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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 ..... 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 said fields. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters 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 or order passed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 pointed out that the provision in clause 15 providing for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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, therefore, be a judgment within the meaning of clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution. (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 Constitutional jurisdiction conferred by Article 226 or 227 cannot be equated with nor can form part of any of the jurisdictions with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Act, 1935, and that this power also existed in the former Supreme Court of Judicature at Bombay with respect to the Court of Requests and the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion 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 origin, nature and character; the minor premises being (i) that the provision for an intra-court appeal in the Letters Patent dealt with different jurisdictions under the ordinary la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case,it shall withdraw the case and may - (a) eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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 section 226(1) of the Government of India Act, 1935. (3) Articles 226, 227 and 228 provided for the exercise of certain specific powers by every High Court, whether an existing High Court or a High Court which may come to be established after the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 corresponding State shall, with necessary modifications, apply in relation to the High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules and orders with respect to practice and procedure as are, immediately before the appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gpur 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 administration of that Union Territory and for matters connected therewith. Section 11 of that Act provided that As from such date as the Central Government may, by notification in the Official Gazette, specify, the jurisdiction of the High Court at Bombay shall extend to Dadra and Nagar Haveli. The date specified was July 1, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Patent of the Bombay High Court and the rules made by that High Court thus continued to be in operation by virtue of the Constitution itself. The statutory provisions referred to above show that the Bombay High Court as the High Court for the pre-Reorganization State of Bombay continued as the High Court for the post-Reorganization State of Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 seven islands practically retained their original shape until the eighteenth century. Some scholars believe Bombay to be the 'Haptanesia' mentioned by the second-century astronomer, geographer and cosmographer Ptolemy (Claudius Ptolomaeus ) in his 'Geographike Huphegesis' ('Guide to Geography'). It is unnecessary to trace the history of Bombay from its earliest days. Suffice it to say that after passing through various ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 conquest. Though the King of Portugal did not realize the value and Potentialities of Bombay, the Portuguese Viceroy of Goa, Don Antonio de Mello de Castro, who exercised viceroyalty over all the Portuguese possessions in India including Bombay did and he temporized and put off handing over possession of Bombay to the representatives of the British Crown so that the English Fleet under the Earl of Marlborough (later Duke) which arrived at Bombay in September 1662 was kept off from taking possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estropp 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 his Council of each place where the Company had or should have a factory or place of trade within the East Indies the power to judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this Kingdom and to execute judgment accordingly . Thus, the London Company got under this Charter the power to judge according to the laws of England not only its own servants but all persons who should live under it - a power excerciseable by it not only in the places where it had fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 Patent granted by Charles II to the London Company for the Island of Bombay were read and the oaths of office administered to the Judge and others, Aungier made a speech. Today, when there is so much concern for preserving the independence of the judiciary, it is worth reproducing that speech. Aungier said : The Inhabitants of this Island consist of several/nations and Religions to wit - English, Portuguese and other Christians, Moores, and Jentues, but you, when you sit in this seat of Justice and Judgment, must look upon them with one single eye as I doe, without distinction of Nation or Religion, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated April 12, 1686, confirmed the Charter granted by his elder brother Charles II and when William III and Mary II ascended the throne they confirmed the earlier Charters by a Charter dated October 7, 1693. Under it, the laws which the Company had power to make were not to be contrary or repugnant to the laws, statutes or customs of England. Meanwhile the London Company's rivals had formed a new society and had demanded a Charter. To enable this to be done, Parliament enacted Statute 9 and 10 Wm. III, c.44, providing for raising a sum not exceeding two millions, upon a Fund for payment of Annuities, after the rate of eight pounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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, powers and rights whatever, for acting as or continuing to be a body politic or corporate, by virtue of any Acts of Parliament, Letters Patent, or Charters what-ever. The United Company which thus emerged will be herein-after referred to as the East India Company . It may be mentioned that section 111 of Statute 3 and 4 Wm. IV c.85, provided that in all suits, proceedings, and transactions whatsoever, the United Company be called The East-India Company. The working of Company's Courts proved so ineffective that the Court of Directors of the East India Company made a representation to the King in which they emphasized the need for a competent power and authority at Madras, Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 January 8, 1753, and by this Charter, the Mayor's Courts were re-established as Courts of Record with similar jurisdiction but curtailed in several respects; for instance, the Charter limited the civil jurisdiction of the Mayor's Courts to suits between non-Indians and forbade the Court from entertaining suits between Indian inhabitants of Bombay except with the express consent of parties, while the jurisdiction of the Governor and Council in criminal matters was limited to an offence committed within Bombay. A Court of Requests (the predecessor of the Bombay Presidency Small Cause Court) was also created for the summary disposal of small cases not exceeding five pagodas or rupees fifteen in value. For the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil. 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 same restrictions, as the Supreme Court at Fort William. The Charter of the Supreme Court at Madras was granted on December 26, 1801. The Indian Bishops and Courts Act, 1823 (4 Geo.IV, c.71) authorized the Crown to abolish the Recorder's Court at Bombay and in its place to establish for Bombay and its dependencies a Supreme Court to be a Court of Record consisting of the same number of Judges, possessing a similar jurisdiction and the same powers and subject to the same restrictions as the Supreme Court at Fort William. In pursuance of the said Statute, King George IV by Letters Patent issued on December 8, 1823, established at Bombay a Court of Record to be called the Supreme Court of Judicature at Bombay. It is interesting to note that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal 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 the Court of Requests and the Court of Quarter Sessions established at Bombay subject to the control of the Supreme Court of Judicature at Bombay, and was in the following terms : 55. Court of Requests and Quarter Sessions, subject to this Court. AND to the end that the Court of Requests and the Court of Quarter Sessions, erected and established at Bombay aforesaid, and the Justices and other Magistrates appointed for the Town and Island of Bombay, and the Factories subordinate thereto, may better the ends of their respective institutions, and act conformably to law and justice, it is our further will and pleasure and we do hereby further grant, ordain, and establish that all and every the said Courts and Magistrates shall be subject to the order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in Council the whole civil and military government of the Presidency of Bengal as also the government of the territorial acquisitions and revenues in Bengal, Bihar and Orissa which were Dewany lands. By the East India Company Act, 1780, the Governor- General in Council was empowered to frame regulations for the provincial Courts and Councils which could be disallowed within two years by the Court of Directors and the Secretary of State. By the Government of India Act, 1800 (39 Geo.III, c.79), the Madras Government and by Statute 47 Geo.III, c. 68, the Bombay Government were invested within the territories subject to their respective governments with the same legislative powers and exerciseable in the same manner as had previously been given to and exercised for Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 system was reorganized and the Sadar Court was replaced by a Sadar Adalat which in the exercise of its civil jurisdiction was named the Sadar Dewani Adalat and in the exercise of its criminal jurisdiction as the Sadar Foujdari Adalat . In 1827 the jurisdiction of the Sadar Adalat was extended to Khandesh and Deccan which had been formed into the zillas of Poona and Ahmednagar and in 1830 to that part of the Southern Mahratha country which had been formed into the zilla of Dharwar. In 1828 the Sadar Adalat was transferred to Bombay from Surat for the convenience both of the litigating public and the judges going on circuit. Prior to 1827, subordinate courts had also been established and they too were reorganized by the Elphinstone Code. Bombay Regulation II of 1827 established Zilla or District Courts. An appeal lay from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India Company were continued under such government in trust for the Crown until the British Parliament should otherwise provide. This Statute also set up a Legislative Council which was to include some Judges. From about 1852 the Parliamentary Committee for East Indian affairs was considering a proposal to consolidate the Supreme and Sudder Courts into one Court in each of the three Presidencies of Bengal, Madras and Bombay in the interest of the public administration of justice. Meanwhile the events of 1857 led to the passing of the Government of India Act of 1858 (21 22 Vict., c.106). Under that Act the government of the territories in the possession or under the government of the East India Company and all rights in relation to government vested in or exercised by the East India Company ceased to be vested or exercised