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TMI Blog1971 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertained at Allahabad, be decided finally by the judges sitting at Allahabad, without there being an order as contemplated by the second proviso to Article 14 of the U. P. High Courts (Amalgamation) Order, 1948? 4. What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in the first proviso to Article 14 of the High Courts (Amalgamation) Order, 1948? Has this expression reference to the place where the case originated or to the place of sitting of the last court or authority whose decree or order is being challenged in the proceeding before the High Court?" 3. In the connected writ petition, Sri H.N. Tilhari, learned counsel for the petitioners, at first questioned the competence of the reference to a Full Bench out subsequently he abandoned the objection and, indeed, pressed for a decision of the question which arises therein. Having regard to the terms of the order of reference, we have framed the following question and learned counsel for the parties are agreed that this is the question:-- "5. Whether this writ petition can be entertained and heard by the judges sitting at Lucknow?" 4. At the outset it is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce immediately, before the appointed day is exercisable in respect of any part of that province by either of the existing High Courts. (2) The new High Court shall also have in respect of any area outside the United Provinces all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that area by the High Court in Allahabad." 9. The practice and procedure in the existing High Court in Allahabad were, by Article 9, to apply with necessary modifications to the new High Court, but power was given to the Chief Justice in his discretion to order that the practice and procedure hitherto obtaining in the Oudh Chief Court would, until varied or revoked by new rules or orders for the new High Court, apply with necessary modifications in relation to the new High Court sitting at Lucknow. Article 11 provided for a seal of the new High Court and the custody of the seal. Article 14, which is the principal provision for consideration, provided:-- "14. The new High Court, and the judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinct matters. There is a catena of cases affirming that proposition and two of them, where the earlier cases have also been considered are Govind Prasad v. Pawankumar AIR 1952 Nag 278 (FB) and Calcutta National Bank (in liquidation) v. Abhoy Singh Sahela AIR1959Cal464 . By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. How and where the jurisdiction will be exercised by the judges is governed by the practice and procedure prescribed by law and the place of sitting appointed for them. 15. The jurisdiction of the new High Court as on the date of the Amalgamation Order is defined by Article 7. That jurisdiction will be exercised in accordance with a number of other provisions, and one of them is Article 14. Article 14 is concerned essentially, with the seat of the new High Court and the place where its judges will sit. 16. Article 14 speaks of the new High Court and separately of its judges and division courts. That is because "the High Court" and "the judges" refer to two distinct conceptions. One distinction is that the term ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st two judges must sit at Lucknow hear them. In other words, such cases must be heard at Lucknow. The first proviso to Article 14 declares that "............... judges ............... shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh as the Chief Justice may direct, the jurisdiction and power ............... vested in the new High Court." It requires that judges will sit at Lucknow for the purpose of hearing cases arising in the specified Oudh areas, that is the Oudh areas specified by the Chief Justice. That purpose functions as a determinant fixing Lucknow as the place where cases of that category will be heard and, therefore, as the place where the judges will sit. When it is said that cases of a certain category will be heard at Lucknow it is necessarily contemplated that all case's of that category will be heard at Lucknow and especially so, because there are no words of exception or limitation in the first proviso to exclude any cases from that category. The language is not "cases arising in such areas in Oudh, as the Chief Justice may direct, other than those filed at Allahabad." 21. Construed in this manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther reinforces our conclusion that the judges at Lucknow are alone competent to hear cases from the specified Oudh areas and that it is only the order of the Chief Justice under the second proviso which enables such cases being heard at Allahabad. 23. It is desirable to explain that when the second proviso speaks of a case being 'heard' at Allahabad, it refers not merely to the actual hearing of the case in the strict sense of the word but includes the preceding stage of its institution by the party and its being entertained by the court. All that is comprehended with the expression 'heard' in the second proviso. It must not be forgotten that the Amalgamation Order is an organic instrument constituting a judicial authority of superior jurisdiction and, therefore, its provisions must be construed liberally and not in any narrow and pedantic sense. In British Coal Corporation v. The King the Privy Council observed:-- "In interpreting a constituent or organic statute, that construction most beneficial to the widest amplitude of its power must be adopted." 24. We are unable to agree with the observation of Jagdish Sahai, J. in Uma Shanker v. State AIR197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions together is that the judges at Lucknow are alone competent to hear cases arising in the specified Oudh areas except where the Chief Justice orders that any such case or class of cases shall be heard at Allahabad. 