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TMI Blog1986 (3) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... under Art. 227. This is the view taken by all the High Courts in India except the High Court of Bombay, where alone opinion has not been unanimous. MADON, J. The question which falls for determination in this Appeal is 'whether an appeal lies under clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a Single Judge of that High Court in a petition filed under Article 226 or 227 of the Constitution of India?" The facts which have given rise to this Appeal by Special Leave granted by this Court need to be briefly stated. The First Respondent, Radhikabai, is a widow. She is the owner of three fields situate at Mouza Khed-Makta, Tahsil Brahmapuri, District Chandrapur. Kesheo, the father of the Appellants, was the tenant of the said fields. The First Respondent filed an application under section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act No. XCIX of 1958), read with section 39 of that Act for possession of the said fields on the ground that she wanted them for personally cultivating them. The said application was allowed and she took possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Letters patent provided as follows: "14. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment, in all cases of original civil jurisdiction, of one or more Judges of the said High Court or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High E Court, but that the right of appeal in such case shall be to Us, Our heirs or successors, in Our or Their Privy Council in manner hereinafter provided. The Letters Patent issued in 1862 were revoked and replaced by Letters Patent dated December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the following terms : "15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay, from the judgment (not being a sentence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or ? order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as here inafter provided." In clause 15 as substituted in 1927 the words "on or after the first day of February One thousand nine hundred and twenty nine" did not find a place but were inserted by the said Letters Patent of 1929. It may be point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts subsequently made. The word "judgment" is not defined in the Letters Patent and has been the subject-matter of conflicting decisions by these three High Courts. The question fell for consideration of this Court in Shah Babulal Khimji v. Jayaben D. Kania and Another [1982] I S.C.R. 187. In that case, a Single Judge sitting on the Original Side of the Bombay High Court dismissed an application made by the appellant for appointment of an interim receiver and the grant of an interim injunction. An appeal against that order was dismissed by a Division Bench of the High Court on the ground that it was not maintainable under clause 15 of the Letters Patent. After considering various authorities a three-Judge Bench of this Court reversed the judgment and order of the Division Bench and held that an appeal under clause 15 of the Letters Patent lay against the said order because section 104 of the Code of Civil Procedure, 1908, applied to the Original Side of the Bombay High Court and such an order would be appealable under that section read with Rule 1 of Order XLIII of the Code and also because such an order even on merits contained the quality of finality and would, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the High Court is thus changed and is now referable to the terms of the paramount law of the Constitution." (2) the Constitution made a break with the past and had made absolutely a new original and vital beginning and it, therefore, followed as a matter of law that as far as origin, source of power and the conferment of constitutional authority were concerned, the Letters Patent or earlier legislating had mere historical relevance and could not control matters expressly provided in the Constitution. (3) The High Courts were created as a result of the Letters Patent issued under the Indian High Courts Act, 1861 (24 & 25 Vict. c. 104), and, therefore, the establishment, creation and jurisdiction of the High Courts had their origin in the ordinary law made by the "Imperial Parliament". (4) The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government of India Act, 1935, make it obvious that the words "original" and "appellate" were used with reference to legal jurisdictions of the High Courts created by ordinary legislations as distinct from organic or Constitutional jurisdiction not subject to such laws. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and jurisdiction of the Bombay High Court and referred to various authorities on the point canvassed before it. It held that under Article 225 of the Constitution of India, the High Courts of various Provinces which were in existence immediately before the commencement of the Constitution continued on and from that date as the High Courts of corresponding States possessing all the jurisdictions and powers which they had prior to that date. It further held that Articles 226 and 227 of the Constitution did not confer upon the existing High Courts wholly new powers not reflected in any of the powers or jurisdictions possessed by any of them at the commencement of the Constitution. According to the Special Bench, the power under Article 226 was modelled upon the prerogative writ jurisdiction possessed by the three Chartered High Courts, namely, the High Courts of Calcutta, Bombay and Madras, in the exercise of their original jurisdiction, though that power had been made much wider by Article 226, and that Article 227 derives its origin from section 15 of the Indian High Courts Act, 1861, section 107 of the Government of India A Act of 1915 and section 224 of the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application as being one made under Article 226. The Special Bench overruled the decision in Shankar Nhroba Salunke and others v. Gyanchand Lobbachand Kothari and others except for the conclusion reached in that case that no appeal lies under clause 15 of the Letters Patent against the judgment of a Single Judge of the High Court in a proceeding under Article 227 of the Constitution. Though the Petition for Special Leave to Appeal in this matter was filed in the end of April 1983 nearly two and a half years after the judgment of the Special Bench was delivered and nearly two years after it was reported, strangely enough what was challenged in the Petition for Special Leave was only the correctness of the judgment of the Full Bench and not that of the Special Bench. None the less, in view of the importance of the question raised by this Appeal, the correctness of the Full Bench decision requires to be examined by this Court. The judgment of the Full Bench is based upon one major premise and two minor premises - the major premise being that on the commencement of the Constitution the High Courts then in existence became organically different High Courts as they acquired a different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution (Seventh Amendment) Act, 1956, to read "The States and the territories thereof shall be as specified in the First Schedule." Under the First Schedule to the Constitution, the territory comprised in the Province of Bombay became the territory of the State of Bombay, and by reason of Article 214(2) read with clause (14) of Article 366 of the Constitution the High Court for the Province of Bombay became the High Court for the State of Bombay. Article 215 provides as follows : "215. High Courts to be courts of record. - Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." Article 225 reads as follows : "225. Jurisdiction of existing High Courts. - Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, 