lllliUI KESBAO MESllRAM & ORS. v. RAJlllIKABAl W/O ANANDRAO llAllAPORKAR & Allll.

MARCH 14, 1986

B

Letters Patent 1929 (Bombay) Clause 15 :

Judgment of a Single Judge in a petition under Article 226/227 Intra-COurt Appeal - Whether competent and maintainable. c Expression "pursuant to section 108 of the Government of India Act" - Interpretation of.

Expression "Power of superintendence under the provisions of section 107 of the Government of India Act" - Whether to be construed as a reference to Art. 227 of the D Constitution.

Bombay High Court Appellate Side Rules, 1960 : Rule 18 - Expression "shall be heard and· finally disposed of" - Whether negatives filing of an appeal in a proceeding under Art. 226/ 227 of the Constitution. E

Indian High Courts Act, 1861, Government of India Acts 1915- 1919 and 1935 - Whether Constitutional Laws.

Constitution of India, 1950 : F Articles 225, 226 and 227 - Whether confer wholly new powers on the High Courts existing at the commencement of the Constitution.

Expression "subject · to the provisions of this Constitution" in Article 225 - Interpretation of. G

Joint petition under Articles 226 and 227 - Implication of - Whether to be treated as one under Article 226.

Article 227 - Power of superintendence - Whether in addition to that conferred by Article 226. H

732 SUPREME COURT REPORTS (19861 1 s.c.R.

A Words and Phrases :

"Judgment" - Meaning of - Clause 15, Letters Patent 1929 (Bombay),

Clause 15 of the Letters Patent, Bombay, in its finally amended and operative form (January 1929) provided that an J B appeal shall lie to the High Court of Judicature at Bombay, from a judgment of one Judge of the High Court, pursuant to a.108 of the Government of India Act of 1915, not being (a) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the c High Court, (b) an order made in the exercise of revisionsl jurisdiction, (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of s.107 of the Government of India Act of 1915, or (d) a sentence or order passed or made in the exercise of criminal ~ jurisdiction. Rule 18 of Chapter XVII, of the Bombay High D Court Appellate Side Rules, 1960, provides that applications under Art. 226 or Art. 227 of the Constitution arising ~ut of the orders passed by the Maharashtra Revenue Tribunal under any enac.tment, ms.y be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice.

E The appellants' revision application having been allCllled by the Maharashtra Revenue Tribunal, the first respondent filed a petition under Art. 227 of the Constitution before the Nagpur Bench of the High Court of Bombay. By reason of the aforesaid r.18 the petition was heard by a Single Judge and allowed, restoring the order of the Sub-·Divisional Officer. .JI F Against this judgment and order the appellants filed an appeal under cl.15 of the Letters Patent to a Division Bench of the Bombay High Court, Nagpur Bench, which was dislliissed as not being cotopetent in view of the earlier decision of a Full Bench in Sbar*ar llaroba Sa!nnte I. Ors. y, Gy,,,,,.bancl Lobhecband Kothari 6 Ors. decided on September 3, 1980, The Full Bench in G that case had concluded that no intra-court appeal lay under cl.15 of the Letters Patent against the judgment of a Single Judge of the Bombay High Court in a petition filed under Art. -~ 226 or 227 on the prelliises : (1) that on the coamencement of the Constitution cl.15 of the Letters Patent having ceased to be in operation it could not control matters expressl;' H

p. 733 Copy page pinpoint

A provided in the Constitution, for the High Courts then in existence became organically different High Courts as they acquired a different origin, nature and character since (a) the Constitution had effected a break with the past and made absolutely a new original and vital beginning as far as origin, source of power and conferment of constitutional B authority was concerned, and (b) the provision for intra-court appeal in the Letters Patent dealt with different jurisdictions under the ordinary law only and not with any jurisdiction conferred upon the High Court by the Constitution, (2) that even if cl.15 of the Letters Patent were to apply an appeal would be barred by the express words of cl.IS itself because both Arts. 226 and 227 provide for the c SS!le relief, DS11ely, scrutiny of records and control of subordinate Courts and Tribunals and, therefore, the exercise of the jurisdiction under these Articles would fall within the expression 'revisional jurisdiction' or "power of superintendence", and (3) that the expression "shall be heard and finally disposed of" in r.18 of Chapter XVII of the Bombay D High Court Appellate Side Rules, 1960 negatives the filing of any appeal in a proceeding under Art. 226 or 227.

In this Appeal by Special Leave against the order of the Division Bench, in detel'lllining whether an intra-court appeal lies under cl. IS of the Letters Patent of the Bombay High E Court to a Division Bench from the judgment of a Single Judge in a petition filed under Art. 227, the correctness of Sbankar llaroba Salm*e's case fell for close examination.

Dismissing the appeal, the Court, F lll!Lll : By the Court (per Chinnappa Reddy and Madon, JJ,)

No intra-court appeal lies under cl. IS of the Letters Patent of the Bombay High Court against the order of a Single Judge ·exercising jurisdiction under Art. 227 of the Constitution. (743 D-E; 834 D] G

Per Chinnappa II.eddy, J,

The reference to s.107 of the Government of India Act, 191S in cl.IS of the Letters Patent of the Bombay High Court H

p. 734 Copy page pinpoint

,A rust necessarily be read as a reference to Art. 227 of the Constitution. So read, an appeal under cl. 15 is clearly not maintainable against an order made in exercise of the power under Art. 227. [743 E-F]

Per Madon, J.

1Copy pinpoint1. Under Art. 225 the High Courts ·exercising jurisdiction in relation to provinces immediately before the conmencement of the Constitution became the High Courts for ' the corresponding States and exercised the same jurisdiction and administered the same law as theretofore, and the respective powers of the Judges of such High Courts, including c the power to make rules for the Court and regulate the sittings of the Court and of members thereof sitting singly or in Division Courts, remained the same. The Letters Patent of the Bombay High Court and the Rules made by that High Court thus continued to be in operation by virtue of the Constitu- tion itself. [760 C-E; 765 G-H] D 2.1 The High Courts under the Constitution did not become organically different institutions from the same High Courts in existence immediately prior tc the commencement of the Constitution. [754 E; 811 E] E 2.2 The Constitution did not posit a break from the past and make absolutely a new original and vital beginning, but was the result of a process of evolution. Almost three- f ourths of it is based upon the Government of India Act, 1935, subject to modifications which were made in the light of the experience and adopted to a republican form of Government. The F existing institutions, including the High Courts, as also the laws in force which were in existence at the conmencement of the Constitution, were preserved and continued by the Constitution. [800 F; 802 E,C; 805 D]

State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, G [1964] 6 s.c.R. 461 referred to.

2.3 The Indian High Courts Act, 1861 and the Government of India Acts, 1915-1919 and 1935 were all constitutional -\ ~ laws. It is erroneous to characterize them as ordinary laws. [807 C] H

p. 735 Copy page pinpoint

A Sri Sankari Prasad Singh lleo v. Union of India and State of Bibar, [1952] S.C.R. 89., Union of India etc. v. Tulsiram Patel etc., [1985] 3 s.c.c. 398, 425-6., British Coal Corporation and Ors. v. The King, [1935] A.C. 500, 518, J.C.; James v. Coaao1111ealth of Australia, [ 1936] A.C. 578, 614, J.C., In re the Central Provinces and Berar Sales of Motor B Spirit and Inbricants Taxation Act, 1938 (Central Provinces and Berar Act !lo. nv of 1938) 1939 F.C.R. 18, 36. In re the Hindu Wollen' s Rights to Property Act, 1937, and the Hindu lloEn's Rights to Property (A.,.OOgpnt) Act, 1938, [1941] F .C.R. 12, 26., Navincbandra Mafatlal v. Collllllssioner of lllCOlle Tax, Bombay City, [1955] l S.C.R. 829, 836, referred to. c 2.4 Article 215 did not bring any revolutionary change in their nature and character. All the superior courts which preceded the High Courts were Courts of Record and the power to punish for contempt was inherent in and possessed by every Court of Record. Section 106(1) of the Government of India Act D of 1915 provided that the serveral High Courts would be Courts of Record, and s.220 of the Government of India Act, 1935 made an identical provision. [811 D; 810 E; 811 A]

2Copy pinpoint2. 5 Articles 225, 226 and 22; did not confer upon the High Courts wholly new powers not possessed by the existing E High Courts immediately prior to the commencement of the Constitution. Article 225 is in pari materia with s.223 of the Government of India Act, 1935. The power to issue directions, orders and writs under Art. 226 is modelled upon the prerogative writ jurisdiction possessed by the three Chartered High Courts in the exercise of their original jurisdiction F ''Lj. immediately prior to the commencement of the Constitutivn, though under the Constitution that power has been made wider and oore extensive and conferred upon every High Court to enable them to reach injustice wherever found and mould the reliefs accordingly. Article 227 derives its origin from s.15 of the Indian High Courts Act, 1861, s.107 of the Government G of India Act, 1915-1919 and s.224 of the Government of India Act, 1935 which conferred upon each of the Chartered High Court the power of superintendence over all courts subject to its appellate jurisdiction. [813 D; 826 F; 830 B; 831 E; 815G; 813 F-H] Prabodh Vel"lla and Ors. v. State of Uttar Pradesh and H Ors., [1985] 1 s.C.R. 216, llyota of Garabandh<> axd Other

736 SUPREME COURT REPORTS [1986] l s.c.R. A Villages v, ZUl.odar of Parlalti-11 and Anr., [1942-43] 70 I.A. 129., Election eo..ts•ion, India v. Saka Venkata Sobba 1ao, [19531 s.c.R. 1144, 1150, Dnrtanath Hindu llndividecl P8111ly v. 1llcoE Ta Officer, SpWal Circle, laapur & Anr., [1965] 3 s.c.R. 536, 540-41 referred to.

