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TMI Blog1961 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid case and made a request for referring the question to another Full Bench for a re-consideration of the matter. It was held by the Full Bench of this Court in the aforesaid case of (1960) 1 Guj LR 82 : (AIR 1960 Gujarat 40) that the judicial precedents of the Bombay High Court prior to the 1st of May, 1960, i. e., the day on which the State of Gujarat came into being fell within the ambit of the words "the law in force immediately before the appointed day" in Section 87 of the Bombay Reorganisation Act of 1960, and were binding on this High Court. Section 87 of the aforesaid Act runs as follows : "Territorial extent of laws. -- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." By the provisions of Part II of the aforesaid Act the State of Gujarat was formed. Part II is made up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature, by the first part of Section 87, has provided that in considering the territorial extent or application of the law in force no change should be deemed to have taken place in the territories of the pre-existing State of Bombay in spite of the fact that some territories have been carved out of such pre-existing State and a new State of Gujarat has been formed. Ordinarily when a law is enacted and in that law there is a territorial reference to a particular State, the reference it to the territories forming part of that State. If any new territories are included within that State, such a reference would cover such new territories. If any territories are excluded from that State, then the reference would not extend to such excluded territories. In order to provide for the continued operation of the laws in force within the territories of the pre-existing State of Bombay, in spite of the territories of the new State of Gujarat being excluded therefrom, it has been provided by the second part of Section 87 that the territorial reference in such law to the State of Bombay should be construed as meaning the territories which were within the State of Bombay immediately before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretations of express laws, by Courts of justice may well be said to from part of the law, and so to be law in the abstract sense, we cannot say of any such declaration or interpretation the it is a law." "When We are using the term in this concrete sense it is not only correct enough for ordinary political purposes, but correct without qualification, to say that 'Laws are general rules made by the State for its subjects'." The expression "law" is often used in an extended sense even in non-judicial matters. As observed by Sir Frederick Pollock, clubs and societies have their laws. There are laws of cricket and laws of whist, and as might be expected, the distinction between the concrete and the abstract sense is not always exactly observed in popular usage. 3. We have to consider the meaning of the word "law" as used in the expression "law in force immediately before the appointed day" appearing in Section 87 and consider the intention of the legislature when so legislating. As the language of the section indicates it must be a law in force, that is, it must be a law in operation as such and it must extend or apply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at page 801 that there is no statute or common law rule by which one Court is bound to abide by the decision of another court of coordinate jurisdiction. If is further staled that the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decisions of another Judge of first instance unless he is convinced that the judgment was wrong. The decisions, however, of subordinate courts are not recognised as being authoritative where there is another Court which is subordinate to that Court, It is stated in Salmonds Jurisprudence, 11th Edition at page 169 that the true rule of law was that one High Court Judge could not bind another. It is however further stated that such refusals to follow precedent were unusual for on the principle of judicial comity a Court would usually follow the decisions of its predecessors, so as to avoid conflicts of authority and to secure certainty and uniformity in the administration of justice. 4. In India, some High Courts have both Original and Appellate jurisdiction and an appeal lies in certain matters from a decision of a single Judge of a High Court to a Division Bench of that Court. A decision of a Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , seems to have been of opinion that a decision of a Full Bench could only be reversed by the Privy Council or by a bench specially constituted by, the Chief Justice." The principles of judicial comity and legal propriety require, in order to avoid conflict of authority and to secure certainty, uniformity and continuity in the administration of justice, that one Judge of a High Court sitting singly should follow the decision of another Judge of the same High Court sitting singly, and that a Division Bench of a High Court should follow another Division Bench of the same High Court, that a decision of a Full Bench consisting of the same number of Judges should follow the decision of a Full Bench of equal number of Judges and that a decision of a larger Full Bench should be considered authoritative and binding on all other benches constituted of a lesser number of judges. 5. The Supreme Court has dealt with the question relating to decisions of two different Full Benches in the case of Atma Ram v. State of Punjab, reported in AIR1959SC519 . In that case, the Supreme Court observes at page 527 as under: "...... the better course would have been to constitute a larger Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.". 7. In the case of Jai Kaur v. Sher Singh, reported in [1960]3SCR975 , the Supreme Court has laid down that a decision of a Full Bench should be regarded as binding on a Division Bench of the same High Court. In that case, the Supreme Court, at p. 1122 observes as under; "When a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but be held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance op the well-recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g singly only on the basis of judicial comity and which is not binding on a Division Bench of the same High Court and which is liable to be overruled by such Division Bench and by the Supreme Court cannot be regarded as a 'law in force'. Similarly the decision of a Division Bench of a High Court which is liable to be followed by another Division Bench of the same High Court only on the basis of judicial Comity and which is liable to be rendered ineffective by a Full Bench of the same High Court and which is liable to be overruled by the Supreme Court cannot be regarded as "law in force". In Our view, it would be straining the language of the legislature to regard the same as law in force'. 9 Judicial precedents are, often referred to as case law. It may with propriety be said that in England principles of equity have emanated from the Court of Chancery and the theory that judicial precedents are merely declaratory of the law would not be applicable thereto. In the context however of Section 87 of the Bombay Re-organisation Act, we cannot hold that the Indian Legislature intended, when dealing with the territorial extent of laws to include judicial precedents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely of the State of Bombay prior to the States Re-organisation Act, 1956, but of the States of Saurashtra and Kutch. If by virtue of the provisions of Section 119 of the States Re-organisation Act, 1956, judicial interpretations given by the High Court of Saurashtra and the highest Court in Kutch Were preserved as "law in force" in the territories of the former States of Saurashtra and Kutch the same would continue in Operation in those territories as law in Force' under Section 87 of the Bombay Re-organisstion Act of 1960, unless the same were lawfully set aside or had ceased to operate by reason of legislative changes effected between 1st November, 1956, when the new State of Bombay was created and the 1st of May, 1960 when the new State of Gujarat was formed. Each newly created State has its own High Court under which various subordinate Courts function. There would be considerable confusion if Courts put different interpretations on the same enactment in different territories of the same State. We do not contemplate that the legislature could ever have had such an intention when, enacting Section 119 of the States Reorganisation Act, 1956, or Section 87 of the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Madras, out of which the State of Andhra was carved out, was a Court of co-ordinate jurisdiction with the High Court of Andhra. The previous Full Bench of this Court in dealing with the decision of the Full Bench of the Andhra High Court on this point has observed at (1960) 1 Guj LR 88 : (at page 4S of AIR) as follows:- "We find considerable difficulty in agreeing with that view. We say this with some hesitation, Co-ordinate jurisdiction in the ordinary connotation of that expression is that which is exercised by different Courts of equal rank and status over the same subject-matter and within the same territory and ordinarily at the same time. Each Court muss have jurisdiction to deal with the same subject-matter. We do not Intend to suggest that for all purposes co-ordinate jurisdiction is to be equated with concurrent jurisdiction or simultaneous jurisdiction but we are unable to see our way to the conclusion that simply because this Court is in a sense a successor to the High Court of Bombay in respect of the territories which now form part of the State of Gujarat, it is a Court of co-ordinate jurisdiction with that predecessor." 13. The learned Advocate-Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions of "courts of equal and exercising the same jurisdiction", a view which seems to us to be sound. In the Full Bench case of the Andhra High, Court, Sub-barayudu v. State, Chief Justice Subba Rao, as he then was, has observed in his judgment at p. 92 that he would apply the following test to ascertain whether two High Courts were of coordinate jurisdiction or not: "Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction." 17. A Court of co-ordinate jurisdiction must be a Court of equal rank and of equal status. That test is satisfied in the present case. The Gujarat High Court is a Court of the same rank and of the same status as the High Court of Bombay immediately prior to the appointed day. By Section 28 of the Bombay Re-organisation Act, 1960, it is provided that as from the appointed day, there shall be a separate High Court for the State of Gujarat and the High Court of Bombay shall become the High Court for the State of Maharashtra. By Section 29 It is provided that such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority as was exercised immediately before the appointed day by the High Court of Bombay in respect of territories forming part of the new State of Gujarat. Both the Courts are courts of Record. The Gujarat High Court has succeeded to all power, authority and jurisdiction which the High Court of Bombay had until 1st May, 1960, in and in relation to the territories now forming part of the State of Gujarat if the exercise of the same jurisdiction is the test it is satisfied only to the extent that the jurisdiction exercised by the Gujarat High Court in respect of the territories forming part of the State of Gajarat was wholly exercised by the Bombay High Court prior to the appointed, day in the same territories. The Bombay High Court has however exercised jurisdiction over other areas. It has also exercised ordinary original civil jurisdiction under Clauses 11 and 12 of the Letters Patent. The Gujarat High Court does not exercise similar jurisdiction in respect of any territory. 18. It is urged that the continued simultaneous existence of both the Courts constitute a test for considering whether they are Courts of co-ordinate jurisdiction. That, however, does not appear to us to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the aforesaid Courts was in the former State of Bombay and the other is in the new State of Gujarat, both the Courts are Courts in the same country. The larger territories over which the High Court of Bombay prior to 1st. May, 1960 exercised jurisdiction are not situate within the State of Gujarat. The Gujarat High Court being a successor Court, the question of reciprocity does not arise. Though strictly speaking, the Gujarat High Court may not be regarded 35 a Court of co-ordinate jurisdictions with the Bombay High Court as it existed prior to 1st May, 1960, the principles which govern the decisions of Courts, of co-ordinate jurisdiction, would apply. The aforesaid principles were evolved by the Courts themselves with a view to secure uniformity, certainty and continuity of judicial decisions and there is no reason why the same should not be extended to a court which is a successor to another Court of the same rank and status, when the successor Court is invested with all the jurisdiction, power and authority of the-other Court in respect of all the territories in respect whereof the successor Court exercises jurisdiction. 22. Taking all the circumstances into account, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he creation of the King Emperor and is declared to be a Court of Record. It is in fact the King's Court which the Chief Court never was. Its jurisdiction in certain respects, such us contempt and mandamus is greater than that of the Chief Court. I am therefore of opinion that the Chief Court cannot be held to be a Court of co-ordinate jurisdiction with the High Court." This decision is distinguishable as the two courts were not regarded as being Courts of equal rank or status. The Full Bench even in that case has observed that the decisions of the Chief Court were conditional authorities of the highest value to which the greatest weight and respect must be attached and that the Judges of the High Court of Rangoon should not consider themselves free to set those decisions at naught except for the best and most urgent reasons. It further observed that the principle of stare decisis should be applied to those decisions in no narrow or technical spirit. 25. Our attention was also drawn to a decision of a Full Bench of the High Court of Madhya Bharat in the case of Chandulal v. Babulal, reported in Ala 1952 MP. 171. The view taken in that case was that the Madhya Bharat High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice the principles applicable to decisions of courts of co-ordinate jurisdiction in our view must be extended to the decisions of the Bombay High Court given prior to 1st May 1960. 