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State of Rajasthan and anr. Vs. R.C. Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal (W) Nos. 901 to 907 of 2001
Judge
Reported inRLW2003(1)Raj155; 2003(1)WLN371
ActsEffect of Repealing Act; Rajasthan High Court Ordinance, 1949; State Reorganisation Act, 1956 - Sections 52; Constitution of India - Article 225; Rajasthan High Court Rules, 1952
AppellantState of Rajasthan and anr.
RespondentR.C. Misra and ors.
Advocates: R.N. Mathur and; M. Rafiq, Additional Advs. General; R.C
Cases ReferredChotelal v. State of Rajasthan
Excerpt:
(a) precedent - question whether judgment dated 13.12.2001 (state of raj. and anr. v. vasnaram and anr.) 2002(4) wln 553, has a binding effect as part of law of precedent or not--held, judgment dtd. 13.12.2001 in vasnaram's case was 'per incurium' and does not bind division bench hearing matters thereafter as a binding precedent.;(b) rajasthan high court rules, 1952 - rule 34--constitution of india--article 225--state reorganisation act, 1956--sections 52, 54 and 57--judicial administrative laws (repeal) act, 2000--rajasthan high court ordinance, 1949--section 18--question whether right to file intra court appeals stands abrogated with repealing act, coming into force on dt. 29.8.2001 by which rajasthan high court ordinance, 1949 was repealed--held, right of intra court appeal not.....balia, j.1. a division bench of this court consisting of hon'ble justice m.r. calla and hon'ble justice shashikant sharma vide its order dated 24.11.2001/3.1.2002 ordered for placing these cases before hon'ble the chief justice for constituting a larger bench for consideration of the following two questions:1. whether the judgment dated 13.12.2001 has a binding effect as a part of the law of precedent or not?2. whether the right to file intra court appeals stands abrogated with the repealing act coming into force on 29.8.2001 by which the rajasthan high court ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the high court in the matter of administration of justice as contained in article 225 of the constitution read with sections.....
Judgment:

Balia, J.

1. A Division Bench of this court consisting of Hon'ble Justice M.R. Calla and Hon'ble Justice Shashikant Sharma vide its order dated 24.11.2001/3.1.2002 ordered for placing these cases before Hon'ble the Chief Justice for constituting a larger Bench for consideration of the following two questions:

1. Whether the judgment dated 13.12.2001 has a binding effect as a part of the law of precedent or not?

2. Whether the right to file intra court appeals stands abrogated with the Repealing Act coming into force on 29.8.2001 by which the Rajasthan High Court Ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the High Court in the matter of administration of justice as contained in Article 225 of the Constitution read with Sections 52, 54 & 57 of the State Reorganisation Act, 1956?

The aforementioned two questions have been referred for determination to as under the orders of Hon'ble the Chief Justice of this Court.....

7. Thereafter, when these appeals came up for hearing, learned counsel appearing for the respondents raised the following two objections about the maintainability of these special appeals:

1. That these special appeals are directed against an interim order and the order impugned in these appeals is not a final order and, therefore, they are not maintainable under Section 18 of the Rajasthan High Court Ordinance, 1949; and

2. That since the Rajasthan High Court Ordinance, 1949 itself has been repealed with effect from 29.8.2001, the dale on which the His Excellency the President of India gave his assent to the repealing Act and, therefore, the present special appeals are not maintainable.

8. Since an important question was raised about the maintainability of special appeals because of the repeal of the Rajasthan High Court Ordinance, 1949 with the promulgation of Judicial Administrative Laws (Repeal) Act, 2001, (hereinafter to be referred to as 'the Act of 2001') affecting large number of cases in the matter of right of appeal to Division Bench against order passed by Single Judge in all the matters pending before Court before various Single Benches and matters to enter the portals in future, a general notice was directed to be issued to the Members of the Bar inviting assistance to the Court on these questions, that any Advocate may appear and argue the matter for the assistance of the Court. A copy of the said Notice was also directed to be sent to the learned Advocate General. Such notice was issued and published in the cause fist dated 9.11.2001.

9. In response to the aforesaid general notice, a large number of the Members of the Bar responded, appeared and addressed the Court about the question regarding maintainability of the special appeals and the effect of Judicial Administrative Laws (Repeal) Act, 2001 whereby Rajasthan High Court Ordinance, 1949 has been repealed. Hearing was concluded on 24.11.2001.

10. On 24th November, 2001 itself the Court commenced the dictation of judgment in Court.

11. On the first question viz., appeal being a vested right, the Division Bench reached its conclusion that right of appeal existing at the time of commencement of lis continues till the logical end of the proceedings up to the last stage and such right of appeal is preserved as held in the cases referred to in the judgment.

12. It appears that a part of the judgment was dictated on 24.11.2001 and because of the changes in the constitution of Benches, the judgment could not proceed further immediately and the matter again came up before the Division Bench for completion of judgment on 3.1.2002.