by it and became vested in the British C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner 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 Supreme Courts of Calcutta, Madras and Bombay respectively over inhabitants of such Parts of India as may not be comprised within the local limits of the Letters Patent to be issued under this Act establishing High Courts at Fort William, Madras and Bombay, shall be exercised by such High Courts respectively. (Emphasis supplied) 11.Existing Provisions applicable to supreme Courts to apply to High Courts. - Upon the Establishment of the said High Courts in the said Presidencies respectively all Provisions then in force in India of Acts of Parliament, or of any Orders of her Majesty in Council, or Charters, or of any Acts of the Legislature of India, which at the Time or respective Times of the Establishment of such High Courts are respectively applicable to the Supreme Courts at Fort William in Bengal, Madras and Bombay respectively, or to the Judges of tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 Court of equal or superior Jurisdiction and shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Accounts to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed and the Tables so settled shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any law in force, and shall before they are issued have received the Sanction, in the Presidency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 and criminal, admiralty and vice- admiralty, testamentary and intestate jurisdiction, matrimonial jurisdiction and ordinary and extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any court then subject to the superintendence of the Sadar Foujdari Adalat, whether within or without the Presidency of Bombay. Clause 24 barred any appeal from any sentence or order passed in any criminal trial before the Courts of original criminal jurisdiction constituted by one or more judges of the High Court. Clause 25, however, conferred in such cases a power of review upon the High Court in certain circumstances. Clause 26 ordained the High Court to be a court of appeal from the criminal courts of the Presidency of Bombay and from all other courts which were subject to appeal to the Court of Sadar Foujdari Adalat. Clause 36 provided that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 of the publication of the 1965 Letters Patent. Clause 12 specifies the suits with respect to which the High Court is to exercise its ordinary original civil jurisdiction. Clause 13 confers upon the High Court the power to remove and to try and determine, as a Court of extraordinary original jurisdiction , any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Bombay, subject to the High Court's superintendence, either when the High Court thinks proper to do so on the agreement of the parties to that effect or for purposes of justice. Clause 15 deals with intra-Court appeal from the judgment of a Single Judge, and clause 16 makes the High Court a Court of Appeal from the Civil Courts of the Presidency of Bombay and from all other Courts subject to its superintendence. Jurisdiction with respect to infants and lunatics, insolvency jurisdiction, ordinary and extra- ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 these Letters Patent, shall cease, determine, and be utterly void to all intents and purposes whatsoever. Section 16 of the Indian High Courts Act, 1861, conferred power upon the Crown to erect and establish a High Court of Judicature in any portion of British India not included within the limits of the local jurisdiction of other High Courts. In pursuance of this power by Letters Patent dated March 17, 1866, a High Court was erected and established for the North-Western Provinces of the Presidency of Bengal which by section 101(5) of the Government of India Act of 1915 came to be styled as the High Court of Judicature at Allahabad and the High Court at Fort William in Bengal was styled as the High Court at Calcutta. Section 2 of the Indian High Courts Act, 1911, amended section 16 of the Indian High Courts Act, 1861, to enable the Crown to establish by Letters Patent a High Court in any portion of British India whether or not included within the limits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 letters patent. (2) The high courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. 107.Powers of high courts with respect to subordinate court.- Each of the high courts has superintendence over all courts 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) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction; (c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and (e) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts : Provided that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assigned to it by the 1935 Act. Part IX of the 1935 Act was headed THE JUDICATURE . Chapter 1 of Part IX dealt with the establishment and constitution of the Federal Court. Chapter II, which consisted of sections 219 to 231, was headed THE HIGH COURTS IN BRITISH INDIA . Section 219, without the proviso to sub-section (1) thereof which is not material for our purpose, provided as follows : 219. Meaning of 'High Court'.