramukh who was authorised to make and promulgate Ordinances for the peace and good government of the State and any Ordinance so made had the same force of law as an Act passed by the Legislature of the State. Therefore, according to the various provisions) of the Covenant, there can be no question that the Ordinance, under which the Ijlas-i-khas was abolished and the High Court empowered to hear and dispose of appeals which lay or were pending there was in order. On 24-11-1949, by means of a proclamation, the Government of the United States of Rajasthan declared that the Constitution of India shortly to be adopted, by the Constituent Assembly of India shall be the Constitution for the Rajasthan State as for the other parts of India and shall be in force as such in accordance with the tenor of its provisions. Now, according to Article 225 of the Constitution, it was provided that subject to its provisions and to the provisions of any law of the appropriate Legislature, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges , thereof in relation to the administration of justice in the Court shall be the same as immediately before the commencement of the Constitution. According to Article 372 also, subject to the provisions of the Constitution, all the law in force in the territory of India immediately' before the commencement of the Constitution was to continue in force until altered, repealed or amended by a competent Legislature or other competent authority, According to the Expln. I, 'law in force' included a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed. According to Article 335, until the House or the Houses of the Legislature of a State specified in part B of Schedule 1 had, been duly constituted and summoned to meet, the authority functioning immediately before the commencement of the Constitution as the Legislature of the State was to exercise the powers and perform the duties conferred by the provisions of the Constitution on the House or Houses of the Legislature of the State. Thus, from a bare perusal of the provisions of the Constitution as well the power and authority of His Highness the Raj Pramukh to promulgate the Ordinance whereby the authority of the Ijlas-i-khas was discontinued and power conferred upon the High Court to dispose of the appeals which lay there cannot be questioned. It was however argued by the learned counsel for the appellant that the Constitution abrogated the power of His Highness the Raj Pramukh to authorise the High Court to hear appeals which were pending before the Ijlas-i-khas. This contention was put forward with reference to the three lists appended to Schedule 7 framed under Article 246 of the Constitution. In List I at items 74 and 95, power has been given to the Parliament alone to make laws relating to the Constitution and organization of the High Court and Jurisdiction and powers of all Courts except the Supreme Court, with respect to any of the matters in this list. In List II at items 3 and 65, power has been conferred on the State Legislature to legislate with regard to the Constitution and organization of all Courts except the Supreme Court and the High Court and the jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters contained in the list. In List III which is a concurrent list, item 46 relates to jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in this list. Item 97 in List I covers all matters not enumerated in List II or List in. Thus there is no doubt whatsoever that in all such matters in which authority to legislate has not been conferred on the State Legislature, it has been reserved to the Parliament. The learned counsel argued that inasmuch as the power to confer authority on the High Court to dispose of appeals which lay in the Ijlas-i-khas or were pending there, had not been conferred upon the State Legislature, the Ordinances promulgated by His Highness the Raj Pramukh were ultra vires. This argument, however, ignores the various provisions of the Constitution to which a reference has already been made according to which the powers of the legislative authority functioning before the commencement of the Constitution have been confirmed.

4. The only question which now remains is whether in respect of various appeals which were pending in the High Court of Rajasthan under the powers conferred upon it by the Ordinances referred to above, the High Court could be said to be functioning as the Privy Council. The contention put forward in this connection is that the High Court while disposing of these appeals must be treated as a Court superior to the High Court inasmuch as it would be hearing appeals from its own judgments which is the function of a superior Court. There is a fallacy in this contention inasmuch as the High Court of Rajasthan is not going to hear appeals from its own judgments. It was open to the Raj Pramukh, according to Section 39, Rajaethan High Court Ordinance, to constitute a superior Court for the purpose of hearing appeals from its judgments, decrees or orders, but he did not exercise this power and no such Court was set up. In the meantime the Supreme Court came into existence and appeals from the High Court now lie there. Accordingly while hearing appeals from the judgments of the defunct High Court of Jodhpur or for that matter of any other State, the High Court of Rajasthan is only exercising the enlarged jurisdiction conferred upon it by the legislative authority of the State and all the time simply functioning as a High Court under Sections 13 and 19 of the Ordinance. The mere fact that the power to hear these appeals has been conferred upon it does not by itself convert it into a superior Court or a Court functioning as the Privy Council. To put the position in other words the High Court of Rajasthan was already competent to hear appeals from a judgment of one Judge made in the exercise of appellate jurisdiction provided the Judge who passed the judgment declared that the case was a fit one for appeal, and the power to hear appeals from the judgments of two or more Judges of the defunct High Courts is only an extension of its appellate jurisdiction. The Raj Pramukh might have set up another Court for this purpose, for instance, a consolidated Privy Council and need not have extended the jurisdiction of the High Court. The fact that instead the power to hear and dispose of these appeals was conferred upon the High Court of Rajasthan strongly militates against the view that thereby a Privy Council was substantially set up, even although its creation was never in contemplation. Various contentions which have been put forward in support of the position that this Court while hearing appeals in the circumstances referred to above was functioning as Privy Council may be summed up as below: (a) That if the High Court is moved by means of an application to review a judgment passed by the Ijlas-i Khas, it is virtually functioning as Privy Council. (b) That appeals from the judgments of the defunct High Court do not lie unless leave to appeal has been granted by that Court and where it has been refused, unless special leave is granted by the Ijlas-i-Khas. Since the Ijlas-i-Khas has ceased to exist, the special leave will now be given by the High Court and, therefore, while doing so, it will be functioning as Privy Council, (c) That for the purpose of granting leave, reliance will be placed upon Sections 109 and 110, Civil P. C which provisions of the law are applicable to only such appeals as lay to the Privy Council.

