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2011 (6) ALLMR 559
In the High Court of Bombay at Goa
MOHIT S. SHAH, S.C. DHARMADHIKARI & F.M. REIS
Edward Evan Pereira & Another & Others
Versus
Goncalo Jose Agnelo & Others
LETTERS PATENT APPEAL NO.1 OF 2010 WITH LETTERS PATENT APPEAL NO.2 OF 2010 WITH LETTERS PATENT APPEAL NO. 18 OF 2009 WITH LETTERS PATENT APPEAL NO.19 OF 2009 LETTERS PATENT APPEAL NO.1 OF 2010
Decided on : 21-07-2011
Section 4 of the Extension Act of 1981 preserved the jurisdiction of the existing forum and conferred it on the successor forum in order to ensure that no area of jurisdiction of the existing forum was left out from the purview of the new forum. A decree of Divorce under Canon Law was required to be confirmed by the Tribunal derelacao till 16 December 1963 and thereafter by the Court of Judicial Commissioner. In the absence of Section 4, the permanent Bench of the High Court of Bombay at Goa would not have got the jurisdiction to entertain such a proceeding with effect from 9 September 1981, Section 4 therefore, transferred the jurisdiction of the existing forum of the Court of Judicial Commissioner to the permanent Bench of the Bombay High Court, at Panaji Goa. Section 4 is, therefore, an ex abundanto cautela provision which ensured that such an area of jurisdiction of the Court of Judicial Commissioner was not left out of the purview of the Bombay High Court. Absence of Section 4 would have created a void. Section 4, therefore, supplements Section 3, does not override it.
High Court of Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1901 - Sections 3 and 4-Term, "Jurisdiction"-Jurisdiction of a Court encompasses all kinds of jurisdiction, territorial, pecuniary and pertaining to subject-matter-The moment, jurisdiction of High Court at Bombay extended to additional territories outside state at Maharashtra, in those territories also, Bombay High Court would exercise same all compassing jurisdiction.-The term "jurisdiction" of a Court encompasses all kinds of jurisdiction-territorial, pecuniary, pertaining to the subject-matter, so also the power to lay down its procedure and to evolve its practice, subject to any law made by the competent Legislature providing otherwise. The moment the jurisdiction of the High Court at Bombay was extended to additional territories outside the State of Maharashtra, in those additional territories also, the Bombay High Court would exercise the same all compassing jurisdiction. Section 4 in 1981 Act used the words "jurisdiction, powers and authority" as were hitherto exercisable by the Court of Judicial Commissioner only to emphasize that no power or authority of the Court of Judicial Commissioner in Goa, Daman and Diu was to lapse, merely because the Bombay High Court might not have been hitherto vested with such power or authority, such as the power to confirm a decree of divorce under the Canon Law.
Constitution of India - Articles 226, 230, 231 and 241-Letters Patent, 1965, Clause 15-High Court of Bombay (Extension of jurisdiction to Goa, Daman and Diu) Act, 1981, Sections 3, 4, 7 and 9-Goa, Daman and Diu Re-orgnisation Act, 1987, Sections 20, 25, 28 and 30-Letters Patent Appeal (LPA)-Maintainability of in State of Goa-Section 3 of Act, 1981, extended jurisdiction of High Court at Bombay to Goa, Daman and Diu-All proceedings of Bombay High Court conducting hearing and deciding cases at ’Goa’, governed by ordinary rules or procedure applicable to Bombay High Court-Letters Patent Appeal maintainable in State of Goa.-After the writ petition is filed in the Bombay High Court, it has to be decided according to the rules of practice and procedure of the Bombay High Court which is governed by the Letters Patent of 1865. In view of the above emphatic statement of law laid down by the Apex Court, it is clear that once Section 3 of the 1981 Act extended the jurisdiction of High Court at Bombay to Goa, Daman and Diu, all the proceedings of the High Court at Bombay conducting the hearing and deciding cases at Panaji (Goa) would be governed by ordinary rules or procedure applicable to the Bombay High Court and since under clause 15 of the Letters Patent of Bombay High Court, an appeal lies before the Division Bench against the judgment of a single Judge in a petition under Article 226 of the Constitution, Letters Patent would lie against the judgment of a single Judge of the Bombay High Court sitting at Panaji (Goa) in a petition under Article 226 of the Constitution, before a Division Bench of this High Court.