28. Our answer to the question referred to this Special Full Bench is that the decisions of the Bombay High Court given prior to the appointed day, i.e., to 1st May 1960, do not constitute "any law in force immediately before the appointed day' within the meaning of Section 87 of the Bombay Re-organisation Act, 1960. We hold that the decisions of the High Court of Bombay given prior to 1st May 1960 have as much binding force and effect as if 'they were-the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Act (30 of 1953). We then found some difficulty in agreeing with some of the reasons on which the Andhra decision was found. The question which was raised before the Division Bench of this Court was of considerable Importance and its answer was bound to have far-reaching consequences on the system of judicial administration in the State -of Gujarat. Consequently, the Division Bench referred the matter to a Full Bench and the then learned Chief Justice constituted a Full Bench consisting of himself, my learned brother Bhagwati, J. and myself. The matter was argued from the same three aspects which were discussed in the Full Bench decision of the Andhra High Court. The learned counsel who appeared before that Full Bench did not seem to support the decision of the Andhra High Court on the principle of 'stare decisis'. The learned Advocate General who appeared for the respondent, however, supported the decision on the other two grounds and Mr. V. B. Patel, who a powared for the petitioner in AIR1960Guj40 , resisted both those grounds. The Full Bench unanimously decided that the correct interpretation of Section 87 of The Bombay Reorganisation Act, 1960, was that it prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple of coordinate jurisdiction as held by the Full Bench of the Andhra High Court and that that was the only ground on which the former Full Bench decision of this Court should be sustained. Several learned counsel have also appeared before this Full Bench and. Mr. S. B. Vakil was good enough to appear amicus curiae. There was a distinct cleavage of submissions made by those counsel. Mr. M. K. Joshi and Mr. N. C. Trivedi went to the extreme length of contending that no decision of the High Court of Bombay is binding upon this Court, and that, on the creation of the High Court of Gujarat, the true legal position was that it started with a clean state. Mr. I. N. Nanavaty agreed with the learned Advocate General that Section 87 of The Bombay Reorganisation Act, 1960, did not apply. However, he did not agree with him that the High Court of Bombay and the High Court of Gujarat were also Courts of, co-ordinate jurisdiction. His submission was that the High Court of Gujarat was the successor of the High Court of Bombay and the decisions of the latter Court were binding on this Court on the principle of succession. Mr. S. B. Vakil, on the other hand, argued that Section 87 of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the former State of Bombay. Parliament has power to do this under Articles 2 and 3 of the Constitution, Article 2 provides, inter alia, that Parliament may, by law establish new States on such terms and conditions as it thinks fit. Article 2 provides the various modes by which a new State may be created and by which the area of an existing State may be either increased, diminished or the boundaries thereof altered. From the Act, it is quite clear that the Parliament was creating the two new States under Clause (a) of Article 3 which provides that Parliament may, by law, form a new State by separation of territory from any State-Section 3 of the Act specifies the territories of the State of Gujarat and assigns the residuary territories of the State of Bombay to the State of Maharashtra. Article 4 provides that any law referred to in Article 2 or Article 3 shall contain, inter alia, such provisions as may be necessary to give effect to the provisions of that law and may also contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary. The Act created for the State of Gujarat a number of institutions and the High Court of Gujarat was one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day". Section 88 confers power upon appropriate Governments to make such adaptations and modifications of law, whether by way of repeal or amendment, as may be necessary or expedient for the purpose of facilitating the application in relation to the two new States of any law made before 1st May 1960. Section 89 confers a power upon the authorities mentioned therein, including courts of law, to construe the law in such manner without affecting the substance as may be necessary or proper in regard to the matters be fore such authorities notwithstanding that no provision or insufficient provision may have been made by the appropriate Government under Section 88 of the Act. 34. Section 2 of the Act is the defining section. Clause (a) thereof defines "appointed day" as meaning 1st day of May, 1960. Section 2(d) defines the term "law" and that definition deserves to be stated in full. It is as follows: "2(d): 'Law' includes any enactment, ordinance, regulation, order, bye-law, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm "law", but it is intended to extend it by Including therein things which otherwise may not have been taken as Included in the term "law". 37. An analysis of the various sections or the Act, already quoted, discloses that the Legislature has used a number of expressions in those sections in relation to the term "law". The expressions are "law", "force of law", "law in force before the appointed day", and "law made before the appointed day". It is in the context or these different expressions that the first question relating to the construction of Section 87 wilt have to be decided. 38. AS the term "law" has not been defined exhaustively, learned arguments were advanced at the bar as to what is the true meaning of that term. Reference was made to Salmond's Jurisprudence as to the correct definition of this term. From that book, it appears that there are two main theories propounded by the jurists as to the correct connotation of the term "law". One theory defines law as "general command issued, by the State to its subjects and enforced through the agency of courts of law by the san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersy as to what constitutes a judicial precedent. A judgment is not a judicial precedent. It is the principle on which a judgment is based that constitutes a judicial precedent. When a Court answers a point of law in the form of a general principle, then judicial precedent is created. "When a question of law is answered by way of abstraction and after elimination of the immaterial elements, it becomes a judicial precedent. When such a general principle is enunciated. It is applicable not merely to the particular case in which it is enunciated, hut it is applicable to all other cases which resemble that particular case in its essential features. This is known as the ratio decidendi of the case and it is this ratio which constitutes the judicial precedent. 41. Judicial precedents have different force and effect to different Courts depending upon the Court in which they are created, in which they are sought to be used, and the relationship existing between the Court in which the precedent is created and the one in which it is intended to be Used, it is, therefore, necessary first to know the hierarchy of Courts in the territories over which the composite High Court of Bombay exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -ordinate jurisdiction with any other Full Bench consisting of three or more Judges. Not only this, but a Full Bench Was also a Court of co-ordinate jurisdiction with a Division Bench A Full Bench of the Bombay High Court stood on the same footing as a Division Bench, br-oouse no appeal lay from a decision of a Division-Bench to a Full Bench and thus there was no relationship of subordination or superiority of one Bench over the other. Thus. Division and Full Benches were Courts of co-ordinate jurisdiction with one another. 44. Judges exercising jurisdiction in the subordinate Courts were subordinate to the High Court. They were subordinate not only to Division Benches and Full Benches, but also to single Judges of the High Court. A judicial precedent created in the High Court of Bombay, whether by a single Judge or a Division Bench or a Full Bench, was binding on all the subordinate Courts on the ground that these Courts were under the appellate and revisional jurisdiction of the High Court and thus the relationship existing between the two sets of Courts was one of subordination and superiority. When a judicial precedent of the High Court of Bombay was cited in a subordinate Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase (1944) 1 KB 718 it was observed that, when two Division Benches of the Court of Appeal Cases create different precedents on the same subject, then, both the precedents hold the field and a subsequent Division Bench can follow the precedent of any of the two Division Benches. Such a practice was not recognized by the Bombay High Court. In that Court, as a general rule, a Division Bench followed the precedent of another Division Bench. If any conflict between the decisions of two Division Benches was brought to the notice of another Division Bench, then, the practice was to get the matter referred to the Chief Justice. Such a practice was also prevalent in the High Court of Calcutta as appeals from the observations made in [1960]3SCR578 . This practice appears to have been approved by the Supreme Court in two recent judgments reported in [1960]3SCR578 (supra) and 1960CriLJ126 .118 at p. 1122. A precedent created by a Full Bench, did not perhaps have the effect of over-ruling a Precedent created by a Division Bench of a Full Bench of smaller size. But, the logical consequence of the observations made by the Supreme Court in the aforesaid two cases is that, when a Full Bench differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay considered the precedent created by a larger Full Bench as binding on all Division Benches of the High Court in preference to the decision of a smaller Full Bench. 46. From the aforesaid practice, it is possible to get a proper view as to the piece which the judicial precedents enjoyed in the composite High Court of Bombay before 1st of May 1960. I may not be understood to say that the practice in that High Court has changed since then. I am using the expression before the 1st of May 1960 be- cause it as necessary to do so in order to decide the point in hand. 47. Before I say anything further on the same subject, it is necessary to make a few observations on a topic which is of a controversial (nature and over, which different submissions were made in this Court. The question is whether a judicial precedent declares or creates law or whether it at all declares or creates anything. Two principal theories hold the field. One theory is known as the declaratory theory, according to which all precedents are merely declaratory and they do not make any law. This theory is based on the view that the Court administers justice according to law and that, when It decides a point! of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring in good: faith to declare it. But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised-Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it". 47a Clause 19 of the Letters Patent of the High Court of Bombay is as follows : "And we do further ordain that, with respect to the law or equity to be applied to each case coming before the said High Court of Judicature at Bombay, in the exercise of its ordinary original Civil jurisdiction, such law or equity shall be the law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued". The heading for this and the next two clauses is as follows : "Law to be administered by the High Court.". From this clause, it is quite clear that the High Court of Bombay administered not merely law, but, also exercised equity jurisdiction. It was contended at the bar that the equity jurisdiction which the High Court of Bombay exercised was to be exercised on the same principles which" were exercised by the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he field of equity, then, J have no doubt whatsoever that under clause 19 the High Court of Bombay has jurisdiction to decide it in accordance with the rule of justice, equity and good conscience. When the High Court does this there cannot be any doubt that it does create law in the sense used by Salmond in the above passage. 48. Apart from this, it is not correct to say that a Judge does not create law at any time. Statute law is comparatively a modern development. The purpose of this law is, as a general rule to restrict the exercise of judicial discretion in the administration of justice. Though the statute law has recently encroached upon a very vide field of judicial discretion, it cannot be denied that there is still a considerable area in which judicial discretion has not been tied down. In fact, in several matters modern tendency is to invest the judiciary with discretion in the administration, of laws. The Legislature in such matters contents itself by only laying down broad principles on the basis of which the law is to be administered. The law of procedure and the law of evidence are instances in point. Although the legislature has prescribed a number of laws on those s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that the final arbitrarum which deter-mines what restriction is reasonable is the Supreme Court for the whole of India and, in the absence of a decision of that Court, the High Court operating in the territory in when the case arises. No other authority in India is invested with the authority of deciding this question. Therefore, in the constitutional field, the judicial precedents have a place of their own. Nobody can know what the law on a particular subject is unless and until he tests that law on the anvil of constitutionality. The final answer as to what the law on a subject is can be found not merely by reading statute law or text On personal law, but, by knowing what the Judge have said on the subject if they have said anything at all or by reasonably anticipating what they are likely to say on it. 50. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Apart from the question as to whether the Supreme Court does Or does not create any law, having regard to Article 141, it cannot be doubted that it is that Court which settles what the law for the Indian Courts is and whatever m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce' in the territories over which the composite Bombay High Court exercised jurisdiction and which territories have now been assigned to the State of Gujarat and whether that law in force' is or is not preserved after the creation of the new State of Gujarat. 52. This brings me to the interpretation of Section 87 of the Act, which section has been already reproduced by me above. The section divides itself into two limbs. The first limb of the section states that the provisions of Part II of the Act shall not be deemed to have effected any change in the. tern tries to which any law in force immediately before the appointed day exists or applies. The second limb states that the territorial references in any such law to the State of Bombay shall, until otherwise provided by a comp tent legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. There is some force in the view that the fist limb of the section has been inelegantly worded. It was pointed out by the former Full Bench that the idea which was sought to be conveyed by this first limb could have been more elegantly expressed. However, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation of the first limb; and (iv) the marginal note indicates that the section dealt with written laws only. In substance the argument is that the term 'law' as used in Section 87 is not used in the wide t sense as taking within its ambit the full cannot of that term, hut, that it is essentially co fined to the term 'law' 93 defined limitedly in Section 2(d) of the Act. Mr. Nanayaly Peinforces the aforesaid argument by contending that the form law in the Section is used in a concrete sense and not in its abstract sense. In support of the rival contentions the expression "any law in force immediately before the appointed dry" is either split up info various parts or retained intact. According to one submission, the adjective 'any' gives a clue to the intention of the Legislature. According to another submission, the main term -is 'law' and the words 'in force' only quality that term. Mr. Nanavaty contends that the expression 'any-law in force' should be cut no into two parts, viz. 'any law' and 'in force', and that the expression 'in force' is an expression of abridgment and not of extension. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In my judgment, the contention is not sound. The argument is based upon an assumption which is not correct. The argument' attributes to the Legislature an intention which, I have no doubt, the Legislature never intended to entertain. The assumption is that, on the creation of the two new States, by splitting up the existing State of Bombay, the Legislature assumed that the Jaws existing in the territories before the creation of the new States would automatically lapse and would not enure for the benefit of the new States. I am unable to find any justification for this assumption. In the first instance, we have be remember that the two new States are not being brought into existence by an act of State. They are being brought into existence, by a valid law. What is being brought into existence is not two independent States, but two new units in one and the same sovereign State. Therefore, unless the Legislature can be attributed an indention to create- not only new States, but also to wipe off laws existing in the old State, it would not be proper to attribute the letter intention to the Legislature. The argument may be tested in another way. Though the residuum of the former B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-day, viz, "The provisions of Part II shall not be deemed to have effected any change". In my judgment, though the Legislature has used language which one usully associates with the creation of a fiction, actually, the structure of the sentence shows that it was not enacted to create any fiction, but, it was enacted only for the purpose of clarification of that the position would be relating to the continuity of laws. In spite of the aforesaid clear legal position that the laws in the transferred territory would not change with the creation of a new State, it is not improbable that some one may be induced to advance an argument to the contrary and, therefore, to baulk such an argument, the Legislature seems to have made the provision found in Section 87. Thc Legislature has enacted Section 87. to prevent anyone from arguing that my change in law had taken place. On the other hand, if the view which has appealed to the majority were to be accepted is the correct view, then, with due respect, it may be pointed out that that view implies that, whereas the Legislature knew or assumed that a change of law was taking place, it made a provision only for written laws and not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein. In my judgment, all these laws have a territorial content If this is the correct position in law, then, by reading the section in the way in which the learned Advocate-General wants it to be read, the Legislature will be guilty of creating a fiction in favour of statute or written law only and not in respect of these other branches of law. In respect of those benches, the position will be that, whereas the Legislature by enacting Section 87 preserved the statute or written laws, it left the personal and the customary laws hanging In the air. There is no sound reason why the Legislature should have done so. 54. In my judgment, therefore, Section 87 does not create any fiction, but it enacts a prohibition which prohibition has been Introduced for the sake of clarification. If somebody is minded to argue that a change of law has taken place, then, it is enacted to prevent him from so arguing and that, in my judgment, is the true scope and object of Section 87. 55. The next argument is that the language of the second limb can apply only to statute laws and to no other. The argument is that the expression "territorial references in any such law to the State of Bombay" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reover, the marginal note does not necessarily support the argument. The marginal note is "Territorial extent of laws". I do not find anything in this marginal note which shows that it applied only to statute or written laws. The marginal note speaks of laws' and not of written or Statute laws'. Moreover, I do not find any difficulty in interpreting the first or the second limb of the section which would justify resort to the marginal note for the purpose of construing both or any of the two limbs. 57. The argument that the expression 'any law in force' must be split up into different parts, does not appeal to me at all. In my judgment, the expression is a composite One and must be read and construed as a whole. 58. The argument that the adjective 'any' before the word 'law' shows that it is used in the concrete sense of the term law and not in its abstract sense, does not appeal to me. It is con. tended by Mr. Nanavaty that the adjective 'any' can be used only with reference to concrete law and not with reference to abstract law and he contends that the expression 'concrete law' is used only in respect of statute law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricting the term law' herein as only that which, is included in the aforesaid definition. If this argument were to be upheld, then, it will certainly exclude personal laws prevailing in the transferred territory. Such laws are derived from the holy texts. Though such laws may be written laws, they will not be so under Section 2(d) of the Act 60. The learned Advocate-General contends that the use of the words 'extends' and 'applies' in the first limb of Section 87 suggests that the first limb is applicable only to statute laws and to no other. Though, usually, the term 'extends' is used with reference to statute laws, I cannot agree with, the bald proposition that it must necessarily be confined to such laws. In any case, the term 'applies' is of welder ambit and applies not merely to statute laws but to other laws as well, (For example, we say that Sunni Bohras of Gujarat are governed by the Hindu Law or that Hindu Law applies to the Sunni JJohras of Gujarat.) 61. The learned Advocate-General also contends that Section 87 embodies a rule of construction and, therefore, it can apply only to statute laws and not to others. I am unable to agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; and 'laws in force' are used in various statutes. The last two expressions are used in our Constitution also. A reference was made to the Articles in which these expressions were to be found such as Articles 13, 14, 366(10) and 372. There is no doubt whatsoever that the Constituent Assembly has made a distinction between these two expressions. But, it is noteworthy that, in some of the Articles, where the expressions have been used, special definitions have been given to clarify the legal position. In my judgment, it will not serve any useful purpose if a task is undertaken to ascertain the exact meaning of the aforesaid expressions as used in the aforesaid Articles. As and when the question will arise for interpretation of these expressions, the task will have to be undertaken in the context in which the expression has come to be used. I may only observe that o"r attention was drawn to the fact that the High Courts of Calcutta and Bombay have taken two different views regarding the expression 'law in force' used in Article 13 of the Indian Constitution. In Naresh Chandra Bose v. Sachindra Nath Deb, reported in AIR1956Cal222 , the view is taken that that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not and cannot provide for all points of law which may arise on the topic on which it has legislated. That subject, more offen than not, is settled only by judge-mad -law. Therefore, on a mater not specifically provided for by the Legislature, the law in force is that which is settled or determined by case-law. For 'example, when the question arose for the first time as to whether a customs officer was or was not a police officer within the meaning of Section 25 of the Indian Evidence Act, it was open, to anyone to speculate on reading that section whether such an officer was or was not a police officer within the meaning of the Act, The question arose before the High Court of 'Bombay in Nanoo Sheikh v. Emperor, reported in AIR1927Bom4 , and it was decided therein that the Excise Officer was a police officer within the meaning of Section 25 of the Indian Evidence Act. The moment this decision was given, it was no longer open to anyone to speculate 'as to what the law on the subject was. It is true the question was one of fact when it arose for the first time, but, it became a question of law aper the decision was given. It is quite clear to me that, if any couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal text but also the interpretation of the text which undoubtedly includes interpretation of the text by the Supreme Court, the Privy Council, the Federal Court and the other competent Courts in India. 69. Therefore, even so far as the statute law is concerned, the true position is that the counsel must know, not merely what the statute is but, he must also know how that statute has been interpreted, Therefore, a knowledge of enforceable statute law is not acquired merely by knowing what the statute is, but, by knowing what the statute is and how it has been interpreted by the Court of law. If this is so in the matter of the statute law, then, it is much more so in other branches of law. 70. Moreover; in the matter of the statute law, a mere knowledge of the statute is not the same thing as the knowledge of the law in force. If the statute has been challenged on constitutional grounds and if the statute has been held to be void as offending the fundamental rights or as beyond the competence of the Legislature, then, a knowledge of the statute will not give a counsel knowledge of the enforceable law, but, on the contrary, is likely to give him an Incorrect information on the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject, the matter, in my opinion, is clinched by comparing the expression "law in force immediately before the appointed day" with the expression "law made before the appointed day'' used in Sections 88 and 89 of the Act. It is a salutary rule of construction to follow that if Legislature uses two different expressions in one and the same statute, then, the Legislature ordinarily intends to express two different concepts thereby, especially when the Legislature deliberately uses two expressions in two different places where one expression will have been enough to meet both the situations. In the latter case, in my opinion, it is legitimate to inter that the Legislature intended to give two different meanings to the two expressions used by it. There cannot be doubt that the expression "law made before the appointed day" used in Sections 88 and 89 refers only to statute laws and to no other. In, my judgment, if the Legislature intended that Section 87 should refer only to statute or written laws and not to other kinds of laws, the Legislature would have used the expression "law made before the appointed day" in preference to the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt legislature. I cannot agree with this proposition also. In my judgment, though a precedent of the Bombay High Court will become the 'law in force before the appointed day" for the territory of Gujarat, It will travel to Gujarat, impressed with the same strength and infirmity which it possessed in Bombay at the time when the two new States were created. The precedent of the High Court of Bombay was liable to be displaced in that Court in one of the ways which I have already indicated above. Just as that precedent could have been displaced by the composite High Court of Bombay in one of those ways, similarly, it could be displaced by the High Court of Gujarat in the same manner in so far as ft was operative in the territory of Gujarat Moreover, in my judgment, Section 32 of the Act has conferred this power upon this Court. That section preserves for this Court the law in force as regards the practice of the High Court of Bombay. It is true that Section 82 does not preserve the practice of the High Court of Bombay as such, but, what it preserves is the law in force' with respect to practice. But, in my judgment, in this connection, the maxim 'Cursus curiae est lex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. It is contended that it will be very unusual and odd that the same High Court should apply different precedents for different territories. Prima facie, the argument appears to be attractive. But, in my judgment, if the argument is closely analysed, it will be found that, at least in respect of those territories where new High Courts are created, an opposite view will create a greater chaos and the interpretation, which I am placing upon the expression law in force' will not only save the territories from chaos, but will be in consonance with the ordinary principles of justice, equity and good conscience, and with a principle analogous to the principle of "stare decisis'. For example, if the majority view is the correct law, if in the States of Kerala, Mysore and Rajasthan, a point of law arises before a subordinate Court that Court will be completely at large and will be in a position to decide it on is Own view of the matter, untrammelled by anything whatsoever and the point will remain res integra until the matter comes before the reliant High Court, The High Courts created in these three territories are separate and independent. The Mysore High Court took this v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reason for this proposition, but, Section 119 itself is a clear indication of the legislative intention that the laws are not to be disturbed even on the interpretation sought to be placed by the majority view. According to the majority view, Section 119 applies to statute laws and these Jaws are completely preserved. Now, there is no doubt whatsoever that, on a number of subjects. the statute laws prevailing in the merged territories were different from those prevailing in the State of Bombay. There cannot be any doubt that those statute laws are preserved in spite of the change of territories. If the Legislature did this with respect to statute laws, I am unable to discover any reason why they should have entertained a different intention with respect to other laws. On the contrary, in my judgment, the presumption should be that the Legislature did not intend to create a partial change of this kind, and thereby to shock the conscience of the people by suddenly breaking, them away from a legal system, to which they were used till then. It is true that the Legislature has now brought some of those laws in harmony with the laws of the former Bombay State. But, that appears to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention in an indirect and implied manner on a subject which is of as vital an importance, if not more, an the creation of a new State and secondly, that the Parliament was interfering with laws which were within its competence but was also interfering with laws which were outside its competence except when it was exercising emergency powers. There is nothing whatsoever in the Act to suggest that the Parliament intended to exercise emergency powers. 77. This brings me to the case-law on the subject. Section 53 of the Andhra State Act, which is in the same terms as Section 87 of the Act, came up for construction before the Full Bench of the Andhra High Court in the case reported in (S) AIR 1955 Andhra 87 (FB), already referred to. At page 93, in paragraph 28, after stating that that Section can only mean that the change of territories provided for by Part II of the Act will not make any change in the law obtaining in that territory before the change, till otherwise provided by a competent Legislature, the learned Chief Justice Subba Rao proceeded to observe. "If there was a law obtaining in the Andhra area before the Constitution of the Andhra State to the effect that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding upon the Original Side of the Chief Court; for Judge-made law is as much law as the enactments of the Legislature". However, after making these observations, the learned Chief Justice went on to consider whether the term in the context in which it was used in-cluded the case-law or not and reached the conclusion that it did not, and the reasons given by the learned Judge are to be found at page 6 of the report, which are as follows:- "While an appeal lay from the Recorder's Court to the Calcutta High Court, the decisions of that Court were followed when, they differed from those of other High Courts, vide: Peth per-mall Chetty v. Phillips (1891) SJ 555. The Lower Burma Courts Act, which established the Chief Court, took away the right of appeal from Rangoon to Calcutta, and during the 22 years that the Chief Court of Lower Burma was in existence I have been unable to remember any occasjon where the decisions of the Calcutta High Court were considered of greater authority than those of Madras or Bombay by reason of the Burma Laws Act, Section 13 (2). This is of considerable importance for if the word "law" in that sub-section included the judicial de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1959 Mys 1, before a Full Bench of the Mysore High Court which was created by Section 49 of the States Reorganisation Act, 1956. The question was whether judicial decisions of the former Chief Court of Mysore and Chief the former High Court of Mysore delivered upto 1-11-1958 were binding upon the new High Court. The answer was in the negative. S. R. Das Gupta C. J. based his decision on the ground that a new & an independent High Court had been created and that the former Courts and the new Court were not Courts of co-ordinate jurisdiction. There is no reference to Section 119 of the States Reorganisation Act, 1958, in the judgment of the learned Chief Justice. However, there is a reference to that section in the judgment of Nittoor Sreenivasa Rau, J., and on p. 4, the learned Judge observes as follows: "It is no doubt true that by virtue of Section 119 of the States Reorganisation Act, 1956, the taws operative in the respective areas continue to be operative until otherwise provided by a competent legislature or other competent authority. It should, however, be stated that such laws do not include what is called Judge-made law as has been held in AIR 1927 Rang 4 in si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld or should not follow the precedents created by the Indore State High Court and the High Courts of other covenanted States. The answer was in the negative. The decision was based on the ground that the Madhya Bharat High Court was a new High Court and that it was not a Court of co-ordinate jurisdiction with the High Courts of the former covenanted States. In the principal judgment of the Court, no reference is made to Clauses 3 and 5 of Ordinance II of 1948 which were relevant for the purpose of considering the question in hand. In the judgment of Kaul, C. J., reference is made to Clause 5 of Ordinance II of 1948. By that clause, it was provided that the High Court of Madhya Bharat "shall apply the laws and the usages prevailing in any State forming part of the United States of Madhya Bharat to Civil, Criminal and other proceedings in that State till such time as a duly constituted authority modifies them". The learned Chief Justice disposed of the question as to whether the expression "laws and the usages" includes case-law or not in the following words : "The Full Bench (referring to a former Full Bench of the High Court), if I may say so without disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is applied, it petrifies the law in those territories for all time. Such case-law cannot be changed by subsequent precedents and i.t can only be changed by legislative interference. 