5. I have carefully considered these contentions. In view of the fact that the power to hear all appeals and petitions has been conferred upon the High Court, it necessarily follows that petitions for review will also be heard and disposed of by the High Court. Whether it disposes of an appeal preferred to the Ijlas-i-Khas or reviews a judgment delivered by it, it is exercising the identical jurisdiction which has been conferred upon it In either case, it is doing the work which would have been done by the Ijlas-i-Kbas or the Privy Council and has now been entrusted to it but it does not follow that in doing so, it is functioning as Privy Council. In my opinion, it is still functioning as the High Court for Rajasthan with the additional jurisdiction conferred upon it. Similarly, this position is not affected by the fact that leave or special leave to appeal has to be obtained before filing the appeal in accordance with the provisions of Sections 109 and 110, Civil P. C. Inasmuch as the power to hear these appeals baa been conferred upon the High Court, the procedure already laid down in respect of them will have to be followed. But that fact would not change the nature of its function. After the provision relating to the discontinuance of appeals to the Ijlas-i-Khas in the Covenanting States, it became necessary to provide for the presentation of appeals for which leave to appeal was necessary or had been granted or in respect of which an application for the grant of such leave bad already been made. This provision was incorporated in the Amending Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1950. Thus these various provisions only lay down the procedure for the institution and disposal of these appeals but do not furnish a ground for the broad proposition that the High Court while bearing them wa3 functioning as Privy Council. On the contrary, if the question is looked at from another point of view, the High Court cannot be deemed to be performing any of the functions of that august body known as Privy Council for several reasons. The Privy Council as it existed in the various Covenanting States was merely an advisory body inasmuch as its judgments were not final till they had received the approval of the Ruler. Further it was open to him to pass any order contrary to the advice tendered to him by the Privy Council. Lastly, its judgments were final and no further remedy was left to the litigants after they had been delivered. None of these features, however, obtains so far as the judgments of the High Court of Rajasthan are concerned. This Court while hearing these-appeals is not doing so as an advisory body and, therefore, its judgments are not subject to anybody's approval. Further according to Arts. 133and 131of the Constitution of India, appeals lie from a judgment, decree or final order of the High Court to the Supremo Court under circumstances provided there. Thus finality which is the most important trait of a judgment of the Privy Council dues not exist in respect of the judgments of the High Court of Rajasthan. For all these reasons, there seems to be no escape from the conclusion that the High Court is not functioning as the Privy Council in respect of appeals and petitions which it has been authorised to entertain and dispose of under the Ordinances referred to above. The reference is answered accordingly.

Dutt, J.

6. I entirely agree with my Lord the Chief Justice.

Bapna, J.

7. I agree with my Lord the Chief Justice. The respondent, Daulat Ram, sued the appellants on 1-7-1940, for a declaration that a certain mortgage and a subsequent sale effected by the widow of one Ganesh were inoperative against the plaintiff, who was the adopted Bon of Ganesh, The valuation of the suit was Rs. 5,401. The suit was dismissed by the trial Court, but decreed, on appeal, by the High Court of the Covenanting State of Jodhpur on 5-7-1948. A certificate for leave to appeal to Ijlas-I-Khas was granted by the said High Court on 15-9-1948, and the appeal already filed was completed by payment of court fees on 21-9-1948. The said appeal along with others was transferred to the Rajasthan High Court for disposal in pursuance of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance (XL [40) of 1949) read with its Amending Ordinance (XII [12] of 1950). A point has been raised that in view of the provisions of Article 374 of the Constitution, this appeal should be transferred to the Supreme Court for disposal.