B 3.1 It is the charter of the High Court, whether it be a statute or Letters Patent, which generMlly confers a right of intra-court appeal and it ie the rules made under tha rule- making power of the High Court which generally provide which matters are to- be heard by a Single Judge and which by a Division Bench, Where by the charter of a High Court matters c are not required to be heard by l!ny particul•r tiumber of Judges and ouch charter provides for an intra-court appeal from the decbion of a Single Judge, whether auch an appeal would lie or not would depend upon whether by the rules llllde by the High Court in the exercise of its rule-making power the matter is heard by a Single Judge or a Diviaion Bench, D subject to the condition that 1uch right of appeal la not otherwise excluded. [839 R; 840 A~]

3.2 Under cl.15 of the Letter• Patent of the Bombay High Court, frOll the judgment of a Single Judge an appeal lies to a Division Bench provided it i1 not barred by •ny atatute, and E provided the conditions laid down by cl.15 itself vi11 (i) that it 111111t be a judgment pur•uant to aection 108 of tha Govern11ent of India Act of 1915, and (ii) that it 1111st not be a judgment falling within one of the excluded categories aet out in clauae 15, are fulfilled. [824 A~]

F 3.3 By the Letters Patent dated March 11, 1919 the exprea.ion "pur•uant to s.108 of the Government of India Act" wu substituted for the 1xpra11ion "punuant to 1.13 of the said recited Act", that ii, the Indian High Courta Act, 1861, When the Government o! India Act of 1915-1919 .,.. repealed and replaced by the Government of lndi• Act, 1935, the rule llllking G power of the High Court and of the Chief Juatice to u1isn work either to Single Judg" or to Division Courto were continued unimpaired and unaffected under 1.223 of the latter Act. Letter• Patent establishing the High Court•, iaaued by the Crown, falls within the muning of the term "inet1'Ulllellt" '(" • u uaed in •• 8(2) of the Gen1ral Claua1a Act, 1897, H Th1refo~e, by th• combined operation of a.38 cf the

UMAJI KESHAO MESHRAM v, RADHIKABAI 737

A Interpretation Act, 1-889 and s.8 of the General Clauses Act, the expression "pursuant to •· 108 of the Government of India Act", is, on the coming into force of the Government of India Act, 1935, to be read as "pursuant to s. 223 of the Government of India Act, 1935", and since Art. 225 of the Constitution ii in !ari materia with a. 223' of the Government of India Act,· 11 193 , on the commencement of the Constitution the expreaaion "pursuant to s. 223 of the .Government of India Act" - deemed to have been substituted for the expression "pursuant to a.108 of the Government of India Act", is to be read as "pur1US11t to Art. 225 of the Constitution" by virtue of Art. 367(1), which mokes the General Clauses Act applicable for the interpretation of the Constitution. [824 D,G; 825 B; 826 E-ft; c 827 A)

latioaal 8-ing 'llu:ead Co. I.tel. ". J - a..dwic:t • :aio.. s.c.R. 1028 referred to, 1.1:4., [1953) 3, 4 When 1 Single Judge of a Chartered High Court D decides 1 petition under Art. 226 or ·227, his judilllQDt i1 ona given pureuant to Art. 225 and is appealable llllder cl.15 of the Letter• Patent unle11 it fall• within one of the excluded categoria1. [829 Pl

3Copy pinpoint3. 5 Under cl. 15 no intra-court appeal lay aga1mt en. E order paa1ed or made in the exercise of the power of 1uperintllldence Under the proviaions of s. 107 of the Government of India Act. By the e1111e proce11 of 'interpretation by reeaon of which the phrase •pursuant to a~ 108 of the Gove~t of India Act• in cl.15 i1 to be rw as ''pur1US11t to Art. 225 of the Constitution of India" the phrae "order p passed or lllde in the exercise of the power of euperinteadeace ulldar the proviaione of •· 107 of the Gover11111nt of India Act" i• to b1 read • "order paued or made in the 'nerci11 of power of superintendence under the provi1ioiw of Art, 227 of the Constitution". So read, an intra-court appul doaa not lie agaimt the judgment of a Single Judge of the lloaba1 High G Court given in 1 petition ulld•r Art. 227 by reuo11 of 1uch appeal being lllJlree1ly barred by cl.15 of th• Letters Patent. [834 1-D] f J,G, adJdwle "' G.L lobde, [1965) 67 ao., L,11., 6091 lluaa "• Bare lrUbna DI & On,, A, l,R, 1953 Cal, lln1rberw!q H 636; SbrlJd.- lddtAr 11114 On..... ldll!m• iiiiid. Red1Har ... On., A.I.a. 1955 Mad. 72; In re I v. ft~ llaUI&,

738 SUPREME COURT REPORTS [1986] I S.C.R.

A I,L,R, 1955 Mad. 1083, s.c. = A.I.R. 1955 Mad. 287; J &K Co- operative Bank v. Sbns-ud-din-llaclla, A.I.R, 1970 J & K 190; labwar Singh v. llaa Piari and Anr., A.I.R, 1978 H.P. 39 and South Asia Industries Pvt. Ltd. v. s.B. Sarup Singh & Ora., (1965] 2 s.c.R. 756 referred to.

B In the instant case the petition filed by the appellants before the Nagpur Bench of the Bombay High Court was ., admittedly under Art. 227 and under the rules of the High Court it was heard by a Single Judge. An intra-court appeal against the decision of the learned Single Judge in a·petition under Art. 227 having been expressly barred under cl. 15 of c the Letters Patent of that High Court, the appeal filed by the appellants from the decision of the Single Judge to the Division Bench was rightly dismissed as being not maintainable. (840 D]

State of Maharashtra v. Kwnm Olarudutt Bbama Upadbye, D (1981] 83 Bom. L.R. 75, s.c. 1981 Mah. L.J. 93 approved.

Sbanltar llaroba Salume & Ora. v. Gyanchand Lobhachand Xotbari & Ora., L,P, As Nos. 3,10,11 & 17 of 1979 and 34 of 1980 decided on September 3, 1980, over-ruled in part.

E 4.1 Where a petition filed under Art. 226 is according to the rules of a particular High Court heard by a Single Judge, an intra-court appeal will He from the judgment if such a right of appeal is provided in the Charter whether such charter be .Letters Patent or a statute. Clauae 15 of the Letters Patent of the Bombay High Court gives in such a case a F right of intra-court appeal and, therefore, the decision of a Single Judge given in a petition under Art. 226 would be appealable to a Division Bench of that High Court. (831 H; 832 A-B]

4,2 The words "be heard and finally disposed of by a G Single Judge" uaed in r.18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 do not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. Under r. 1 and 17 of the Rules applications under Arts. 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a H Single Judge to issue a rule nisi in an application under Art. 226 but precludes him from paas!ng any final order on such

UMA.JI KE SHAO MESHRAM v. RADHIKABAI 739

A application. The use of the words "finally disposed of" in r,18 clarifies the position that in such cases the power of the Single Judge is not confined merely to issue a rule ~ (837 B; 836 E-G]

4Copy pinpoint4. 3 Proceedings under Art. 226 of the Constitution B cannot be governed by rules made by the High Courts under the Code of Civil Procedure, 1908. Under ss. 122 and 125 of the Code, the High Courts are conferred the power to make rules regulating their own procedure and the procedure of the civil courts and they can by such rules annul, alter or add to all or any of the rules in the First dchedule to the Code. Under s. 141, the procedure provided in the Code in regard to suits is to be followed, as far as it can be made applicable, in all c proceedings in any court of civil jurisdiction but by virtue of the Explanation to that section inserted by the Code of Civil Procedure (Amendment) Act, 1976 the expression 'proceedings' occurring therein is not to include any proceeding under Art. 226. [839 B-E] •y D Shah Bahdsl Xhillji v. Jayaben D. Kania & Anr., [1982] 1 s.c.R. 187 distinguished.

4. 4 The right of appeal against the judgment of a Single Judge is given by the Letters Patent which has been continued in force by Art.225. If under the rules of the High Court, a E matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some .other enactment, An intra-court appeal against the judgment of a Single Judge in a petition under Art.226 is not barred while cl.15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition F under Art.227. [837 A-C] 4,5 Where the· facts justify a party in filing an application either under Art.226 or 227 of the Constitution, and the party chooses (o file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court G ought to treat the application as being made under Art.226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Art,227, this ought not to be held to deprive a party of the right of appeal under cl.15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Art,226. H (837 F-G]

740 SUPREME COURT REPORTS [19861 l s.c.a.

A Barf. Vialmu X-th v. Syed Almd Ialwque •Ora., [1955} 1 s.c.R. 1104; Alclal Singh • Ora. v. laran Singh • Ora. , A.I.R, 1957 All 414; Raj liaban Jain v. 'l\ilai n.n, A.I.R. 1959 Punj. 291; Jarhlal Dutt • Ora. v. People9' Co-;,perative Transport Soc:iety Ltd., Rw Del.bi •Ora., A.I,R, 1961 Punj. 24 ref erred to. B 5.1 Unle11 excluded from the purview of cl.15, an ,l intra-court appeal lies -under that clauae against a judgment 1- delivered in the uercise of any of the civil jurisdictions Cl>nf&rred by the Letter• Patent, whether by a clause preceding or auccaeding cl.IS. [819 El c 5,2 The word "judgment" in cl.15 of the Lettere Patent ia not qualified in any way as to the jurisdiction in which it is given ucept that it should not be a sentence or order puaed or made in any criminal trial. It embraces not only judgment• given in the exercise of jurisdictions 1pecifically mentioned in the Letters Patent but also in the exercile of D jurisdictions not 10 ,,.ntioned, except tho1e expressly excluded by cl.15 it1elf, [818 E; 819 F; 818 HJ 8aroda lloolldurM Doe- v. Tincowr• llmld9e, 1884 Hyda'a Reports 70; law Slumo ltoyee "• i.1chweput Doosur • Ora., 1867 (7) Sutherland'• Weakly Reporter 52; Molumdra Lall Mitter E v. Alllndo " - r 111.tter, I.L.R. 1897 (25) Cal. 236; Collector of llollblly v. Ieeac Puhu, 1947 (49) Bom. L.R, 709 F.B.; )leboeedel!i Allahax v. Iallllilji Abdp!eli, 1926 (28) Bom. L,R, 471; llagbnntth leehav Xlwdilkar v. Poona ltunf.cipalitJ 111111 Anr., 1944 (46) Bom. L,R, 675; Rational Sariag Thrad Co. Ltd. v. Juee a.tvic:k •Bro.. Ltd., [1953} s.c.R. 1028 and llollth p Allia lndw!triee PY!:. Ltd. v. S.B. Suup Sinr;h •Ora., [1965] 2 s.c.a. 756 referred to. 6,1 Under Art. 225 the juri1diction of the 1xi1ting High Court• haa been pr111rved and continued subject to the provbio11.1 of the Co11.1titution and of any law made by the G appropriate Legislature. It comprehend• within it• 1cope not only the jurisdiction which the existing High Courts posaeeaed i11111edi1tely prior to the commenc.,,.nt of the Co!llltitution but aleo the juriadiction and powere which the other Articlea of the Conatitution, 1uch aa Arts. 226, 227 and 228 confer upon the High Court•• [821 F-G; 822 Fl H

UMAJI KESHAO· MESHRAM v, RADHlKABAl 741

A Rational Selfing 'J:hrelld Co. Ltd. v. ~ a..dlrldt ' Broe. Ltd., (1953] s.c.a. 1028; aiau-, Budge Badge llmd.c:i- pality v. Mo11:gEa Illa & On., A.1.R, 1953 Cal. 433 and SIMO Prau4 v, State of O.P., A. !.R. 1965 All. 106 referred to.