-- (1) The following courts shall in relation to British India be deemed to be High Courts for the purposes of this Act, that is to say, the High Courts in Calcutta, Madras, Bombay, Allahabad, Lahore and Patna, the Chief Court in Oudh, the Judicial Commissioner's Courts in the Central Provinces and Berar, in the North-West Frontier Province and in Sind, any other court in British India constituted or reconstituted under the chapter as a High Court, and any other comparable court in British India which His Majesty in Council may declare to be a High Court for the purposes of this Act: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in accordance with the provisions of this section a High Court is satisfied that a case pending in an inferior court, being a case which the High Court has power to transfer to itself for trial, involves or is likely to involve the question of the validity of any Federal or Provincial Act, it shall exercise that power. (2) An application for the purposes of this section shall not be made, except in relation to a Federal Act, by the Advocate-General, for the Federation and, in relation to a Provincial Act, by the Advocate-General for the Federation or the Advocate for the Province. Section 226 barred the High Court's original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof unless otherwise provided by an Act of the appropriate Legislature. Under the 1935 Act the jurisdiction and powers of the High Courts with respect to any of the matters in the Federal Legislative List were to be a Federal subject (Sch.VII, List 1, Entry 53), with respect to any of the matters in the Provincial Legislative List were to be a Provincial subject (Sch.VII, List II, Entry 2), and with respect to any of the matters in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sind and British Baluchistan; and (ii) should it appear that the North-West Frontier Province will form part of Pakistan, by the exclusion of the members representing that Province; and (iii) by the inclusion of members representing West Bengal and East Punjab; and (iv) should it appear that on the appointed day, a part of the Province of Assam is to form part of the new Province of East Bengal, by the exclusion of the members theretofore representing the Province of Assam, and the inclusion of members chosen to represent the remainder of that Province; x x x x The Constituent Assembly for India so set up under the Indian Independence Act adopted and enacted on November 26, 1949, in the name of the people of India, the Constitution of India. Under Article 394 of the Constitution, that Article and Articles 5 to 9, 60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force at once and the remaining provisions were to come into force on January 26, 1950. This date is referred to in the Constitution as the commencement of the Constitution. The Constitution repealed both the Government of India Act, 1935, and the Indian Independence Act, 1947. The relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration. I agree that administrative details should have no place in the Constitution. . . . In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution. . . . (Emphasis supplied.) The opening words of our Constitution WE THE PEOPLE OF INDIA follow the pattern set by the Constitutions of the United States of America, Eire and Japan. The Preamble to our Constitution contains echoes of the Preamble to the Constitution of the United States of America and of Eire. The concepts of Fundamental Rights and Directive Principles of State Policy are also not something new in our Constitution. The first ten Amendments to the Constitution of the United States of America, which reproduce in substance the American Bill of Rights, contain rights akin to the Fundamental Rights in our Constitution though not designated as such. The Constitution of Eire has a Chapter headed FUNDAMENTAL RIGHTS and another chapter headed DIRECTIVE PRINCIPLES OF SOCIAL POLIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited both in respect of basic principles and procedure. It was the Indian Independence Act, 1947, which established the sovereign character of the Constituent Assembly and freed it from all limitations. This is the harsh reality of history which one cannot escape. On the midnight of August 14, 1947, the Constituent Assembly reassembled as the sovereign Constituent Assembly for the Dominion of India. As a result of the Partition, the representatives of Bengal, Punjab, Sind North-West Frontier Province, Baluchistan, and the Sylhet District of Assam (which District had joined the Dominion of Pakistan by a referendum) ceased to be the members of the Constituent Assembly of India, and there were fresh elections in the new Provinces of West Bengal and East Punjab. The result was that when the Constituent Assembly reassembled on October 31, 1947, its membership was 299 only, including 70 representatives of the Indian States. Of this total number of members of the Constituent Assembly, 284 were actually present on November 26, 1949, to append their signatures to the Constitution as finally passed (See Basu's Introduction to the Constitution of India , eighth edn., pp. 13 to 18; Basu& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before. The Constituent Assembly moulded no new sovereignty: it merely gave shape to the aspirations of the people by destroying foreign control and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. (Emphasis supplied) Though some of the Judges in that case differed on certain points, on this point none expressed a dissent or a contrary opinion. The historical evidence and earlier legislations referred to above, the political, legal and constitutional position accepted and acknowledged by the Constituent Assembly itself when considering the Draft Constitution and in enacting it, and the observations of Shah, J., in Vora Fiddali,s Case falsify the assumption made and the conclusion reached by the Full Bench that the Constitution made a total break with the past and set up new institutions. On the contrary, what is established by the above data is that not only was there no break with the past but the Constitution was the culmination of the aspirations of the people of India to be independent and to be governed by their own elected representatives and that the existing institutions, including the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are two Chambers, the