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Allahbad High Court
YASHODANANDAN,R.B.MISRA,H.N.SETH,S.MALIK,T.S.MISRA
Bhuwal - Appellant
Versus
Deputy Director of Consolidation, Pratapgarh - Respondent
Decided On : 01/31/1977
CONSTITUTIONAL LAW - HIGH COURTS - AMALGAMATION - JURISDICTION - WRIT JURISDICTION - U. P. HIGH COURTS (AMALGAMATION) ORDER, 1948 - FIRST PROVISO TO PARAGRAPH 14 - VALIDITY - INTERPRETATION - JURISDICTION OF JUDGES SITTING AT LUCKNOW UNDER PARAGRAPH 14 - WHETHER INCLUDES JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION.
Fact of the Case:
The question referred to the Bench was whether the first proviso to paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, was in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts and whether the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution.
Finding of the Court:
1. The first proviso to paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, is not in conflict with any provision of the Constitution and was not rendered invalid on that account on the coming into force of the Constitution. 2. The jurisdiction and power of the Allahabad High Court conferred on the Judges sitting at Lucknow under paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution.
Issues: 1. Whether the first proviso to paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, is in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts (namely, Arts. 214, 230, 231) and the Scheme contemplated therein, and is saved by Art. 226 or Art. 372 or any other Article of the constitution after its enforcement on 26-1-1950? 2. Whether the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution ?
Ratio Decidendi: 1. The first proviso to paragraph 14 of the Order amounts to no more than a statutory allocation of cases arising out of certain district to the Judges of this Court sitting at Lucknow and is in no fashion, in conflict with Arts. 214, 226, 227 or 228 or any other provisions of the Constitution. 2. The judges at Lucknow are part of the same High Court as those at Allahabad. Whether the judge sits at Allahabad or at Lucknow, he remains a Judge of the same High Court. A judge sitting at Lucknow may sit at Allahabad and vice versa. It is only the work entrusted to him at the two places which will differ. 3. The expression "for the time being" employed in the first proviso to Art. 14 intends "from time to time". Therefore, when a question arises as to the jurisdiction and power of the High Court at any point of time, the range of jurisdiction and power at that point of time must be considered, whether it may have expanded or contracted since the framing of the Amalgamation Order.
Final Decision: 1. The first proviso to paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, is not in conflict with any provision of the Constitution and was not rendered invalid on that account on the coming into force of the Constitution. 2. The jurisdiction and power of the Allahabad High Court conferred on the Judges sitting at Lucknow under paragraph 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution.
YASHODA NANDAN, J. :- The following two questions have been referred to this Bench for its opinion:
1. Whether the first proviso to Cl. 14 of the U. P. High courts (Amalgamation) Order, 1948, is in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts (namely, Arts. 214, 230, 231) and the Scheme contemplated therein, and is saved by Art. 226 or Art. 372 or any other Article of the constitution after its enforcement on 26-1-1950?
2. Whether the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution ?
Since the constitutionality of an Order issued by the Governor General was in question, notice was issued to the learned Attorney General of India. Notices were also issued to the Allahabad High court Bar Association and to the Oudh Bar Association which are vitally interested in the questions referred to this Bench.
2. We have heard learned counsel for the parties as well as the counsel who represented the two Bar Associations. Before proceeding to deal with the questions referred to this Bench in the order in which they have been posed, we would like to mention that a Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal U. P. Lucknow (AIR 1972 All 200 (FB)), referred to the various provisions of the United Provinces High Courts (Amalgamation) Order 1948 as clauses but the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331), preferred to describe them as paragraphs. We shall also consequently refer to the various provisions of the aforesaid Order as paragraphs.
3. As far as the first question is concerned, Sri S. P. Gupta counsel for the petitioner, submitted that the first proviso to paragraph 14 of the United Provinces High Courts (Amalgamation) Order, 1948 hereinafter referred to as the Order, is consistent (sic) (inconsistent?) with Arts. 214, 226, 227 and 228 of the Constitution and also the general scheme of the constitution of the High Courts under the Constitution. It was contended that Art. 214 of the Constitution provides for the existence of a single High Court in each State and there cannot be two separate judiciaries in the same State. It was urged that the test of singularity of a High Court, as contemplated by the Constitution, in a State should be its capacity to judicially function throughout its territory from the place where it is erected. The singularity of the Chief Justice or common set of Judges or a common seal should not be the correct test to find out the constitutionally contemplated singularity. It was submitted that according to the decision of the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) on a correct interpretation of the first proviso to paragraph 14 of the Order, the Judges at Lucknow have exclusive jurisdiction in respect of cases arising in the areas in Oudh and the Judges and Division Benches sitting at Allahabad High Court have no jurisdiction to entertain cases in respect of the areas of Oudh. This, it was contended, in substance amounted to the existence of two separate judiciaries in the same State and ran counter to Arts. 214, 226, 227 and 228 of the Constitution. The contention was hotly disputed by Sri H. N. Tilhari who appeared before us on behalf of the Oudh Bar Association.
4. Having heard learned counsel for the parties and examining the decisions cited before us, we are of the opinion that there is no force in the contentions advanced by Sri S. P. Gupta.
5. As a result of paragraph 3 of the Order, as from the 26th July, 1948, the then High Court at Allahabad and the erstwhile Chief Court in Oudh stood amalgamated and a new High Court was constituted by the name of the High Court of Judicature at Allahabad. By reason of paragraph 4, the pe
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