8. It may be observed that under the provisions of the law in the then Jodbpur State, the case was appealable to the Ijlas-I-Khas, and under the Ijlas-I Khas Rules. the appeal was to be heard by a Judicial Committee, of which the law member was to be one of its members. The recommendations of the Committee were, however, to be submitted to His Highness through the Chief Minister, and His Highness was thereupon to pass such orders as he would deem fit The important feature was that His Highness was free to accept or reject the recommendations of the Judicial Committee and was authorised to pass any orders he would deem fit.

9. On the formation of Rajasthan on 7-4-1949. under Article 6 of the Covenant of Integration of Rajputana States, including the Jodhpur State, authority and Jurisdiction, belonging to the Ruler of every Covenanting State, which appertained or were incidental to the Government of the Covenanting States, were vested in the United States, and were thereafter exercisable only as provided by the Covenant or by the Constitution to be framed thereunder; and similarly all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting States devolved on the United States, and were to be discharged by it By Article 9 of the Covenant, the executive authority of the United States was to be exercised by the Raj Pramukh either directly or through officers subordinate to him but nothing in that Article prevented any competent Legislature of the United States from conferring functions upon subordinate authorities or could be deemed to transfer to the Raj Pramukh any functions conferred by any existing law on any Court, Judge, officer or local authority in the Covenanting State. By reading Arts. 6 and 9 together, the authority of His Highness the Maharaja of Jodhpur to act as the final Court of appeal was divested and while such authority could be conferred by legislation on any authority subordinate to the Raj Pramukh, the Raj Pramukh himself was not vested with that right.

10. In respect of the appeals filed or to be filed against the decision of the High Court of the Covenanting State, the position on the date of merger was that while the tribunal to hear the appeals was abolished, the right of appeal remained in existence On 12-8-1949, the Rajasthan High Court was constituted by an Ordinance of the Raj Pramukh (Ordinance xvIII [18] of 1949). This High Court was not a continuation of the previous High Courts in the Covenanting States but a, new Court altogether, though having powers to hear cases pending in the various High Courts of the Covenanting States, which were abolished by Section 49 of the Ordinance. As regards the jurisdiction of the High Court, Section 19 provided that the High Court shall be a Court of appeal from the civil Courts of the State and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cages as are at the commencement of this Ordinance or may thereafter be declared subject to appeal to High Court by virtue of any law for the time being in force. under Section 39, the Raj Pramukh was authorised to constitute a Court to hear appeals from the judgments, decrees or orders of the High Court by an Ordinance, and under Section 40, it was declared that until the Constitution of the Court referred to in Section 39, or the coming into existence of a Court superior to the High Court by any other law, the High Court was to be the highest Court of appeals, references and revisions in the State and it was further provided that it shall have jurisdiction to entertain and dispose of such appeals, revisions, references, cases and other proceedings as it was empowered to entertain and dispose of under the Ordinance or any enactment or law in force in the State.

11. The Raj Pramukh did not constitute any superior Court under Section 39 of the Ordinance, but the Supreme Court came into existence by the Constitution of India, and became a Court superior to the High Court by virtue of the provisions of chap, IV, part. V of the Constitution.

12. On 18-11-1949, the Rajasthan Appeals and Petitions (Discontinuance) Ordinance (XL [40] of 1949) was promulgated by the Raj Pramukh, and under Section 3 thereof, appeals, which could be presented to Ijlas-I-Khas under the law, were declared to be unentertainable after the said date. But under Section 4, appeals, petitions etc., which had already been presented till that date, were to be disposed of by a Special Court to be constituted by the Raj Pramuhh On 25-1-1960, the Raj Pramukh promulgated another Ordinance (XII [12] of 1950) amending ordinance XL [40] of 1940, and the High Court of Rajasthan was substituted for the Special Court as the authority to hear and dispose of all those appeals, petitions etc., which were, prior to the integration, to be heard and disposed of by Ijlas-I-Khas of any Covenanting State. It was specifically mentioned that they were to be disposed of by the High Court of Rajasthan as constituted by the Rajasthan High Court Ordinance. The effect of the Ordinance was that the jurisdiction of the High Court of Rajasthan was extended by law, and certain cases were declared to be subject to the appellate jurisdiction of the High Court as contemplated under Sections 19 and 40, Rajasthan High Court Ordinance. These appeals were to be disposed of like any other appeal to the High Court, and were, therefore, subject to the other provisions of the Rajasthan High Court Ordinance. The unfettered discretion of His Highness the Maharaja of Jodhpur, which was a principal feature of the Iilas I-Khas appeals, disappeared, and while the High Court was to act according to the laws applicable to the ease, as provided by Sections 33 and 34 of the Ordinance, the decisions were subject to the appellate jurisdiction of a Superior Court, namely, the Supreme Court, which came into existence by some other law referred to in Section 40.