13. However, during this period, another judgment was delivered by another Division Bench at the Principal seat of the High Court at Jodhpur (Hon'ble Dr. B.S. Chauhan and Hon'ble Harbanslal, JJ) in State of Rajasthan and Anr. v. Vasna Ram and Anr. (D.B. Civil Special Appeal No.846 of 2001, decided on 13.12.2001) holding that there is no other provision existing in any Statute, Ordinance or rules providing for an appeal against the judgment and order of the learned Single Judge before a Division Bench other than Section 18 of the Rajasthan High Court Ordinance, 1949 and as the Rajasthan High Court Ordinance, 1949 stood repealed, it is difficult to assume that the present appeal is maintainable. It was further held that the Ordinance, Section 18 of which provided for an appeal, stands repealed and the repealing Act does not contain any saving clause, and Shri Jangid, learned Addl. Advocate General for the State could not point out any provision analogous to Section 18 of the Ordinance, existing in any Statute in force. In such a fact-situation, appeal cannot be entertained. This judgment was rendered at admission stage when Court itself has entertained doubt about maintainability of Special Appeal, without issuing notice of appeal.

58. However, it is to be considered as a matter of judicial discipline that the Court of subordinate jurisdiction ought not to ignore the earlier binding precedent of a court to which appeal from its judgment goes by treating it to be per incuriam. If the earlier judgment is of a coordinate Bench of the same High Court and it reaches a definite conclusion that the earlier judgment rendered by the coordinate Bench is per incuriam, it can reach its own decision in respect of it but even in such cases, the preferable course to be adopted is to make a reference to a larger Bench to have an authoritative pronouncement on it.

59. That is the course, which the Bench hearing aforesaid appeals has adopted and notwithstanding having came to its conclusion on merit different from what has been reached by another Division Bench in Vasnaram's case (supra) and also being of the opinion that Vasnaram's case (supra) is per in curiam has stopped short of pronouncing a final judgment pronouncing upon correctness of decision in Vasna Ram's case (supra) but has referred the two questions including the question about the binding nature of the decision rendered in Vasnaram's case (supra) to a larger Bench.....

64. It was also contended that the High Court being a court of record under Article 215 of the Constitution of India has inherent authority to determine its own jurisdiction and for that purpose, rules can be framed by it, and if the Rule 134 of the Rajasthan High Court Rules, 1952 is read in the light of the Article 215 read with Article 225 of the Constitution of India independent to the Rajasthan High Court Ordinance, 1949, it continues to preserve the right of special appeal from the decision of the learned single Judge to the Division Bench. Therefore, the repeal of Rajasthan High Court Ordinance, 1949 did not affect the maintainability of special appeal in the Court.

65. Above contentions were buttressed with further submission that Act of 2001 was enacted to repeal a number of redundant and obsolete laws, which had no present utility and was not enacted to bring about any change in existing law as on the date of repeal. Repeal of Rajasthan High Court Ordinance, 1949 i also part of the same process. No change in law relating to intra court appeal or other jurisdictions, powers practice and procedure prevalent in Rajasthan High Court were meant to be altered. Vasna Ram's judgment has brought about entirely different result not intended by the Act of 2001.

II. I (D)(ii) WHETHER VASNA RAM'S CASE CONSIDERS ABOVE CONTENTIONS

66. Having considered the judgment in Vasnaram's case (supra), we find that none of the aforesaid arguments were raised or decided by the Bench deciding said case. The Scheme of Part V of the Constitution and Part V of State Reorganisation Act, 1956, which governs the jurisdiction of, law to be administered in, powers of Judges in respect of administration of justice, powers of High Court to make its own Rules and practice for procedure of existing High Court with effect from the commencement of Constitution and thereafter of High Court constituted for New States under State Reorganisation Act, 1956 does not find consideration in said judgments apparently because such arguments were not made.

79. With this premise, the Court further examined the merit of maintainability of appeal against the judgment rendered by a single Bench in exercise of its jurisdiction under Art. 227 alone and in appeals arising from judgment under special enactment slike under Section 10-D of the Motor Vehicles Act, 1939 with the merit of which, we are not concerned in this reference.

80. The analysis in Mohanlal's case clearly goes to show that it proceeded on assumption that if Ordinance of 1949 was a law enacted by legislation and not a temporary legislative which may have lapsed, it continued to remain in force by virtue of Article 372. The Court was neither called upon to consider nor considered the questions raised before the Division Bench in these appeals or before us in the context of provisions of Chapter V of Part VI of the Constitution under which High Court for each State was constituted as constitutional court and court of record. Article 225 conferred on such existing High Courts same jurisdictions and powers of its Judges in the administration of justice, the law to be administered by it Rule making power and practice and procedure and powers of Chief Justice, Single Judge and Division Benches as were exercisable by the exiting High Court immediately before the Constitution, but significantly did not ordained that High Court, as a Court set up under Constitution shall be deemed to be High Court set up and constituted under existing law and governed by the existing law. Nor the effect of abolition of High Courts of Part B State and setting up of New High Courts in state organised or reorganised under S.R. Act, 1976 with its scheme under Part V of the Act was subject of consideration.