27. Upon this analysis, Article 14 can be broadly divided into two provisions, one providing for the place of sitting of the judges and the other specifying the category of cases which will be heard by them. As we have shown in their action they lead us to the same conclusion to which we are compelled by the analysis effected earlier. 28. Besides the express language of Article 14, there are other considerations also which persuade us to that conclusion. In the division of work among the judges at Allahabad and at Lucknow, there will generally be a judge or a Division Bench at each of the two seats entrusted contemporaneously with work of identical jurisdiction. If the judges at Allahabad have concurrent jurisdiction with the judges at Lucknow in respect of cases from the same areas, then in the matter of filing and arguing fresh petitions and appeals a litigant from those areas is put in a position where he can choose his judge. That is a situation which arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be included to reduce that inconvenience and hardship. 31. It has been submitted that the concept of separate territorial jurisdiction in individual judges is unknown. We are referred to Entry 78 of List I of the Seventh Schedule to the Constitution which speaks of "constitution and organisation (including vacations) of the High Courts ............" and to Entry 3 of List II of that Schedule which speaks of "administration of Justice". It is urged that territorial jurisdiction in respect of cases is a matter relating to the constitution and organisation of the High Court as a whole and cannot be conceived of in relation to individual judges. In this connection, our attention has also been drawn to Articles 227, 230 and 231 of the Constitution. We are unable to accept that that result flows from the provisions mentioned above. We are concerned here with the specific provisions of Article 14 and, in our opinion, they reasonably lead to the conclusion to which we have come. 32. We may point out that Article 14 is not unique in the history of the judicial system of this country. Already earlier, the Letters Patent of 1916 which established a High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power vested in the High Court and held that since the case arose in an area of Oudh the application should have been made at Lucknow and could not be entertained at Allahabad. 37. To the same effect, Wanchoo, J. held in Hola Ram v. State AIR1950All485 that an application under Section 526 of the Code of Criminal Procedure for the transfer of a case pending before a subordinate court in Lucknow to a subordinate court at Allahabad, being a case arising in an area in Oudh, should be made to the judges sitting at Lucknow, and the judges sitting at Allahabad had no power to entertain the application. 38. In M.A. Jalil v. Rex AIR1952All550 two revision applications filed before the High Court at Allahabad, against appeals dismissed by the Sessions Judge of Bareilly, were transferred to the judges sitting at Lucknow. While holding that there was no power in the judges sitting at Lucknow to hear the revision applications, which properly could only be heard at Allahabad, Misra and Kaul, JJ., pointed out that the judges sitting at Lucknow could exercise jurisdiction and power in respect of cases arising in such areas in Oudh as the Chief Justice directed while the Judges sitting at Allah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g no jurisdiction. He confined himself to the validity of the presentation of the memorandum of appeal, and while holding that it was properly presented at Allahabad did not further hold that the further jurisdiction of the High Court could be exercised in respect of the appeal by the judges at Allahabad. 42. Now, with profound respect to Mootham. C. J. and A.P. Srivastava, J., we are unable to subscribe to the view that if cases arising in the Oudh areas are to be heard at Lucknow alone it would in effect result in splitting up the High Court into two Courts. From the provisions of the Amalgamation Order already set out, it is clear that there is only one High Court, with one seal, one Chief Justice and a single body of judges, and a single code of rules and orders relating to practice and procedure which, except for a few transitional provisions operates in respect of the entire Court. The jurisdiction defined by Article 7 vests in the entire body of judges. It is a jurist diction enjoyed by every judge of the High Court and extends to all cases throughout the territories of the State. Where that jurisdiction will be exercised is a matter determined under Article 14. It may be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 14. A stage may be reached in the process of reduction where one area of Oudh alone may remain with the judges sitting at Lucknow. There is also power in the Chief Justice, by virtue of the second proviso, to increasingly order that classes of cases arising in the Oudh areas shall be heard at Allahabad. Finally, the arrangement that some judges must sit at Lucknow may be abolished altogether by the Governor with the concurrence of the Chief Justice. 45. Upon these considerations, we find ourselves unable to agree with the majority view taken in Chheda Lal Ramautar AIR1958All652 (supra). The correctness of that view was doubted by one of the learned judges, Jagdish Sahai, J., constituting the Full Bench which decided AIR1971All96 . Although the observations made by him are obiter and his reasons may differ in some respect from those which have appealed to us, he also reached the conclusion that the judges sitting at Lucknow are alone competent to exercise jurisdiction in respect of cases arising in the specified Oudh areas except where a case or class of cases was transferred to Allahabad. 