6,2 The fact that Art. 225 IUk.u the juri1dictio11 of the 11 mating High Courts "subject to the law of the appropriate Legi1lature"· does llOt mea11 that the jurildictio11 under Art. 226 or 227 C:alluot come withi11 the scope of Art. 225. A law made by an appropriate Legielatur1 cm amend a110ther law enacted by it but it e&llllOt amend or affect the proviaiou of the Constitution, and ea Arts. 226, 227 and 228 are 110t made subject to any law made by Parll11111e11t or the State Legie- c lature, the powers conferred by these three Articles e&llllOt be limited, abridged or take11 t.way by &II'/ Legi1lature. They C&ll ollly ba affected by amending the Constitution. (823 C-D]

6Copy pinpoint6. 3 A provisio11 for a right of appeal l.1 llOt one which in •II'/ manner limits, abridges, take• away or adversely affect• the 'power of the High Court• under Art. 226 or 227. [823 F]

6,4 The power to 1llllke rules for the exerciee of jurisdiction under Art1. 226 and 227 by the exl.eting High Courts i• co11tailled in Art. 225 ollly. Thie ru~e lll&king power extend• to all jur11dictione and power• po111aaed by the existing High Courts, whether at the date of their Letters Patent or of the Governm8iit of India Act of 1915-1919 or of the Governme11t of India Act, 1935, or conferred upon them by the Conatitution itself or aubaequant to the comeneement of the Conatitution by any amend111nt of the Coutitutio11 or any law made by the appropriate legielature. [829 A; 828 F-G]

7, Whe11 a11 appeal 11 filed against thl judf!llllnt of thl Single Judge given i11 a p1titio11 under Art, 226 or 227, it doe1 110t 111111111nt to filing a 1&cond appul in tu • - matter, for a11 appaal I.I llOt a fre1h procaadi118 but 111raly a co11tinua- G tion of the original procaedillP• The expra11ion ''High Court" Uled in 1tatute1 providing for appeal• to the High Court only muns thl High Court acting through 0111 Judga or a Divi1io11 Court couilting of two or more Judges u may ba provided by thl rules of Court ullla11 •Ill' enactment apecifically providea for a particular number of Judges to hlar •II'/ particular H matter. [829 C-Dl

742 SUPREME COURT REPORTS [1986] 1 s.c.R.

A Garlkapatti Veeraya v. N. Subbiah a.audbury, [1957] s.c,R. 488; and Ab.dabad Mfg. & Calico Ptg. Co. Ltd. v. Baa Tahel Rawna..t &Ors., [1973] 1 s.c.R. 185 referred to.

8.1 Though at times it may appear that a Writ of certiorari or a Writ of prohibition partakes the nature of superintendence inastDJch as the end result is the same, the B nature of the power to issue these writs is different from the ) supervisory or superintending power under Art. 227. [830 E-F]

8.3 A proceeding under Art. 226 is an original G proceeding while a proceeding under Art. 227 is not an original proceeding. [831 F]

State of Uttar Pradesh v. Dr. Vijay Anand Haharaj, -\.,, [1963] 1 s.c.R. l; eo..tssioner of lncom!-tax, Bombay & Anr. v. Iabwarlal llbagwandas & Ors., [1966] l s.c.R. 190; Rmaesh & H

UMAJI KESHAO MESl!RAM v. RADHIKABAI [CHINNAPPA REDDY, J. ] 743

A Anr. v. Seth Gmid•Jal llotilal Patni & Ora. [1966] 3 s.c.R. 198; Arbind Xumr Singh v. !land lishore Prasad & Ora. [1968] 3 s.c.R. 322; AhEdahad Mfg. & Calico Ptg. eo. Ltd. v. 11aa Tahel 1..,anc1 & Ora. [1973] 1 s.c.R. 185 and Varyaa Singh & Anr. v. Aioarnath &Anr. [1954] s.c.R. 565 referred to. B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3683 of 1984.

From the Judgment and Order dated 16th September, 1980 of the Bombay High Court in Letters Patent Appeal No. 46 of 1980.

T.U. Mehta and c;K. RatnaparkhJ. for the Appellants. c Naunit Lal, Kailash Vasdev and Mrs. Vinod Arya for the Respondents.

The following Judgments were delivered D .CHINNAPPA REDDY, J. Unfamiliar as I am with the history, tradition and the lore of the city and the High Court of Bombay, I content myself by agreeing with the conclusion of my learned brother that no appeal under clause 15 of the Letters Patent lies to the High Court against the order of a single judge of the High Court exercising jurisdiction under Art. 227 of the Constitution, no less and no more. ·I do not E ·have any doubt that the reference to s.107 of the Government of India Act, 1915 in Clause 15 of the Letters Patent IDJSt necessarily be read as a reference to Art. 227 of the Constitution. So read an appeal under clause 15 is clearly not maintainable against an order made in exercise of the power under Art. 227. This is the view taken by all the High Courts in India except the High Court of Bombay, where alone opinion has not been unanimous.

MADON, J. The question which falls for determination in this Appeal is ''Whether an appeal lies under clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a Single Judge of that High Court in a petition filed under Article 226 or 227 of the Constitution of India?"

744 SUPREME COURT REPORTS (19861 1 s.c.R.

A The facts which have given rise to this Appeal by Special Leave granted by this Court need to be briefly stated. The First Respondent, Radhikabai, is a widow. She is the owner • of three fields situate at Mouza Khed-Makta, Tahsil Brahma- puri, District Chandrapur. Kesheo, the father of the Appel- lants, was the tenant of the said fields. The First Respondent B filed an application under section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act No. XCIX of 1958), read with section 39 of that Act for possession of the said fields on the ground that she wanted them for personally cultivating them. The said application was allowed and she took possession of the said fields. On the c ground that instead of personally cultivating the said fields the First Respondent had leased them to the Second Respondent, the Appellants filed an application under section 52 of the Tenancy Act claiming that they had become entitled to have the possession of the said fields restored to them. It was the case of the First Respondent that the Second Respondent was D working in the said fields as her servant on a monthly salary. The Appellants' said application was allowed by the Additional Tahsildar, Brahmapuri. The First Respondent's appeal against the said order was allowed by the Sub-Divisional Officer, Brahmapuri. The Appellants thereupon went in revision to the Maharashtra Revenue Tribunal at Nagpur and the Tribunal E allowed the said revision application. Thereupon the First Respondent filed a petition under Article 227 of the Constitution of India before the Nagpur Bench of the High Court of Bombay being Special Civil Application No. 1392 of

1974. By reason of the provision of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, the said F petition was heard by a learned Single Judge of the said High Court who allowed the petition, set aside the order of the Tribunal and restored the order of the Sub-Divisional Officer. Against this judgment and order the Appellants filed an appeal under clause 15 of the Letters Patent to a Division Bench of the Bombay High Court, Nagpur Bench. The Division Bench G dismissed the said appeal as not being competent in view of the decision of a Full Bench of the Bombay High Court, Nagpur Bench, in Shankar Naroba Salunke and Others v. Gyanchand l.<>hhach!lnd Kothari and Others Letters Patent Appeals Nos 3, 10, 11 and 17 of 1979 and 34 of 1980 decided on September 3,

1980. It is against the said order of the Division Bench that H the present Appeal by Special Leave has been filed by the Appellants.

UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J,] 745

A As the Appellants' Letters Patent Appeal was dismissed as being not maintainable by reason of the judgment given by the Full Bench of the said High Court, what really falls to be considered in the present Appeal is the correctness of that judgment. B The High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862, issued by the British Crown in pursuance of authority conferred upon it by the Indian High Courts Act, 1861 (24 &25 Viet., c.104). Clause 14 of the said Letters Patent provided as follows:

"14. Appeal from the <:ourts of original c jurlscliction to tbe High <:ourt in its Sppellate jurisdiction. -

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment, in all cases of original civil D jurisdiction, of one or more Judges of the said High Court or of any Di vision Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High E Court, but that the right of appeal in such case shall be to Us, Our heirs or successors, in Our 0r Their Privy Council in manner hereinafter pro- vided.11

The Letters Patent issued in 1862 were revoked and replaced by Letters Patent dated December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the folloWing terms 1 '15. Appeal from the <:ourts of original jurlscliction to tbe High <:ourt in its appellate jurisdiction. -

And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge H

746 SUPREME COURT REPORTS [1986] l S.C.R.

A of the said High Court, or of one Judge of any Division Court, pursuant to section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the judgment not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division B Court, wherever such Judges are equally divided in opinion, and do not a100unt in number to a majority of the whole of the Judges of the said High Court, at the time being; but that the right of appeal from other judgments of Judges of the said High Court, or of such Division Court, shall be to Us, c Our heirs or successors, in Our or Their Privy Council, as hereinafter provided."