81. In this context whether the parent Statute viz., ordinance of 49 under which the High Court of United State of Rajasthan under the Convenient was constituted continued to remain primary source of law in respect of subject matters dealt with under Article 225 or under Sections 52, 54 and 57 of the S.R. Act, 1956 wa not before the Bench deciding Mohanlal's case (supra). The question was also not before the Court Mohanlal's case, whether because of vesting of same jurisdiction, powers of Judges, Rule making authority, practice and procedure under Article 225, the parent law became a part of Art.225, the parent law became a part of Article 225 10 identify those jurisdiction, powers and other matters connected with the functioning of High Court. This judgment, in our opinion, in terms does not answer the question raised before us.

83. In view of the aforesaid, we answer question No.1 as under:

'The judgment dated 13.12.2001 is Vasna Ram's case is incuriarn and does not have the binding effect as part of the law of precedent.'

III. (A)(i) DEVELOPMENT IN THIS COURT AFTER REFERENCE.

84. Coming to second question before examining the contentions raised before us on merit, we may notice here that after the aforesaid two questions were referred to the larger Bench, another Division Bench (Hon'ble Bhagwati Prasad and N.P. Gupta, JJ.) at the principal seat of the High Court at Jodhpur vide its common judgment dated 3.10.2002 considered the question in New India Assurance Company Ltd. v. smt. Pushpa Devi & Or. (D.B. Civil Special Appeal No.53 of 2002) and Chotulal v. Rajasthan Spinning Weaving Mills Ltd. and Anr. (D.B. Civil Special Appeal No.485 of 2002) and agreeing with decision in Vasna Ram's case (supra) held the special appeals to be not maintainable after the repeal of the Rajasthan High Court Ordinance, 1949.

85. This judgment was also passed at the admission stage without issuing notice to the other side. On the maintainability of Special Appeals it opined that the views expressed in two other cases decided by yet another two different Division Benches of this Court in National Insurance Company v. Smt. Pushpa Devi and Ors. (D.B. Civil Special appeal No.53 of 2002, decided on 3.10.2002) and Chote Lal v. Rajasthan Spinning Weaving Mills Ltd. and Anr. (D.B. Special Appeal No.485 of 2002, decided on 3.10.2002) had taken different view on the point.

86. Notwithstanding, noticing the aforesaid difference of opinion and alluding to the course to be adopted in such contingency, found it unnecessary to refer the matter to a larger Bench for resolving this controversy because it was of the opinion that the decision of Supreme court in Hemlata's case ((2002) 5 SCC 548) covers exhaustively the entire controversy about he maintainability of the special appeals after the repeal of the Rajasthan High Court Ordinance, 1949, therefore, the reference need not be made to a larger Bench. The Division Bench in Smt. Pushpa Devi and Anr.'s case (supra) observed as under:

'Ordinarily, as observed by us earlier, as and when a conflict of opinion is available in various Benches of High Court, 'the dispute is resolved by requesting Hon'ble the Chief Justice to make reference to a Larger Bench. In the instant case, Vasna Ram's case (supra) was decided on 13.12.2001 and other decision referred to hereinabove that of Brijlal Prabhudayal (supra) was decided on 18.02.2002. Thus, it is seen that it was not considered fit by the concerned to make a reference in this light. We thought that we could make a request to Hon'ble the Chief Justice for reference. But then, we had before us the Apex Court decision in case of Hemlata (supra) which was covering the entire controversy and, therefore, instead of choosing to request Hon'ble the Chief Justice for making reference, we decided to go ahead with the decision consciously. The decision of the Apex Court sets controversy at rest. An appeal can be maintainable only under the statutory provisions and it is not available as courtesy.'

87. However, it may be noticed here that no reference has been made in the aforesaid judgment to the fact that a reference of the aforesaid question has already been made to a Larger Bench in the above appeals after inviting assistance of lawyers, perhaps for the reason that in absence of proper notice, this fact was not brought to the notice of the Hon'ble Judges constituting the Bench, which too has decided this issue at the admission stage without issuing notice to other side or to lawyers in General as had been done in the present case by raising the issue of maintainability of Special Appeal suo motu. Decision in Smt. Pushpa's case (supra) and Chotulal's case (supra), has been rendered solely on the basis of the decision of the Supreme Court in Hemlata's case (supra).