46. The Patna High Court, interpreting Clause 35 of its Letters Patent, which bears cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a court of law for the enforcement or prosecution of a right of the suitor, the enforcement of an obligation binding another in favour of the suitor, the redress or prevention of a wrong, or the punishment of a public offence. 51. Mr. Justice Brandeis of the United States Supreme Court, in Tutun v. United States (1925) 70 L Ed 738 : 270 US 568 explained:-- "Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case." 52. As a remedy under the civil law, a case is a proceeding in a civil court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. S.S. Khanna v. F.J. Dillon [1964]4SCR409 . 53. Under the criminal law, a case ordinarily means a proceeding for the prosecution of a person accused of having committed an offence. Bhimappa v. Laxman 1970CriLJ1132 . 54. It is evident that a petition under Article 226 of the Constitution also constitutes a case for the purpose of Article 14 of the Amalgamation Order. 55. A contention has been raised that the judges sitting at Lucknow are not competent to exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unless a contrary intention appears. This rule has been given statutory recognition in Section 32. Interpretation Act. The purpose of the reference to Section 108 in Clause 15 of the Letters Patent was to incorporate that power in the charter of the Court itself, and not to make it moribund at that stage and make it rigid and inflexible. We are therefore, of the opinion that Section 108 of the Government of India Act, 1915 conferred power on the High Court which that court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915 or whether conferred on it by any subsequent legislation." The first proviso to Article 14 employs the expression "for the time being", and it appears to us that what is intended is "from time to time." In other words, when a question arises as to the jurisdiction and power of the High Court at any point of time, the range of jurisdiction and power at that point of time must be considered, whether it may have expanded or contracted since the framing of the Amalgamation Order. It is now well accepted that the language of a statute is generally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified on appeal or revision. On the other side, there may be cases where the original order has been confirmed by the appellate or revisional order. In either event, when a writ is claimed against the appellate or revisional order, the case must be said to arise where the petitioner's right originally arose, that is the right which was adjudicated upon by the original order. It is that right which he pursues throughout the original proceeding, the appellate proceeding and thereafter in the High Court. It matters not that the original order has merged in the appellate court. The petition arises at the place where the right of the petitioner first arose: 61. Where an original civil or criminal proceeding arises in a specified Oudh area and it is transferred for trial to a court outside the specified Oudh areas an appeal or revision against the judgment, order or decree of the latter court will still lie before the Judges at Lucknow. That is plainly because the cause of action arose or the offence committed in the specified Oudh areas. Correspondingly, where the original civil or criminal proceeding arises outside the specified Oudh areas and it is transferred for trial to a cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment that Article 226 confers jurisdiction to issue directions, orders or writs throughout the territories in relation to which the High Court exercises jurisdiction, and as the judges at Lucknow exercise the jurisdiction of the High Court they are competent to hear writ petitions arising from any place within the State. A misconception vitiates the argument. Article 226 cannot be invoked here. It is concerned with the jurisdiction of the High Court. It does not concern itself with the work to be done by individual judges sitting at different places. Which judge will exercise jurisdiction in respect of which case will depend not upon the terms of Article 226 but upon the internal regulation of the business of the High Court, and that matter is governed by the provisos to Article 14 of the Amalgamation Order and the powers of the Chief Justice under the Rules of Court. In other words, whether the judges at Lucknow are competent to exercise jurisdiction under Article 226 in a particular case will depend upon whether the case can be said to arise in the specified Oudh areas and has not been ordered by the Chief Justice to be heard at Allahabad. 66. In our opinion, when the first pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint; Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice may, from time to time, nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court; Provided further, that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad." 74. The language is simple. The words are familiar. So are several rules of interpretation. But familiarity often makes them inert and uncertain guides. To begin with, take that cliche; 'find out the intention of the law-maker'. Once upon a time, people believed that their laws were given to them by a single and absolute law-giver. Then there could not have been much difficulty in discovering his intention. But these days are gone-by. In modern times a statute is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it, one, although the High Court and the Chief Court are amalgamated into a new High Court like two Corporations into a new Corporation, the New High Court is named after the old High