By Letters Patent dated March 11, 1919, published in the Bombay Government Gazette dated June 19, 1919, Part I, pages 1446-7, the words and brackets in clause 15, namely, "(not D being a sentence or order passed or made in any criminal trial)", were substituted by the words and brackets "(not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section one hundred and seven of the Government of India E Act, 1915, or in the exercise of criminal jurisdiction)", By Letters Patent dated December 9, 1927, published in the Bombay Government Gazette dated February 2, 1928, Part I, pages 196-7, clause 15 was substituted. This subgtituted clause was amended by Letters Patent dated January 22, 1929, published in the Bombay Government Gazette dated January 24, 1929, Part I, F at pages 131-2. The substituted clause 15 as amended in 1929 reads as follows :

"15. Appeal to the High Court from Judges of the Court.

G And We do further ordain that an appeal shall lie - to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superin- H tendence of the said High Court, and not being an

UMAJI KESHAO MESHRAM v. RADHIKABAI [MAOON, J. J 747

A order made in the exercise of revisional jurisdic- tion and not beirig a sentence or order passed or made in the exercise of the power of superin- tendence under the provisions of section 107 of the Government of India Act or in the exereise of criminal jurisdiction) of one Judge of the ·said B High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on c or after the first day of· February One thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order ·made in the exercise of appellate jurisdic- tion by a Court subject to the superintendence of the said High Court, where the Judge who passed the o judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as here- inafter provided." E

In clause 15 as substituted in 1927 the words "on or after the first day of February One thousand nine · hundred and twenty- nine" did not find a place but were inaerted by the said Letters Patent of 1929. F ' It may be pointed out that the provision in clause 15 providing for an appeal from a judgment , in a second appeal decided by a Judge of the High Court if such Judge declares that the case is a fit one for appeal has now become inoperative in view of section lOOA of the Code of Civil Procedure, 1908, which was insf!rted in that Code by the Code G of Civil Procedure (Amendment) Act, 1976, · under which no further appeal is to lie against the judgment of a single Judge of the High Court in a second appeal. The provision in clause 15 providing for an appeal from· the judgment of one Judge of any Division Court has also become redundant and inoperative after the amendment of clause 36 of the Letters H '

748 SUPREME COURT REPORTS [1986] 1 S.C.R.

A Patent by the said Letters Patent dated December 9, 1927. Prior to such amendment where a Division Bench was composed of two or more Judges and ~he Judges were equally divided in opinion as to the decisiqn to be given on any point, the opinion of the senior Judge was to prevail and under clause 15 an appeal lay from his judgment. After the amendment of clause 36, if the Judges of the Division Bench are equally divided, B they are to state the point upon which they differ and the .J '- case has then to be heard upon that point by one or more of the·other·Judges and the point is to be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

c When · analysed snd broken up into its competent parts . clause 15 in its finally amended and operative form reads as follows :

An appeal shall lie ·to the High Court of Judicature at Bombay - I"'...., D (1) from a judgment

(2) of one Judge of the High Court

(3) pursuant to section 108 of the Government of E India Act of 1915

(4) not being -

(a) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made ['" F in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court,

(b) an order made in the exercise of revisional jurisdiction, G (c) a sentence or order passed or 'made in the exercise of the power of superintendence under the provisions of section 107 of the Government of ("" India Act of 1915, or , H

UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J. ] 749

• 'i- A (d) a Sentence or order passed or made in the exercise of criminal jurisdiction.

The Letters Patent of the Calcutta, Bombay and Madras High Courts are tmltatis tmltandis in the same terms with minor variations, mostly as a result of amendments subsequently B made. The word "judgment" is not defined in the Letters Patent and has been the subject-matter of conflicting decisions by these three High Courts. The question fell for consideration of this Court in Shah Babula! Khimji v. Jayaben D. Kania and Another [1982] l S.C.R. 187. In that case, a Single Judge sitting on the Original Side of the Bombay High Court dismiss- ed an application made by the appellant for appointment of an c interim receiver and the grant of an interim injunction. An appeal against that order was dismissed by a Division Bench of the High Court on the ground that it was not maintainable under clause 15 of the Letters Patent. After considering various authorities a three-Judge Bench of this Court reversed -" the judgment and order of the Division Bench and held that an appeal under clause 15 of the Letters Patent lay against the said order because section 104 of the Code of Civil Procedure, D

1908, applied to the Original Side of the Bombay High Court and such an order would be appealable under that section read with Rule 1 of Order XLlll of the Code and also because such an order even on merits contained the quality of finality and E would, therefore, be a "judgment" within the meaning of clause 15 of the Letters Patent. The question whether the judgment of a Single Judge in a petition filed under Article 226 or 227 of the Constitution of India was not before the Court in Shah Babula! Khintli's case and was not decided by it. ' F There was no dispute before us that the decision of the learned Single Judge allowing the First Respondent's petition under Article 227 of the Constitution was a "judgment" within the meaning of clause 15 of the Letters Patent. What was disputed was whether an appeal lay against that judgment under clause 15 of the Letters Patent. G

In Jagaunath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde [1965] 67 Bom. L.R. 609, s.c. (1965) Mah. L.J. 426 a Division Bench of the Bombay High Court, Nagpur Bench, held that no appeal lies against the judgment of a Single Judge in a petition under Article 227 of the Constitution because after H

750 SUPREME COURT REPORTS [1986] 1 s.c.R.

A • -'( . the coming into force of the Constitution the words "section 107 of the Government of India Act" (that is, of the Government of India Act of 1915) in clause 15 should be read as "Article 227 of the Constitution" inas111.1ch as Article 227 confers a power of superintendence as wide as was available to the High Court under section 107 of the Government of India B Act of 1915. Later, a group of Letters Patent appeals from the ~ judgments of different Single Judges in writ petitions filed ,_ either under Article 226 or 227 of the Constitution came before a Full Bench of three Judges which, as mentioned earlier, held that no appeal lay under clause 15 of the Letters Patent against the judgment of a Single Judge of that c High Court in a petition filed under Article 226 or Article 227 of the Constitution. The reasons given by the Full Bench for reaching this conclusion (quoting as far as possible its own words) were as follows :

(1) The Constitution of India brought about a D fundamental change in the character of the High Courts which were in existence on the date the Constitution came into force. According to the Full Bench, the Constitution "purports to lay down an original institutional matrix of its own". It observed that "it is not out of the historical E ramparts that something is being put up, but a fundamental scheme, though mostly drawn on the historical feed back, is conceived and constructed Source of founding the High Court is thus changed and is now referable to the terms of the paramount law of the Co11stitution." F (2) the Constitution made a break with the past and had made absolutely' a new original and vital begin- ning and it, therefore, followed as a matter of law that as far as origin, source of power and the conferment of constitutional authority were con- G cerned, the Letters Patent or earlier legislation had mere historical relevance and could not control matters expressly provided in the Constitution.

(3) The High Courts were created as a result of the t'-~ Letters Patent issued under. the Indian High Courts H Act, 1861 (24 & 25 Viet. c. 104), and, therafore,

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 751

A the establishment, creation and jurisdiction of the High Courts had their. origin in the ordinary law made by the "Imperial Parliament".

(4)_ The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government B of India Act, 1935, make it obvious that the words "original" and "appellate" were used with reference to legal jurisdictions of the High Courts created by ordinary legislations as distinct from organic or Constitutional jurisdiction not subject to such laws. The Constitutional jurisdiction conferred by Article 226 or 227 cannot be equated with nor can c form part of any of the jurisdictions within the contemplation of the Letters Patent.

(5) The historical origin of clause 15 lies in the Imperial device to provide an intra-court appeal in causes heard in the exercise of its original civil jurisdiction by the High Court acting by its Single Judge's Court, all other appeals being differently provided for.

(6) The fact that the Letters Patent can be amend.id by ordinary legislation shows that the jurisdiction of the High Court under Articles 226 and 227 could not fall within the purview of the Letters Patent.

(7) Articles 226 and 227 of the Constitution contain inbuilt rule-making power and, therefore, after the coming into force of the Constitution, F the authority to make rules is not required to be traced to section 108 of the Government of India Act, 1915, but resides in Articles 226 and 227 of the Constitution supplemented with regard to identical matters by Article 225. G (8) Both Articles 226 and 227 of the Constitution, in substance, provide for the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these Articles would fall within the expression "rev~sional jurisdiction" or H

752 SUPREME COURT REPORTS [19861 1 s.c.R.

A "power of superintendence11 and hence even under clause 15 of the. Letters Patent an appeal would be. barred.

(9) When by virtue of the rules made by the High Court a Single Judge exercises the power conferred B upon the High Court under Article 226 or Article -{ 227, it follows thst the power is exercised by him ;.., for the entire High Court and, therefore, the filing of an appeal against his judgment would amount to filing a second writ petition in the same matter which is not permissible. c (10) The expression "shall be heard and finally disposed of" in Rule 18 of Chspter XVII of the Bombay High Court Appellate Side Rules, 1960, negatives the filing of any appeal in a proceeding under Article 226 or 227 of the Constitution. D The question thereafter came to be considered by a Special Bench of five Judges of the Bombay High Court in State of Maharashtra v. Kuaum Oiarudutt Bharma Upadhye [ 1981] 83 l!Qm, L.R. 75, s.c. = (1981) Mah. L.J. 93. The Special Bench traced in great detail the origin, growth and development of the different powers and jurisdiction of the Bombay High Court and referred to various· authorities on the point canvassed before it. It held thst under Article 225 of the Constitution of India, the High Courts of various Provinces which were in existence immediately before the commencement of the Consti- tution continued on and from that date as the High Courts of corresponding States possessing all the jurisdictions and powers which they hsd prior to that date. It further held thst Articles 226 and 227 of the Constitution did not confer upon the existing High Courts wholly new powers not reflected in any of the powers or jurisdictions possessed by any of them at the commencement of the Constitution. According to the Special G Bench, the power under Article 226 was toodelled upon the. prerogative, writ jurisdiction possessed by the three Chartered High Courts, namely, the High Courts of Calcutta, Bombay and Madras, in the exercise of their original jurisdiction, though that power had been made 1111ch wider by Article 226, . and that Article 227 derives its origin from section 15 of the Indian "" \, ~.