88. Hence, it would be apposite that we consider the decision and ratio in the case of Hemlatha's case (supra), at the outset to find whether it exhaustively covers the field for deciding the controversy raised in this reference viz., the effect of repeal of Rajasthan High Court Ordinance, 1949 on the question of availability of intra court appeal from the judgment of a learned single Judge of this Court to a Division Bench of this Court. Obviously, if Hemlatha's case (supra) answers the aforesaid question, we need not proceed further and this reference will become academic.

III. (A)(ii) RATIO IN HEMLATA'S CASE (2002) 5 SCC 548 AND WHETHER IT COVERS THE CONTROVERSY RAISED IN REFERENCE.

89. To find out the ratio of the decision in Hemlatha's case (supra) and its impact on the controversy raised before us, it is necessary that we allude to the facts and back ground of the case, and the question that was raised and answered by the apex Court in Hemlatha's case (supra).....

98. Part V of the Slate Reorganisation Act, 1956 deals with High Courts. Sec.69 of the State Reorganisation Act, 1956 contained in Part V and it clearly lays down that nothing in that part shall affect the application to the High Court for a new State of any provisions of the Constitution and that Part shall have effect subject to any provision that may be made on or after the appointed day with respect to that High Court by any Legislature or other authority having power to make such provision.

99. Apparently, the applicability of any of the provisions of the Constitution was not and could not be impaired by the State Reorganisation Act, 1956 and the provisions contained in Chapter V of the State Reorganisation Act, 1956 were to have effect subject to any provision that may be made after the appointed day with regard to the concerned High Court, making provision for subject dealt with in Part V of State Reorganisation Act, 1956.

100. With this background, it is to be noticed that when the Constitution came into force, the State of Kerala as well as High Court of Kerala was not in existence. After the commencement of the State Reorganisation Act, 1956, the Kerala High Court Act, 1958 came into force with effect from 9.3.1956 and the Travancore Cochin Act, 1125 was repealed. Art.225 of the Constitution of India concerns with the 'existing High Court' at the time of inauguration of Constitution and its operation did not extend to High Courts that may be set up by parliament in the light of entry 78 in Union List of Schedule VII. Thus, Art.225 did not come into consideration about anything concerning Kerala High Court. Kerala High Court Act, 1958 having been enacted with regard to Kerala High Court providing for matters dealt within Part V of State Reorganisation Act viz., jurisdiction of powers of Judges of procedure relating to said High Court and simultaneously repealing Travancore Cochin Act, the provisions relating to corresponding High Court of Kerala High Court. Therefore, Travancore Cochin Act, 1125 no more governed the question relating to Kerala High Court in view of Sec.69 of State Reorganisation Act, 1956.

101. It is in the aforesaid circumstances, the question before the Supreme Court in Hemlatha's case was firstly whether Kerala High Court was a High Court governed by the Letters Patent within the meaning of Sub-section (3) of Section 98 CPC, which would make Section 98 CPC inapplicable to the situation which has arisen before the Division Bench of the Kerala High Court in hearing the appeals. Secondly, whether the Kerala High Court was governed by the provisions of the Travancore Cochin Act, the constituent law of the High Court corresponding to Kerala High Court viz., Travancore Cochin High for the purpose of making it obligatory to refer the case to a third Judge in all circumstances in case there was a difference of opinion among Judges of a Bench composed of even number and the difference of opinion is evently split.

107. In view of the aforesaid finding, the Supreme Court affirmed the judgment of the Kerala High Court in affirming the decree passed by the trial court when two Judges constituting Bench hearing the appeal different without identifying difference of opinion on any point of law.

108. It is obviously that neither the question about the source of provision of intra-court appeal of an existing High Court as on the date of coming into force the Constitution of India or after appointed day under State Reorganisation Act, 1956 nor the Letters Patent of a chartered High Court handed over by British Govt. or an, enactment made by other competent legislative authority, were under consideration before the apex court and even the question about the effect of Judicial Administrative Laws (Repeal) Act, 2001 on the existing right of intra court appeal was before the apex court nor it has decided that issue.

109. Apparently, the Kerala High Court being not in existence at the time when constitution came into force on 26.1.1950, the question of applicability of Article 225 of the Constitution would not have arisen in the matter of jurisdiction, power, practice and procedure of Kerala High Court when it was constituted for the first time in the year 1956 nor the ambit and scope of repealing of any Act like Rajasthan High Court Ordinance, 1949, which was a pre-Constitution Act and unlike Kerala Act of 1958. No law for Rajasthan High Court in respect of any matters dealt with in Part V of the State.