13. Article 374 of the Constitution provides that the jurisdiction of the authority functioning as the Privy Council in Rajasthan to entertain and dispose of appeals in respect of judgment or order of any other Court in that State shall cease and all appeals and proceedings pending before the said authority are to be transferred to be disposed of by the Supreme Court. That Privy Council authority in the former Jodhpur State, prior to the merger, was the Ijlas-I-Khas or the Court of His Highness himself. This was abolished, as discussed above, by the provisions of the covenant of the merger, and while an authority acting as the Privy Council against the judgment of the High Court of Rajasthan could come into existence by an Ordinance to be issued by the Raj Pramukh as referred to in Section 39, Raiasthan High Court Ordinance, the Raj Pramukh never constituted one, and while there may be some force in the contention that the Special Court, referred to in the Rajasthan Appeals and Petitions (Discontinuance) Ordinance (XL [40] of 1949) may have been construed as a Privy Council within the meaning of Art 374, the amendment did away with the constitution of that Court, and the disposal of appeals was provided by referring them to an authority, which was not the Privy Council in Rajasthan, but was itself subject to the authority of the Privy Council, which could have bean constituted, and later on did come into existence by the Constitution. It has been held that a Court which acquires a new jurisdiction, acquires with it all the necessary consequences that flow therefrom, and when a question is referred to an established Court without any more qualification the ordinary incidents and procedure of that Court including a right of appeal attach to the same, National Telephone Go. Ltd. v. Postmaster General, (1913) a. 0. 546 : (82 L. J. K. B. 1197). Reference may also be made to Secretary Board of Revenue v. Madras Export Go , A. I. R. (11) 1924 Mad. 63 : (76 I. c. 375), where the above case has been followed by the Madras High Court. By certain provisions of the Income-tax Act (VII [7] of 1918), the Chief Revenue Authority was authorised to draw up a statement of the case and refer it with his own opinion to the High Court. It was contended that the decision of the High Court was not open to appeal as there was no provision in the Income-tax Act for such appeals. It was held in the Madras case that, where the jurisdiction of a Court is extended by a Statute to matters which would not ordinarily come within its purview, that * extension of jurisdiction makes the new matter Subject to all the machinery provided by law for the regulataing of its ordinary jurisdiction as a Court of Record, and if the conditions governing the right of appeal from that Court existed, it was the duty of the Court to grant leave to appeal. The High Court of Rajasthan in proceeding to hear the appeal would only be exercising the appellate power referred to in Sections 19 and 40 of the Ordinance, but not of a Privy Council in Rajasthan.

14 As to the validity of the Ordinances, XVIII [18] of 1949, XL [40] of 1949 and XII [12] of 1960 promulgated by the Rajpramukh, the power to promulgate Ordinances is vested in the Rajpramukh under Article 10 of the Covenant until the coming into existence of a Constitution for Rajasthan within the framework of the Covenant and the Constitution of India. Such Constitution for Rajasthan has not yet come into existence. The said Ordinances were all promulgated by the Raj Pramukh prior to the enforcement of the Constitution of India, and under Article 372 of the Constitution all the laws in force in the territory of India immediately before the commencement of the Constitution are declared to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. This is to be subject to the other provisions of the Constitution. Under Article 228 read with Act. 228 of the Constitution the jurisdiction of, and the law administered, in the Rajasthan High Court is to be the same as immediately before the commencement of the Constitution. This is again subject to the other provisions of the Constitution, and the provisions of any law made by a competent Legislature. No inconsistency with the provisions of the Constitution and the provisions of any law by the competent authority has been pointed out in respect of the enforcement of the aforesaid Ordinances, which are, therefore, valid. I, therefore, agree that this Court is competent to hear and dispose of this appeal.

15. Having read the judgment of my learned brother Gupta J., I wish to add that the registration of the appeal in the High Court on 6-7-1950, was a ministerial act and did not affect the operation 0! Ordinance XII [12] of 1960, which came into force on 25-1-1950.

Gupta, J.

16. This reference to the Pull Bench has been made by Nawal Kishore Ag. C. J. and Bapna J. It arises out of an appeal against the decree of the former High Court of Jodhpur dated 5-7-1948, for which a certificate for leave to appeal had been granted on 15-9-1948 and which had been filed in the Ijlas i- Khas of His Highness of Jodhpur and was pending there.