UMAJI KESHAO MESllRAM v. RADHIXABAI [MADON, J. ] 753

High Courts Act, 1861, section 107 of. the Government of India A Act of 1915 and section 224 of the Government of India Act, 1935, and that this power also existed in the former Supreme Court of Judicature at Bombay with respect' to the Court of Requests and the Court of Quarter Sessions. The Special Bench also held that by reason of the provisions of section 38(1) of the Interpretation Act (52 & 53 Viet., c. 63) and section 8 of B } the General Clauses Act,-1897, and on well-established princi- ""'· ples of interpretation of statutes the words "the power of superintendence under the provisions of section 107 of the Government of India Act" occurring in clause 15 of the Letters Patent were to be read as "the power of superintendence under the provisions of section 224 of the Government of India Act, 1935" when the 1935 Act came into force and by the same c process of interpretation when the Constitution of India came into force the words "the power of superintendence under the provisions of Article 227 of the Constitution" are to be read for the words "the power of superintendence under the provi- sions of section 224 of the Government of India Act, 1935". According to the Special Bench an appeal against the judgment of a Single Judge in a proceeding under Article 227 of the Constitution was, therefore, expressly barred by clause 15 of the Letters Patent. The Special Bench also held that Articles 226 and 227 of the Constitution operated in different fields and that in the exercise of its power under Article 226 the High Court exercises original jurisdiction as contrasted with its appellate or revisional jurisdictions and that where the original proceeding under Article 226 concerned civil rights, the proceeding under Article 226 would be an original civil proceeding and, therefore, an appeal would lie under clause 15 of the Letters Patent against the judgment of a Single Judge in such a proceeding. The Special Bench further held that the words "heard and finally disposed of" in Rule . 18 of the Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, did not imply any exclusion of a Letters Patent appeal against the judgment of a Single Judge in a proceeding under Article 226 of the Constitution. According to the Special Bench, where the facts justified a party in filing an applica- G tion under either Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles., the court ought to treat the application as being one made under Article 226. The Special Bench overruled the decision in Sha*u llaroba Salm*e and otbem v. Gyancband Lohhvbpnd Iothari and others except for the conclusion H

754 SUPREME COURT REPORTS (1986] 1 s.c.R.

A reached in that case that no appeal lies under clause 15 of the Letters Patent against the judgment of a Single Judge of the High Court in a proceeding under Article 227 of the Constitution.

Though the Petition for Special Leave to Appeal in this matter was filed in the end of April 1983 nearly two and a B half years after the judgment of the Special Bench was delivered and nearly two years after it was reported, strangely. enough what was challenged in the Petition for Special Leave was only the correctness of the judgment of the Full Bench and not that of the Special Bench. None the less, in view of the iqiortance of the question raised by this c Appeal, the correctness of the Full Bench decision requires to be examined by this Court.

The judgment of the Full Bench is based upon one major premise and two minor premises - the major premise being that on the commencement of the Constitution the High Courts then D in existence became organically different High Courts as they acquired a different origin, nature and character; the minor premises being (i) that the provision for an intra-court appeal in the Letters Patent dealt with different jurisdic- tions under the ordinary law only and not with any jurisdic- tion conferred upon the High Court by the Constitution, and E (ii) that Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules , 1960, negatived any right of appeal. Each of these premises is, however, vitiated by a fallacy.

As the High Court of Bombay was in existence immediately prior to the commencement of the Constitution, we will first F turn to the relevant provisions of the Constitution as ori- ginally enacted, pointing out where necessary the subsequent changes made therein. Clause (14) of Article 366 of the Constitution defines the term ''High Court" as follows : G "(14) 'High Court' means any Court which is deemed for the. purposes of this Coilstitution to be a High Court for any State and. includes - /:" ....

(a) any Court in the territory of India constituted H or reconstituted under this Constitution as a High Court, and

UMAJI KESHAO MESllRAM v. RADHIKABAI [MAOON, J,] 755

A (b) any other Gourt in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution".

Chapter V of Part VI of the Constitution deals with High 11 Courts and is headed "The High Courts in the· States''. Article 214 as originally enacted provides as follows

"214. High Courts for States. -

(1) There shall be a High Court for each State.

(Z) For the purposes of this Constitution the High c Court exercising jurisdiction in relation to any Province immediately before . the commencement of this Constitution shall be deemed to be the High Court for the corresponding State. D (3) The provisions of this Chapter shall apply to every High Court referreci to in this article."

Clauses (2) and (3) of this Article were omitted with effect from'November 1, 1956, by the Constitution (Seventh Amendment) Act, 1956, in order to .implement the scheme of reorganization E of States.

Clauaes (1) and (2) of Article 1 of the Constitution as originally enscted provided as follows

"(l) India, that is Bharat, shall be a Union of p States.

(2) The States and the.territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule." G Clauae (2') was substituted by the Constitution (Seventh Amendment) Act, 1956, to read "The States and the territories thereof shall be as specified in the First Schedule." Under the First Schedule to the Constitution, the territory coq>rised in the Province of Bombay became the territory of the State of Bombay, and by reason of Article 214(2) read with H

756 SUPREME COURT REPORTS (1986] 1 S.C.R.

A clause (14) of Article 366 of the Constitution the High Court for the Province of Bombay became the High Court for the State of Bombay. Article 215 provides as follows :

"215. High Courts to be courts of record. -

B Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."

Article 225 reads as follows :

c "225. Jurisdiction of existing High ~s. -

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the juris- D diction of, and the law administered in, any exist- ing High Court, and the res pee ti ve powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in E Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue F or concerning any act. · ordered or done .in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction."

The proviso to Article 225 was omitted by the Constitution G (Forty-,.econd Amendment) Act, 1976, with effect from February 1, 1977, and was reinserted with effect from June 20, 1979, by the Constitution (Forty-fourth Amendment) Act, 1978.

Clause (1) of Article 226 as originalli enacted provided as i- .... I, ·, follows : H

UMAJI KESllAO MESllRAM v~ RADHIKABAI [MAOON, J,] 757

A "226. Power of High Courts to issue certain writs.

(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdicition, to issue to any person or authority, B including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas ~· mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part Ill and for any other purpose." c This clause, was substituted by the Constitution (Forty-second Amendment) Act, 1976. Clause (1) as so substituted was amended by the Constitution (Forty-third Amendment) Act, 1977, and the Constitution (Forty-fourth Amendment) Act, 1978, with the result that clause (1) of Article 226 has now been D restored to its original form.

Article 227 as originally enacted provided as follows :

"22 7. Poooer of superinl:endence over all courts by the High Court. - E

( 1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. F (2) Without prejudice to the generality of the • foregoing provision, the High Court may c-

(a) call fer returns from such courts;

(b) make and issue general rules and prescribe G form for regulating the practic_e and proceedings of such courts; and

(c) prescribe form in which books, entries and accounts shall be kept by. the officers of any such courts. H

758 SUPREME COURT REPORl'S [19861 1 s.c.R. A (3) The High Courts may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

B Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

( 4) Nothing. in this article shall be deemed to c confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

Clause (!) of Article 227 was substituted with effect from D February I, 1977, by the Constitution (Forty-second Amendment) Act, 1976, to read, "Every High Court shall have superin- tendence over all courts subject to its appellate jurisdic- tion". The clause was further substituted so as to restore it to its original form by the Constitution (Forty-fourth Amend- ment) Act, i978, with effect from June 20, 1979. E It is also relevant to set out the provisions of Article

228. That Article is as follows:

"228. Transfer of certain cases to High Court.

If the High Court is satisfied that a case pending F in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is neces- ·sary for the disposal of the case,it shall withdraw the case and may - G (a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on H receipt thereof proceed to dispose of the case in conformity with such judgment."

UMAJI KE~HAO MESHRAM v, RADHIKABAI [MADON, J, ) 759 •Y A The above Article was amended by the Constitution (Forty-- second Amendment) Act, 1976; It was again amended by the Constitution (Forty-third Amendment) Act, 1977, to resto~e it to its original form. ·

Article 230 as originally enacted provided as follows: B

'230. Extension of or esclusion f.- the jurisdiction of High Courts. -

Parliament may by law -

(a) extend the jurisdiction of a High Court to, or C

(b) exclude the jurisdiction of a High Court from,

any State specified in the First Schedule other than, or any area not within, the State in which the High Court has its principal seat." D

This Article was substitute\! by the Constitution (Seventh Amendment) Act, 1956, when the distinction between Parts A, B and C States was done away with, and the Article now confers power upon Parliament to extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, E any Union Territory.

Article 372(1) provides as follows :

"372, Continuance in force of erlstl.ng 1 - and their adaptation. - · F

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitu- tion, all the law in force in the territory of India immediately before the commencement of this G Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."

The expression "existing law" is defined by clause (10) of Article 366 to .mean "any' law, Ordinance, order, bye-law, rule H or regulation passed or made before the commencement of this

760 SUPREME COURT REPORTS [19B6l l s.c.R. A Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, by-law, rule or ,. regulatioil".

Under Article 367(1), unless the context otherwise requires, the General Clauses Act, 1897, subject to any B adaptations and modlf ications that may be made therein by any Presidential order made under Article 372 to bring it in conformity with the provisions of the Constitution, is to apply for the interpretation of the Constitution.

The result of the above Constitutional provisions may be C su111111ed up thus

(1) Under Article 225, the High Courts exercising jurisdiction in relation to the Provinces imne- diately before the commencement of the Constitution (hereinafter referred to as "the exi~ting High D Courts") became the High Courts for the correspond- .).-'<" ing States and exercised the same jurisdiction and administered the same law as theretofore; and the respective powers of the Judges of such High Courts in relation to the administration of justice in such Courts, including the power to make rules for the Court and regulate the sittings of the Court and of members thereof sitting singly or in Division Courts, remained the same as immediately before the connnencement of the Constitution.