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, including any power to make rules of Court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." Clause (1) of Article 227 was substituted with effect from February 1, 1977, by the Constitution (Forty-second Amendment) Act, 1976, to read, "Every High Court shall have superintendence over all courts subject to its appellate jurisdiction". The clause was further substituted so as to restore it to its original form by the Constitution (Forty- fourth Amendment) Act, 1978, with effect from June 20, 1979. It is also relevant to set out the provisions of Article 228. That Article is as follows: "228. Transfer of certain cases to High Court. - If the High Court is satisfied that a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Clauses Act, 1897, subject to any adaptations and modifications that may be made therein by any Presidential order made under Article 372 to bring it in conformity with the provisions of the Constitution, is to apply for the interpretation of the Constitution. The result of the above Constitutional provisions may be summed up thus : (1) Under Article 225, the High Courts exercising jurisdiction in relation to the Provinces immediately before the commencement of the Constitution (hereinafter referred to as "the existing High Courts") became the High Courts for the corresponding States and exercised the same jurisdiction and administered the same law as theretofore; and the respective powers of the Judges of such High Courts in relation to the administration of justice in such Courts, including the power to make rules for the Court and regulate the sittings of the Court and of members thereof sitting singly or in Division Courts, remained the same as immediately before the commencement of the Constitution. (2) The proviso to Article 225 removed the bar to the exercise of original jurisdiction by the existing High Courts in matters concerning the revenue contained in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2), the Judges and Division Courts of the High Court for a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint. By a Presidential Order, namely, S.R.O. No. 2514 dated October 27, 1956, published in the Gazette of India Extraordinary, 1956, Part II, Section 3, at page 2195, the principal seat of the Bombay High Court was notified to be at Bombay. A temporary Bench of the Bombay High Court was established at Nagpur. Sections 52, 54 and 57 of the Act provide as follows : "52. Jurisdiction of High Courts for new States - The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner's Court for an existing State. "54. Practice and procedure - Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to pratice and procedure in the High Court for the correspon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in respect of cases arising in the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda and Rajura: Provided that the Chief Justice may, in his discretion, order that any case arising in any such districts shall be heard at Bombay." It was the Permanent Bench of the Bombay High Court at Nagpur which decided the said Full Bench case of Shankar Naroba Salunke and others v. Gyanchand Lobhachand Kothari and others as also passed the order appealed against in the case before us. The Special Bench case of the State of Maharashtra v. Kusum Charudutt Bharma Upadhye was decided by the Bombay High Court sitting at its principal seat at Bombay. Before proceeding further we may as well complete the post-Constitution history of the Bombay High Court. At the request of the Varishta Panchayat and the people of Free Dadra and Nagar Haveli, the areas of Dadra and Nagar Haveli were integrated with the Union of India as a Union Territory by the Constitution (Tenth Amendment) Act, 1961, with effect from August 11, 1961. The Dadra and Nagar Haveli Act, 1961 (Act No. XXXV of 1961), was enacted to make provision for the representation in Parliament and for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the jurisdiction of, and the law administered in, the Bombay High Court and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including the power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, continued to be the same as they were immediately before the commencement of the Constitution. Further, the Bombay High Court was also vested with the specific powers conferred by Articles 226, 227 and 228 of the Constitution. All existing laws, Ordinances, Orders, bye-laws, rules and regulations made by any competent Legislature, authority or person continued to be administered by the Bombay High Court until altered or repealed or amended by a competent Legislature or other competent authority. Thus, by the Constitution itself the High Court for the former Province of Bombay was made the High Court for the pre-Reorganisation State of Bombay with the same jurisdictions and powers, including rule-making power and the power to regulate the sittings of the Court either by Judges sitting alone or in Division Benches, which it previously possessed. The Letters Paten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arles Fawcett (a former Judge of the Bombay High Court) published in 1934 under the patronage of the Secretary of State for India in Council, M.C. Setalvad's Hamlyn Lecture on "The Common Law in India" published in 1960, "Famous Judges, Lawyers and Cases of Bombay - A Judicial History of Bombay during the British Period" by P.B. Vacha published in 1962, "City of Gold - The Biography of Bombay" by Gillian Tindall published in 1982, and "The East India Company's Sadar Courts 1801-1834" by Sir Orby Mootham (former Chief Justice of the Allahabad High Court) published in 1982. A judicial decision in which much valuable information can be found is the judgment of Westropp, J., who spoke for the Court in the case of Naoroji Beramji v. Henry Rogers [1866-67] 4 Bom. H.C.R. 1. Bombay consisted originally of seven small islands in addition to some islets in the harbour. The seven islands which became the City and Island of Bombay were Colaba, Old Woman's Island, Bombay which was the main island, Mazagaon, Parel (also at times called by some writers by the names of its other three sections - Matunga, Dharavi and Sion), Mahim and Worli. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with all income and revenue, as also the direct and absolute Dominion and Sovereignty of the said Port and Island of Bombay and premises, with all their royalties, freely, fully, entirely and absolutely." What is significant about this Marriage Treaty is that while in the case of Tangier the third article of the Treaty provided that "they (the inhabitants of the City and Fort of Tangier) shall be ruled and governed by the same laws and customs as being hitherto used and imposed in the aforesaid town and castle", the Marriage Treaty did not contain any such provision so far as Bombay was concerned. The reason for this distinction will be pointed out later. Yet another significant thing about this Marriage Treaty was that as the King of Portugal had full and complete sovereignty which he transferred to the King of Great Britain, it made Bombay the only part of India directly under the British Crown while the rest of British India was until 1858 held by the British under the 'firman' of the Mogul Emperor Shah Alam granted on August 12, 1765, and grants made and territories ceded by other Indian rulers and the territories acquired by the East India Company by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter empowered the London Company to make and enforce laws "for the good government of the said Company, and of all factors, masters, mariners, and other officers employed or to be employed in any of their voyages, and for the better advancement and continuance of the said trade and