85. For the above reasons, I have come to the conclusion that the view taken by the former Full Bench that Section 87 of the Act saves the precedents of the High Court of Bombay for the territory of Gujarat was the correct view. 86. The second question to be considered by the Full Bench is whether the precedents created in the High Court of Bombay before 1-5-1960 are binding on the High Court of Gujarat on the principle that the two High Courts are Courts of co-ordinate jurisdiction. The question was raised, for the first time before the Division Bench in the case of Anand Municipality v. Union of India and others and, as has been stated by the learned Chief Justice S. T. Desai in AIR1960Guj40 , both he and I felb difficulty in accepting that contention. The contention was based mainly upon the decision in. The principle that, when two Courts are of co-ordinate jurisdiction, the precedents of one are binding on the other on the principle of judicial comity was never in dispute. That principle has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y judgment, have not been able to resolve all the doubts which first arose in my mind whilst sitting in the Division Bench and which persisted whilst sitting in the former Pall Bench. On the contrary, some new points, which emerged during the course of the discussion, have lent edge to some of these doubts. With this preliminary observation, I now proceed to deal with the points which were argued at the bar. 87. The supporters of the theory of co-ordinate jurisdiction are not unanimous in stating the ground on which they supported the theory. The learned Advocate-General contends that the composite High Court of Bombay and the High Court of Gujarat are Courts of co-ordinate jurisdiction in its fullest sense. Mr. Nanavaty and Mr. Trivedi on the other hand, contend that the two Courts are not Courts of co-ordinate jurisdiction, but, that the true legal position is that the composite High Court of Bombay is now extinct and that two new Courts have come into existence -- the High Court of Maharashtra and the High Court of Gujarat, --that, both these Courts are co-inheritors of the jurisdiction of the composite High Court in their respective territories and that the precedents of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a drastic change was intended by the Parliament, then some important omissions would not have been there as they are to be found in the Act. If a new High Court was to be created for the State of Maharashtra, then, provision would be made for conferring on it jurisdiction, power and authority in respect of the matters dealt with by Sections 30 31, 32, 33, 34, 55, 36 and 38 for the High Court at Bombay as they have been made for the High Court of Gujarat. There would have been also some provision either for the appointment Or the continuance of the Judges for the High Court at Bombay other than those who came to be transferred by the President under Section 29. The. power conferred upon the learned Chief Justice of the Bombay High Court in respect of pending litigation and the jurisdiction conferred upon the High Court at Bombay in respect of litigation pending in that Court, all suggest that the High Court at Bombay was the same High Court but with a truncated territorial jurisdiction. It is hardly probable that the Legislature would not have made the aforesaid provisions for the High Court at Bombay if it had intended to create a new High Court for the State of Maharashtra. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Gujarat. The situation is unique and none of the learned proponents of the principle of co-ordinal Jurisdiction was able to cite any authority in support of the latter proposition, nor was he able to indicate the correct principle to be applied and the reasons therefore in a situation of the aforesaid type. During the course of the arguments, there was a persistent assumption that there was no difference in law between Courts of co-ordinate jurisdiction and a set of Courts, one of which was exercising jurisdiction over a whole territory at one time and the other is now exercising jurisdiction over a part thereof only, the result of the latter process being that the territorial jurisdiction of the first Court has become truncated. 89. Before I consider the question whether the principle of co-ordinate jurisdiction can apply to a situation of the above kind and examine the question of the tests to be applied for determining which are Courts of co-ordinate jurisdiction, I may first dispose of a few general submissions which were made by Mr. Vakil on this point. 90. Mr. Vakil contends that the principle of co-ordinate jurisdiction is a principle peculiar to British jurisprudence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not always necessary that the system of law which each one must administer must be identical with the other. Therefore, in my judgment, the principle of co-ordination cannot be denied on the ground urged by Mr. Vakil. 91. That the identity of the legal system is not a necessary concomitant of the principle of co-ordination can be illustrated by a practice which was prevalent in the composite State of Bombay amongst its subordinate Courts and must be now prevalent in the Courts subordinate to this High Court. Judges in the mofussil exercising jurisdiction in one and the same civil Court will be Judges exercising co-ordinate jurisdiction. The successors of each of the Civil Judges will also be Judges of the Same category if the principle of succession is recognized in the application of the principle of co-ordination. The system of Jaws which each of the Judges exercises within his jurisdiction is the same. Still, the principle of co-ordinate jurisdiction has never been applied at the level of subordinate Courts. No one has ever argued that a decision given by one District Judge was binding upon his joint or successor District Judge, or that the decision of a Judge of the Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Bombay. In any case, he contends that the principle will be one of subjugation and not of co-ordination. In my judgment, there is a fallacy in this argument also. The proceedents which will be binding on this Court will not be the precedents created or brought into existence after the 1st of May 1960. The precedents which will be binding will be those which were created before that date. Therefore, when this High Court follows a precedent of the composite High Court of Bom-bay, it will not be by way of subordination, but on the same principle of co-ordinate jurisdiction on which the Judges of the composite Court acted. The result will be that just as the High Court of Bombay had power of revising its own precedent in accordance with the practice in vogue in that Court, the High Court of Gujarat will have the same power of revising that precedent in so far as it applies to the territory of Gujarat. 95. Mr. Vakil then contends that the whole principle is self-stultifying. He says that, in the ultimate analysis, the principle of co-ordinate jurisdiction has its root of authority only in the precedents of the two Counts of co-ordinate authority and the root can be cut off by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between two Courts, then they are not Courts of co-ordinate jurisdiction. However, if both the Courts are of equal rank and authority, only one of the tests for the application of the principle o£ co-ordination is satisfied, but not he whole test. It is quite clear that the above test alone cannot bring the principle into play. The second test has been described in the Andhra Full Bench case as She test of similar jurisdiction. The controversy centres round this second test. Is the test of similar jurisdiction enough? Is it not necessary that jurisdiction should be the same? probably, the concept of similar jurisdiction is emphasised because otherwise there will be no distinction between co-ordinate jurisdiction and concurrent jurisdiction or simultaneous jurisdiction. If two Courts are of equal rank and if they exercise the same jurisdiction, then, they will be Courts of concurrent jurisdiction and not Courts of co-ordinate jurisdiction alone. Therefore, a test must be found which will distinguish between a concurrent Court and a co-ordinate Court. It is for this reason that, in the former Full Bench the test was not com-plelely rejected. But, the controversy is as to what i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded. Similarly, in (1914) 2 KB 209 , it was held by Lord Reading, C. J. that the Court regarded itself as bound by the decision of its predecessor. In Salmond's Jurisprudence at page 190, it is stated that the aforesaid principle was not followed in Mills v. Jennings (1880) 13 Ch D 639. It is stated by Salmond that the Court of Appeal refused to follow the decision of its predecessor the Lords Justices of Appeal in Chancery. This is not quite an accurate reading of (1880) 13 Ch D 639. The aforesaid principle was not only not denied, but, was actually affirmed by that decision. The ground on which the former decision of the Lords Justices of Appeal in Chancery was not followed in (1880) 13 Ch D 639, was that the former Court itself did not consider its own decisions to be binding, so that this case does not deny, but actually affirms the principle that a successor Court of co-ordinate jurisdiction was bound, by the decision of a predecessor Court of the same jurisdiction. It is true that in none of the above English cases, any reasoning is given in support of the proposition aforesaid. But. it cannot be denied that the Courts which decided the point were composed of Judges of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held not to be the predecessors of the Madhya Bharat High Court. The latter High Court was considered to be an independent High Court. That being so, the question of the application of the territorial test was not of any importance in that case. The same observations can be made about the cases AIR1958Ker111 . The case of AIR 1927 Rang 4, however, is of some assistance On this topic. In that case, the majority judgment was based, inter alia, on the ground that the territory over which the Chief Court of Lower Burma exercised jurisdiction did not extend over the whole territory over which the High Court of Rangoon exercised its jurisdiction. 100. One of the grounds which was urged in support of the application of the principle of co-ordination was that the test of territorial jurisdiction must be applied with reference to the time when the High Court of Gujarat came into existence. If was contended that, before 1st of May 1960, the composite Bombay High Court had the same kind of jurisdiction over the territory of Gujarat which the High Court of Cujarat exercises after that date over the same territory. It was contended that, therefore, the test of territorial jurisdiction ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt itself. I am unable to agree with this distinction also. The principle of judicial comity is applicable to Courts and not to jurisdictions, though jurisdiction is an impor-tant test for the application of the principle of co-ordinate Jurisdiction. But, even if there was any justification for this contention, in my judgment, Mr. Vakil is right in pointing out that the test of mutuality is not altogether inapplicable even in respect of Courts which have become extinct or whose jurisdictions have become divided. In such cases, it may be said that the test remains dormant. However, on an examination of the same issue, If it is found that in case of the re-merger of the territory of Gujarat with the territory over which the present High Court of Bombay exercises its jurisdiction, the present High Court of Bombay will not, on the principle of judicial comity, respect the decisions of the High Court of Gujarat, then, the latter Court cannot extend the principle of comity to the former Court. In my judgment, having regard to the view taken in AIR 1927 Rang 4 in a contingency of the aforesaid type, there is no doubt whatsoever that the High Court of Bombay is not likely to respect the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntical. The passage, at first sight, does support the contention of the proponents of the principle of co-ordination. However, at the time of the arguments, the original authorities quoted in Halsbury were not available in the Court. After the hearing, I have had access to the two authorities on which the aforesaid passage is based, On reading the judgments delivered in the two cases, I find that the passage is not an accurate reproduction of the decisions in the two cases. No such principle as is enunciated in the paragraph has been laid down in any of the two English cases on which the passage is based. Moreover, it is important to notice that Halsbury has put the principle not under the heading of "principle of co-ordinate jurisdiction", but under that of the principle or "stare decisis", which is a totally different principle on which, as I have already stated, none of the members of the bar relied, either before the former Full Bench or before the present Full Bench. 