When the jurisdiction of the existing High Court is extended to a Union Territory under Article 230 (1) or a common High Court is established for more than one State under Article 231, the Constitution does not provide for any limitation on the exercise of powers of the High Court and the existing High Court continues to exercise all its powers in the Union Territory to which its jurisdiction may be extended under Article 230(1) or in the State to which it is established as a common High Court under Article 231(1). On the other hand, when an existing Court in a Union Territory is declared to be a High Court under Article 241(1), Clause (2) thereof provides for limitation or modifications.
Chief Justice:
By an order dated 30 September 2010, a Division Bench of this Court, has referred the following questions for determination by a Larger Bench :
“(a) Whether the effect of Sub-Section (1) of Section 3 of the High Court at Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 is that from 30 October 1982, the jurisdiction of the High Court of Bombay including the jurisdiction under the Letters Patent was extended to the Union Territory of Goa, Daman and Diu ?
(b) Whether Sections 3 and 4 of the said Act of 1981 can be interpreted to mean that only a limited jurisdiction vesting in the existing Court of Judicial Commissioner was exercisable by the permanent bench of this Court established under Section 9 of the said Act of 1981 ?” After hearing the learned counsel for the parties, we have also framed the following questions:-
(c) Whether Letters Patent Appeal under Clause 15 of the Letters Patent of Bombay High Court is maintainable against the judgment of a Single Judge of the High Court of Bombay sitting at Panaji (Goa) in writ petition under Article 226 of the Constitution?
(d) Whether the decision dated 20 June 2009 of a Division Bench of this Court in Sanjay Z. Rane and others vs. Smt. Saibai S. Dubaxi (since deceased) through her legal representatives and another, (Letters Patent Appeal No.15/2000)lays down the correct law?
2. Since, this Larger Bench has been constituted only for determining the aforesaid questions of law in the context of maintainability of Letters Patent Appeals against judgments of Single Judge of this Court sitting at Panaji-Goa, it is not necessary to set out the facts of any of these appeals, except to state that Letters Patent Appeal Nos.1 and 2 of 2010 are directed against the separate Judgments passed by a learned Single Judge of this High Court at Goa, dismissing two separate writ petitions filed in 2010 under Articles 226 and 227 of the Constitution of India. Similarly, Letters Patent Appeal Nos.18 and 19 of 2009 are directed against separate judgments rendered by a learned Single Judge of this Court at Goa, dismissing writ petitions filed in the year 2008.
3. In Sanjay Z. Rane and others vs. Smt. Saibai S. Dubaxi (since deceased) through her legal representatives and another (Letters Patent Appeal No.15/2000 decided on 22 June 2009), a division Bench of this Court, took the view that the jurisdiction to entertain intra-Court appeal under Clause 15 of the Letters Patent of 1865 has not been conferred on the High Court of Bombay at Goa. For the purposes of arriving at this conclusion, the Division Bench, besides placing particular interpretation on the relevant statutory provisions, also relied on the decision of the Supreme Court in P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda andanr. (2002) 5 SCC 548)In the order of reference, it is indicated, while prima facie disagreeing with the interpretation placed in the Judgment dated 22 June 2009, that the attention of the Division Bench was not drawn to an important decision of the Apex Court in Dadh Nathu Rajah (dead) by Laywers vs. Angha Nathu Jamal (1969)3 SCC 813 = AIR 1971 SC 300).
4. Before enumerating the rival submissions, it is necessary to refer to the relevant historical facts and statutory provisions in the context of which we are called upon to determine the above questions.
5. For more than 400 years, Goa was under the Portuguese Rule. As far back as in 1544, “Tribunal de Relacao” (Highest Court of Appeal) was established in Goa. It was the highest judicial organ in Goa, for hearing appeals against orders of subordinate Courts in Goa. Appeals against the decisions of Tribunal de Relacao lay before the Court in Lisbon, in Portugal. On 20 December 1961, the Portuguese Rule in Goa came to an end. By the Constitution (Twelfth Amendment) Act, 1962, a new Union Territory comprising Goa, Daman and Diu came into existence with effect from 20 December 1961. The Goa, Daman and Diu (Administrati
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