17. Before proceeding further, it would be proper to mention the political changes that have taken place since the filing of this appeal on 8-2-1949. [After relating the events leading to the formation of the Union of Greater Rajasthan and stating the provisions of the relevant Ordinances his Lordship proceeded as under:-

18. In pursuance of the abovementioned provision all the appeals, revisions, references and applications are to be heard, determined and disposed of by the High Court. Accordingly, the appeal out of which this reference has arisen came up for hearing before the Division Bench composed of Nawal Kishore Ag. C. J. and Bapna J. when the counsel for the appellants draw the attention of the Court to Article 374(4) of the Constitution of India and urged that as at the time of commencement of the Constitution of India, the appeal was pending before Ijlas-i-Khas of Jodhpur, it should be transferred to the Supreme Court which alone was competent to hear, determine and dispose of it. The point raised by the counsel was considered by the Bench hearing the appeal to be of considerable importance and ordered to be placed before a Full Bench of all the four Judges at Jodhpur. Many similar cases that came up for hearing before one Division Bench or the other of the High Court were either referred to the Full Bench or adjourned pending decision of the point in this case.

19. The learned counsel for the appellants after tracing the history of the former High Court of Jodhpur, the Ijlas-i-Khas and the Judicial Committee of Ijlas-i-Khas, the High Court of Judicature for Rajasthan and the discontinuance of the appeals etc. to the Ruler or the authority having the designation of the Ijlas-i-Khas, the Judicial Committee or any other designation urged that on 24-11-1949, the Raj Pramukh by a declaration published in the extraordinary issue of Rajasthan Gazette announced that the Government of India Act, 1935, so far as it related to the relations between the States and the Dominion of India would stand repealed and that the Constitution of India which was about to be adopted in India would be applied to the Rajasthan States. It was further announced that all other constitutional provisions which were in force would be abrogated on the coming into force of the said Constitution. He then referred to the various provisions of the Constitution of India to argue that the State Government could not legislate on the subject of jurisdiction of the High Court. It may at once be said that the discussion is not relevant to the point before us. Moreover, the contention of the learned counsel is not correct. Item 95 of List I of Schedule 7 read together with Item 3 of List II of the said Schedule makes it abundantly clear that what was excluded from the province of the State Legislature was only the jurisdiction and powers of the Supreme Court and not the jurisdiction and powers of the High Court.

20. The learned counsel for the appellants then argued that by the Amending ordinance XII [12] of 1950, promulgated on 24-1-1950, the High Court was given the jurisdiction and the power to hear, determine and dispose of the appeals etc. that were pending before the Ruler or the Judicial Committee of Ijlas-i-Khas of Jodhpur and similar authorities of the various other Covenanting States and that in doing so the High Court was functioning as the Privy Council and that with the coming into force of the Constitution of India, all such appeals, revisions, references and petitions were to be heard by the Supreme Court and not by the High Court under Sub-article (4) of Article 374 of the Constitution of India.

21. The learned counsel for the respondents opposing the contention argued that before the Constitution had come into force, the Raj Pramukh--the competent authority to legislate on the matter--had, by Ordinance XII [12] of 1950, ordained that all the appeals etc. pending before the Ijlas-i-Khas etc. would be heard, determined and disposed of by the High Court and that on the coming into force of the Constitution of India no appeals etc. were pending before any tribunal functioning as the Privy Council. He, further, argued that the High Court would function only as a High Court when it were to hear, determine and decide these cases and in no case as the Privy Council. He further drew our attention to the provisions contained in Sections 39, 40 and 45, Rajasthan High Court, 1949, Ordinance XV [15] of 1949, and argued that the Raj Pramukh in making and promulgating the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1950, extended the jurisdiction of the High Court to hear, determine and dispose of the appeals which formerly lay to the Ijlas-i-Khas and were to be disposed of by it and that the High Court in doing so was to function only as a High Court and not as Ijlas-i-Khas. Sections 39, 40 and 45, Rajasthan High Court Ordinance read as follows:

'39. Establishment of a Court to hear appeals from the High Court. -- The Raj Pramukh may, whenever it seems to him expedient so to do by an Ordinance or order, constitute a Court to hear appeals from the judgments, decrees or orders of the High Court and may make consequential or incidental provisions as may be necessary.

40. No appeal.--Until a Court is constituted in pursuance of Section 39 of this Ordinance, or of any other law relating to the establishment of a Court superior to the High Court to hear appeals therefrom, the High Court shall be the highest Court of appeal, reference and revision in the State and shall have jurisdiction to entertain and dispose of such appeals, revisions, referrences cases and other proceedings as it is empowered to entertain and dispose of under this Ordinance or any enactment or law in force in the State and no appeal shall lie from any judgment, decree or order of the High Court.