Court. It is called the 'High Court of Judicature at Allahabad.' (See Clause 3). Two, the Chief Justice of the old High Court, and not the Chief Judge of the Chief Court, shall be the Chief Justice of the new High Court even though the Chief Justice became a Judge later than the Chief Judge (See Clause 5 (1)). Three, the permanent Judges of the old High Court shall rank senior to the permanent Judges of the Chief Court even though they were appointed Judges later than the Judges of the Chief Court (See Clause 5 (2)). Four, the practice and procedure in the old High Court shall be the practice and procedure of the new High Court. But the Chief Justice may order that the practice and procedure in the Chief Court shall be the practice and procedure for the Judges sitting at Lucknow. (See Clause 9). Five, the law regarding the custody of the seal of the new High Court shall be the law prevailing in the old High Court (See Clause 11 (2)). Clause 4 of the Letters of Patent of the old High Court pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It could entertain suits of the valuation of ₹ 5 lacs and over. By virtue of Clause 7(1) of the Order, the new High Court at Allahabad will now have original civil jurisdiction over suits of the said valuation. 80. While construing Clause 14, it is necessary to bear in mind to preferred position scheme of the Order. 81. As will appear later, a stereoscopic study of Clauses 7(1) and 14 is essential for a correct understanding of Clause 14. Clause 7(1) is in these words: "The new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day. is exercisable by either of the existing High Courts." 82. Clause 7(1) confers jurisdiction on the new High Court. It defines the jurisdiction of the new High Court with respect of territory as well as subject-matter. Its territorial jurisdiction extends over the entire province (now the State). The first limb of the first part of Clause 14 says that the new High Court shall sit at Allahabad. So the Judges sitting at Allahabad will have jurisdiction to entertain cases arising in any area of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to entertain cases arising in any area of the Province. Its territorial jurisdiction would have been co-extensive with the territorial jurisdiction of the High Court sitting at Allahabad. But the presence of the second limb limits the territorial jurisdiction of the Judges sitting at Lucknow to cases arising in Oudh or part thereof as the Chief Justice may direct. In substance, the second limb of the second part of Clause 14 deals with and confines the territorial jurisdiction of the Judges sitting at Lucknow to Oudh or part thereof as the Chief Justice may direct. It does not circumscribe the jurisdiction of the Judges at Allahabad, for it is not a proviso to the first limb of the first part of Clause 14. The word 'jurisdiction' is used in the second limb of the second part. But it does not stand in the way of the construction suggested by me. It is used to signify jurisdiction over subject-matter in contradiction with jurisdiction over territory. 87. When the Chief Justice has attached a particular area in Oudh to the Lucknow seat of the High Court, all cases arising in that area will be entertained in the Lucknow seat. The purpose of the third part of Clause 14 (ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here one of them is heard at Allahabad and the other at Lucknow. Lastly, the "allocation' implication (and the exclusive jurisdiction argument as well) runs counter to the central object of the order. Clause 7(1) constitutes one High Court exercising territorial jurisdiction over cases arising in the whole Province, The effect of the two arguments is that neither the High Court sitting at Allahabad nor the High Court sitting at Lucknow can exercise jurisdiction over the entire Province. Clause 7(1) appears to me to be plain beyond doubt. It invests the High Court sitting in Allahabad with territorial jurisdiction over the entire province. 89. It is difficult to appreciate the relevance of the two rules of interpretation (1) the general does not derogate from the special and (2) power required to be exercised in a particular manner must be exercised in that manner only to the problem of construction of Clause 14. 90. On January 17, 1951 Chief Justice Malik passed an order under Clause 14 to the effect that petitions under Article 226 of the Constitution arising in Oudh could "be filed either at Lucknow or at Allahabad." This order has been operating till now for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that every case arising in the division of Orissa would be heard by the Judges of the Court visiting that division by Circuit unless it was a case or falls within the class of cases which according to the rules of Court could be heard at Patna or unless the Chief Justice had ordered that it should be heard at Patna. The Patna High Court made Rules under Clause 35. Rule 5 of Chapter 22 of the Rules of Court expressly provided that all cases, except those specified in Rules 2, 3 and 4. "arising in the division of Orissa shall be instituted and heard in Orissa." There was thus allocation of work under the Rules of Court. Again, the history, language and scheme of the Order, as discussed earlier by me, is not the history, language and scheme of Clause 35. 95. It can hardly be denied that the existence of a High Court exercising jurisdiction over the entire State is vital to the growth of an efficient Bar and efficient administration of justice. (See the Report of the Law Commission of India, Vol. I. pp. 104-105). The 'allocation' and exclusive jurisdiction construction fills me with apprehension for the future of the High Court sitting at Allahabad. Today it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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