relations between them; the status of Ministers and the position of the civil servants who act under them; the armed forces and the power to control them; the relations between the central government and local authorities; treaty-making power; citizenship; the raising and spending of public money; the general system of courts, and the tenure and immunities of judges; civil liberties and their limitations; the parliamentary franchise and electoral boundaries; and the procedure (if any) for amending the Constitution. Emphasis supplied.) In Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89, Patanjali Sastri, J., speaking for the Court, said (at page 106) : Although 'law' must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including 'all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.' It is thus mainly concerned with the creation of the three grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Provinces and Berar Act No. XIV of 1938) [1939] F.C.R. 18, 36 and In re the Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938 [1941] F.C.R. 12, 26 and this Court in Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City [1955] 1 S.C.R. 829, 836 have referred to it as a Constitution Act. The British Parliament has also recognized the Government of India Act, 1935, as a Constitution Act. In moving the second reading of the Bill which when enacted became the Indian Independence Act, 1947, the Prime Minister, Mr. Attlee observed : This Bill is, unlike other Bills, dealing with India. It does not lay down as in the Act of 1935, a new Constitution for India providing for every detail. It is far more in the nature of an enabling Bill - a Bill to enable the representatives of India and Pakistan to draft their own Constitution and to provide for the exceedingly difficult period of transition. (Emphasis supplied.) The Indian Legislature has also recognized the Government of India Act, 1935, as a Constitution Act. The Statement of Objects and Reasons to the Legislative Assembly Bill No. 32 of 1942, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l laws. It is true that these Constitution Acts were given to a subject country by a foreign constituent and legislative body but then we must remember that it was this very foreign constituent and legislative body which brought into being the Constituent Assembly, freed it of all limitations and made it possible for it to give to India its Constitution. In order to emphasize its conclusion that the High Courts under the Constitution were organically different institutions from the same High Courts in existence immediately prior to the commencement of the Constitution, the Full Bench relied upon Article 215 of the Constitution. Under Article 215, every High Court is to be a Court of Record and is to have all the powers of such a court including the power to punish for contempt of itself. According to the Full Bench this Article subserves the need to indicate that the High Court under the Constitution has an institutional permanence . We are afraid that the Full Bench has misunderstood what a Court of Record is. Jowitt's Dictionary of English Law (second edition, page 493) under the heading Court , states : A court of record is one whereof the acts and judicial procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Courts, the power to make rules and regulate the sittings of the High Courts, and the continuance of the jurisdiction of the High Courts existing as at the date of coming into force of each of the two Government of India Acts, just as Chapter V of Part VI of the Constitution does. These two Acts also provided for continuance in force of laws in existence at the date when these Acts respectively came into force. Article 215 thus did not bring any revolutionary change in the nature and character of the High Courts existing at the date of the commencement of the Constitution but merely followed a well established pattern and practice in drafting constitutional legislations. Yet another reason given by the Full Bench for holding that the High Courts under the Constitution were organically different from the same High Courts immediately prior to the commencement of the Constitution was that unlike in the past, under the Constitution the existence of the High Courts is no more dependent upon ordinary legislation. This reasoning is erroneous for it overlooks the relevant provisions of the Constitution and the earlier Constitution Acts. By clause 44 of the Letters Patent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts (List I, Entry 78) and the extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union Territory (List I, Entry 79). Under Article 214 of the Constitution there is to be a High Court for each State. Under Article 1(2) as originally enacted the territories which were to constitute the States at the commencement of the Constitution were to be as set out in the First Schedule to the Constitution. Under that Schedule the nine Provinces under the Government of India Act, 1935, with the territorial modifications resulting from the Partition, became the nine Part A States. Clause (2) of Article 215 of the Constitution, prior to its deletion by the Constitution (Seventh Amendment) Act, 1956, provided that for the purposes of the Constitution the High Court exercising jurisdiction in relation to any Province before the commencement of the Constitution shall be deemed to be the High Court for the corresponding state. Article 2 confers powers upon Parliament by law to admit into the Union, or establish, new States. Article 3 confers upon Parliament the power by law to form a new State by separation of territory from any State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay were invested with jurisdiction similar to the Court of King's Bench in England as far as circumstances would