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High Court Of Madhya Pradesh
J. S. Verma, U. N. Bhachawat and M. L. Malik, JJ.
BALKISHANDAS - Appellant
Versus
HAR NARAYAN - Respondents
Misc. Petn. 107 Of 1979
Decided On : 08/17/1979
In compliance with the order dated 5-2-1976, passed by the then Chief Justice (Shiv Dayal, C.J.) it is necessary to list a petition under Article 226/227 of the Constitution instituted at any of the Bench Registries raising the question of vires of any enactment, rule, order or notification etc. even for motion hearing for admission and for any interim order, at Jabalpur, the principal seat of the High Court, for this purpose. It is the duty or the Additional Registrar at the two Benches to transmit the record thereof forthwith to Jabalpur on its institution; and this order of the Chief Justice governs not only pending cases but also cases instituted after the date of his order. 1979 JLJ 208 overruled.
[Paras 52 & 54]
(2) Precedents-order dismissing writ petition in motion hearing deciding the question of jurisdiction to hear the petition-the decision has a binding force as precedent. 1978 JLJ 96 relied on [Paras 19 and 89]
(3) High Court Rules and Orders - Ch. I, R. 12 - reference to a larger Bench - existence of two conflicting decisions is not a condition precedent for making a reference. 1976 JLJ 706 relied on. [Paras 20 and 89]
(4) States Re-organisation Act, 1956 – S. 51(2) - Notification of President of India dated 28-11-1968 & order of Chief Justice dated 5-2-1976-word 'heard'-includes motion hearing also.
(5) Words & phrases -word 'heard' - includes motion hearing.
The meaning of the word 'heard' used in the Order of the Chief Justice dated 5-2-1976 is plain and unambiguous and includes motion hearing. AIR 1976 SC 331 relied on.
[Paras 32 and 76]
(6) Words & phrases-words 'hearing' and 'determine' - distinction between the two.
There can be no doubt that scope of the word 'determine' is much narrower than that of the word 'heard'. It is obvious that there may be a hearing even though nothing is determined as a result thereof but there can be no determination without a hearing. To illustrate the point, a motion hearing resulting in admission of a petition for hearing parties does not result in determination of any question involved in the petition but a motion hearing resulting in dismissal of the petition involves determination of the points raised therein It is, therefore, not correct to say that the word 'heard' has the same meaning as the word 'determine', the latter being admittedly of a narrower scope.
[Para 37]
(7) Interpretation of Statutes-Proviso function of.
Per Bhachawat, J. - It is a well settled position ill law that the function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion, which but for the proviso would fall in the main. [Par 69]
(8) States Reorganisation Act, 1952 - S. 51(2) - Notification of President of India dated 28-11-1968-words 'cases arising'-meaning of.
Per Bhachawat, J.- The significant expression in the main part of the Notification as well as the proviso is "cases arising". This expression in its gramatical sense includes he cases which had arisen and which may arise in future. It is the present, past and future perfect continuous, tense. It would thus include the cases which were instituted prior to the date of the passing of the order; instituted on the date of the order and that may be instituted thereafter; and there is nothing in the context to justify that to the words ‘cases arising’ a restricted meaning so as to mean the cases which were already instituted prior to the making of the order should be given. [Para 84]
( 1 ) THE question referred to us for decision in the following viz. ,--
"whether in compliance with the order dated 5-2-1976 passed by the then Chief Justice (Shiv Dayal, C. J.), it is not necessary to list a petition under Articles 226/227 of the Constitution filed in any of the bench Registries raising the question of vires of any enactment, rule, order or notification etc. also for motion hearing at the principal seat of the High Court?"
( 2 ) THE identical orders dated 5-2-1976 were passed by Shiv Dayal, C. J. which read as under:-
"in exercise of the powers conferred on me by the proviso to the notification No. 16/20/68-Judl. III, dated November 28, 1968, issued by the President under Section 51 (2) of the States Reorganisation act, 1956, (No. 36 of 1956), establishing a permanent Bench of the madhya Pradesh High Court at Gwalior, And in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso, I hereby order that with effect from February 5, 1976, till further orders, only the following cases arising from the revenue Districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhelsa), bhind and Morena, except those cases for which I may otherwise order, shall be heard at Jabalpur:-
(1) All petitions under Article 226/ 227 of the Constitution challenging the vires of any Act or statute or any order or rule or regulation made under any Act or statute;
(2) All individual cases which I may hereafter order to be heard at jabalpur. Sd/-Shiv Dayal chief JUSTICE 5-2-1976. " xxxxxx
"in exercise of the powers conferred on me by the proviso to the notification No. 16/20/68/judl-III, dated November 28, 1968, issued by the President under Section 51 (2) of the States Reorganisation act, 1956 (No. 36 of 1956), establishing a permanent Bench of the madhya Pradesh High Court at Indore, and in supersession of all previous orders so far issued in exercise of the powers under the aforesaid proviso, i hereby order that with effect from February 5, 1976, till further orders, only the following cases arising from the Revenue Districts of indore, Ujjain, De-was, Dhar, Jhabua, Ratlam, Mandsaur, West Nimar (Khargone), Shajapur and Rajgarh, except those cases for which I may otherwise order, shall be heard at Jabalpur:-
(1) All petitions under Article 226/ 227 of the Constitution challenging the vires of any Act or statute or any order or rule or regulation made under any Act or statute;
(2) All individual cases which I may hereafter order to be heard at jabalpur. Sd/-Shiv Dayal chief JUSTICE 5-2-1976. "
( 3 ) THE validity of the above-quoted order dated 5-2-1976 passed by the Chief justice was unsuccessfully challenged in a writ petition in this Court. A Full bench of five Judges in Abdul Taiyab v. Union of India, 1976 MPLJ 767: AIR 1977 Madh Pra 116 upheld the validity of the President's Notification issued under Section 51 (2) of the States Reorganization Act as well as the Chief justice's order made under the proviso to the President's Notification. The view of the majority is contained in the opinion of Oza J. with whom Vyas and sharma JJ. entirely agreed. In Abdul Taiyab's case, the historical background relating to the constitution of two permanent Benches at Indore and Gwalior in 1968 and the relevant stages till the making of the Chief Justice's order dated 5-2-1976 have been given at length. It is, therefore, not necessary for us to reiterate the same. However, a brief resume thereof has to be given only to facilitate appreciation of the present controversy.
( 4 ) THE new State of Madhya Pradesh was constituted with effect from 1-111956 under the States Reorganisation Act, 1956. It comprised substantially of mahakoshal area of the old State of Madhya Pradesh, the State of Madhya bharat and the Part C States of Vindhya Pradesh and Bhopal. Section 49 of the states Reorganisation Act declared that the existing High Court of Madhya pradesh, i. e. the Nagpur High Court, shall from the appointe
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