110. Very significantly in the context of Scheme of State Reorganisation Act 1956, the Supreme Court drew a clear distinction between matter relating to jurisdiction on the one hand and matters relating to power of Judges and practice and procedure on the others. The course to be followed on difference of opinion by a Bench of two judges having an appeal for an decree was a matter of practice and procedure and not of jurisdiction. The Act of 1956 has not adopted corresponding practice and procedure to be adopted by New High Court with reference to corresponding territory of predecessor State or States, but has reference to practice and procedure of corresponding High Court, where in the case of Kerala High Court happen to be Travancore Cochin High Court and not the Madras High Court. Therefore, even on analogy, provision in Letters Patent of Madras High Court relating to making of a reference to a larger Bench or to a third Judge in the contingency as was before the Supreme court, will not extend to Kerala High Court as it was held to be matter of procedure and not susbstantive law. Very vital fact which was before the Hon'ble was that State Legislature has, after enactment of State Reorganisation Act, 1956, enacted Kerala High Court Act, 1958 governing the matters dealt with by Section 52, 54 and 57 of State Reorganisation Act, 1956, which brought into operation Section 69 of the State Reorganisation Act, 1956.

111. As against this matter of maintainability of intra court appeals, an issue in present case, is a matter of substantive law and not of practice or procedure.

112. Apart from rejecting all ancillary arguments to support contention about making of reference as a necessary step in deciding the case in contingency of difference of opinion, paramountly the Supreme Court noticed that applicability of Section 98 is excluded only if Letters Patent of High Court provide otherwise. In the context of controversy before Supreme court with reference to term Letters patent used in Section 98(3) of CPC the Court held that Kerala High Court wa not a court established under a Letters Patent but was constituted under State Reorganisation Act, 1956. it had no letters Patent of its own. Merely because transitory provision made in State Reorganisation Act, the Letters Patent of Madras High Court did not become 'Letters Patent' of Kerala High Court so as to take it out of applicability of Section 98 CPC. There being no provision contrary to Sec.98 in Kerala Act, procedure provided in Section 98 had to be adopted. This position is reflected in following statement after explaining the meaning of term Letters Patent:

'Different Letters Patents have been handed down by the Sovereign in British India to chartered High Courts which included only Judicature for Bengal, Madras, Bombay, North West Provinces (Allahabad) and other like Patna (1916), Lahore (1919), Rangoon (1922). The history of these Courts is that the sovereign established them as superior Courts in British India under the Indian High Courts Act of 1861 and powers and jurisdiction of Courts including Judges of these Courts were laid down in Letters Patent'.

113. In that view of the matter, we are of the opinion that the Division Bench of this Court in Smt. Pushpa Devi and Anr.'s case (supra) and Chotulal's case (supra) was not right when it said that the judgment in Hemlatha's case was covering the entire controversy. In the absence of that finding, the Division Bench itself was of the opinion that the matter requires to be referred to a larger Bench for consideration in view of the existing difference of opinion noticed by it.

114. At this juncture, it may be noticed that the judgment dated 3.10.2002 passed in Smt. Pushpa Devi & Anr.'s case (supra) and Chotulal's case (supra) is also a decision of rejecting the special appeals at the threshold by raising the objection about the maintainability of the appeal by the Court itself and deciding the same without inviting assistance from Lawyers in general as the matter do affect all the matters pending before the High Court to be decided by the learned Single Judge affecting rights of parties in all such cases. We also notice that the Division Bench was not apprised of the fact that the issue has already been referred to a larger Bench in the aforesaid appeals by another Division Bench by expressing different opinion than what has been expressed in Vasnaram's case (supra), which two was decided without notice to other side and the Bench was not apprised of the fact that hearing on the question was already concluded at Jaipur and judgment was progress in open court. We do feel that in such cases of general public importance, it would have been desirable that notice to other side i given and also a general Notice is given to seek assistance from the legal fraternity and the situation of court being not apprised of the existing decisions and existing circumstances is avoided as has happened in two cases decided in limine and the court hearing the matter have the benefit of taking notice of all pros and cons of the contention placed before it from reaching final conclusion.

115. Be that as it may, since the matter already stands referred to a larger Bench and as we have noticed above that the decision in Hemlatha's case (supra) doe not delve in the issue raised in this reference, we shall consider the respective arguments on their merit with the advantage of expression of different opinions by different Division Benches of this Court.

116. In view of our aforesaid conclusion about the ratio of the decision in Vasnaram's case (supra); Mohanlal's case (supra) and Smt. Pushpa Devi and Anr.'s case (supra) as well as our conclusion that Hemlata's case (supra) does not govern the issue before us, we shall have to examine the issue on merit independently.

IV. QUESTION NO.2

Whether the right to file intra court appeals stands abrogated with the Repealing act coming into force on 29.8.2001 by which the Rajas-than High Court Ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the High Court in the matter of administration of justice as contained in Article 225 of the Constitution read with Sections 52, 54 & 57 of the State Reorganisation Act, 1956?

IV. (A) Source of Jurisdiction of Courts established under Constitution independently or as a result of admission of new territory in the Union.