admit . The Court of King's Bench possessed the jurisdiction to issue prerogative writs of various kinds. A brief account of the origin, nature and development of the various prerogative writs in England has been set out in the judgment of this Court in Prabodh Verma and Ors. v. State of Uttar Pradesh Ors. [1985] 1 S.C.R. 216. Clause 55 of the Letters Patent of the Supreme Court of Judicature at Bombay conferred upon that Court the power to issue writs of Mandamus, Certiorari, Procedendo or Error to the Court of Requests and the Court of Quarter Sessions. Procedendo was a prerogative which issued out of the common law jurisdiction of the Court of Chancery when Judges of any subordinate court delayed the parties by not giving judgment. In such a case the writ was known as a writ of procedendo ad judicium (see Jowitt's Dictionary of English Law , second edn., p. 1438). A writ de non procedendo rege inconsulte was issued at the intervention of the King to withdraw from the cognizance of the common law courts proceedings in which he claimed to have in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure at Madras which had been exercising jurisdiction over the Presidency Town of Madras, and that there was no power in that High Court to issue such a writ beyond the local limits of its original civil jurisdiction. In Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, 1150 this Court reiterated what had been held in the above case by the Judicial Committee and pointed out that the position with respect to the two other Chartered High Courts, namely, the High Courts of Calcutta and Bombay, was the same. As explained by this Court in Dwarkanath, Hindu Undivided Family v. Income-Tax Officer, Special Circle, Kanpur, and Another [1965] 3 S.C.R. 536, 540-41 Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injustice wherever found and to mould the reliefs to meet the peculiar and complicated requirements of this country. The power to issue prerogative writs though in a much restricted form was thus already possessed by the three Chartered High Courts immediately prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically with the maintainability of an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 or 227. The Full Bench took the view that clause 15 of the Letters Patent provides for an intra-court appeal only in causes heard in the exercise of original civil jurisdiction by a Single Judge of the High Court and does not, therefore, comprehend within its scope a judgment passed by a Single Judge in the exercise of jurisdiction under Article 226 or 227. In support of this conclusion the Full Bench relied upon paragraph 22 of the Despatch dated March 14, 1862, from the Secretary of State to the Governor-General of India in Council which accompanied the first Letters Patent of the Calcutta High Court. The said paragraph 22 was as follows : 22. Clauses 14 and 15. - Clauses 14 and 15 give effect to the recommendations of the law Commissioners that the High Court shall have all the appellate jurisdiction which is now exercised by the Sudder Dewany Adawlut, and a new appellate jurisdiction in civil cases, from the Courts of original jurisdiction, constituted by one or more of its own Judges, except that in the case of a decision which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court . Clause 12 deals with original jurisdiction as to suits and clause 13 with extra- ordinary original civil jurisdiction while clause 14 deals with joinder of several causes of action. Though the marginal note to clause 15 was the same as that to the old clause 14, a most material change was made in clause 15 by providing that intra-court appeals would lie from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court. The word judgment in clause 15 is not qualified in any way as to the jurisdiction in which it is given except that it should not be a sentence or order passed or made in any criminal trial, thus excluding judgments given in the exercise of criminal jurisdiction. Criminal jurisdiction is provided for in clauses 22 to 29. Various other jurisdictions conferred upon the High Courts, except ordinary and extra-ordinary civil jurisdiction, also feature in clauses subsequent to clause 15. Marginal notes or headings to groups of sections cannot control the meaning of a section if the section is unambiguous and its meaning plain. Not only is the wording of claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction to commit for contempt is not expressly mentioned in the Letters Patent but the Calcutta High Court in Mohendra Lall Mitter v. Anundo Commar Mitter I.L.R. (1897) 25 Cal. 236 and the Bombay High Court in Collector of Bombay v. Issac Penhas (1947) 49 Bom. L.R. 709 F.B. have held that an order made by a Single Judge committing a person for contempt is appealable under clause 15. Similarly, in Mahomedalli Allabux v. Ismailji Abdulali (1926) 28 Bom. L.R. 471, the Bombay High Court held that an appeal lay from an order passed by a Single Judge directing a writ of habeas corpus to issue and in Raghunath Keshav Khadilkar v. Poona Municipality and another (1944) 46 Bom. L.R. 675; s.c. A.I.R. 1945 Bom. 7, it held that an appeal lay under clause 15 of the Letters Patent against the issue of a writ of certiorari by a Single Judge. Revisional jurisdiction is not expressly mentioned in clause 15 but as the Chartered High Courts were entertaining intra-court appeals from judgments given in the exercise of revisional jurisdiction, when the Letters Patent were amended in 1919 an intra-court appeal from an order made in the exercise of revisional jurisdiction was expressly excluded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in National Sewing Thread Company's case on the ground that the jurisdiction which the Single Judge was exercising in that case was one