45. Jurisdiction and powers to be subject to legislation -- The jurisdiction, powers and authority of the High Court shall be subject to the legislative powers of any authority competent to legislate for the time being for the State.'

22. The argument is like this. Under the said Section 39, it was open to the Raj Pramukh to establish a Court to hear appeals from the Rajasthan High Court and then that Court would have functioned as the Privy Council in or of the State of Rajasthan. But, the Raj Pramukh had not done so and, therefore, there was no Court functioning as Privy Council in the State of Rajasthan than at the time the Constitution came into force. Under Section 40 until a Court contemplated under Section 39, was constituted to hear appeals from the judgments, decrees and orders of the High Court, the judgments, decrees and orders of the High Court were to be final. And, under Section 45, the jurisdiction of the Court could be curtailed or extended by any authority competent to legislate for the State--in this ease the Raj Pramukh. And the Raj Pramukh had extended the jurisdiction of the High Court by empowering it to hear appeals etc. pending before the Ijlas-i-Khas etc. from the judgments, decrees or orders of the former High Courts of the various Covenanting States.

23. I am unable to accept the contention of the learned counsel for the respondents. In my opinion the contention put forward by the learned counsel for the appellants must prevail.

24. It is true that the Raj Pramukh had not established under Section 39 Rajasthan High Court Ordinance, 1949, a Court superior to the High Court established under the said Ordinance to hear appeals therefrom and that there was no tribunal exercising the functions of the Privy Council so far as this High Court was concerned. But, from the language of Article 374(4) which runs as follows, I am unable to give restricted meanings to 'the authority functioning as the Privy Council' and hold that 'the authority functioning as the Privy Council' must be the authority superior to the present High Court and hearing appeals therefrom:

'(4). 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 appeals 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.'

To my mind, 'the authority functioning as the Privy Council' can as well be the authority hearing appeals from the judgments, decrees or orders of any High Court. And, for the matter of that it could be the authority hearing appeals etc. from even the High Court of any of the Covenanting States.

25. In order to 'arrive at a correct conclusion whether or not in the disposal of these cases which were at one time pending before the authorities functioning as the Privy Council, the High Court is functioning or will function as the Privy Council. We have to examine the nature of the jurisdiction and of the powers that the High Court is to exercise in respect of the appeals etc. which were pending before the Ijlas-i-Khas or the Judicial Committees of the Covenanting States and that are now to be disposed of by the High Court.

26. Before doing that we will have to bear in mind the following fact and the basic principle bearing on the question: Fact:--The jurisdiction conferred on the High Court to hear, determine and dispose of the appeals etc. pending before any authority known by the designation of the Ijlas-i-khas, the Judicial Committee or by any other designation in any of the Covenanting States is ''Special Jurisdiction' and the powers to do so are 'Special' In other words, the High Court has not been given the general jurisdiction and power to hear appeals etc. from its judgments passed in appeal to it by one of its Division Benches or from judgments which, so far as the High Court was concerned, had become final. In other words, it is not the case of extension of jurisdiction but it is the case of grant of new, special and limited jurisdiction to hear such appeals etc. as were already pending before the authority known by any of the aforesaid designations. Principle:--The special jurisdiction so conferred on the High Court cannot be enlarged without clear authority. The principle has been differently stated by different jurists and writers. It has been laid down in a decision of the Nagpur Judicial Commissioner's Court reported in Balaji Kunbi v. Chindya, A. I. R. (17) 1930 Nag. 205 at p. 205: (122 I. C. 703) that grant of a special jurisdiction does not carry with it the power to act outside such jurisdiction. The rule has also been expressed thus--that when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with. The principle has been enunicated by another jurist in these words:

'It is a very sound principle of interpretation that no Judge can abrogate to himself authority or power which the Legislature does not confer on him.'

27. Among the appeals etc. that were pending before the various authorities known by the various designations, may be, not only appeals but also applications for grant of special leave to appeal from the judgments, decrees and orders of the various High Courts of the Covenarting States to hear, determine and dispose of which the High Court will have to follow the rules and exercise the powers of those various authorities because it is plainly implied. It cannot but do so because, so far as the High Court is concerned, there is no rule whatsoever to act upon.

28. Similarly there may be also applications for review of judgments of the Ijlas-i-khas or the Judicial Committee or the authority known by some other designation to hear, determine and dispose of which considerations and procedure different from the ordinary considerations and procedure of the High Court will have to be taken into account and followed.