(2) The proviso to Article 225 removed the bar to the exercise of original jurisdiction by the ', ~ existing High Courts in matters concerning the r · revenue contained in section 226(1) of the Goverrunent of India Act, 1935.

(3) Articles 226, 227 and 228 provided for the exercise of certain specific powers by every High Court, whether an existing High Court or a High Court which may come to be established after the coII1Dencement of the Constitution as some High Courts in fact were, for example, the High Courts 'r'"'"" of Andhra Pradesh, Gujarat and Delhi. These speci- H fic powers are the power to issue directions,

UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J, ) 761

•Y A. orders and writs under Article 226, the power of superintendence over subordinate courts and tribunals under Article 227, and the power under Article 228 to withdraw to itself from a subordi- nate court a case involving a substantial question of law as to the interpretation of the B Constitution.

By section 8 of the States Reorganisation ACt, 1956 (Act 37 of 1956), a new State of Bombay was formed with effect from "the appointed day", namely, November I, 1956, comprising inter alia certain territories which then formed part of the State of Madhya Pradesh aitd were by that section transferred c from that State to the new State of Bombay. These territories comprised what l.s known as the "Vidarbha Region" consisting of the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara and Chanda (later named Chandrapur). It is from this region that the appeals before the Full Bench as also the present Appeal arise. D

Section 49(1) of that Act provides as follows

"49, High Courts for the new States -

( 1) 'll)e High Courts exercising immediately before E the appointed day jurisdiction in relation to the existing States , of Bombay, Madhya Pradesh and Punjab shall, as from the appointed day, be deemed to be the High Courts for the new States of Bombay, Madhya Pradesh and Punjab, respectively. F Under Section 51(1), the principal seat of the High Court for a new State was to be at such place as the President may, by notified order, appoint. Under section 51(2), the President could, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order, provide for the establishment of a permanent G Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith. Sub-section (3) of section 51 provided that notwithstanding anything contained in sub-section (I) or sub-section (2), the Judges and Division Courts of the High Court for a new State may also sit at such H

762 SUPREME COURT REPORTS [19861 1 s.c.R.

A other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.

By a Presidential Order, namely, S.R.0, No. 2514 dated October 27, 1956, published in the Gazette of India Extra- ordinary, 1956, Part II, Section 3, at page 2195, the princi- B pal seat of the Bombay High Court was notified to be at Bombay. A teq>orary Bench of the Bombay High Court waa· established at Nagpur.

Sections 52, 54 and 57 of that Act provide as follows :

c "52. Jurisdiction of Bigb. Courts for - States -

The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction aa under the law in. force imme- D diately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Colllllissioner' s Court for an existing State.

"54. Practice and procedure - E Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with necessary modifications, apply in relation to the High Court p for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules and orders with respect to practice and procedure as are, immediately before the appointed day, exercisable by the High Court for the corresponding State: G Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, until varied or revoked by rules or orders made by the H High Court for a new State, apply with the

UMAJI KE SHAO MESHRAM v. RADHIKABAI [MADON, J. ] 763

•Y A necessary modifications in relation to practice and procedure in the High Court for the new State as if made by that Court."

"5 7. Powers of Judges - B The law in force inmediately before the appointed day relating to the· powers of the Chief Justice, Single Judges and Division Courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court for a new State." c The State of Bombay underwent another reorganisation with effect from May 1, 1960, by the enactment of the Bombay Reorganisation Act, 1960, (Act 11 of 1960). By section 3 of that Act, as from the appointed day, namely, May 1, 1960, D certain territories comprised in the State of Bombay were formed into a new State to be known as "the State of Gujarat" and "the - residuary State of Boml>ay" was to be known as "the State of Maharashtra". By section 28 of the Bombay Reorgani- sation Act, a separate High Court was formed for the State of Gujarat from the appointed day. Section 28(1) of that Act further provided that "the High Court of Bombay shall become E the High Court for the State of Maharashtra (hereinafter referred to as 'the High Court of Bombay')." Section 41 of the Bombay Reorganisation Act provided as follows:

"41. Permanent Bench of Bombay High Court at Nagpur. - F

Without prejudice to the provisions of Section 51 of the States Reorganisation Act, 1956, such Judges of the High Court at Bombay, being not less than three in number, as the Chief Justice may from time G to time nominate, shall sit at Nagpur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda and Rajura: H

764 SUPREME COURT REPORTS [1986] 1 S.C.R.

y .. A Provided that the Chief Justice may, in his discretion, order that any case arising in any such districts shall be heard at Bombay."

It was the Permanent Bench of the Bombay High Court at Nagpur which decided the said Full Bench · case of Sbankar Naroba B Sal•mke and others' v. GyMchand Lobbachand Kothari and others as also passed the order appealed against in the' case before us. The Special Bench case of the State of Maharashtra v. lusua llw:udutt llharma Upadhye was decided by the Bombay High Court sitting at its principal seat at Bombay.

c Before proceeding further we may as well complete the post-constitution history of the Bombay High Court. At the request of the Varishta Panchayat and the people of Free Dadra and Nagar Haveli, the areas of Dadra and Nagar Haveli were integrated with the Union of India as a Union Territory by the Constitution (Tenth Amendment) Act, 1961, with effect from D August 11, 1961. The Dadra and Nagar Haveli Act, 1961 (Act No. XXXV of 1961), was enacted to make provision for the re- presentation in Parliament and for the administration of that Union Territory and for matters connected therewith. Section 11 of that Act provided that "As from such date as the Central Government may, by notification in the Official Gazette, E specify, the jurisdiction of the High Coutt at Bombay shall extend to Dadra and Nagar llaveli." The date specified was July 1, 1965, by notification published in the Gazette of India Extra-ordinary dated June 17, 1965, Part II, Section 3(ii), at page 579. In exercise of the power conferred by Article 230 Parliament enacted the High Court at Bombay (Extension of F Jurisdiction to Goa, Daman and Diu) Act, 1981 (Act No.26 of 1981). Under that Act as from the appointed day, the jurisdiction of the High Court at Bombay was extended to the Union Territory of Goa, Daman and Diu and the Judicial Conmis- sioner's Court which was till then functioning there was abolished. By Government of India Notification in the Ministry G of Law, Justice and Company Affairs No. 64/1/81 Jus. dated October 8, 1982, the Central Government appointed October 30, 1982, as the date on which the said Act would come into force, and with effect from that date a Permanent. Bench of the Bombay High Court was established at Panaji. Under sectfo11 51(3) of the States Reorganisation Act, with effect from August 27, H 1981, a temporary Bench of the Bombay High Court "'"'

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 765

A established at Aurangabad for the Marathwada Region which consists of the territories of the former State of Hyderabad transferred to the new State of Bombay by section 8 of that Act and now forming part of the State of Maharashtra. By a Presidential Order, namely, G.S.R. 475 E dated June 26, 1984, entitled "The High Court of Bombay (Establishment of a B Permanent Bench at Aurangabad) Order, 1984, issued under section 51(2) of that Act a Permanent Bench of the Bombay High Court was established at Aurangabad on and from August 27, 1984, for the Marathwada Region, that is, the districts of Aurangabad, Beed, Jalna, Latur, Nanded, Osmanabad and Parbhani. c The effect of the above Constitutional and statutory provisions so far as they concern the High Court of Bombay is that the High Court of Bombay which was the High Court for the Province of Bombay immediately before the commencement of the Constitution continued in existence on the coming into force of the Constitution as the High Court for the pre-Reorganiza- D tion State of Bombay and the jurisdiction of, and the law administer~d in, the Bombay High Court and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including the power to make rules of Court and to regulate the sittings of the Court and of members thereof sittlng alone or in Division Courts, continued to be the same as they were immediately before the commencement of the Constitution. Further, the Bombay High Court was also vested with the specific powers conferred bY Articles 226, 227 and 228 of the Constitution. All existing laws, Ordinances, Orders, bye-laws, rules and regulations made by any competent Legislature, authority or person continued to be administered by the Bombay High Court until altered or repealed or amended bY a competent Legislature or other competent authority. Thus, by the Constitution itself the High Court for the former Province of Bombay was made the High Cour~ for .the pre- Reorganisation State of Bombay with the same jurisdictions and powers, including rule-making power and the power to regulate the sittings of the Court either by Judges sitting alone or in Division Benches, which it previously possessed. The Letters Patent of the Bombay High Court and the rules made by that High Court thus continued to be in operation by virtue of the Constitution itself. The statutory provisions referred to above show that the Bombay High Court as the High Court for H

766 SUPREME COURT REPORTS [1986] l S.C.R. A the pre-Reorganization State of Bombay continued as the High Court for the post-Reorganization State of Bombay and there- after for the State of Maharashtra with the same jurisdiction and powers which it possessed, exercisable either by Judges sitting singly or in Division Courts, whether at its principal seat or at one of its Benches at a place other than its B principal seat. {

It is, therefore, necessary to see the jurisdiction and powers which the High Court for the Province of Bombay possessed immediately prior to the commencement of the Constitution, namely, immediately before January 26, 1950, and c to ascertain whether the powers specified in Articles 225, 226 and 227 of the Constitution formed part of its existing jurisdiction or were conferred for the first time upon that High Court when it became the High Court for the pre-Reorgani- zation State of Bombay on the Constitution coming into force. This involves tracing in brief the origin and development of +-.._ .•. D judicial institutions and administration of justice in the former Province of Bombay. Apart from the various Charters and Letters Patent granted by the British Crown and the statutes passed by the British Parliament, llllch useful.infor- mation in this regard can be gathered from other sources, particularly "The Imperial Gazetteer of India" published under E the authority of the Secretary of State for India in Council; "Gazetteer of the Bombay Presidency" in twenty-eight volumes published in 1882-84 under Government orders; "The Gazetteer of Bombay. City and Island" in three volumes compiled under Government orders and published in 1909; and books such as "The Mministration of Justice in British India" by William H. F Morley published in 1858. Herbert Cowell' s Tagore Law Lectur- 1-- · es entitled "History and Constitution of the Courts and Legis- lative Authorities in India" published in 1872, "Bombay in the Making - Being Mostly a History of the Origin and Growth of Judicial Institutions in the Western Presidency, 1661-1726" by Phiroze B.M. Malabari published in 1910, "First Century of G British Justice in India" by Sir Charles Fawcett (a former Judge of the Bombay High Court) published in 1934 under the patronage of the Secretary of State for India in Council, M.C. Setalvad's Hamlyn Lecture on "The ComrDJn Law in India" 'r-..,._ published in 1960, "Famous Judges, Lawyers and Cases of Bombay - A Judicial History of Bombay during the British Period" by H P.B. Vacha published in 1962, "City of Gold - The Biography of

UMAJI KESHAO MES!IRAM v. RADHIKABAI [MA!XlN, J,] 767

A Bombay" by Gillian Tindall published in 1962, and "The East India Company's Sadar Courts 1601-1634" by Sir Orby Mootham (former Chief Justice of the Allahabad High Court) published in 1962. A judicial decision in which IDlch valuable infor- mation can be found is the judgment of Westropp, J,, who spoke for the Court in the case of llaoroji Berugi v. Henry Rogers B [1866-67] 4 Bom. H.C.R. 1.