under the ordinary law and not under a Constitutional law, namely, the Constitution of India, and that if the powers of the High Court under Articles 226 and 227 of the Constitution were also to be made subject to the rules of the High Court and the Letters Patent, these powers could be altered or affected by ordinary legislation. Article 225 of the Constitution is by its term made 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 . Thus, under Article 225 the jurisdiction of the existing High Courts and the law administered by them and the powers of the High Courts to make rules and to regulate the sittings of the Court and of members thereof sitting singly or in Division Courts have been preserved and continued subject to the provisions of the Constitution and of any law made by the appropriate Legislature. According to the Full Bench the words Subject to create a limitation upon the jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Courts. A Special Bench of the Calcutta High Court in Chairman, Budge Budge Municipality v. Mongru Mia and Ors. A.I.R. 1953 Cal. 433, took the view that the words Subject to in the opening part of Article 225 also covered enlargement of jurisdiction and these words would, therefore, import into Article 225 the enlargement of its jurisdiction, for example, by Article 226. Das Gupta, J., however, gave a dissenting judgment in that case following the line of reasoning adopted by a Division Bench of that High Court in India Electric Works Ltd. v. Registrar of Trade Marks A.I.R. 1947 Cal. 49 in which a contrary view was taken. The case of India Electric Works Ltd. v. Registrar of Trade Marks was expressly overruled by this Court in National Sewing Thread Company's case. Other High Courts, as for example, the Allahabad High Court in Sheo Prasad v. State of U.P., A.I.R. 1965 All. 106 have also taken the same view as the majority judgment in Budge Budge Municipality Case. The fact that Article 225 makes the jurisdiction and powers of the existing High Courts subject to a law of the appropriate Legislature does not mean that the jurisdiction under Article 226 or 227 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are : (1) that it must be a judgment pursuant to section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15. What falls next to be considered is the question whether the judgment of a Single Judge of the High Court in a petition under Article 226 or 227 is a judgment pursuant to section 108 of the Government of India Act of 1915-1919. The expression pursuant to section 108 of the Government of India Act was substituted for the expression pursuant to section 13 of the said recited Act , that is, the Indian High Courts Act, 1861, when clause 15 was amended by Letters Patent dated March 11, 1919. Section 13 provided that subject to any laws or regulations which may be made by the Governor-General in Council, the High Court established in any Presidency under that Act may by rules made by it provide for the exercise by one or more Judges or by Division Courts constituted by two or more Judges of the original and appellate jurisdiction vested in such High Court. Section 108(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, be construed as references to the provision re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted. Sub-section (2) was inserted in section 8 by Act 18 of 1919. The opening words of sub-section (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted were substituted for the words Where any Act of Parliament repeals and re- enacts by the Adaptation of Laws Order, 1950. Although section 38(1) of the Interpretation Act speaks of references in any other Act to the provisions of a repealed and re- enacted Act, section 8 of the General Clauses Act speaks of references to a repealed and re-enacted Act not only in any Act or Regulation but also in any instrument . An instrument is a writing, and generally means a writing of a formal nature. (See Jowitt's Dictionary of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where statutes or Acts have to be construed and there is no reasonable ground for holding that that rule of construction should not be applied in construing the charters of the different High Courts. These charters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming, however, but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters. The Full Bench sought to distinguish the decision in National Sewing Thread Company's case by relying upon a judgment of the Assam High Court in Radha Mohan Pathak v. Upendra Patowary and Ors. A.I.R. 1962 Assam 71. That case had no relevance to the point which the Full Bench had to decide for it turned upon its own special facts. By section 3 of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, the Assam High Court was empowered to exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power is neither expressly provided for nor implied in either of these these two Articles. The power to make rules for the exercise of jurisdiction under Articles 226 and 227 by the existing High Courts is contained in Article 225 only. Yet another reason given by the Full Bench for coming to the conclusion that the rule-making power of the High Court would not apply to the exercise of power conferred by Articles 226 and 227 is that as these powers were to be exercised by the High Court, when a Single Judge exercised either of these powers, he did it on behalf of the whole High Court and filing an appeal against the judgment of the Single Judge given in a petition filed under Article 226 or 227 would be tantamount to filing a second petition in the same matter. It is difficult to understand this line of reasoning. Various statutes provide for appeals to the High Court. When the expression High Court is used, it only means the High Court acting through one Judge or a Division Court consisting of two or more Judges as may be provided by the rules of Court unless any enactment specifically provides for a particular number of Judges to hear any particular matter. What the Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vaghela A.I.R. 1968 S.C. 1487, 1488, and Ahmedabad Mfg. Calico Ptg. Co. Ltd. v. Ram Tahel Ramanand Ors.). The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these processes are the same. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided in the charter of that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court. It is equally well-settled in law that a proceeding under Article 227 is not an original proceeding. In this connection, we need refer to only two decisions of this Court. In Ahmedabad Mfg. Calico Ptg. Co.'s Case this Court said (at pages 193-4) : Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article substantially reproduces the provisions of s. 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by this Article to Tribunals as well.Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in article 227 of the Constitution. It is significant to note that sub- section (2) to section 224 of the 1935 Act has been omitted from article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act, 1861, and section 107 of the Government of India Act, 1915. Under clause 15 of the Letters Patent of the Bombay High Court no intra-court appeal lay against an order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act . By the same process of interpretation by reason of which the phrase pursuant to section 108 of the Government of India Act in clause 15 is to be read as pursuant to Article 225 of the Constitution of India , the phrase order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act is to be read as order passed or made in the exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of the Constitution are to be made and heard and disposed of by the Division Bench taking criminal business of the Appellate Side of the High Court. Under Rule 1 of Chapter XVII, of the Appellate Side Rules, every application for the issue of a direction, order or writ under Article 226, if the matter in dispute is or has arisen substantially outside Greater Bombay, is to be heard and disposed of by a Division Bench appointed by the Chief Justice. Rule 4 of Chapter XVII is as follows : 4. Division Bench to dispose of the application; rule nisi may be granted by a Single Judge. Applications under Rule 1 shall be heard and disposed of by a Division Bench; but a Single Judge may grant rule nisi, provided that he shall not pass any final order on the application. Under Rule 17 of Chapter XVII, an application invoking the jurisdiction of the High Court under Article 227 of the Constitution or under Article 228 of the Constitution is to be filed on the Appellate Side and to be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The relevant provisions of Rule 18 are as follows : 18. Single Judge's powers to finally dispose of applications un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. If under the rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word finally used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and others [1955] 1 S.C.R. 1104, before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that Rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n some High Courts writ petitions are heard by a Division Bench. In other High Courts writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preliminary hearing. The third member of the Bench, A.N. Sen, J., who delivered a separate judgment did not make any observation to the above effect or concur with the above observation. The question whether an intra-court appeal lay against the judgment of a Single Judge in a petition under Article 226 or 227 of the Constitution was not before the Court in Shah Babulal Khimji's case and did not fall to be decided in it. In fact, as stated in the above passage, the Court refrained from expressing any opinion with respect to the nature of an order passed in a proceeding under Article 226 of the Constitution. The statement in the above passage that such proceedings are governed by rules framed under the Code of Civil Procedure and not by Letters Patent was merely a casual and passing observation and not intended to be a statement of the law on the point. In fact, proceedings under Article 226 cannot be governed by rules made by the High Courts under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not would depend upon whether by the rules made by the High Court in the exercise of its rule-making power the matter is heard by a Single Judge or a Division Bench subject to the condition that such right of appeal is not otherwise excluded. The petition filed by the Appellants before the Nagpur Bench of the Bombay High Court was admittedly under Article 227 of the Constitution and under the rules of the High Court it was heard by a Single Judge. Under clause 15 of the Letters Patent of that High Court an intra-court appeal against the decision of the learned Single Judge was expressly barred. The appeal filed by the Appellants from the decision of the Single Judge to the Division Bench was, therefore, rightly dismissed as being not maintainable. Learned Counsel for the Appellants also sought to challenge the decision of the learned Single Judge on the merits. The real object of granting Special Leave to Appeal in this case was to consider the question of law arising in the case. Apart from the question of maintainability of the appeal, there was no merit in the appeal filed by the Appellants before the Division Bench and even otherwise that appeal deserved to be dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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