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2003 DIGILAW 844 (RAJ)

S. D. Rajpurohit v. The Union of India

2003-05-29

D.N.JOSHI, RAJESH BALIA

body2003
JUDGMENT 1. 1. By this writ petition, the petitioner has challenged the provisions of section 52[2] of the State Reorganisation Act, 1956 [for short 'the Act'] enabling setting up of permanent Bench of High Court to be ultra vires the basic feature of the Constitution and consequently, the Presidential Order setting up a permanent Bench of this Court at Jaipur to the invalid. 2. The principal contention raised by the learned counsel for the petitioner is that the Constitution envisages as basic feature of he Constitution one High Court exercising jurisdiction over entire State. The Constitution also envisages that one High Court may be required to act as High Court of more than one State. But converse is not true. With this premise, it is contended that section 51[2) of the Act permits setting up of permanent Bench of any High Court of State reorganised or reconstituted under the Act, with conferment of exclusive jurisdiction over part of State Territory. This results in bifurcation of territorial jurisdiction of the High Court between principal seat and the Bench or Benches in respect of the same State. Consequently, it brings into existence more than one High Court for one State, which is not envisaged under the Constitution. 3. Learned Advocate General contends that validity of NOtification setting permanent Bench at Jaipur has been subject matter of challenge earlier in Ram Rakh Vyas v. The Union of India and Others, AIR 1977 Raj. 243 . and in Rajasthan High Court Advocates' Association v. Union of India & Ors., AIR 2001 SC 416 . The validity of Notification issuing High Court of Rajasthan [Establishment of a Permanent Bench at Jaipur] Order, 1976 with effect from 31.1.1977 has been upheld. Hence, the question raised in this writ petition no more survives for consideration. 4. 243 . and in Rajasthan High Court Advocates' Association v. Union of India & Ors., AIR 2001 SC 416 . The validity of Notification issuing High Court of Rajasthan [Establishment of a Permanent Bench at Jaipur] Order, 1976 with effect from 31.1.1977 has been upheld. Hence, the question raised in this writ petition no more survives for consideration. 4. On consideration of the two judgments, we find that the issue about validity of any law providing for setting up of permanent Bench or Benches a of High Court with providing exclusive jurisdiction over a part of the State to the exclusion of the Principal seat being beyond the legislative competence of the Parliament, as against the basic feature of the Constitution was not raised, considered or tested, in any of the judgments, though it has been observed in one of the case that division of territorial jurisdiction is essential concomitant of setting up of a permanent Bench under section 41 [2] of the Act. 5. Both the decisions directly deal with the contentions raised therein on the assumption that setting of permanent Bench is permissible under section 51 [2] of the Act but the orders under challenge did not conform to statutory scheme of section 51 [2] of the Act. 6. These cases were decided on the assumption of a valid law governing the setting up of permanent Benches of the High Court of any State constituted under the Act. The issues before the Division Bench in Ram Rakh Vyas's case [supra] were whether consultation with Acting Chief Justice can be equated with consultation with the Chief Justice of the High Court, so as to fulfil the necessary pre-requisite of setting up of a permanent Bench of a High Court under section 51[21 of the Act in consultation with the Chief Justice of the High Court, that is to say, whether for the purpose of section 51 [2] of the Act, the expression 'Chief Justice' includes an Acting Chief Justice of the High Court. The second issue was whether power to set up a permanent Bench under section 51 [2] of the Act could be exercised after a lapse of 21 years of the commencement of the Act and whether power to set up a permanent Bench also carries it with the power to define exclusive territorial jurisdiction for the Bench. The second issue was whether power to set up a permanent Bench under section 51 [2] of the Act could be exercised after a lapse of 21 years of the commencement of the Act and whether power to set up a permanent Bench also carries it with the power to define exclusive territorial jurisdiction for the Bench. Thus, all the contentions raised were on the premises that section 51 [2] was a valid piece of legislation under which permanent Bench could be formed but there were defect and illegality in exercise of power under section 51[2] of the Act. The question now raised in this writ petition was neither raised nor considered by the Division Bench. Any observation made about i exercise of power, therefore, cannot be read as settling the question about validity of law, though these observations may be of relevant consideration while examining the merit of challenge. 