104. For the aforesaid reasons, I have come to the conclusion that the proponents of the principle of co-ordinate jurisdiction are not right in contending that this Court is a Court of co-ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject finally and wish to bind the Court for ever. It may happen that the number of Judges presiding over this High Court may be less than the number of Judges constituting the Full Bench of the composite High Court of Bombay and I do not wish to be understood to say that, in such a contingency, this High Court will have no power of displacing a precedent of a Full Bench of the composite High Court of Bombay of the above kind. III. The precedents of the composite High Court of Bombay will be binding subject to the following rules : (i) If any precedent happens to be displaced by the Privy Council or the Federal Court, then, the precedent of the latter two Courts will be followed by this Court and not the precedent of the composite High Court of Bombay so displaced. (ii) If any of the precedents mentioned in the previous sub-part is displaced or overruled by a decision of the Supreme Court, then, the decision of the Supreme Court will be followed by this Court. (iii) A precedent, though not expressly overruled by a decision of Privy Council, Federal Court or Supreme Court, which is inconsistent with the decision of any of these bodies or Courts will not be binding on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven about this difficult problem by the majority judgment. P.N. Bhagwati, J. 107. I have had the advantage of reading the judgment just delivered by my Lord the Chief Justice and I am in entire agreement with the conclusion reached, in that judgment but inasmuch as I was a party to the judgment of the Full Bench in AIR1960Guj40 it is but proper that I should give my reasons for doing so. 108. Soon after the constitution of this High Court under the Bombay Reorganisation Act, 1960 the question arose whether this High Court was bound by the decisions of the High Court of Bombay given prior to 1st May 1960. The question being a question of considerable importance and consequence, was referred for decision to a Full Bench of this High Court. The question came to be considered by a Full Bench consisting of S. T. Desai, C. J., as he then was and my brother Miabhoy and myself. The learned Advocate General who appeared on behalf of the Union of India submitted that the decisions given by the High Court of Bombay prior to 1st May 1960 should be considered binding on this High Court and he advanced three contentions in support of this submission. The first contention was--and it was this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. This contention was sought to be supported by a decision of a Full Bench of the Andhra High Court reported in AIR1955AP87 . Much argument was not advanced before us on this contention since we indicated to the parties that we were inclined to accept the first contention based on the construction and meaning of Section 87 of the Bombay Reorganisation Act, 1960. We did not, therefore, examine this con-tention in any detail but on the arguments advanced before us we felt some difficulty in reach, ing the conclusion that this High Court could be regarded as a Court of co-ordinate jurisdiction with the High Court of Bombay prior to 1st May 1960. S. T. Desai, C. J., as he then was, again speaking on behalf of the Full Bench, expressed our difficulty in accepting this contention in the following terms: "We turn to the second argument pressed for our acceptance by the learned Advocate-General. It is said that this High Court is in a real sense an off-spring of the pre-reorganisation High Court of Bombay. We contemplate the pedigree with filial sentiment and gratitude. Then it is said that we are a Court of co-ordinating jurisdiction with the High Court of Bombay as regards cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in the new States of Maharashtra and Gujarat were derived from the parent State of Bombay of which each formed a part This contention was also not pursued since we reached the conclusion that the decisions given by the High Court of Bombay prior to 1st May 1960 were binding on this High Court as "law in force" under 5. 87 of the Bombay Reorganisation Act, 1960. S. T. Desai, C. J. as he then was, delivering the judgment of the Full Bench observed as follows in regard to this contention: "It is lastly argued by the learned Advocate-General that decisions of the Bombay High Court prior to the appointed date are binding on this Court because the systems Chief law in the new States of Maharashtra and Gujarat are derived from the parent State of Bombay of which each formed a part. That decisions of the predecessor Court of the parent Court in any such situation should be accepted with all the respect due to them is not in doubt or dispute. The question is whether the decisions of that Court are binding as precedent. We should have pursued the matter but since we have already reached our conclusion on a reading of the sections of the Reorganisation Act and particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Bench consisted of a larger number of Judges than the Previous Full Bench, the Special Bench was not bound by the decision of the previous Full Bench and it was open to the Special Bench to reconsider the question whether the decisions given by the High Court of Bombay prior to 1st May 1960 were binding on this High Court and to pronounce upon the correctness of the decision of the Previous Full Bench. This contention of the learned Advocate-General was based on the acceptance of the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction in the same court -- a principle which, as I shall presently point out, has been rejected in England in its application to the Divisional Court and the Court of Appeal. The learned Advocate-General, however urged that this principle has been consistent-ly adopted in Indian High Courts and has received the approval of the highest Court of the country namely, the Supreme Court, and that the Spe-cial Bench should, therefore, consider itself free to disregard the decision of the previous Full Bench by reason of the superiority of numerical strength of the Judges composing the Special Bench. This preliminary quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of administration of justice apply the doctrine of judicial precedents in a strict and more technical sense. The prior, case, being directly in point, is no longer one which may be used as a pattern; it is one which must be followed in the subsequent case. It is treated as something more than a model; it is regarded as a fixed and binding rule. The doctrine of judicial Precedents so understood, does not owe its existence to any statute or common law rule but has been evolved by the. English Judges in course of time as at matter of judicial comity. This origin of the doctrine of judicial precedents has been emphasized in various cases and no better statement of it can be found than in the case of The Vera Cruz, reported in (1884) 9 P. D. 96, where Brett, M. R., has observed: "It was the custom for each of the Courts in Westminster Hall tq hold itself bound by a previous decision of itself or of a Court of co-ordinate jurisdiction. But there is no statute or common law rule by which one Court is bound to abide by the decision of another of equal rank; it does so simply from what may be called the comity among Judges. In the same way there is no common law or statutory rule to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and these possessed a peculiar stringency. But the importance of substantive precedents is well established. In the latter half of the seventeenth century, Vaughan C. J., C. P., lays down certain principles concerning the relative values of different kinds of precedents. While fully conscious of the importance of case-law, he is clear that 'if a Court gives judgment judicially, another Court is not bound to give like judgment, unless it thinly that judgment first given was according to law'. He even denies the force of procedural precedents unless they are according to law'. Sir Matthew Hale was of much the same opinion. Nevertheless, throughout this period the influence and authority of precedent are steadily growing. In the eighteenth century, precedent forms a regular and integral part of judicial technique. In the time of Lord Mansfield, the duty of judicial 'loyalty' was fully recognized and repeatedly asserted, though Lord Mansfield himself, while remaining a firm believer in stare decisis, did not himself always adhere faithlully to it. By the end of the eighteenth century, all the foundations of the modern doctrine of precedent were laid but it could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow an earlier decision of a puisne Judge. The Divisional Court cannot, however, overrule such decision; and another individual judge may prefer the judgment of his brother to that of the Divisional Court, for the Divisional Court is not superior to an individual Judge in the judicial hierarchy. A High Court Judge sitting as a Judge of first instance is strictly not bound by the decisions of the Divisional Court for his relation to his brother judges in the Divisional Court is one of equality and not of subjection. So far as the Divisional Court itself is concerned, it is now well-settled as a result of two decisions namely, Police Authority for Huddersfield v. Waston (1947 KB 842) and Younghusband v. Luftig 1949) (2) KB 354 that the Divisional Court is bound by its own decisions, and that a full Divisional Court has no greater powers of overruling itself than a Court of three or even of two Judges. The principle of superiority of numerical strength has been rejected by the Divisional Court. Lord Coddard C.J., in the latter case of 1949 2 KB 354 observed as follows in this connection:-- "Before considering the law applicable to the case, we think it well to emphasize t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of the Court cannot be done by the full Court." It is thus clear that in England the practice so far as the application of precedents is concerned is widely divergent between Judges of the High Court exercising original jurisdiction on the one hand and the Divisional Court and the Court of Appeal on the other. While the doctrine of judicial precedents in the sense in which we understand it to-day -- the sense which attaches absolute binding character to individual precedent--does not apply to the former, it applies in all its rigour to the latter and the rigour is so severe and unmitigated that even a Bench or Division consisting of a larger number of Judges is not permitted to disregard the decision of another Bench or Division consisting of a smaller number of Judges. The principle of course is that each Bench or Division has co-ordinate jurisdiction with the other irrespective of the number of Judges constituting the Bench or Division and there is, therefore, no reason why one Bench or Division should be permitted to disregard the decision of another bench or Division merely on the ground that the former consists of a larger number of Judges than the latter. The jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theory of judicial precedents in terms which have been accepted as a locus classicus, and which may be reproduced as follows:-- "Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the partricular case, but for the interests of law as a science.'' A little reflection would show that certainty to the rules of law by which men have to guide themselves is of greater importance than arriving at the rule which is best in itself or most logically harmonious as part of a system. It may be that a principle which is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been described as the life of the law." It is axiomatic that the law cannot at the same time be certain and still be flexible. When a rule has once become decided, even though wrongly the law becomes to that extent rigid and it is difficult Or impossible to depart from it The binding force of precedent acts as a fetter on the discretion of the Judge for the Judge is bound to follow the precedent even if he is satisfied that the precedent is erroneous. The Judge thus becomes "a slave to the past and a despot for the future, bound by the decisions of his dead predecessors and binding for generations to come the judgments of those who will succeed him." The doctrine of judicial precedents eliminates the opportunity for judicial locus penitentiae and once a rule is established by a precedent, the Judge in a subsequent case is obliged to accept the rule and to follow it even though the result of doing so might be to reproduce and perpetuate the error. It is because of this rigidity produced by the doctrine of judicial precedents that cases occur when the Court finds itself bound by its own prior decisions of which it now disapproves hut which nevertheless it is forced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous decision. Errors of the Court of Appeal can only be corrected by the House of Lords provided the litigants are prepared to face the costs of the appeal to the House of Lords. Speaking of the House of Lords, its errors are beyond judicial recall and the extremely difficult and expensive process of legislation has to be resorted to if the law is to be rectified. The position in India is, however, different in so far as the doctrine of binding nature of judicial precedents is concerned. The doctrine of judicial precedents as it prevails in India achieves a certain amount of balance between the opposing points of view and without sacrificing the merit of certainty if removes to a large ex-tent the vice of rigidity in law. There are various States in India and the High Court is at the apex of the judicial hierarchy in each State. The decisions of the High Court whether they are given by a Bench of a single Judge or by a Bench of two or more Judges are binding on all Subordinate Courts within the State. Within the High Court itself the decisions may be rendered by a single Judge or by a Division Bench of two Judges or by a Full Bench of three or more Judges. Now Clause 36 of the Let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verning the application of precedents to single Judges of the High Court has been recognized in various decisions of the High Court of Bombay and other High Courts and I shall only refer to one such decision namely, Tyabji Dayabhai and Co. v. Jetha Devji and Co. 29 Bom LR 1196: (AIR 1927 Bom 342) where Sir Amberson Marten observed: "The proper course, I think, for the learned Chamber Judge would have been to have followed, that decision without expressing, if he liked, any opinion of his own, and leaving it to the parties to appeal if they thought that that decision was wrong. That is the undoubted practice which prevails in the English Courts, and. the observations of Sir Lawrence Jenkins in Hafizaboo v. Mahomed Cassum 8 Bom LR, 734 approving of a similar course taken by Mr. Justice Batty in the Court below, show incidentally that they should be adopted here, and for this very good reason. The English system of law and procedure is different from that obtaining in continental countries. One essential element of it is that the Courts should deem themselves bound by decisions of Courts of co-ordinate jurisdiction, and that it should not be left in cases precisely on all fours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Division Bench of this High Court would not be bound, by the decision of a single Judge of the High Court and would be free to consider the correctness of such decision and to declare if it so found that the law was not correctly laid down in such decision. Here one finds the first manifestation of the principle of superiority of numerical strength. A Division Bench of two Judges of the High Court can disregard the previous decision of a stogie Judge of the High Court even though the single Judge is a Judge of co-ordinate jurisdiction with the Judges constituting the Division Bench. The principle which requires that a Court should hold itself bound by the previous decision of another of co-ordinate jurisdiction is thus departed from IN favour of the principle of superiority of numerical strength. The origin of this practice may perhaps be traceable to the fact that an appeal lies to the High Court under Clause 15 of the Letters Patent from the decision of a single Judge of the High Court and that such appeal is under the rules made by the High Court almost always heard by a Division Bench constituted of two Judges of the High Court. In England also the decision of the Divisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as overruled by the decision of the Division Bench. (116) A Division Bench of the High Court is of course bound to follow the previous decision of another Division Bench of the High Court. When I refer to a Division Bench of the High Court I mean, a Division Bench constituted of two Judges of the High Court. But here again another inroad in made on the principle which compels a Court to abide by the decision of another of co-ordinate jurisdiction. A Full Bench consisting of three or more Judges of the High Court can disregard the previous decision of :a Division Bench of the High Court and declare that the law was not correctly laid down in such decision even though the Division Bench and the Full Bench are Benches of co-ordinate jurisdiction. This rule also recognises the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction. If a Division Bench of the High Court is of opinion that the previous decision of another Division Bench of the High Court is erroneous, the subsequent Division Bench should not pronounce upon the correctness of the decision of the previous Division Bench but should refer the matter to a Full Bench so that the Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations that this rule governing the application of precedents to Division Benches of the High Court rests not on any requirement of law but on considerations of judicial comity and judicial decorum. 