Bombay consisted originally of seven small islands in addition to some islets in the harbour. The seven islands which became the City and Island of Bombay were Colaba, Old Woman's Island, Bombay which waa the main island, Mazagaon, Pare! (also at times called by some writers by the names of C its other three sections - Matunga, Dharavi and Sion), Mahim and Worli. These seven islands practically retained their original shape until the eighteenth century. · Some scholars believe Bombay to be the 'Haptanesia' mentioned by the second- century astronomer, geographer and cosmographer Ptolemy (Claudius Ptolomaeus ) in his 'Geographike Huphegesis' ('Guide D to Geography'). It is unnecessary to trace the history of Bombay from its earliest days. Suffice it to say that after passing through various hands it came to form part of .the territories of Sultan Bahadur Shah of Gujarat. By'the Treaty of Bassein dated December 23, 1534, negotiated by Shah Khwajeh on behalf of Bahadur Shah and Nano da Cunha the Viceroy of E Goa, on behalf of. the King of Portugal, and signed on board the galleon "San Mateos", Bahadur Shah ceded to the King of Portugal "the City of Bassein, its territories, islands and seas" (which included the above-mentioned seven islands) in return for Portuguese assistance against the Mogul Emperor. This treaty was confirmed the next year on October 25, 1535, F by a treaty of peace and commerce between Bahadur Shah and Nuno da Cunha on behalf of the King of Portugal. The natural advantages of Bombay soon aroused the cupidity of the English who recognized its value as a naval baae, They, therefore, with the Dutch aa their allies, landed at Bombay and burnt the manor-house in 1626 and, according to some contemporary G reports, actually seized it from the Portuguese but thereafter abandoned it for some unknown reason. There were regular efforts made by the Company of London merchants (hereinafter referred to aa "the London Company"), which ,had obtained by Royal Charter the right to trade with the East Indies, urging the Crown at)d thereafter the Lord Protector Oliver Cro..,ell to H

768 SUPREME COURT REPORTS [1986] 1 s.c.R.

A purchase Bombay from the Portuguese. These efforts bore fruit when King Charles II married Infanta Donna Catherine of '( . Braganza, sister of Alfonso VI, King of Portugal. By the Treaty of Marriage dated June 23, 1661, and ratified about two months later, in addition to the City and Fort of Tangier, by B Article 11 of that Treaty Alfonso VI, as part of the marriage dowry, granted and confirmed "unto the King of Great Britain, his heirs and successors for ever, the Port and Island of Bombay in the East Indies with all the rights, profits, terri- { tories and appurtenances whatsoever there-unto belonging, and " '

together with all income and revenue, as also the direct and absolute Dominion and Sovereignty of the said Port and Island c of Bombay and premises,, with all their royalties, freely, fully, entirely and absolutely." What is significant about this Marriage Treaty is that while in the case of Tangitr the third article of the Treaty provided that "they (the inhabi- tants of the City and Fort of Tangier) shall be ruled and D governed by the same laws and customs as being hitherto used and imposed in the aforesaid town and castle", the Marriage Treaty did not contain any such provision so far as Bombay was concerned. The reason for this distinction will be pointed out later. Yet another significant thing about this Marriage Treaty was that as the King of Portugal had full and complete sovereignty which, he transferred to the King of Great Britain, E it made Bombay ' the only part of India directly under the British Crown while the rest of British India was until 1858 held by the British under the 'fil'llllll' of the Mogul Emperor Shah Alam granted on August 12, 1765, and grants made and territories ceded by other Indian rulers and the territories acquired by the East India Company by conquest. Though the F King of Portugal did not realize the value and Potentialities of Bombay, the Portuguese Viceroy of Goa, Don Antonio de Mello de Castro, who exercised viceroyalty over all the Portuguese possessions in India including Bombay did and he teq>oriZed and put off handing over possession of Bombay to the'tepresen- tatives of the British Crown so that the English Fleet under G the Earl of Marlborough (later Duke) which arrived at Bombay in September 1662 was kept off from taking ptisS!'BSion and sailed away on January 14, 1663, and it was not until February 18, 1665, that Bombay was handed over to the British.

Upon obtaining possession of the Island of Bombay, H Charles II, ill return for a substantial loan by a Charter

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON,' J.] 769

A dated March 27, 1668, after reciting the Letters Patent of 1661 granted by him . to the London Company and the said Marriage Treaty, proceeded to "give, grant, transfer, and confirm" to the London Company tl\e Poi:t and Island of Bombay "with all the rights, profits, territories, and. appurtenances thereof .whatsoever," etc., in as large a manner as the Crown B of England enjoyed or ought to enjoy them under the grant of the King of Portugal, by the ·said Marriage Treaty "and not further or otherwise," and created the London Company "the true and absolute Lords and Proprietors of the Port and Island and premises aforesaid, and of every part and parcel thereof, "(saving the allegiance due to the Crown of England, and its royal power and sovereignty over its subjects in and over the c inhnbitants of the Port and Island), "to hsve, hold," etc., the S!lid Port and Island, etc., "unto them (the London Company), to the only use of them (the London Company), their successors and assigns for evermore, to be holden of Us, Our Heirs and Successors as of the Manor of East Greenwich in the County of Kent, in fre1! and common Socage, and not in Capite, D nor by Xnight' s Service," at the rent of ten pounds yearly payable to the Crown. ·

We may pause here to cast a look backwards to see how the London Company came into existence. The London Company came into being on December 31, 1601, when by a Royal Charter E granted on thst date, Queen Elizabeth I created a body corporate consisting of "the Governor and Coqiany of the Merchants of Londo.n trading into the East Indies". Amongst other things the Charter empowered the London Company to make and enforce laws "for the good government of the said Coqiany, and of all factors, masters, mariners, and other officers F P.mployed or to be employed in any of their voyages, and for the better advancement and continuance of the said trade and traffic • • • Soe alwais the said lawes • · • • be reasonable and not contrary or repugnant to the lawes, statutes or Cl18tomes of this Our Realm." It is pertinent to note that this pawer to legislate contained no express reference to G factories or territories. This was pointed out by Westropp J., in Naoroji Beramji v. Henry Bogen [1866-67] .4 Bom. H.C.R. 1. This Charter was renewed and confirmed in nearly identical language by Letters Patent granted by James I on May 31, 1609, and again by a Charter granted on February 4, 1622, by the same monarch. The Charter of 1622 also empowered the Company H

770 SUPREME COURT REPORTS [19861 1 s.c.R.

A to chastise and correct all English persons residing in the East Indies and colllldtting any misdemeanour either with martial law or otherwise. On his restoration to the throne Charles II confirmed both the above Charters by Letters Patent granted on April 3, 1661. This Charter conferred upon the Governor and his Council of each place where the Company had B or should have a factory or place of trade within the Eaat Indies the power to "judge all persons belonging to the said f Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this Kingdom and to execute judgment accordingly". Thus, the !J>ndon Company got under this Charter the power to judge c according to the laws of England not only its """ servants but all pP.rsons who should live under it - a power excerciseable by it not only in the places where it had factories or places of trade but also in those places where it may have in future any factories or places of trade. This was the first Charter that actually created Courts of Justice in British India by D making the Governor and the Council of each such factory or place of trade the judge in all civil or criminal matters according to the laws of England. The reason for the Harriage Treaty of Charles II not containing in the case of Bombay a provision similar to that in the case of Tangier for the inhabitants to be ruled and governed by Portuguese laws and customs now becomes obvious. · Since the Charter of 1661 empowered the Company to establish Courts of Justice and further provided that the laws of England should prevail in all the factories and settlements subordinate to it, a provi- sion in the Harriage Treaty that Portuguese laws and custo1111 should prevail in Bombay would have been inconsistent with the F Charter .of 1661, as Charles II always contemplated handing over Bombay to the London Company.

A word about the free and co111110n socage tenure under which the !J>ndon Company held the Port and Island of Bombay would not be out of place. Socage was a form of land tenure. G Originally, it was ~f two kinds - free socage and villein socage, depending upon whether the services were free or base. Thus, where a man held land by fealty· and a fixed rent, the teilllre was free socage. Free socage was of two kinds - eocage in capite and c0111110n socage. Free and co11111Dn socage by which the London Company was to hold the Island of Bombay under the H Charter of 1668 was the modern ordinary freehold tenure. The

UMAJI KESHAO MESllRAM v, RADHIKABAI [MADON, J. ] 771

A Charter also enabled the Company "as a general court, to establish under their colllll¥ln seal, any laws whatsoever for the good government of Bombay, and the inhabitants thereof .. , provided that the said laws , , , be consonant to reason, and not repugnant to the laws of this Our Realm of England .. , " The London Company placed Bombay under the control of the B Governor and his Council at Surat with a Deputy Governor at Bombay.