traffic . . . Soe alwais the said lawes . . . be reasonable and not contrary or repugnant to the lawes, statutes or Customes of this Our Realm." It is pertinent to note that this power to legislate contained no express reference to factories or territories. This was pointed out by Westropp J., in Naoroji Beramji v. Henry Rogers [1866-67] 4 Bom. H.C.R. 1. This Charter was renewed and confirmed in nearly identical language by Letters Patent granted by James I on May 31, 1609, and again by a Charter granted on February 4, 1622, by the same monarch. The Charter of 1622 also empowered the Company to chastise and correct all English persons residing in the East Indies and committing any misdemeanour either with martial law or otherwise. On his restoration to the throne Charles II confirmed both the above Charters by Letters Patent granted on April 3, 1661. This Charter conferred upon the Governor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d laws ... be consonant to reason, and not repugnant to the laws of this Our Realm of England ..." The London Company placed Bombay under the control of the Governor and his Council at Surat with a Deputy Governor at Bombay. In 1669 the London Company sent out detailed instructions for the establishment of a Court of Justice in Bombay but it was, however, not until three years later that the first court was established by Gerald Aungier who was the President of the Surat Council and the second Governor of Bombay and who may well be called the Father of the modern City of Bombay for which he visualized a splendid future, calling it "the city which by God's assistance is intended to be built", and it was to this end that he directed his administration and efforts. For the purpose of establishing a Court of Judicature in Bombay he issued a proclamation "for abolishing the Portuguese laws, and for establishing the English" from and after August 1, 1673. The opening ceremony of the Court took place on August 8, 1672, commencing with a ceremonial procession from the Fort to the guild-hall. Aungier then entered the Court, took the chair. After the Letters Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all disputes under 200 xeraphins. Appeals from the decision of the inferior court lay to the superior Court. The superior Court was composed of the Deputy Governor in Council with the title of the "Judge of the Courts of Judicature." It not only heard appeals from the decisions of the inferior Court but also took cognizance of civil causes of the value of and exceeding 200 xeraphins and all criminal actions. All trials before the superior Court were jury trials. By a Charter dated October 5, 1677, Charles II confirmed the Letters Patent of 1661 and the Charter of 1668, and by another Charter dated August 9, 1683, he confirmed the earlier Charters granted by Elizabeth I, James I and himself and inter alia provided for establishing a Court of Judicature to be held at such places, forts, plantations or factories upon the coast as the London Company should from time to time direct. This Charter also authorized the establishment of admiralty jurisdiction in India with the object of enabling the London Company to seize and condemn the ships of those whom it considered as interlopers and a special Admiralty Judge for Bombay was appointed by the King. James II by his Charter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the English Company was to be called "The United Company of Merchants of England trading to the East Indies". By an Indenture Quinquepartite dated July 22, 1702, made between various parties, the London Company conveyed to the English Company all its forts, settlements, and dead stock of every description including the Port and Island of Bombay as also its factories at Surat and other places. An Act was passed by Parliament in the sixth year of the reign of Queen Anne to bring about a speedy and complete union of the two Companies and in pursuance of the said Act all matters in dispute between the two Companies were referred to the final arbitrament of the Earl of Godolphin, the Lord High Treasurer. By a Deed Poll dated September 29, 1708, Lord Godolphin made his award by virtue of which the union of the two Companies was completed. By a Deed Poll enrolled in Chancery, dated March 22, 1709, the London Company, in pursuance of Lord Godolphin's award, and for the entire extinguishment of its corporate capacity, granted, surrendered, yielded, and gave up to the Queen, her heirs and success ors, its corporate capacity or body politic and all its charters, capacities, pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h' which the Mayor's Court insisted upon all Hindu witnesses taking and which consisted of the witness being made to take hold of a cow's tail in court and swear to speak the truth. Ultimately, the Court of Directors in England prohibited this practice. The administration of criminal justice by the Court of the Governor and Council proved equally unsatisfactory for that Court failed lamentably to live up to the noble principles enunciated by Governor Aungier while establishing the first Court of Judicature at Bombay. For instance, when the slave boy in collusion with the housekeeper of one Jenkinson robbed his escritoire of fifteen guineas, they were both sentenced to be hanged but when George Scott, a member of the Council, Justice of the Peace, Marine Paymaster and Keeper of the Custom-house of Mahim, was convicted of the gross oppression of three Indians for the purpose of extorting ten rupees, he was merely fined five pounds and deprived of his Commission. The defects in the working of these Courts had become so patent by the middle of the eighteenth century that the Court of Directors was obliged to request for a new Charter which was granted by King George II on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were established both at Madras and Bombay with jurisdiction similar to that of the Court of King's Bench in England "as far as circumstances would admit". An equitable jurisdiction similar to that of the Court of Chancery in England was given to the Recorder's Courts as also ecclesiastical jurisdiction which included the power to grant probates and letters of administration, and admiralty jurisdiction. The Recorder's Courts were also made Courts of Oyer and Terminer to administer criminal justice as in England "or as nearly thereto as the condition and circumstances of the pleas and persons would admit." The Recorder's Courts were to be Courts of Record and an appeal lay from their decision to the Privy Council. The Recorder's Courts also had no jurisdiction in respect of revenue matters. The Recorder's Court which had been set up at Madras was abolished by the Government of India Act, 1800 (39 & 40 Geo.III, c.79), which provided for the establishment in its place of a Supreme Court to be a Court of Record and to consist of a Chief Justice and two puisne Judges possessing the like jurisdiction and the same powers, and subject to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such jurisdiction and authority as our Justices of our Court of King's Bench have and may lawfully exercise, within that part of Great Britain called England, as far as circumstances will admit." (Emphasis supplied) Clause 23 conferred upon the said Supreme Court all powers possessed by the Mayor's Court and the Recorder's Court. By clause 25 the jurisdiction of the said Supreme Court was inter alia expressly barred in all revenue matters. Clause 26 conferred power upon the said Supreme Court to punish by fine, imprisonment or other corporeal punishment witnesses who committed contempt of Court by refusing to appear, or wilfully neglecting to appear and be sworn, or to be examined and subscribe his or her deposition. By various clauses original civil jurisdiction, equitable jurisdiction of the Court of Chancery