117. This takes me to a consideration of the question as to how far and in what manner the doctrine of judicial precedents applies in relation to Full Benches of the High Court. The rule which requires a Court to abide by the decision of another of co-ordinate Jurisdiction is sacrificed in favour of the principle of-superiority of numerical strength in the case of single Judges and Division Benches of the High Court. A Division Bench of the High Court is, as I have al-veady pointed Out above, not bound by the previous decision of a Single Judge of the High Court and can in effect overrule such decision by pro. nouncing it to be incorrect and similarly a Full Bench of the High Court is not bound by the previous decision of a Division Bench of the High Court and can examine the correctness of such decision and declare that the law is not correctly laid down in such decision. In these cases the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the powers and constitution of a Full Bench. There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that Were the rule, it would mean that a Bench of seven Judges by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction.'' The question which arose before the Court in that case was considered in 1894 by a Full Bench of the High Court of Bombay consisting of four Judges (Sargent C. J., Telang, Candy and Fulton, JJ.), in Queen Empress v. Mugapa ILR 18 Bom 377 and a particular conclusion was reached by the Full Bench on that question. This decision of the Full Bench of four Judges was reconsidered in 1921 by another Full Bench of five Judges (Macleod, C. J., Shah, Pratt, Faw-cett and Setalvad, JJ.) in Emperor v. Purshot-tam. Four out of the five Judges who constituted the later Full Bench came to the conclusion that the decision of the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. But apart from the authority of the Madras and Calcutta High Courts, there is the high authority of the Supreme Court in AIR1959SC519 which has finally settled the question beyond any controversy. In that case a Full Bench of three Judges of the High Court of Punjab did not fol-low the previous decision of another Full Bench of three Judges and took a view different from that reached in the previous decision and this course was disapproved by the Supreme Court in the following words: "....Perhaps, the better course would have been: to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view, contrary to that of another Full Bench of equal strength. Such a course becomes necessary in view of the fact that otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding upon them...." In this passage is implicit the proposition that a Full Bench consisting of a larger number of Judges can. override the decision of another Full Bench consisting of a lesser number of Judges and declare that the law was not correctly laid down in such decision. The result in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion again in the light of the full and detailed arguments advanced before the Special Bench, I find that the view taken by me as a member of the previous Full Bench was erroneous. The true position in law appears to be that the decisions given by the High Court of Bombay prior to 1st May 1960 cannot be regarded as "law in force" within the meaning of Section 87 and their binding character as judicial precedents cannot be said to be continued under the previsions of that Section as held by the preview Full Bench. There are several reasons which have induced me to come to this conclusion and I shall now proceed to discuss those reason. 119. The Bombay Reorganisation Act, 1960, received the assent of the President and became law on 25th April 1960. By the provisions contained in Part II, the State of Bombay was reorganised by the formation of a new State known as the State of Gujarat. Part II was made up of three Sections namely, Sections 3, 4 and 5. Section 3(i) provided that as from the appointed day which was defined to mean 1st May 1960, there should be formed a new State to be known as the State of Gujarat comprising some of the territories of the State of Bombay ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Gujarat and Section 41 provided for the setting up of a permanent Bench of the High Court for the State of Maharashtra at Nagpur. I shall have occasion later in the course of this judgment to refer to some of the provisions contained in these Sections when I examine the question whether the High Court of Bombay prior to 1st May 1960 could be said to be a Court co-ordinate in jurisdiction with this High Court but it is sufficient to state at this stage that this High Court by Virtue of the provisions contained in these Sections succeeded to the entire jurisdiction, powers and authority of the High Court of Bombay in respect of the territories now forming part of the State of Gujarat and took the place of the High Court of Bombay completely in relation to such territories. Part IX contained, as its very heading suggests, various legal and "miscellaneous provisions. Section 87 which is the Section on which the previous Full Bench relied for the purpose of coming to the conclusion that the decisions given by the High Court of Bombay prior to 1st May 1960 are binding" on this High Court was one of the provisions contained in this Part and it was in the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect-matter with regard to which they are used. Language is rarely so free from ambiguity as to be incapable of being used in more sense than one and to adhere strictly to its literal and primary meaning in all cases would be to miss its real meaning in many. The words must, therefore, be construed having regard to the subject and the Occasion and the object of the enactment. It is also an established rule of construction that the Intention of the Legislature must be gathered from the language used and the Court's function is not to say what the Legislature meant but to ascertain what the Legislature has said it meant. The Court should not speculate upon the intention of the Legislature in enacting any particular provision of the statute and then construe the provision in a manner which would effectuate such intention. The Court must ascertain the legislative intent from the words used and not bend the words of the statute to accord with pre-conceived intention. It must also be remembered that where the words of a statute are sufficiently flexible, it must not be construed in a sense which attributes to the Legislature an intention to bring about an absurd or mischievous resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded or applied and that the territorial reference in any such law to the State of Bombay should until otherwise provided by a competent Legislature or other competent authority, be construed to mean the territories within that State immediately before the appointed day. The object of Section 87 was clearly to provide that the bifurcation of the territories of tile State of Bombay should not affect the teerritorial extent or application of the laws in force immediately before the appointed day so that notwithstanding the taking out of certain territories from the State of Bombay and the constitution of the said territories into the State of Gujarat, the laws in force immediately before the appointed day, if they applied to the said territories at that point of time, should continue to apply to the sajd territories. The provisions of Part II effected the bifurcation of the territories of the State of Bombay but the effect of the bifurcation was sought to be nullified by Section 87 in so far as the territorial extent or application of the laws in force immediately before the appointed day was concerned. Section 87 therefore, provided that the laws in force immediately before the appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t above, it is an elementary principle of construction that the Words of an enactment must be construed having regard Jo the subject and the occasion and the object of the enactment and that meaning must be given to the words which would best harmonise with the subject of the enactment and the object o£ the Legislature. So construed, the words "law in force" in Section 87 must refer not to any and every law but only to such law which being in force immediately before the appointed day extended or applied to the territories affected by the bifurcation made by the provisions of Part II and which as a result of such bifurcation would have ceased to apply to the portion of the territories which went out of the State of Bombay to constitute the State of Gujarat). This meaning would be obviously more restricted than that attached by the previous Full Bench and would exclude from the scope and ambit of Section 87 judicial decisions even it they could be regarded as law in its broadest and widest sense. 122. Before I proceed further I must refer to a distinction which was sought to be made by the learned Advocate General in regard to the use of the word "Jaw" in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... little later in the course of this judgment. But one thing is certain that the word "law" ordinarily includes law other than codified law or statute law unless there is anything in the context to limit its meaning. The meaning of the word "law" may be limited by the context to statute law and non-statute law may be excluded from its scope and ambit; but whatever be the meaning of the word "law" having regard to the context, whether it includes statute law or non-statute law, the addition of the words "in force" has no other effect except res-tricting such law to that which was in force immediately before the appointed day. By no process of reasoning can the words ''in force" possibly affect the meaning of the word "law" except by cutting out of the circle of what is comprised within the meaning of the word "law" --which ordinarily includes every law, whether statute law or non-statute law, in the absence of anything on the context to limit its meaning--a segment which comprises law which was in force immediately before the appointed day. The correct approach to the interpretation of the words "law in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction that distinction in language to be found in a statute is intentional and must be given effect to and that if the Legislature has used different language in different parts of the statute, the Legislature has done so deliberately and advisedly with a view to conveying different meanings. It is also true that the words "law made" in Section 88 refer only to statute law and that since these words have not been used in Section 87 but the words used there are "law in force", it can be legitimately urged that a different meaning was sought to be conveyed by the Legislature by using the latter words. But from this it does not follow that the words ''law in force" in Section 87 include not only statute law but also non-statute law. The words "law in force" in Section 87 must undoubtedly, bear a meaning different from that attaching to the words "law made" in Section 88 but the difference is not that the words "law made" refer only to statute law and the words "law in force" refer both to statute law and to non-statute law. The difference lies in this namely that while the words "law made" refer only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; but merely brings within the meaning of that term certain specifically enumerated items so that no agitation can be permitted whether they are or are not within the meaning of that term. The term "law" is a term of wide import and its Plain and grammatical meaning cannot be cut down by reference to an inclusive definition of law. This definition cannot, therefore, be of any help in construing the words "law in force" in Section 87 and these words cannot be restricted to statute law merely by reason of this definition. 126. It was on the other hand contended by those who wanted to put a broad construction on the words "law in force" in Section 87 so as to take in even judicial precedents, that these words were words of widest amplitude and included not only statute law, but also non-statute law such as personal law, customary law, common law and what is commonly known as "case law". Now it is no doubt true as pointed out by me above that the term "law" is a term of wide import and it's use is not confined to statute law or enacted law and that whether or not what is commonly known as "case law" is included within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext, the object of the Legislature and the language employed and applying the well-recognized principles of interpretation, the words "law in force" can be construed to include not only statute law but also non-statute law including judicial precedents or whether a limited and circumscribed meaning should be given to those words. 127. The next question to which I must address myself is whether judicial precedents can be said, to be law for it is only if judicial precedents can be regarded as law that the question would arise whether on a true construction, the words "law in force" in Section 87 include judicial precedents. Judicial precedents fire often referred to as Judge, made law but this term, though it contains a partial truth, is apt to be misleading. So far as statute law is concerned, it cannot with any reason be contended that the Judge makes law when he interprets the statute and applies it to the facts of the case before him. The law is to be found in the Statute made by the Legislature and the Judge merely ascertains the law by construing the statute according to the intent of the legislature. The Judge does no more than to gather from the langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing principle to new sets of facts and circumstances. His function in such cases may best be described in the following words of the Judicial Committee of the Privy Council in Jutttendromohun Tagore v. Ganendromohan Tagore, I. A. Sup Vol 47 (PC): ".....it is the duty of a tribunal dealing with a case new in the instance to be governed by the established principles and the analogies which have heretofore prevailed in like cases the rule of jurisprudence in new cases was stated by Lord Wensleydale in the opinion delivered by him as a Judge in the House of Lords, in the case of Mirehouse v. Rennel) (1833) 1 Cl F 527 in accordance with principles generally recognised. 'This case', said Lord Wensleydale, is in some sense new, as many others are which continually occur, but we have no right to consider it because it is new as one for which the law has not provided at all; and because it has not yet been decided to decide it for ourselves, according to our judgment of what is right and expedient. Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edents must be accepted for reasons which I have already mentioned above. These reasons apply with equal force to decisions of Courts in India and whether such decisions relate to statute law or to non-statute law, they are merely declaratory of law and cannot themselves be regarded as law. The declaratory theory of judicial precedents is not difficult of acceptance in so far as statute law is concerned and whatever doubt is felt is only in regard to its application to non-statute law. The doubt is, however, in my opinion not justified and I have already given reasons for my opinion based on principle. But apart from principle . I find that that there is high Judicial authority for the view that the declaratory theory of judicial precedents must be accepted as offering a sound analysis and explanation of the true operation of judicial decisions even in regard to non-statutel law. In Balwant Rao v. Baji Rao 47 Ind App 213: (AIR 1921 PC 59) a question arose relating to Hindu Law of Succession which required the Judicial Committee of the Privy Council to consider whether decisions given by Courts in regard to doctrines of Hindu Law made law or were merely declaratory of law. One Bapuj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, however, given by the High Court of Bombay in 1859 in Pranjivandas v. Devkuvarbhai. 9 Ind App 528 Note (Bom) where as the family of the deceased had immigrated from the Presidency of Bombay sometime in 1800. The argument was, therefore, advanced that the daughter is entitled to succeed absolutely to her father was laid down for the first time in 1859 and that since that was not the law in 1800 at the time when the family of the deceased migrated to Chikni in the Central Provinces, the succession of the deceased was not governed by that law, for the law must be the personal law as it was when the family of the deceased migrated to Chikni in the Central Provinces. This argument involved the acceptance, of the proposition that the decision of the High Court of Bombay in 9 Ind App 528 Note (Bom) (supra) made for the first time the law that the daughter succeeds to her father in an absolute inheritance and was not declaratory of the law as it always ousted. This argument found favour with the Judicial Commissioner from whose decision the Judicial Committee of the Privy Council was hearing the appeal but it was rejected by the Judicial Committee of the Privy Council in the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedents can nor be regarded as law so as to fail within the scope and ambit of the words "law in force" in Section 87. 