117. Indian union has a federal structure, and the Constitution, which gave its people to themselves to constitute India a free democratic sovereign State, is the supreme source of exercise of sovereign authority through its various organs and of law governing the nation. Administration of justice is sovereign function of the State and the Courts discharge that function. Establishment of Constitutional Courts, and their jurisdictions, powers and practice and procedure are vested, primarily by the Constitution and legislation can regulate the same to the extent Constitution permits, is fundamental......

232. The Judicial Administration Laws (Repeal) Act, 2001 receive the assent of the President and was published on 29.8.2001 in the Gazette of Govt. of India (Extraordinary). It does not contain any preamble showing its object and purpose. It also does not indicate substitution of any provisions in any law so as to give a clue to object behind wholesome repeal of 17 enactments. In such circumstances, it is reasonable to draw inference that a large number of enactments which have either become redundant or obsolete and are not required to be on statute Book as an operative law, the legislature by this device has taken them off the statute Book.

233. The Division Bench referring the two questions has referred to Lok Sabha Debate on Judicial Administration Laws (Repeal) Bill and the Note placed by the Department of Justice along with Bill for consideration of the Cabinet. The Note placed before the Cabinet by the Ministry of Law, Justice and Company Affairs, Department of Justice, Govt. of India with respect to the repeal of certain laws relating to Administration of Justice about the repeal of RHC Ordinance, 1949 reads under:

'The High Court of Judicature of Rajasthan was established through this Ordinance. In view of the provisions made in Chapter V of the Constitution and Part V of the State Reorganisation Act, 1956, the provisions contained in the Rajasthan High Court Ordinance have become redundant. The Ordinance may be repealed'.

234. Likewise, the Minister for Law, Justice and Company Affairs who has moved the Judicial Administration Laws Repeal Bill, 2000 on 26.2.2000 has also stated in the Parliament:

'These are 17 pieces of legislation which are relevant to the administration of justice and these 17 legislation have now, with the evolution of new legislations, become somewhat irrelevant to the administration of justice'.

235. The Civil Courts Amins Act, 1856 was sought to be repealed because the institutions of Amins in civil courts has been long abolished and it is no longer in vogue and therefore, this Act had become obsolete, redundant and was no longer required to be on the Statute Book. For the repeal of Bombay High Court (Letters Patent) Act, 1866, it was stated that this Act was Introduced to correct two clerical errors and subsequently, by virtue of amendments made in 1948, that no longer serves the purpose. As regards the unclaimed Deposits Act, 1866 and the Unclaimed Deposits Act, 1870, it was stated that these Acts had governed jurisdiction for Presidency Towns which do not exist any more. The Acting Judges Act of 1867 was sought to be repealed because that subject is governed by Article 224 of the Constitution of India. The Procedure of the High Court for Uttar Pradesh Act of 1869 was sought to be repealed because there is no High Court of Uttar Pradesh but there is Allahabad High Court. The Presidency Magistrate (Court-Fees) Act, 1877 was sought to be repealed because there are no Presidency Towns. Similarly, the Punjab Courts (Supplementing) Act, 1919, which dealt with the jurisdiction of the High Court of Lahore and the Federal Court (Enlargement of Jurisdiction) Act, 1947 were sought to be repealed because there is neither High Court of Lahore nor the Federal Court. The eleventh law relates to the jurisdiction of Privy Council, which is no longer applicable to India. The twelfth one is the Rajasthan High Court Ordinance, 1949, with which we are concerned. About it the Law Minister has stated that 'now, we have the High Court under the Constitution and, therefore, this Ordinance is no longer relevant.' As regards the Bhopal and Vindhya Pradesh (Courts) Act, 1950, it was stated that the Madhya Pradesh Legislations now apply to Vindhya Pradesh region, which was covered by this Act. It was further stated that the Judicial Commissioner's Court (Declaration as High Courts) Act, 1950 applicable to the Union Territory of Daman and Diu is also no longer relevant because Judicial Commissioner's have been abolished. For the repeal of Mysore High Court (Extension of Jurisdiction to Coorg) Act, 1952, it was stated that it is also no longer relevant because now we have a High Court of Bangalore in Karnataka and the Mysore High Court does not exist. The Manipur Court-Fees (Amendment and Validation) Act, 1953 has also become redundant and the Slate Govt. has also conveyed its no objection to the proposal to repeal this Act. For the repeal of the Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act, 1964 it was stated that since it has since long been abolished, it is no longer relevant.

236. This document clearly unfolds this fact that since all the 17 enactments including the Rajasthan High Court Ordinance, 1949 have become obsolete and are no longer required on the Statute Book and, therefore, they were sought to be repealed vide Judicial Administrative Laws (Repeal) Bill, 2000.