In 1669 the London Company sent out detailed instructions for the establishment of a Court of Justice in Bombay but it was, however, not until three years later that the first court was established by Gerald Aungier who was the C President of the Surat · Council and the second Governor of Bombay and who may well be ,called the Father of the modem City of Bombay for which he visualized a splendid future, calling it "the city which by God's assistance is intended to be built", and it was to this end that he directed his administration and efforts. For the purpose of establishing a D Court of Judicature in Bombay he issued a proclamation "for abolishing the Portuguese laws, and for establishing the English" from and after August 1, 1673, The opening ceremny of the Court took place on August 8, 1672, commencing with a ceremonial procession from the Fort to the guild-hall. Aungier then entered the Court, took the chair. After the E Letters Patent granted by Charles II to the London Company for the Island of Bombay were read and the oaths of office administered to the Judge and others, Aungier made a speech. Today, when there is so 1111ch concern for preserving the independence of the judiciary, it is worth reproducing that speech•. Aungier said : F

"The Inhabitants of this Island consist of several/nations and Religions to wit - English, Portuguese and other Christians, Moores, and Jentues, but ·you, when you sit in this seat of Justice and Judgment, 1111st look upon them with one G single eye as I doe, without distinction of Nation or Religion, for they are all his Majesties and the Hon'ble Company's 'subjects as the English are, and

• have all an equal! title and right to Justice and you IDJSt doe them all justice, even the meanest person of the Island, and in particulare the Poore, H

772 SUPREME COURT REPORTS (19861 i s.c.a. y A the Orphan, the Widdow and the stranger, in all ' matters of controversy, of Connon right, and llewa and Tuum; And this not only one against the other, but even against myself and those who are in office under me, nay against the Hon 'ble Company themselves when Law, Reason and Equity shall require you soe to doe, for this is your Duty and B therein will you be justified, and in soe doing God will be with you to strengthen you, his Majeatie and the Company will commend you and reward you, and I, in my place, shall be ready to assist, • Countenance, honour and protect you to the ut111Dst of tlie power and Authority entrusted to me; and eoe c I pray God give his blessing .to you."

The late Mr. M. c. Set al vad in hie Hamlyn Lecture "The Common Law in India" has thus eulogized this speech (pp. 10-11) :

D "The noble ""rds of Governor Aungier ,,, enunciate principles which in the course of years that followed set the pattern for the administration of justice not only in the island but in other areas in the country which gradually fell under the s1<ay of the British .. • Thus were laid the foundations E in the seventeenth century albeit in the small area of the town and island of Bombay of the application of English laws to Indians residing in the Presidency Towns and of the system of administering justice fostered by the common law in Engl.and." F Governor Aungier also established an inferior Court of Justice consisting of a civil officer of the London Company assisted by Indian officers with jurisdiction to try all disputes under 200 xeraphins. Appeals from the decision of the inferior court lay to the superior Court. The superior Court was composed of the Deputy Governor in Council with the G title of the "Judge of the Courts of Judicature." It not only heard appeals from the decisions of the inferior Court but aleo took cognizance of civil causes of the value of and exceeding 200 xeraphins and all criminal actions. All trials before the superior Court were jury trials, l!

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 773

A ..., ' By a Charter dated October 5, 1677, Charles 11 confirmed the Letters Patent of 1661 and the Charter of 1668, and by another Charter dated August 9, 1683, he confirmed the earlier Charters granted by Elizabeth I, James I and himself and inter alia provided for establishing a Court of Judicature to be B held at such places, forts, plantations or factories upon the coast as the London Company should from time to time direct. This Charter also authorized the establishment of admiralty jurisdiction in India with the object of enabling the London Company to seize and condemn the ships of those whom it considered as interlopers and a special Admiralty Judge for Bombay was appointed by the King. James II by his Charter dated April 12, 1686, confirmed the Charter granted by his c elder brother Charles II and when William Ill and Mary 11 ascended the throne they confirmed the earlier Charters by a ,Charter dated October 7, 1693. Under it, the laws which the Company had power to make were not to be contrary or repugnant to the laws, statutes or customs of England. D Meanwhile the London Company's rivals had formed a new society and had demanded a Charter. To enable this to be done, Parliament enacted Statute 9 and 10 Wm. Ill, c.44, providing for "raising a sum not exceeding two millions, upon a Fund for payment of Annuities, after the rate of eight powids per centum and for settling the Trade to the East Indies." Section 62 of that Statute authorized the King, if the said sum or half of it were subscribed by September 29, 1698, by Letters Patent under the Great Seal of England, to incorporate the subscribers, by such name as he may think fit, "to be one Company, with power to manage and carry on their trade to the East Indies." The whole fund being subscribed, ·William Ill by Cha~ter dated September 5, 1698, incorporated the subscribers "to be one body politic and corporate, by the name of the English Company trading to the East Indies" (hereinafte~ referred to as "the English Company"). This Charter contained provisions for establishing Courts to try mercantile and maritime causes similar to those provided for in the Charters of 1683 and 1686 granted to the London Company. An Act of Parliament of 1698 ultimately granted the monopoly of Indian trade to those who contributed to it a loan of ~20,00,000. The London Company gave a loan of )l:-3, 15,000 and retained its supremacy, keepihg its forts and privileges in India, but the English Company had gained a foothold in the

774 SUPREME COURT REPORTS [19861 1 s.c.R.

A Indian trade. Rivalry between the two Companies continued and an effort was made in 1702 to resolve it by an Indenture Tripartite dated July 22, 1702, made between Queen Anne, the London Company and its rival the English Company, which had as its object the union of the two Companies at the expiration of seven years. Under this Indenture the London Company was to B convey Bombay and the Island of Saint Halena to the English Company. The London Company also covenanted to surrender to the Queen its Charters within two months after the expiration of seven years and from thenceforth the English Company was to be called "The United Company of Merchants of England trading to the East Indies". By an Indenture Quinquepartite dated July c 22, 1702, made between various parties, the London Company conveyed to the English Company all its forts, settlements, and dead stock of every description including the Port and Island of Bombay as also its factories at Surat and other places. An Act was passed by Parliament in the sixth year of the reign of ~een Anne to bring about a speedy and coq>lete D union of the two Companies and in pursuance of the said Act all matters in dispute between the two Companies were ref erred to the final arbitrament of the Earl of Godolphin, the Lord High Treasurer. By a Deed Poll dated September 29, 1708, Lord Godolphin made his award by virtue of which the union of the two Companies was completed. By a Deed Poll enrolled in E Chancery, dated March 22, 1709, the London Company, in pursuance of Lord Godolphin's award, and for the entire extinguishment of its corporate capadty, granted, surrender- ed, yielded, and gave up to the Queen, her heirs and success- ors, its corporate capacity or body politic and all its charters, capacities, powers and rights whatever, for acting as or continuing to be a body politic or corporate, by virtue of any Acts of Parliament, Letters Patent, or Charters what- ever. The United Company which thus emerged will be herein- after referred to as "the East India Company". It may be mentioned that section 111 of Statute 3 and 4 Wm. IV c.85, provided that in all suits, proceedings, and transactions whatsoever, the United Company be called "The East-India Company."

The working of Company's Courts proved so ineffective that the Court of Directors of the East India Company made a representation to the King in which they emphasized the need for "a competent power and authority" at Madras, Bombay and

!MA.JI KESllAO MESHRAM v. RADHIKABAI [MADON, J,] 775

A Calcutta "for the more speedy and factual administering of justice in civil cases and for the trying and punishing of capital and other criminal offences and misdemeanours," and begged permission to establish a Mayor's Court at all these centres. On September 24, 1726, King George I issued a new Charter for a Mayor's Court at Bombay, Madras and Calcutta. B The Mayor's Court was to consist of a Mayor and nine Aldermen. The Mayor's Court was declared a Court of Record and was empowered to hear civil cases of all kinds subject to an appeal to the Governor and Council and a further appeal to the Privy Council if the amount involved exceeded Rs.3,000. The Mayor's Court had also authority to grant probate and letters of administration. By the same Charter the Governor and c Council were constituted a Court of Record and were authorized to hold quarter sessions. The President and five senior members of the Council were created Justices of the Peace and constituted a Court of Oyer and Terminer and Gaol Delivery. The Governor and Council had jurisdiction to try all offences except high treason. The Mayor's Courts were to be the Courts D of the King of England and were not to be the Company's Courts though at that time the King of England had no claim to sovereignty over any part of the country except the Island of Bombay. By the Charter dated November 17, 1727, George II granted to the East India Company the fines imposed by these Courts. The Mayor's Court was established at Bombay on E February 10, 1728,

The working of the Mayor's Court created dissatisfac- tion, particularly in the matter of the 'cow-oath' which the Mayor's Court insisted upon all Hindu witnesses taking and which consisted of the witness being made to take hold of a F cow's tail in court and swear to speak the truth. Ultimately, the Court of Directors in England prohibited this practice. The administration of criminal justice by the Court of the Governor and Council proved equally unsatisfactory for that Court failed lamentably to live up to the noble principles enunciated by Governor Aungier while establishing the first G Court of Judicature at Bombay. For instance, when the slave boy in collusion with the ·housekeeper of one Jenkinson robbed his escritoire of fifteen guineas, they were both sentenced to be hanged but when George Scott, a member of the Council, Justice of the Peace, Marine Paymaster and' Keeper of the Custom-house of Mahim, was convicted of the gross oppression H

776 SUPREME COURT REPORTS (19861 1 s.c.R. y A of three Indians for the purpose of extorting ten rupees, he was merely fined five pounds and deprived of his Connnission. The defects in the working of these Courts had beco100 so patent by the middle of the eighteenth century that the Court of Directors was obliged to request for a new Charter which was granted by King George II on January 8, 1753, and by this B Charter, the Mayor's Courts were re-established as Courts of ~ Record with similar jurisdiction but curtailed in several respects; for instance, the Charter limited the civil juris- diction of the Mayor's Courts to suits between non-Indians and forbade the Court from entertaining suits between Indian inhabitants of Bombay except with the express consent of C parties, while the jurisdiction of the Governor and Council in criminal matters was limited to an offence colllllitted within Bombay. A Court of Requests (the predecessor of the Bombay Presidency Small Cause Court) was also created for the summary disposal of small cases not exceeding five pagodas or rupees fifteen in value. -~