128. There is another equally clear and effective reason which impels me to come to the conclusion that judicial precedents cannot be regarded us raw. Judicial precedents are considered binding on subordinate Courts and Courts of co-ordinate jurisdiction and that is why in relation to such Court it is often said, though loosely, that judicial decisions are law. This terminology is, however, misleading and ignores the true principle underlying the binding character of judicial decisions. Judicial decisions are often loosely referred to as law due to a misconception as to the real basis of operation of judicial precedents. I have already dealt with this subject at great length in the earlier portion of this judgment and pointed out that binding character attaches to judicial decisions not by reason of any common law or statutory rule but by reason of what may be called comity among judges, It is only on the principle of judicial comity and judicial decorum that judicial decisions are under certain circumstances and qua certain Courts invested with binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e doctrine of precedent cannot be authoritatively supported by reference to precedent. The doctrine of precedent cannot, to use the words Of Sir John Salmond "pull itself up by its own bootstraps". It would, therefore, be logically possible for the House of Lords to declare that it is not bound by its own decisions and that the first decision which it proposes to over rule is 1898 AC 375, it would thus be clear that binding character attaches to decisions of the House Chief Lords net because any rule of law says so but because the House of Lords itself has said so and according to logic and reason the House of Lords can at any time say to the contrary and declare that it shall not be bound by its own decisions and that it was wrong when it said that it was bound by its own decisions. This illustration emphasizes the true principle on which binding character attaches to judicial precedents. That principle is based not on any rule Chief common Jaw or on any statutory rule but on considerations of judicial comity and judicial decorum. If this is the position it is difficult to see how judicial decisions ,can be regarded as law. If judicial decisions are law, they must be bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for a Division Bench or a Full Bench of the High Court and for the Supreme Court. In the same way a judicial decision of a Division Bench consisting of two Judges of the High Court is authoriative for the subordinate Courts as also for singly Judges and Division Benches consisting of two judges of the High Court but it is persuasive only for a Full Bench of the High Court and the Supreme Court. The same position obtains in regard to a judicial decision of a Full Bench of the High Court. The judicial decision though authoritative for the subordinate Courts and single judges, Division Benches consisting of two Judges and Full Benches consisting of the same or lesser number of Judges of the High Court, is persuasive only for Full Benches consisting of a larger number of Judges of the High Court and the Supreme Court. It is under these circumstances impossible to regard a judicial decision of the High Court as law. How can a judicial decision be law for one Court and not be law for another Court? Law cannot vary from Court to Court; there cannot be one law for one Court and another law for another Court. Law cannot change at different stages in the course of the litigation merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthoritative for the subordinate Courts and single Judges of the High Court and Division Benches consisting of two Judges of the High Court, would be liable to be rendered ineffective by a Full Bench consisting of three of more Judges of the High Court and would also be liable to be overruled by the Supreme Court. A judicial decision of a Full Bench consisting of three or more Judges of the High Court would also have no finality for it would be liable to be rendered ineffective by a Full Bench consisting of a larger number of Judges of the High Court and would also be liable to be overruled by the Supreme Court. This being the position, I do not see how any judicial decision of the High Court -- whether of a single Judge or of a Division Bench, consisting of two Judges or of a Full Bench consisting of three or more Judges -- can be regarded as law. If such judicial decision is law, it must be administered and given effect to in all Courts and no Court can set it at naught. I cannot conceive how if such judicial decision is law, a larger Bench of the High Court or the Supreme Court can in effect alter the law by overruling such judicial decision. The effect of declaring erroneous Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependant on the accident of litigation. The rule laid down by the earlier decision which was law while the earlier decision held the field would cease to be law merely by reason of the inadvertent or deliberate refusal of the Judge who gave the later decision to follow the earlier decision. But the anomaly does not end here. While the two decisions stand side by side, neither the rule laid down by the earlier decision can be regarded as law nor can the rule laid down by the later decision be regarded as law, for as pointed out above, neither decision can be considered law. There would thus be a vacuum in law. Now pushing the example a little further, suppose that a Division Bench of the High Court accepts the view taken in the earlier decision and rejects the view taken in the later decision. The decision of the Division Bench would, according to the present argument, be law because of its binding authority and the rule laid down in the earlier decision and accepted by the Division Bench would, therefore, have the force of law. The result would be that the rule which was law while the earlier decision held the field and which ceased to be law on the later decision being given, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declares that the rule is the law as it always existed and that the law was correctly laid down in the earlier decision and net in the later decision of the single Judge. Similarly when the Full Bench accepts the later decision of the single Judge and rejects the earlier decision Chief the single Judge and the decision of the Division Bench, the Full Bench does not make or change any law. The Full Bench merely declares that the Division Bench and the single Judge who gave the earlier decision had erred in ascertaining the law and that the rule recognized by it is the law as it always existed. The entire process is one of ascertainment of the law and judicial decisions merely ascertain and declare the law and cannot of themselves be regarded as law. 132. There is also another argument in favour of the view that judicial decisions cannot be regarded as law and it really follows upon the previous argument. That argument can best be illustrated by an example. Suppose there is a decision of a Full Bench of the High Court which lays down a particular rule relating to a point of Hindu Law. If the argument which found favour with the previous Full Bench were to be accepted, the rule laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the words "law in force" in Section 87. But even apart from these considerations it is clear that judicial decisions cannot possibly be regarded as included within the scope and meaning of the words "law in force" occurring in that Section. The words "law in force" as I have already pointed out above refer not to any and every law but only to such law which being in force immediately be fore the appointed day extended or applied to the territories affected, by the bifurcation of the State of Bombay and which as a result of such bifurcation would have ceased to apply to the portion of the territories carved out of the State of Bombay to form the State of Gujarat. The law contemplated by Section 87 is law which had territorial extent and application in the territories affected by the bifurcation immediately before the appointed day and which as a result of such bifurcation would have ceased to apply to the portion of the territories which went out of the State of Bombay to constitute the State of Gujarat. If there was any law in force immediately before the appointed day which had no territorial extent or application in the territories affected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regarded as law, the result would be that the law governing the rights and liabilities of the parties would depend not upon the facts of the case such as residence of the parties, sites of the contract etc., but would depend upon the Court in which the suit is brought. If the suit is brought in Calcutta, the law applicable would be one while if the suit is brought in Madras, the law applicable would be another on the same set of facts. The law governing the rights and liabilities of the parties would thus depend upon the accident of the forum rather than the substance of the matter. This would indeed be a strange result and without anything more, it should be sufficient to induce the Court to take the view that judicial decisions cannot be regarded as law. But the point which I wish to emphasise in this connection is that judicial precedents cannot be said to have any territorial extent or application. If is the case given above the suit is brought in Calcutta, the rights and liabilities of the parties would be determined in accordance With the judicial precedents of the High Court of Calcutta and since the parties are resident in Calcutta and the contract is made in Calcutta and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 to apply to the territories now forming part of the State of Gujarat as law in force. But if a decision of a single Judge of the High Court of Bombay is continued as law in force in the territories now forming part of the State of Gujarat, it must follow as a necessary corollary that until amended, altered or repealed by the Legislature, such decision would bind not only single Judges of this High Court but also Division Benches and Full Benches of this High Court and even the Supreme Court in relation to appeals from this High Court, for it would be the law in force in the territories now forming part of the State of Gujarat. Being law in force in the territories now forming part of the State of Gujarat, all Courts including Division Benches and Full Benches of this High Court and the Supreme Court would be bound to give effect even to the decision of a single Judge of the High Court of Bombay and would be powerless to ignore it or to overrule it. The anomalous situation would arise that even though a division Bench of the High Court for the State of Maharashtra would be entitled to overrule a decision of a single Judge of the High Court of Bombay and declare that the law was er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers of this High Court to such an extent that this High Court must accept the law as declared in the decisions of the High, Court of Bombay given Prior to the appointed day--whether the decisions be of a single Judge or of a Division Bench or of a full Bench--and that this High Court should not have the power to question the correctness of any such decisions even in accordance with the rules governing the application of judicial precedents. I cannot accept a construction which leads to such absurd and mischievous result, it was contended in reply to this argument that the result would not be so absurd or mischievous for it would always be open to this High Court to declare that the law was not correctly laid down in any decision of the High Court of Bombay given prior to the appointed day and that until this High Court so declared, the law laid down by the decision of the High Court of Bombay would continue as the law in force. This contention, in any opinion, suffers from two defects. The first defect is that it assumes the existence of a power in this High Court to alter, amend or repeal the law which power is obviously not found in any provision of the Act. If the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e combined to form the new State of Madhya Pradesh. Similarly the new State of Rajasthan was constituted out of the territories of the then exiting State of Ajmer and some of the territories of the then existing States of Rajasthan, Bombay and Madhya Bharat. The new State of Punjab was also created out of the territories of the then existing States of Punjab and the Patiala and East Punjab States Union. The political map of India was thus redrawn and the boundaries of some of the existing States were altered while other States were abolished and new States were brought into being. To provide for the continued territorial extent and application of laws in this set up, Section 119 was enacted in, the States Reorganisation Act, 1956. That Section was in the following terms. "119. Territorial extent of laws: -- The pro visions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appoint ed day extends or applies and territorial references in any such law Jo an existing State shall, until otherwise Provided by a competent Legislature or other competent authority, be construed as meaning the territories with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itories comprised in the former State of Saurashtra and the construction placed by the High Court of Bombay would have to be given effect to in the territories forming part of the State of Bombay prior to its reorganisation. Similarly the interpretation placed by the High Court of Madhya Pradesh will prevail in the territories forming part of the former State of Madhya Pradesh and the same position will obtain in regard to the territories forming part of the former State of Hyderabad. The High Court of the reorganised State of Bombay would, therefore, have to give different interpretations to the particular Section of the Transfer of Property Act according as the matter came from one territory or another within the State. The High Court of the reorganised State of Bombay would have to speak different voices in different territories of the State and far from there being uniformity in the administration of justice--which the doctrine of judicial precedents is intended to achieve--there would be chaos and confusion. The High Court of the Reorganised State of Bombay would be placed in the most embarrassing and inconsistent position in which it would have to uphold different interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter coming from the territories of the former State of Kutch, this High Court would be bound by the decisions of the highest Court in Kutch and the binding effect of these decisions would extend not only to this High Court but also to the Supreme Court in matters coming from the respective territories. This would be a startling result which I am sure could never have been intended by the Legislature. It is, therefore, clear that the words "law in force" in Section 119 of the States Reorganisation Act, 1956, could not include judicial decisions. If the words "law in force" in Section 119 of the States Reorganisation Act, 1956, could not bear a meaning wide enough to include Judicial decisions, it must follow that the same words in Section 87 of the Bombay Reorganisation Act, 1960, also cannot be construed to include judicial decision and judicial decisions cannot be regarded as law in force within the meaning of that expression as used in Section 87 of the Bombay Reorganisation Act, 1960. 136. These are the reasons which have induced me to take a different view from that reached by me as a member of the previous Full Bench on this important question whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial decisions of the High Court of Bombay are "law in force" within the meaning of those words as used in that Section or that they should be regarded as binding on this High Court. 