in Great Britain, criminal jurisdiction as a Court of Oyer and Terminer, jurisdiction over persons and estates of infants and lunatics, and ecclesiastical, testamentary, intestate, and admiralty jurisdictions were conferred upon the said Supreme Court. Clause 32 conferred upon the Supreme Court the power to frame, process and make rules. Clause 55 made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certiorari, procedendo and error. The third is that there was no intra-court appeal provided against the judgment and decree of any Judge or Judges of the said Supreme Court but under clause 56 an appeal lay directly to the Privy Council. Before we turn to the establishment of the High Courts in India, it will not be out of place to consider the position with respect to the judicial institutions in the rest of the Bombay Presidency. Until 1765 the jurisdiction of the East India Company's Law Courts was confined to the factories of the Company and its branches. In 1765 Robert Clive secured, or rather exacted, the Dewany of Bengal, Bihar and Orissa from the titular Mogul Emperor Shah Alam in Delhi. In this delegated capacity, the East India Company derived its title to administer the revenue and civil affairs of these provinces, and for this purpose it established in Bengal, Bihar and Orissa, civil and revenue Adalats. The delegated capacity was, however, a mere fiction. The real source of the East India Company's authority to administer these provinces was the sword and not the 'firman' of the Mogul Emperor. The Regulating Act of 1773 vested in the Governor-General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for the Governor in Council to continue to execute the duties of the Sadar Adalat and Superior Tribunal without neglecting other important duties". Consequently by Bombay Regulations V and VII of 1820, which came into force on January 1, 1821, the Provincial Court of Appeal and of Circuit was abolished and the then existing Sadar Adalat and the Superior Tribunal were replaced by new Courts, namely, the Sadar Adalat (the former name being retained) and the Sadar Foujdari Adalat. The seat of the Sadar Adalat was also transferred from Bombay to Surat. Under Bombay Regulation V of 1820 an appeal lay from the decision of the Sadar Adalat to the Privy Council. On becoming Governor, Mountstuart Elphinstone set up in August 1820 a committee "to examine the existing law and practice and to prepare a comprehensive code, expressed in non-technical language, which would as far as possible preserve native institutions". Following upon the recommendations of the committee, on January 1, 1827, twenty-six Regulations known as the Elphinstone Code were passed which (with the exception of Regulation XVIII) came into force on September 1, 1827. Under this Code, the judicial syst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the government of India which preceded the setting up of High Courts in the country. The Government of India Act of 1833 (3 & 4 Wm. IV, c.85) introduced important changes in the system of legislation in India, vesting the sole legislative power in India in the Governor-General in Council. The existing powers of the Councils of Madras and Bombay to make laws were superseded and they were merely authorized to submit to the Governor-General in Council drafts or projects of any law which they might think expedient. After considering such drafts and projects the Governor-General in Council was to communicate his decision thereon to the local government which had proposed them. This Statute expressly saved the right of the British Parliament to make laws for India. All laws made previously to this statute were called "Regulations", but laws which were made in pursuance of the Statute of 1833 were known as "Acts". The Government of India Act of 1853 (16 & 17 Vict., c.95) renewed the Charter granted to the East India Company by the Government of India Act of 1833. Under this Statute the territories in the possession and under the government of the East Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate, and Matrimonial Jurisdiction, original and appellate, and all such Powers and Authority for and in relation to the Administration of Justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such Directions and Limitations as to the Exercise of original Civil and Criminal Jurisdiction beyond the Limits of the Presidency Towns as may be prescribed thereby; and, save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the Legislative Powers in relation to the Matters as aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise all Jurisdiction and Power and Authority whatsoever in any Manner vested in any of the Courts in the same Presidency abolished under this Act at the Time of the Abolition of such last-mentioned Courts. 10. High Courts to exercise same jurisdiction as Supreme Courts. - Until the Crown shall otherwise provide under the powers of this Act, all Jurisdiction now exercised by the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther with or without the Chief Justice, shall constitute the several Division Courts as aforesaid." Section 15 of the said Act conferred upon the High Court the power of superintendence over all Courts subject to its appellate jurisdiction. This power of superintendence was very similar to the like power conferred later by section 107 of the Government of India Act of 1915. As under clause 15 of the Letters Patent of the Bombay High Court as amended by Letters Patent dated March 11, 1919, an intra-court appeal does not lie against a sentence or order passed or made by a Single Judge in the exercise of his power of superintendence under the provisions of section 107 of the Government of India Act of 1915, it would be relevant to reproduce section 15 of the Indian High Courts Act, 1861. The said section 15 provided as follows : 15. High Court to superintend and to frame Rules of Practice for subordinate Courts.- Each of the High Courts established under this Act shall have Superintendence over all Courts which may be subject to its appellate Jurisdiction and shall have Power to call for Returns, and to direct the transfer of any Suit or Appeal from any such Court to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Jurisdiction of the High Court". Under clause 11 the High Court was to have and exercise Ordinary Original Jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law or regulation made by the Governor in Council, and until such local limits were so declared and prescribed, within the limits of the then local jurisdiction of the Supreme Court of Judicature at Bombay. Clause 12 prescribed when the ordinary original civil jurisdiction in suits was exercisable by the High Court. Clause 13 conferred upon the High Court the power to remove and try and determine as a Court of extraordinary original jurisdiction any suit in any court subject to the superintendence of the High Court, whether such court was within or without the Presidency of Bombay. Clauses 14 and 15 dealt with appeals; clause 14 dealing with appeals from the judgments given in the exercise of original civil jurisdiction of the High Court and clause 15 dealing with appeals from the subordinate civil courts in the Presidency. Other clauses of the 1862 Letters Patent conferred upon the Bombay High Court jurisdiction over infants and lunatics, insolvency jurisdiction, civil an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was extended to January 1, 1866. In pursuance of the above power, the Letters Patent issued in 1862 for establishing the three chartered High Courts were revoked and replaced by Letters Patent dated December 28, 1865, which, with amendments, still continue to be the Letters Patent of those High Courts. Clause 2 of the 1865 Letters Patent of the Bombay High Court provided that notwithstanding the revocation of