7. Likewise in Rajasthan High Court Advocates' Association's case [supra], notwithstanding raising other issues, details of which are not discernible from the report, the only question which was dealt with by the Supreme Court was the validity of exercise of power by the Chief Justice vide order dated 12.1.1977 in inserting explanation to the Order passed by the Acting Chief Justice on 23.12.1976, defining where the cause of action can be said to arise for determining the jurisdiction of the Bench. Obviously, the issue of validity of section 51 [2], which touches at the very root of legislative competence of Parliament to enact a provision like that was neither raised nor decided by the apex Court. 8. The other decision referred to by the learned Advocate General also rest on assumption about the validity of impugned provisions. In this connection, reference has been made to Federations of Bar Associations in Karnataka v. Union of India, 2000 [6] SCC 715 and State of Maharashtra v. Narayan Shamrao Puranik, 1982 [2] SCC 440 . The above issue has not been examined directly. All the decisions referred by the learned Advocate General directly relate to validity of orders made or decline to be made within the province of section 51 [2] and [3] of the Act. 9. The above issue has not been examined directly. All the decisions referred by the learned Advocate General directly relate to validity of orders made or decline to be made within the province of section 51 [2] and [3] of the Act. 9. As noticed above, the principal contention raised on behalf of the petitioners is that setting up of a Permanent Bench of the High Court under sub-section [2] of the section 51 of the Act results in territorial bifurcation of the High Court, which bring into existence two High Courts exercising jurisdiction in respect of the same State. In this respect, reliance has been placed on a decision of the Supreme Court in State of Maharashtra v. Narayan, AIR 1983 SC 46 . 10. The aforesaid case was an appeal arising out of a Judgment of the Bombay High Court passed in Writ Petition No. 1104 of 1981. The controversy arose in the context of an order passed by the Hon'ble Chief Justice of the Bombay High Court directing a number of Judges to hold sittings at Aurangabad and to exercise jurisdiction in respect of cases arising from territories forming part of erstwhile Aurangabad Division known as 'Marathwada'. A Division Bench of the Bombay High Court in a marathan judgment opined that it would result in bifurcation of territorial jurisdiction of the High Court, which is not permissible under, the scheme of the Constitution or under the scheme of the Act and. quashed the orders passed by the Chief Justice in that regard. On appeal, the Supreme Court observed that the creation of a permanent bench under sub-section [2] of section 51 of the Act brings about territorial bifurcation of the High Court, but consequence of exercise of power by the Chief Justice under sub-section [3] of section 51 does not lead to such a result. It was considered to be an internal matter pertaining to the High Court. The Chief Justice was held to have full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub-section [3] of section 51 of the Act but inheres in him from the very nature of things. The non-obstante clause contained in sub-section [3] of section 51 of the Act gives an overriding effect to the power of the Chief Justice. The non-obstante clause contained in sub-section [3] of section 51 of the Act gives an overriding effect to the power of the Chief Justice. There is no territorial bifurcation of the High Court merely because the Chief Justice directs under sub-section [3] of section 51 of the Act that the Judges and Division Courts shall also sit at such other places as he may, with the approval of the Governor. It was considered to be merely an extension of court room. 11. However, the Supreme Court did not consider the effect of territorial bifurcation of High Court or setting up of permanent Bench under section 51 [2] vis a vis the scheme of the Constitution provides for a high Court for every State. The question remained unanswered. 12. The question may also arise and may require to be answered whether matter incidental to and connected with State reorganisation extends to setting up of a High Court with divided jurisdiction of State territory, in case setting up of permanent Bench is found to be not envisaged under Art. 214 of the Constitution. 13. In the light of the aforesaid decision the question raised before us assumes significant importance involving the question about the structure of a High Court As a vis a State in the event of forming of a permanent Bench under the Act, the its validity under the Constitution. 14. Considering the importance of issue involved in the case about Interpretation of Constitution and the State Reorganisation Act, 1956, we deem it appropriate that the case be decided by a larger Bench after general notice to Advocates at Jodhpur and Jaipur for assisting the Court. 15. Accordingly, the petition be placed before Hon'ble Chief Justice for constitution of a larger Bench for hearing the petition.Matter Referred to Larger Bench. *******