237. The repeal of these legislations was not brought into effect for bringing any change into current laws governing the respective field of such repealed legislative. So also repeal of RHC Ordinance, 1949, simplicitor did not result in any change in the jurisdiction of the High Court of Rajasthan, the law administered by the High Court of Rajasthan, the powers of the Judges of the High Court of Rajasthan and the practice and procedure followed in the High Court of Rajasthan under the Rajasthan High Court Rules governing the functioning of the High Court of Rajasthan in various matters provided therein, which remained same by virtue of Art. 225 and were not left to be governed by existing statute. No abridgement, enlargement or abolition of what was adopted to remain with High Court under Constitution of India and later under State Reorganisation Act, 1956, is envisaged either expressly or by necessary implication.

238. Moreover, by Act of 2001 Rajasthan High Court Ordinance, 1949 has been replealed alongwith many other enactments. None of them directly deals with question of maintainability of intra- court appeal. In fact, legislation made by Parliament for governing High Courts since commencement of Constitution have all provided for intra-court appeals under those law. Except to the extent right of intra-court appeal in High Courts have been abrogated by specific provision like under Section 100-A of C.P.C. as inserted by amendment brought into effect w.e.f. 1.7.2002. Such power continue to be exercised by all other High Courts under respective laws or rules framed thereunder. It cannot be attributed to Parliament that it has single out High Court of Rajasthan for abrogating all infra-court appeals by repealing the RHC Ordinance; that will open the repeal susceptible to challenge under Art. 14 for hostile discrimination. That too requires that the repeal of the RHC Ordinance be viewed in its proper perspective that it was not enacted to bring any change in existing laws governing jurisdictions and functioning of the High Court.

IV. (H) OTHER DECISIONS OF THE COURT

239. Before concluding, we may refer to the decisions referred by the Division Bench of this Court in Smt. Pushpa Devi and Anr. Case (supra) and Chotulal's case (supra).

240. In Abdul Rehman v. Smt. Prasony Bai and Ors.. (2002 (2) WLC 488)the dispute had not arisen in the context of repeal of Rajasthan High Court Ordinance, 1949 vis a vis the jurisdiction exerciseable by the Rajasthan High Court under the Constitution and the State Reorganisation State, 1956. No argument appears to have been raised or decided in any of the aspects of the basic question about the availability of the intra-Court appeal in the Rajasthan High Court. By the casual mention, the objection appears to have been raised that on the terminology of Section 18 of the Rajasthan High Court Ordinance, 1949 the particular type of appeal which was before the judges consisting Division Bench was not maintainable. It appears to be in the context of principle controversy whether while exercising jurisdiction under Article 227, the the proceedings originate in the High Court to be considered as original proceedings, and if answer is no, whether an intra-court appeal is maintainable as was the case before the Division Bench deciding Mohan Lal's case (supra)....

256. Apparently, if there is no vested right that a proceedings whether appeal or other lodged in High Court be heard by a single Judge, the right to appeal to Division Bench against the judgment of the learned single Judge obviously cannot vest in a party to proceedings in High court until order is passed by the single Judge, Whether a single Judge decides or a Division Bench decides the case depends upon the assignment of business to single Bench or Division Bench as per the Rules of business prevailing on the date the case is heard. Therefore, until the case is decided by a single Judge, the question of right to special appeal or letters Patent appeal cannot arise. If on the date case is decided by a single Judge of the High Court, the right may arise in favour of a party to the appeal before Division Bench, if the right to such appeal exists on that date. Otherwise, no vested right to appeal before Division Bench at all vest in the party to such case.

257. However, as we have came to the conclusion that repeal of RHC Ordinance, 1949 does not affect any change, the right of appeal as existed prior to 29.8.2001 is not at all affected.

VI. SUMMING UP

258. To sum up our conclusions'-

(1) the jurisdiction which was exercised by the High Court of Rajasthan as a High Court established and constituted in the State of Rajasthan on commencement of the Constitution of India was an existing High Court as envisaged under Article 225 of the Constitution.

(2) The source of jurisdiction exercisable by it original, appellate including the jurisdiction of the Division Courts to hear the intra-court appeals and other jurisdiction become exerciseable by the High Court of Rajasthan by virtue of Article 225 of the Constitution and it was the same as it was exercising immediately prior to the commencement of the Constitution,

(3) Article 225 of the Constitution became the primary source of exercise of various jurisdiction by the High Court, and other matter enumerated in Article 225.

(4) The RHC Ordinance, 1949 ceased to be primary source of governing the jurisdiction of the court, laws to be administered in the High Court of Rajasthan, practice and procedure to be followed by it and the powers to be exercised by the Judges of the High Court in relation to the administration of justice. This was the effect or. respective parent legislation in respect of every High Court established and constituted under the Constitution which was already existing as on the date of commencement of the Constitution.

(5) The effect of Article 225 was akin to incorporation of such provisions in relation to subjects dealt with under it, as were in parent legislation or instrument under which the respective High Court were set up in the first instance before commencement of Constitution or as per practice and procedure followed in existing High Court. Therefore, notwithstanding ceasing to be effective Statute governing subjects enumerated in Article 225 for any High Court, such parent legislations became an instrument to be referred to, for the purpose of identifying the 'same' jurisdictions, laws to administered in and respective powers of the Judges in relation to the administration of justice in the court concerned and also the power to make the Rules of the Court and to regulate the sittings of the Court and all members thereof sitting alone or in Division Courts.