the 1862 Letters Patent the High Court of Judicature at Bombay "shall be and continue as from the time of the original erection and establishment thereof, the High Court of Judicature at Bombay for the Presidency of Bombay" and that "the said Court shall be and continue a Court of Record". Clauses 11 to 18 of the Letters Patent are grouped under the heading "Civil Jurisdiction of the High Court". Under clause 11 the High Court is to have and exercise ordinary original civil jurisdiction within such local limits as might, from time to time, be declared and prescribed by any law made by the Governor in Council, and until such local limits were so declared and prescribed, with in the limits of the local jurisdiction of the High Court at the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated December 9, 1927. Clause 37 confers upon the High Court the power to make rules and orders, from time to time, for the purpose of regulating all proceedings in civil cases, which may be brought before the High Court, including proceedings in its admiralty, vice- admirality, intestate and matrimonial jurisdictions respectively, with this proviso that the High Court is to be guided in making such rules and orders as far as may be possible by the provisions of the Code of Civil Procedure (Act No. VIII of 1859) and the provisions of any law which was made amending or altering the same by competent legislative authority. Clause 41 deals with appeals in criminal cases. Clause 44 made the Letters Patent subject to the legislative power of the Governor-General in Council and provided that they could in all respects be amended and altered thereby. Claue 45 inter alia provides that : "so much of the aforesaid Letters Patent granted by His Majesty King George the Fourth (that is, the Letters Patent of the Supreme Court) as was not revoked or determined by the said Letters Patent of the Twenty-sixth of June One Thousand Eight hundred and Sixty-two, and is inconsistent, with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 113, the sub-heading "Additional High Courts"; and section 114, the sub-heading "Advocate- General". Sections 101(1), 106, 107 and 108 provided as follows : "101. Constitution of high courts. - (1) The high courts referred to in this Act are the high courts of judicature for the time being established in British India by letters patent. 106 Jurisdiction of high courts.- (1)The several high courts are courts of record and have such jurisdiction original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the court, and power to make rules for regulating the practice of the court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of this Act. (1-A) The letters patent establishing or vesting jurisdiction, powers or authority in a high court may be amended from time to time by His Majesty by further let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by the said section 113, Letters Patent were issued on February 9, 1916, establishing the High Court of Judicature at Patna; on March 21, 1919, establishing the High Court of Judicature at Lahore; and on January 2, 1936, establishing the High Court of Judicature at Nagpur. The Government of India Act 1915 was replaced by the Government of India Act, 1935 (25 & 26 Geo. V. c. 42, reprinted in pursuance of the Government of India (Reprinting) Act, 1936 (26 Geo. V & 1 Edw. VIII, c. 2) (hereinafter referred to as "the 1935 Act"). The 1935 Act envisaged a federal constitution. It made a division of powers between the Centre and the Provinces, certain subjects being exclusively assigned to the Central Legislature and others to the Provincial Legislature. In another field the two Legislatures had concurrent legislative powers. The 1935 Act came into force with regard to the Provinces on April 1, 1937. The federal structure of the Centre, however, never came into existence, and the Central Government continued to be carried on in accordance with the provisions of the old Government of India Act except that its executive and legislative powers were restricted to the matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;224. Administrative functions of High Courts. (1) Every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,-- (a) call for returns; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and (d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts; Provided that such rules, forms and tables shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor. (2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision." "225. Transfer of certain cases to High Court for trial. (1) If on an application made in accordance with the provisions of this section a High Court is satisfied that a case pending in an inferior court, being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts thereof were to be governed as nearly as may be in accordance with the 1935 Act with such modifications and adaptations, as may be specified by the Governor-General, and similarly all existing laws with necessary modifications and adaptations were to continue as law of each of the new Dominions and the several parts thereof until other provision was made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf. Sub-section (3) of section 19 defined the term "Constituent Assembly". Clause (a) thereof defined it in relation to India and clause (b) in relation to Pakistan. The said clause (a) was as follows : "19. Interpretation, etc.- x x x x (3) References in this Act to the Constituent Assembly of a Dominion shall be construed as references - (a) in relation to India, to the Constituent Assembly, the first sitting whereof was held on the ninth day of December, nineteen hundred and forty-six, modified - (i) by the exclusion of the members representing Bengal, the Punjab, Sind and British Baluchistan; and (ii) should it appear that the North-West Frontier Province will form part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitutions of other countries. Very little of it can claim originality. "One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.... " As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y adopted and enacted the Constitution of India. The setting up of the Constituent Assembly itself was an act of the British Parliament. In 1940 the Coalition Government in Great Britain recognized the principle that Indians should themselves frame a new Constitution for an autonomous India. Repeated efforts were made to bring about unanimity among different political parties with respect to the basis for such a Constitution. Ultimately, elections for a Constituent Assembly were held, and the Constituent Assembly first sat on December 9, 1946. The Constituent Assembly was composed of representatives of the Provinces and of the Indian States, on the basis of one representative for a million of the population. Representatives of the Provinces were elected by the members of the lower Chamber of the Provincial Legislatures where the Legislatures were bicameral and by the Chamber of the Provincial Legislatures where the Legislatures were unicameral. In the case of the Indian States, their representatives were elected by electoral colleges constituted by the Indian Rulers. This Constituent Assembly was not a sovereign body for its authority was limited both in respect of basic principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut there was no cession, conquest, occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign . . . "These assumptions are not supported by history or by constitutional theory. There is no warrant for holding that at the stroke of midnight of the 25th January, 1950, all our pre-existing political institutions ceased to exist, and in the next moment arose a new set of institution completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial Legislation" or to the Letters Patent issued in 1862 and 