29. Now suppose that among the appeals etc. that have to be heard by the High Court under the special jurisdiction there is an application for special leave to appeal to the Ijlas-i-khas. There being no other law applicable to such application, the law analogous to the one laid down in Section 110 Civil P. C., whether contained in the Civil Procedure Code or in the Rules regarding appeals and petitions to the Ruler will be applied for hearing, determining and disposing of it. Further suppose, that the application is granted which possibility cannot be overruled unless the Judges sit with a pre-made up mind to dismiss such application which contingency I am not prepared to accept in any case. In pursuance of the leave so granted, the petitioner will file an appeal or if the case comes from Jodhpur he will pay the requisite court fee on the Memorandum of Appeal attached to the application for special leave, as required by Rule 28 read with Rule 24 of the Rules regarding appeals and petitions to His Higness the Maharaja Sahib Bahadur (Ijlas-i-khas). The petitioner having the vested right of appeal, the question will then arise before which tribunal he will file the appeal and which tribunal will hear that appeal, the Supreme Court or the High Court. In my judgment, the High Court will do so only if it functions as the authority functioning as the Ijlas-i-khas or the Judicial Committee or the authority known by any other designation which was functioning as the Privy Council of the Ruler of the State concerned; otherwise, the High Court will have no jurisdiction to entertain this new appeal and to hear it because it was not pending before it at the commencement of the Ordinance under which the High Court got the jurisdiction. If the High Court were to hear such an appeal under the well-known rule of interpretation that:

'where a statute confers jurisdiction, it impliedly grants also the power to do such acts, adopt such measures and employ such means as are essentially necessary to its execution,'

vide Yasin Ali Mirdha v. Radhagobinda, A. I. R. (9) 1922 Cal. 118 at p. 120 : (69 I. C. 814), it would only be usurping the jurisdiction that was never conferred upon it which it cannot do. Because, hearing of such an appeal is neither doing of an act nor adopting a measure nor employing a means as is essentially necessary to the execution of the jurisdiction conferred upon it. The correct rule of interpretation is that Courts are not to usurp jurisdiction which is not legitimately theirs and the presumption in all such cases is that Court cannot assume jurisdiction which is not conferred upon it by express and clear language.

30. Again, suppose that among the appeals etc. to be heard by the High Court under the new jurisdiction is an application for review of the judgments of the Ijlas-i-Khas or the Judicial Committee or the authority known by any other designation and further suppose that the application is granted. In pursuance of the granting of the application, the appeal which at present stands dismissed will have to he reopened and reheard that being the vested right of the petitioner. The question would then immediately arise,

'whether or not the appeal was pending before the Ijlas-i-Khas or the Judicial Committee or the authority known by any other designation at the commencement of the Ordinance conferring on the High Court, jurisdiction to hear, determine and dispose of appeals etc, pending before such authority and whether or not the High Court was competent to hear it.'

The plain answer to the question is that it was not so pending and that the High Court can hear, determine or dispose of it, only if it were to function as that authority which was functioning as the Privy Council of the Ruler of the Covenanting State concerned and not otherwise.

31. In the case of appeals that were pending before the authorities known as the 'Ijlas-i-Khas' or the 'Judicial Committee' or known by some other designation, the matter is comparatively simple. No such difficulty as in the case of applications for grant of special leave or for review of judgments will arise and they can be disposed of by the High Court. But this is no answer to the question,

'whether the High Court is functioning or is to function as the Privy Council when it disposes of these appeals.'

If the High Court was to function as High Court in the disposal of these appeals, a situation will arise which was never contemplated. These appeals had passed out of the High Court against whose decisions they are directed. They were pending before the highest authority of the State that was functioning as the Privy Council of the Ruler of that State and if they are now to be disposed of by the High Court as High Court, they will, if they fulfil the necessary conditions, be subjected to a further appeal according to another well-known rule of interpretation that when a Court acquires new jurisdiction it acquires with it all the necessary consequences that flow therefrom vide Secy. of Board of Revenue v. Madras Export Co., A. I. R. (11) 1924 Mad. 63: (76 I. C. 375) wherein the following observation of Lord Parker has been relied upon :

'Where by statute matters are referred to the determination of a Court of Record with no further provision, the necessary implication is that the Court will determine the matter as a Court. Its incidents of such jurisdiction including the right of appeal from its decision remain the same.'

This will be the situation which will be created by assumption of jurisdiction which was not conferred. For, as already stated before, in each one of these States from which these appeals come, there was some Civil Procedure Code or the other in force, which was analogous to the Civil Procedure Code in force in India. Neither such Civil Procedure Code nor the Charter or the Act governing the High Court concerned provided an appeal to the High Court from its judgments by any of its Benches except the Single Bench. Nor does the Civil Procedure Code now governing the procedure in the Courts of Rajasthan or the High Court Ordinance, provide for an appeal to it from its judgments by any of its Benches except the Single Bench. And, by no stretch of imagination or of language it can be said that these appeals have been referred to the determination of the High Court as High Court. As already observed above, the jurisdiction of the High Court has not been extended over these appeals but a special jurisdiction that vested in the authorities functioning as the Privy Council has been conferred on the High Court and all incidents of such special jurisdiction must attach to it. In other words, the decisions of the High Court in these appeals must be final and that could be only if the High Court were to exercise the jurisdiction of the authority functioning as the Privy Council which has been conferred on it and were to function as the Privy Council. In my opinion, the High Court was intended to function as the Privy Council with regard to these appeals and must so function.