(6) This being the effect, in the case of Rajasthan High Court when it became constituted and established under the Constitution of India under Articles 214 and 216 of the Constitution, the Rajasthan High Court Ordinance as a Statute governing such subject matters mentioned in Article 225 of the constitution became redundant and its repeal simplicitor subsequent would not affect the existing position in relation to subjects dealt with in Article 225.

(7) On enactment of the State Reorganisation Act, 1956 distinction between erstwhile Part A, Part B and Part C states were obliterated and only two Units were composed in making federation of India viz., Slates and Union Territories. For each new Slate constituted under the State Reorganisation Act, 1956 new High Court was envisaged under the State Reorganisation Act, 1956.

(8) While existing High Courts of Bombay, Madhya Pradesh and Punjab were allowed to continue as such High Courts of the respective new States viz., Bombay, Madhya Pradesh and Punjab High Courts of Part B states and the Judicial Commissioners of Part C States were abolished vide Section 50 of the Slate Reorganisation Act, 1956 and new High Courts came into existence for the newly Stales, except Bombay, Madhya Pradesh and Punjab. Thus Rajasthan High Court as it exists today is a new court of New State of Rajasthan since 1.11.1956.

(9) Under Section 52 of the State Reorganisation Act, 1956 the jurisdiction of original, appellate or other as were exerciseable by the Rajasthan High Court of Part B State of Rajasthan and Rajasthan High Court Rules of 1952 became vested in High Court of corresponding new State of Rajasthan in respect of respective territories constituting newly reorganised State. Under the State Reorganisation Act, 1956 in relation to territories forming part of Part B State of Rajasthan and in respect of territories of erstwhile other States, new forming part of New State of Rajasthan, the jurisdiction of Rajasthan High Court for new Slate, was as per jurisdiction of respective High Courts/Judicial Commissioners exercising jurisdiction over such territory prior to reorganised State came into force.

(10) The power of Judges for the newly constituted High Court of State of Rajasthan and the practice and procedure and the rule making authority were to be same as of the High Court for Part B Stale of Rajasthan under Sections 54 and 57 of the State Reorganisation Act, irrespective that any part of New State, was earlier part of any other State other than Part B State of Rajasthan.

(11) Thus, the position remained under State Reorganisation Act, 1956 the same as it has come into existence under Article 225 of the Constitution on commencement of the Constitution for the Rajasthan High Court.

(12) In view of our conclusion that the Rajasthan High Court Ordinance, 1949 ceased to be operative Statute governing matters enumerated in Article 225, for the governance of Rajasthan High Court under the Constitution, and became redundant, its repeal by the Act of 2001 had no effect whatsoever on the exercise by the Division Bench jurisdiction in the matters of hearing appeals against the judgment of the learned Single Judges as it was exercising since such jurisdiction vested in Rajasthan High Court as one of the High Court constituted under the Constitution further by dint of Article 225 of the Constitution and thereafter under Section 52 of the State Reorganisation Act, 1956.

(13)The right of intra-court appeal in the High Court vests on the date the case is heard and decided by the learned single Judge and not before that date.

(14) The decision in the case of Vasna Ram v. State of Rajasthan dt. 13.12.2001 and New India Insurance Company v. Smt. Pushpa Devi and Anr. alongwith Chotelal v. State of Rajasthan dt. 3.10.2002 do not lay down the law correctly.

ANSWERS

259. In view of our aforesaid conclusions, we answer the reference as under : QUESTION NO. 1:

260. For the reasons stated above, the judgment in Vasnaram's case (supra) dt. 13.12.2001 decided by the Division Bench of this Court was per incuriam and does not bind the Division Bench hearing matters thereafter, as a binding precedent.

QUESTION NO. 2 : .

261. The right of intra-court appeal does not stand abrogated with the Repealing Act of 2001 coming into force on 29.8.2001 by which the Rajasthan High Court Ordinance, 1949 was repealed. The right to the intra-court appeal in the High Court of Judicature for Rajasthan, and the jurisdiction of the Division Bench to hear the appeal against the judgment of the learned single Judge of this Court as was vested under Article 225 of the Constitution and later on conferred under Sec. 52 of the State Reorganisation Act, 1956 and the Rajasthan High Court Rules therefore, was not affected or abrogated by the repeal of the Rajasthan High Court Ordinance, 1949 which had long ceased to be governing statute in respect of subjects dealt with under Art. 225 of Chapter V of Part VI of the Constitution and on the subject matters dealt with in Part V of the State Reorganisation Act, 1956.

262. The reference is answered accordingly.


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