137. I may add here that the question of the binding character of judicial precedents has come up for consideration before various High Courts as a result of the reorganisation of various States and the constitution of new States. But in none of these cases provisions similar to Section 87 have been construed to include judicial precedents and judicial precedents have not beep regarded as law within the meaning of those provisions. There are at least three decisions of different High Courts in India where the view has been taken that in provisions similar to Section 87, law can not include Judicial precedents. They are AIR 1927 Rang 4, AIR 1952 MP 171 and. AIR 1959 Mys 1. These decisions clearly support the view I have taken in regard to the question whether judicial precedents can be regarded as law in force within the meaning of Section 87 so as to be binding on this High Court. 138. I must next consider whether apart from Section 87 there is any principle of law on which decisions give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied, that the two Courts are not Courts of co-ordinate jurisdiction. One of the teste is whether the two Courts are Courts of equal rank and equal status. That this characteristic of equal rank and equal status should be present is apparent from the word "co-ordinate" The dictionary meaning of the word "co-ordinate" as stated in Webster's New international Dictionary of the English language, 2nd Edition, at page 588, is "equal in, or in the same rank or order; not subordinate". "One that is co-ordinate" is described as "one of equal rank, authority or importance with another". In Murray's English Dictionary, Volume 2, the meaning of the word ''co-ordinate" is given as "of the same order; equal in rank, degree or importance (with); opposed to subordinate". The dictionary meaning thus clearly brings out the sameness of rank and status as an important characteristic which must exist before two Courts can be said to be Courts of co-ordinate jurisdiction. The same characteristic is also emphasized by Sir Frederick Pollock in his First Book of Jurisprudence, 5th Edition, at page 324 where he has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itories for which they are constituted High Courts. The jurisdiction exercised by the High Court of Madras in relation to the territories of the State of Madras is similar to the jurisdiction exercised by the High Court of Calcutta in relation to the territories of the State of West Bengal. If therefore, the test formulated by the Full Bench decision of the Andhra Pradesh High Court is correct, the High Court of Madras and the High Court of calcutta would be Courts of co-ordinate jurisdiction and if that is so, the decisions of either High Court would be binding on the other. This, however, is admittedly not the position and it must, therefore, be concluded that the premise itself is incorrect and that similarity of jurisdiction does not afford a test for determining whether two Courts are Courts of co-ordinate jurisdiction. It in the sameness of jurisdiction which provides the real test and forms the essential characteristic of co-ordinate jurisdiction. I must, therefore, apply this test and consider whether this High Court enjoyed the same rank and status as the High Court of Bombay prior to the appointed day and the jurisdiction exercised by this High Court is the same as that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th an existing Court. Any other view would lead to a rather absurd and inconsistent result. Suppose there are two Courts of the same rank and status functioning within the same territory and possessing the same jurisdiction. These Courts would undisputedly be Courts of co-ordinate jurisdiction and the decisions of the one will be binding on the other. Now suppose one of these Courts is abolished, would the decisions of the abolished Court cease to bind the other Court which continues to exist? Until abolition the decisions of the abolished Court bound the other Court as a Court of co-ordinate jurisdiction. But would the binding, effect of those decisions cease merely because the Count which gave those decisions is abolished? If that were so, the result would be that the decisions of the abolished Court would bind the other Court upto a certain date and would thereafter cease to bind that Court. This would be a strange result which apart from being irrational and illogical, would be inconsistent with the avowed purpose of the doctrine of judicial precedents. How would uniformity, continuity and certainty in the administration of justice be advanced by regarding the decisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) 44 E P 1126 was cited before the Court of Appeal as a decision directly in favour of the respondent and if that decision was binding on the Court of Appeal, the appellant was bound to fail. The Court of Appeal regarded that decision as binding on itself even though if was given by the Court of Appeal it Chancery and the ground on which it was regarded as binding was that the Court of Appeal in Chancery was a Court co-ordinate in jurisdiction with the Court of Appeal. Lord Herschell, L. C., observed: "We cannot overrule 1858) 44 ALL ER 1126 for that was the decision of a Court co-ordinate in jurisdiction with ourselves: all We can do, therefore, is to dismiss this appeal". and Lord Justice Lindley and Lord Justice A. L. Smith concurred in these observations. The Court of Appeal thus regarded the Court of Appeal in Chancery as a Court of co-ordinate jurisdiction with the Court of Appeal even though the Court of Appeal in Chancery had ceased to exist by reason of the Supreme Court of Judicature Act, 1873 The Judicial Committee of the Privy Council in an appeal from the Supreme Court of New Brunswick also regarded the decision of the Court of Exchequer Chamber in Mercha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts should be Courts of concurrent jurisdiction or simultaneous jurisdiction and that in a given case even a successor Court can be a co-ordinate Court with the predecessor Court. The Rangoon High Court in AIR 1927 Rang 4 (supra) did not directly decide this question but it is implicit in the decision of the Rangoon High Court that according to the hangoon High Court the continued simultaneous existence at two Courts was not necessary to constitute them Courts of co-ordinate jurisdiction. In that case the question was whether the decisions of the Old Chief Court of Lower Burma should be regarded as binding on the High Court of Rangoon. The Full Bench of the Rangoon High Court proceeded to consider whether the Old Chief Court of Lower Burma could be regarded as a Court of co-ordinate jurisdiction with the Rangoon High Court and came to the conclusion that it was net a Court of co-ordinate jurisdiction because it was not of the same rank and status as the High Court of Rangoon and besides, its territorial jurisdiction was narrower than that of the High Court of Rangoon. The Full Bench of the High Court of Rangoon did not hold that the Old Chief Court of Lower Burma could not be regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty arises in regarding the High Court of Bombay as a Court of co-ordinate jurisdiction with this High Court. The High Court of Bombay prior to the appointed day bad jurisdiction net only over the territories now forming part of the State of Gujarat but also over other territories which now form part of the State of Maharashtra whereas the jurisdiction of this High Court extends only to the territories now forming part of the State of Gujarat. The territorial jurisdiction of the High Court of Bombay immediately before the appointed day was larger than the territorial jurisdiction possessed by this High Court. Apart from this inequality in territorial jurisdiction, there is also a difference, though in a small measure in the nature of the jurisdiction exercised by the High Court of Bombay prior to the appointed day and that exercised by this High Court. The High Court of Bombay immediately prior to the appointed day exercised ordinary original Civil Jurisdiction under Clauses 11 and 12 of the Letters Patent whereas such jurisdiction is not possessed by this High Court. Can it be said under these circumstances that the jurisdiction exercised by this High Court is the same as that exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction with this High Court when its territorial jurisdiction was admittedly larger than that of this High Court. How could the jurisdiction of the High Court of Bombay prior to the appointed day be said to be the same as the jurisdiction of this High Court when at least in relation to territorial extent it was undisputedly larger than that exercised by this High Court? If the territorial jurisdiction of the High Court of Bombay prior to the appointed day was larger than the territorial jurisdiction of this High Court--and that fact is not disputed before us-- the High Court of Bombay prior to the appointed day could not possibly be said, to be a Court co-ordinate in jurisdiction with this High Court. But apart from this there is another equally cogent and effective reason, which compels ma to take the view that the High Court of Bombay prior to the appointed day could not be regarded as a Court co-ordinate in jurisdiction with this High Court. The concept of co-ordinate jurisdiction must involve the element of mutuality. That this element of mutuality should be present is also apparent from the requirement of sameness of jurisdiction. If the jurisdiction of one Court is the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashtra as from the appointed day i.e., 1st May 1960. The High Court of Bombay prior to the appointed day had jurisdiction not only over the territories forming part of the State of Maharashtra but also over the territories forming part of the State of Gujarat but as from the appointed day i.e., 1st May 1960, the High Court of Bombay ceased to have jurisdiction over the territories forming part of the State of Gujarat and the jurisdiction of the High Court of Bombay became limited to the territories forming part of the State of Maharashtra. Now it is obvious that as from the appointed day i.e., 1'st May 1960, the High Court of Bombay which became the High Court for the State of Maharashtra could not be said to be a Court co-ordinate in jurisdiction with this High Court because the territorial jurisdiction of the High Court of Bombay as from the appointed day i. e., 1st May 1960 was different from the territorial jurisdiction of this High Court. The only contention urged was that the High Court of Bombay prior to the appointed day could be regarded as a Court co-ordinate in Jurisdiction with this High Court because the jurisdiction exercised by this High Court in respect of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat was constituted, by the very Act which effected bifurcation of the State of Bombay and constituted the State of Gujarat, the High Court of Bombay prior to 1st May 1960 could not be said to be a Court co-ordinate in jurisdiction with the High Court for the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat could not in that event be said to be wholly enjoyed by the High Court of Bombay prior to 1st May 1960. But if that is so, could it make any difference if such territories were added to the State of Gujarat not from the very beginning but sometime after the constitution of the State of Gujarat? When such territories would be added, the same argument would apply and it would not then be Possible to say that the High Court of Bombay prior to the appointed day enjoyed the whole of the jurisdiction exercised by this High Court in respect of the territories forming part of the State of Gujarat The High Court of Bombay prior to the appointed day would in such a case cease to be a Court co-ordinate in jurisdiction with this High Court and even the decisions of the High Court of Bombay given during the period 1st Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court of Bombay prior to the appointed day could not be regarded as a Court co-ordinate in jurisdiction with this High Court, it does not follow that the decisions given by the High Court of Bombay prior to the appointed day are not binding on this High Court. There is another principle on which the decisions given by the High Court of Bombay prior to the appointed day must be regarded as binding on this High Court. It is clear from the various provisions of the Act which have been analysed by My Lord Chief Justice in the majority judgment that this High Court has succeeded to all the jurisdiction, power and authority which the High Court of Bombay exercised until the appointed day in and in relation to the territories forming part of the State of Gujarat. The entire jurisdiction, power and authority exercised by this High Court was possessed by the High Court of Bombay Immediately prior to the appointed day and this High Court can rightly be regarded as a successor to the High Court of Bombay in respect of the territories forming part of the State of Gujarat. If this High Court has taken the place of the High Court of Bombay in its entirety in and in relation to the terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possessed by the predecessor Court and could, therefore, be properly and legitimately said to have been inherited by the successor Court from the predecessor Court. Must there be a precise precedent for everything? Were the Judges of the last century who evolved the doctrine of judicial precedents in the present form the generation last vested with authority to apply old principles in new forms? Why can we not extend the principle underlying the binding character of Judicial precedents and apply it to a Court which is a successor Court so that the decisions of the predecessor Court should he regarded as binding on the successor Court in order to secure certainty, uniformity and continuity in the administration of justice? But as I stated before, mine is not a lone voice for there are decisions of various High Courts which support me in the view which I am inclined Jo take on principle. The first decision to which I must refer is the Full Bench decision of the Madhya Bharat High Court in AIR 1952 MP 171 , (supra). There the question was Whether the decisions of the High Court of the former State of Indore were binding on the High Court of Madhya Bharat Chaturvedi, J., examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen, as I have held, this High Court, is not a Successor-in-interest of the High Court of the former State of Mysore, then there is no reason as to why this High Court should be bound by the decisions of the Chief Court of Mysore or of the High Court of Mysore delivered prior to 1-11-1956.'' The learned Chief Justice then proceeded to consider whether the High Court of Mysore and the High Court of the former State of Mysore could be regarded as Courts of co-ordinate jurisdiction and field that the contention that these two Courts should be regarded as Courts of co-ordinate jurisdiction could not be accepted by him. These observations of the learned Chief Justice which I have quoted above also clearly support the view that the successor Court should be regarded as bound by the decisions of the predecessor Court. I must next refer to the decision of the High Court of Kerala in: AIR1961Ker75 . Dealing with the question whether the decisions of the former Travancore-Cochin High Court were binding on the High Court of Kerala, Raghavan, J., observed as follows; "The Kerala State was constituted taking portions of the territories of the former State of Travancore-Cochin an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement, the question was raised again before a Division Bench of the East Punjab High Court". ".....such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same Court". These observations of the Supreme Court lend considerable support to the view that the successor Court must be regarded in effect and substance as a continuation of the predecessor Court when the entire jurisdiction, power and authority possessed by the successor Court can be traced to the predecessor Court and the decisions of the predecessor Court must, therefore, tie accorded the same binding character and effect as if they were decisions of the successor Court. This, in my opinion, is the true ground on which must rest the binding authority of decisions of the High Court of Bombay given prior to the appointed day qua this High Court. 146. I, therefore, agree with the answer given by My Lord the Chief Justice in the majority judgment to the question referred to the Special Bench and hold that the decisions of the High Court of Bombay given prior to the appointed day i.e., 1st May 1960, do not constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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