32. It was argued on behalf of the respondent that these appeals were to be heard under the Ordinance promulgated on 24-1-1950 by 'the High Court as established under 'The Rajasthan High Court Ordinance.' But the word 'as' is not there in the 'text' and the words 'established under' have no special meaning. They only define or indicate the High Court. They cannot in any way be interpreted to mean 'as constituted by' meaning thereby 'with all the powers and authority and subject to the Rules of.'

33. The provision of the Ordinance is clear. It means: The pending appeals, revisions, reference or petitions which according to any law for the time being in force in any Covenanting State, lay to the Ruler and have been preferred, brought, or presented to the Ruler or to any authority known by the designation of Ijlas-i-Khas, or Judicial Committee or by any other designation and are pending at the commencement of the Ordinance shall be beard, determined and disposed of by the High Court. Naturally as the power of disposal, as distinguished from the power of recommendation, is given to the High Court, the provision relating to the Ruler requiring his approval in the law on the subject became redundant, and the High Court in the disposal of such appeals etc. is to follow the procedure, exercise the jurisdiction and perform the functions of the Ruler and of the authority known by the designation of 'Ijlas-i-Khas' or the Judicial Committee' or by any other designation. In the disposal of these appeals, revisions etc., the High Court was not to, and could not, follow the law or rules relating to appeals (first or second or Letters Patent) that lay to the High Court nor, in the matter of these appeals etc., the jurisdiction of the High Court was that of a High Court. In short, the High Court was to perform the functions of the Ruler and of the authority known by the designation of 'Ijlas-i-Khas' or 'the Judicial Committee' or any other designation. Its judgments in such appeals etc., were to be the judgments of the Ruler or such authority i.e., they were to be final and they were not or could not be subjected to further appeal to the Court that might be constituted by the Raj Pramukh under the above-quoted Section 39, Rajasthan High Court Ordinance, 1949, being Ordinance XV [15] of 1949. These appeals etc. had reached a final stage and were to be so disposed of by the authority, whosoever it may be, to whom they were entrusted for disposal.

34. In my opinion the authority charged with the disposal of these appeals etc. that lay to the Ruler or to the authority known by the designation of Ijlas-i-Khas or Judicial Committee or by any other designation was to function exactly in the same way as that Ruler or that authority would have functioned except that it was not a merely advisory body but a body empowered finally to dispose them of.

35. In my judgment, whether under Section 45, High Court Ordinance or independent of it, jurisdiction and powers have been conferred upon the High Court that formerly belonged to the authority that functioned or was to function as the Privy Council of the Ruler of the relevant Covenanting State, whatever its designation may have been and in the exercise of that jurisdiction and those powers, the High Court is to function as that authority would have functioned with the exception that its conclusions will be judgments and not recommendations.

36. There is another aspect of the matter. Upto 24-1-1950, these appeals etc. were pending their disposal by an authority to be constituted to function as the Privy Council of the Ruler of the State concerned would have functioned with the additional incident that that authority was not at all to function as an advisory body but as the final Court. On 24-1-1950, an Extraordinary Gazette was published in Jaipur promulgating the said amending Ordinance by which these appeals etc. were ordained to be disposed of by the High Court. On 26-1-1950, the Constitution of India came into force. Certainly in one day i.e., between the 24th and 26th of January 1950, these appeals etc. were not transferred to the High Court and it cannot be said that at the commencement of the Constitution of India, they had been transferred and were pending before the High Court. In fact appeals in both of the references before us have been registered in the High Court on 6-7-1950.

37. My answer to the reference, therefore, is that at the commencement of the Constitution of India, all these appeals, revisions etc. including the appeal subject of this reference were not at all pending before the High Court, that if by some legal fiction, they are said to have been pending before the High Court, they were certainly not pending before it as High Court but were so pending before it as an authority functioning as the Privy Council and that only the Supreme Court is competent to hear them under Article 374(4). A copy of this judgment may be placed on record of the other reference.

38. The reference is answered as below. The High Court is not functioning as the Privy Council in respect of appeals and petitions which it has been authorised to entertain and dispose of under the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949.


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