1865 as issued by the "Imperial Sovereign" is not correct. Jowitt's Dictionary of English Law" (second edition, p.430) defines the term "Constitution" as "any regular form or system of government" and the term "constitutional law" as "all rules which directly or indirectly effect the distribution or exercise of the sovereign power; the law relating to the legislature, the executive and the judiciary." According to Dicey, constitutional law includes "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State". (Dicey's "An Introduction to the Study of the Law of the Constitution", tenth edn., p.23). What a constitutional law usually embraces within its scope has been thus set out by Hood Phillips in his "Constitutional and Administrative Law" (sixth edn., p.11) : "More specifically, constitutional law embraces that part of a country's laws which relates to the following topics, among others : the method of choosing the Head of State, whether king or presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the judiciary, the distribution of governmental power among them and the definition of their mutual relation." The sovereign character of Parliament in England has been pointed out by a Constitution Bench of this Court in Union of India etc. v. Tulsiram Patel etc. [1985] 3 S.C.C. 398, 425-6. Instances of constitutional laws enacted by the British Parliament are the Act of Settlement, 1701, which varied and finally fixed the descent of the Crown, the Act of Union with Scotland of 1706, and the Act of Union with Ireland of 1800. Acts passed by the British Parliament for the governments of various parts of the Crown's territories have been judicially recognized as Constitution Acts. For instance, in British Coal Corporation and Others v. The King [1935] A.C. 500, 518, J.C., the Judicial Committee referred to the British North America Act, 1867 (30 & 31 Vict., c.3), which was passed to provide for the establishment in Canada of one Dominion, as a constituent statute and in James v. Commonwealth of Australia [1936] 578, 614, J.C., it referred to the Commonwealth of Australia Constitution Act of 1900 (63 & 64 Vict., c.12), as a Constitution. So far as the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of law as to the interpretation of this Constitution" is to be five. Articles 132 and 145 are in Chapter IV of Part V of the Constitution which Chapter deals with the "Union Judiciary." Article 228 confers upon the High Court the power to transfer a case pending in a court subordinate to it for disposal by itself if "it involves a substantial question of law as to the interpretation of this Constitution." Article 228 is in Chapter V of Part VI of the Constitution which Chapter deals with "The High Courts in the States". The phrase "any substantial question of law as to the interpretation of this Constitution" is defined by Article 147. Article 147 which occurs in Chapter IV of Part V provides as follows : "147. Interpretation. - In this Chapter and in Chapter V of Part VI, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment amending or supplementing that Act), or any Order in Council or order made thereunder, or of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y George II. Similarly, the Recorder's Courts established at Bombay and Madras by Charter dated February 20, 1798, granted by George III, were made Courts of Record. Statute 4, Geo, IV, c.71 of 1823 authorized the Crown to abolish the Recorder's Court at Bombay and establish in its place a Supreme Court to be a Court of Record and when the Supreme Court of Judicature at Bombay was established, clause 1 of its Letters Patent expressly made that Court a Court of Record. The Sadar Dewany Adalat and the Sadar Foujdari Adalat were both Courts of Record. Clause 1 of the Letters Patent of 1862 constituted the High Court of Judicature at Bombay to be a Court of Record, and it was this High Court which by clause 1 of the Letters Patent of 1865 was continued as the High Court of Judicature at Bombay for the Presidency of Bombay as a Court of Record. Section 106(1) of the Government of India Act of 1915, provided that the several High Courts would be Courts of Record, and section 220 of the Government of India Act, 1935, made an identical provision. The scheme of Chapter V of Part VI of the Constitution which deals with High Courts closely follows the scheme of Part IX of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the existing High Courts which was continued by that section was made subject to the provisions of Part IX of that Act and of any Order in Council made under that Act or any other Act and to the provisions of any Act of the appropriate Legislature. Under that Act, the Federal Legislature had the power to legislate with respect to the jurisdiction and powers of all courts except the Federal Court with respect to any matter in the Federal Legislative List, the Provincial Legislature with respect to matters in the Provincial Legislative List and the Federal Legislature as also the Provincial Legislature with respect to matters in the Concurrent Legislative List. The position under the Constitution is the same. By Article 225 the continuance of the jurisdiction of the existing High Courts is made subject to the provisions of the Constitution and of any law of the appropriate Legislature. Under Schedule VII to the Constitution, the power to legislate with respect to the jurisdiction and powers of all courts except the Supreme Court is with Parliament with respect to any matter in the Union List (List I, Entry 95), with the State Legislatures with respect to any matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench is as erroneous as the other conclusions reached by it and is once again based upon an inadvertence to notice the relevant provisions of the earlier Constitution Acts. A provision similar to Article 228 was to be found in section 225 of the Government of India Act, 1935. Article 227 has a longer ancestry. Clause 55 of the Charter of the Supreme Court of Judicature at Bombay made the Court of Requests and the Court of Quarter Sessions subject to the order and control of the said Supreme Court in the same manner as inferior courts and Magistrates in England were subject to the Court of King's Bench. Section 15 of the Indian High Courts Act, 1861, conferred upon each of the Chartered High Courts the power of superintendence over all courts subject to its appellate jurisdiction. A similar power of superintendence was conferred upon the High Courts by section 107 of the Government of India Act of 1915-1919, and a more limited power of superintendence was conferred upon them by section 224 of the Government of India Act, 1935. The powers under Articles 227 and 228, though in a somewhat different form, were thus possessed by the existing High Courts immediately prior to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta, Madras and Bombay respectively was to be exercised by each of the three Chartered High Courts subject to the legislative powers of the Governor-General of India in Council. By clause 44 of the Letters Patent of 1862 so much of the Letters Patent of the said Supreme Court as were inconsistent with the said Letters Patent stood revoked, and when the Letters Patent of 1862 were replaced by new Letters Patent in 1865, clause 45 of the Letters Patent of 1865 expressly provided that so much of the Letters Patent of the said Supreme Courts as were not revoked by the earlier Letters Patent of 1862 and were inconsistent with the Letters Patent of 1865 should stand revoked. Neither the Letters Patent of 1862 nor the Letters Patent of 1865 contained any provision inconsistent with the Chartered High Courts possessing the jurisdiction of the Court of King's Bench which had been conferred upon the Supreme Courts of Judicature by their respective Letters Patent, and each of the three Chartered High Courts on its Original Side continued to possess the power inter alia of issuing prerogative writs. In Ryots of Garabandho and other villages v. Zemindar of Parlakimedi and Anr. [1942-43] 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution. It was, therefore, necessary to re-enact these provisions and the only way in which it could be done was to insert them in the Constitution because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by the appropriate Legislature. So far as Article 226 is concerned, the power to issue prerogative writs was possessed by the three Chartered High Courts only. As the Constitution-makers intended to confer the enlarged power under Article 226 upon all High Courts, and not merely the three Chartered High Courts, this power had to be embodied in an Article of the Constitution. It should also be borne in mind that the jurisdiction under Articles 226, 227 and 228 was intended to be conferred upon all High Courts - not only the existing High Courts but also any other High Court as and when it came to be established in the future. Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in England, until November 1, 1875, when the Supreme Court of Judicature Acts of 1873 and 1875 came into force, were exercised by different courts such as the Court of King's Bench, the Court of Common Pleas, the Court of Chancery, the Court of Exchequer as a common law court, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy. These several jurisdictions were conferred upon the High Courts by different clauses of the Letters Patent. Clause 14, however, specifically provided for an intra-court appeal only from judgments "in all cases of original civil jurisdiction". The marginal note to clause 14 was "Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction". Jurisdictions other than ordinary and extra- ordinary civil jurisdictions were conferred by clauses which followed clause 14. For this reason, it was doubted at one time whether an intra-court appeal would lie from the judgment of one Judge in the exercise of original testamentary jurisdiction but in the case of Saroda Soonduree Dossee v. Tincowree Nundee [1884] Hyde's Reports 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words "in all cases of original civil jurisdiction" which occurred in clause 14 made the judgment of the senior Judge of the Division Bench appealable whether it was given in an original matter or in an appeal from a subordinate court even though the appellate jurisdiction of the High Court in respect of decisions given in civil cases by subordinate courts is conferred by clause 16 which in numerical order follows clause 15. Such was the view taken by a Full Bench of seven Judges of the Calcutta High Court in Ranee Shurno Moyee v. Luchmeept Doogur and others [1867] 7 Sutherland's Weekly Reporter 52 as far back as January 23, 1867. Since then all the Chartered High Courts have taken the same view and have held that unless excluded from the purview of clause 15, an intra-court appeal lies under that clause against the judgment delivered in the exercise of any of the jurisdictions conferred by the Letters Patent, whether by a clause preceding or succeeding clause 15. When clause 15 was substituted by Letters Patent dated December 9, 1927, the marginal note was changed to "Appeal to the High Court from the Judges of the Court". This change brought the marginal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir contents similar to the corresponding provisions of the Constitution of India, held that under that Act the Bombay High Court possessed all the jurisdictions that it had at the commencement of that Act and could also exercise all such jurisdictions that would be conferred upon it from time to time by the legislative power conferred by that Act and, therefore, unless the right of appeal was otherwise excluded, an intra-court appeal lay under clause 15 of the Letters Patent of the Bombay High Court. The same, of course, would apply to the Letters Patent of the Calcutta and Madras High Courts. The Letters Patent establishing the Lahore High Court constitute the Charter of the Punjab High Court. Clause 10 of those Letters Patent is in pari materia with clause 15 of the Letters Patent of the Chartered High Courts. Referring to clause 10 of the Letters Patent of the Punjab High Court, this Court in South Asia Industries Private Ltd. v. S.B. Sarup Singh and Ors. [1965] 2 S.C.R. 756, said (at pages 761-62) : "A plain reading of the said clause indicates that except in the 3 cases excluded an appeal lay against the judgment of a single Judge of the High Court to the High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Crown by further Letters Patent. Section 223 of the Government of India Act, 1935, continued the jurisdiction of the existing High Courts subject to the provisions of Part IX of that Act, the provisions of any Order in Council made under that Act or any other Act and the provisions of any Act of the appropriate Legislature enacted by virtue of the powers conferred on that Legislature by that Act. In the same way, Article 225 is made subject to the provisions of the Constitution and the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. The opening words of Article 225 "Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of the powers conferred on that Legislature by this Constitution" only mean that Article 225 is subject to what is provided in the Constitution and in law made by an appropriate Legislature. The words "Subject to" cannot be construed, as the Full Bench has done, as referring only to a provision limiting or restricting the jurisdiction of the existing High Courts. They also include a provision wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal amendment. What has escaped the notice of the Full Bench is that a provision for a right of appeal is not one which in any manner limits, abridges, takes away or adversely affects the power of the High Court under Article 226 or 227. Such a provivion merely regulates the exercise of the powers under these Articles. We may point out here that Article 145(1) confers upon this Court the power to make rules including rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III, that is, Fundamental Rights. By the opening clause of Article 145(1) this power is made "Subject to the provisions of any law made by Parliament". Therefore, the practice and procedure in respect of petitions under Article 32 for the enforcement of Fundamental Rights are regulated by rules framed by this Court and by any law made by Parliament in that behalf. We fail to see why the practice and procedure in respect of petitions under Articles 226 and 227 should stand on a different footing. The position which emerges from the above discussion is that under clause 15 of the Letters Patent of the Chartered High Courts, from the judgment (within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the existing High Courts and the respective powers of the Judges thereof in relation to the administration of justice in the court expressly provided that such powers shall include "any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or any division court". Thus, the rule-making power of the High Court and of the Chief Justice of the High Court to assign work either to Single Judges or to Division Courts and to determine what Judges, whether with or without the Chief Justice, would constitute the several Division Courts remained unimpaired and unaffected. Section 38(1) of the Interpretation Act, 1889 (52 & 53 Vict., c.63), now repealed by the Interpretation Act, 1978 (1978 Eliz.2, c.30), provided as follows : "38. Effect of repeal in future Acts. - (1) Where this Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted." Section 8 of the General Clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion "pursuant to section 108 of the Government of India Act", is on the coming into force of the Government of India Act, 1935, to be read as "pursuant to section 223 of the Government of India Act, 1935." Article 225 of the Constitution is in pari materia with section 223 of the Government of India Act, 1935. Article 367(1) of the Constitution provides that the General Clauses Act, 1897, shall apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. Thus, by the combined operation of section 38(1) of the Interpretation Act and section 8 of the General Clauses Act, the expression "pursuant to section 223 of the Government of India Act, 1935," which was deemed to have been substituted for the expression "pursuant to section 108 of the Government of India Act" in clause 15 of the Letters Patent is, on the commencement of the Constitution, to be read as "pursuant to Article 225 of the Constitution." In National Sewing Thread Company's case this Court said (at pages 1036-7) : "As a matter of history the power was not conferred for the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act even though given by a Single Judge. The Assam High Court pointed out that the power exercised by the High Court under the said Act was a special jurisdiction and was an exercise by the High Court of powers possessed by the Provincial Government and the Tribunal which were transferred to the High Court by the said Act and was not the exercise by the High Court of its powers as a High Court under the Act by which it was established. Thus, this was a case of a statutory exclusion of a right of second appeal in a matter decided by the High Court as an appellate and revisional authority constituted by a special Act passed by the Provincial Legislature in the exercise of its legislative power. The Full Bench has confused the source of power with the exercise of that power. Conferment of power is one thing while the exercise of such power is a wholly different thing. Articles 226 and 227 confer certain powers upon the High Courts while Article 225 of the Constitution deals with the power to make rules for the exercise of powers possessed by the existing High Courts. The rule-making power extends to all jurisdictions and powers possessed by the existing High Courts, whether at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he excluded categories. According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Article 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these Articles would be covered by the expression "revisional jurisdiction" and "power of superin- tendence". We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Moulvi Hamid Hasan Nomani v. Banwarilal Roy and others L.R. [1946-47] 74 I.A. 120, 130-31; s.c.= A.I.R. 1947 P.C. 90, 98). In the last mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held : "In their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction." By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (see, for instance, State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 S.C.R. 1, 16, Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The origin and nature of the power of superintendence conferred upon the High Courts by Article 227 was thus stated by this Court in Waryam Singh and another v. Amarnath and another [1954] S.C.R. 565. It reads as follows (at pages 570-1) : "The material part of article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the article also to tribunals. . . The only question raised is as to the nature of the power of superintendence conferred by the article. Reference is made to clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintendence over the subordinate courts and tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Krishnaswami Reddiar and Ors., A.I.R. 1955 Mad. 72, In re V. Tirupuliswamy Naidu, I.L.R. 1955 Mad. 1083, s.c. A.I.R. 1955 Mad. 287, J. and K. Co-Operative Bank v. Shams-ud-din- Bacha, A.I.R. 1970 J & K 190, and Ishwar Singh v. Ram Piari and Anr, A.I.R. 1978 H.P. 39). According to the Full Bench, a right of appeal against the judgment of a Single Judge in a petition under Articles 226 or 227 is expressly barred by Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as "the Appellate Side Rules"). In order to reach this conclusion the Full Bench relied upon the phrase "finally disposed of" occurring in the said Rule 18. It is not possible to accept the construction placed by the Full Bench upon the said Rule 18. The Bombay High Court possesses both an Original Side and an Appellate Side. The Judges of the High Court have, therefore framed two sets of rules of Court, one for the Original Side and the other for the Appellate Side. We need not trouble ourselves with the earlier sets of rules but will confine ourselves only to referring to the rules now in force. Under Rule 636(1) of the Rules of the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 18 sets out the orders passed by authorities under various statutes and decrees and orders passed by subordinate courts in any suit or proceeding, excluding those arising out of the Parsi Chief Matrimonial Court, which are to be heard and disposed of by a Single Judge. The non obstante clause in Rule 18, namely, "Notwithstanding anything contained in Rules 1,4, and 17 of this Chapter", makes it abundantly clear why that rule uses the words "finally disposed of". As seen above, under Rules 1 and 17, applications under Article 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi in an application under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non-obstante clause has been introduced in Rule 18. The use of the words "be heard and finally disposed of by a Single Judge" in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not confined merely to issuing a ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh and others v. Karan Singh and others A.I.R. 1957 All. 414 F.B. and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass A.I.R. 1959 Punj. 291 and Barham Dutt and others v. Peoples' Co- operative Transport Society Ltd., New Delhi and others A.I.R. 1961 Punj. 24 and we are in agreement with it. For the reasons aforesaid it must be held that the Full Bench case of Shankar Naroba Salunke & Ors. v. Gyanchand Lobhachand Kothari & Ors. was wrongly decided except for the conclusion reached by the Full Bench that no appeal lies under clause 15 of the Letters Patent of the Bombay High Court against the judgment of a Single Judge of that High Court in a petition under Article 227 of the Constitution but not the reasons given by the Full Bench for reaching this particular conclusion. Accordingly, the said Full Bench decision is hereby overruled to the extent mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, reference, review and revision arising out of orders and decrees passed in suits. Under section 141, the procedure provided in the Code in regard to suits is to be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The Explanation to that section inserted by the Code of Civil Procedure (Amendment) Act, 1976, provides as follows : "Explanation. - In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution." The power of a High Court to make rules of Court and to regulate the sittings of the Court and members thereof sitting singly or in Division Courts is to be found in its charter, whether it be a statute or Letters Patent. The position with respect to existing High Courts has already been set out in detail above. So far as High Courts which came into existence after the commencement of the Constitution are concerned, whenever new High Courts were set up the relevant statute made provisions in that behalf, for instance, the Andhra State Act, 1953, the States Reorganisation Act, 1956, the Bombay Reorganisation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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