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CASE NO.: Appeal (crl.) 16698  of 1996

PETITIONER: RAJASTHAN HIGH COURT ADVOCATES ASSOCIATION

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       15/12/2000

BENCH: R.C.Lahoti, S.V.Patil

JUDGMENT:

R.C.  Lahoti, J. L.....I.........T.......T.......T.......T.......T.......T..J

     The  present  State  of Rajasthan came into  being  on November   1,   1956   in   accordance   with   the   States Reorganisation  Act, 1956 (hereinafter the Act) consisting of   the  territories  mentioned  in  Section  10   thereof. Sub-section  (2)  of Section 49 mandates a High Court  being established  for  the  new State of Rajasthan  as  from  the appointed day, i.e., November 1, 1956.  On October 27, 1956, the  President of India in exercise of the powers  conferred by  sub-section  (1)  of  Section 51 of  the  Act,  directed Jodhpur  to be the principal seat of the new High Court  for the  State of Rajasthan.  Initially the Chief Justice of the State  established  a temporary bench of the High  Court  of Rajasthan  at  Jaipur  but eventually exercising  the  power conferred  by  sub-section (2) of Section 51 of the Act  the President,  on January 31, 1977 issued an Order which  reads as under:-

     In  exercise of the powers conferred by sub-  section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of  1956),  the  President,   after  consultation  with  the Governor  of  Rajasthan  and the Chief Justice of  the  High Court  of Rajasthan, is pleased to make the following Order, namely :-

     1.   Short title and Commencement __ (1).  This  Order may  be called the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976.

     (2)  It  shall  come  into force on the  31st  day  of January, 1977.

     2.    Establishment  of  a   Permanent  Bench  of  the Rajasthan High Court at Jaipur __ There shall be established a  permanent Bench of the High Court of Rajasthan at Jaipur, and  such  Judges of the High Court of Rajasthan, being  not less  than five in number, as the Chief Justice of that High Court  may, from time to time nominate, shall sit at  Jaipur

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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 Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk.

     Provided  that  the Chief Justice of that  High  Court may,  in  his  discretion, order that any case or  class  of cases  arising  in  any  such district  shall  be  heard  at Jodhpur.

     New  Delhi.   Sd/-  F.A.    AHMAD  December  8,  1976. President.

     On  23rd December, 1976, the then Acting Chief Justice of  the  High Court of Rajasthan issued the following  order carving  out  jurisdiction between the cases to be heard  at Jodhpur principal seat and the Jaipur Bench seat :-

     RAJ.  HIGH COURT, JODHPUR NOTIFICATION

     No.  1/J.B.  Dated Dec.  23, 1976.

     In   pursuance   of  the   High  Court  of   Rajasthan (Establishment  of a Permanent Bench at Jaipur) Order, 1976, and in exercise of the powers under sub-sec.  (2) of S.44 of the  Rajasthan  High Court Ordinance, 1949, read with  Ss.54 and  57  of the Sates Reorganisation Act, 1956, the  Honble the  x  x x x Chief Justice has been pleased to  order  that with effect from the 31st day of January, 1977 -

     (a)  all  cases  arising in the revenue  districts  of Banswara,  Barmer,  Bikaner,  Bhilwara,  Chitorgarh,  Churu, Dungarpur,  Ganganagar, Jaisalmer, Jalore, Jodhpur,  Nagaur, Pali, Sirohi and Udaipur (except such case or class of cases as  may by special order be transferred to the Jaipur Bench) shall be disposed of by the Court at Jodhpur, and

     (b)  all  cases  arising in the revenue  districts  of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah,  Sawai Madhopur, Sikar and Tonk (except such case  or class of cases as may by special order be transferred to the Court  at  Jodhpur)  shall be disposed of by  the  Court  at Jaipur.

     Provided  that  a Vacation Judge, whether  sitting  at Jodhpur  or at Jaipur may hear any case irrespective of  the district  in which it has arisen for the purpose of deciding any matter which in his opinion requires immediate action.

     Explanation.-  A writ case shall be deemed to arise in the  district where the first order pertaining to that  case was passed by a Court, Tribunal or Authority irrespective of the district in which the appeal or revision from that order is  heard  and irrespective also of the fact whether or  not there  has been any modification or reversal of the order in appeal or revision.

     Sd/- Ved Pal Tyagi CHIEF JUSTICE 23-12-76.

     On 12th January, 1977 the learned Acting Chief Justice issued  yet another order substituting a new explanation now forming  part  of the order dated December 23,  1976,  which reads as under :-

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     In  the above order for the Explanation the following maybe substituted.  -

     Explanation - A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a Court, tribunal or authority  has arisen irrespective of the district in  which the  appeal  or  revision  from  that  order  is  heard  and irrespective  also of the fact whether or not there has been any  modification  or  reversal of the order  in  appeal  or revision.

     Sd/- Ved Pal Tyagi CHIEF JUSTICE 12-1-77.

     The  validity of the Presidential Order dated December 8,  1976 as also of the abovesaid orders of the Acting Chief Justice  was put in issue on very many grounds but the  same was  turned  down by a Division Bench of the High  Court  of Rajasthan.   (See Ram Rakh Vs.  Union of India & Ors.  - AIR 1977  Rajasthan  243).   Briefly it may be stated  that  the grounds  on  which  challenge was laid to the order  of  the Acting  Chief Justice were :  (1) Unless the High Court  of Rajasthan  (Establishment  of a Permanent Bench  at  Jaipur) Order, 1976 comes into force, the Acting Chief Justice could not  have  passed  any order under its authority;   (2)  The Acting Chief Justice could not have passed any order for the transfer  of  pending cases or the cases instituted  at  the main  seat at Jodhpur upto 31-1-1977 under the authority  of the  Presidential Order, inasmuch as the Presidential  Order is  clearly prospective in operation;  (3) Under the proviso to   the  Presidential  Order,   cases  falling  within  the jurisdiction  of the Jaipur Bench could be withdrawn to  the main  seat  at Jodhpur and not vice versa;  (4)  The  Acting Chief Justice cannot decide, in his administrative capacity, the  fact  of jurisdiction for the purpose of allocation  of cases to the Jaipur Bench on the basis of cause of action.

     A perusal of the decision of the Division Bench in Ram Rakhs  case (supra) goes to show that in para 7, having set out  the  four grounds of challenge to the validity  of  the order issued by the Acting Chief Justice, the Division Bench has  observed  "these  contentions cannot, in  our  opinion, prevail.  However, a perusal of para 29 of the report  goes to  show  that contentions numbers 2 and 3 were taken up  by the  Division  Bench  for consideration  as  two  principal grounds  while  the  contention  no.4  with  which  we  are concerned  here(in view of the submissions made at the  Bar) was  not  dealt with and disposed of by the Division  Bench. It  appears  that  the Division Bench (vide para 37  of  the report)  formed an opinion that the appellant before it  was an advocate practising at Jodhpur and nothing was brought to the notice of the Division Bench to show if he was a person aggrieved.

     In  the  present writ petition filed before  the  High Court  very  many grounds of challenge were raised and  also argued but we would be dealing with only one inasmuch as the learned  counsel  for the parties conceded at the  Bar  that this  was  the  only issue surviving for  consideration  and which deserves to be dealt by this court.

     It  was  submitted before the High Court of  Rajasthan

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that  the  explanation inserted in the order of  the  Acting Chief  Justice  dated  December 23, 1976 by  the  subsequent order  dated January 12, 1977 was ultra vires the powers  of the  Chief  Justice.   The States  Reorganisation  Act,  the Presidential  Order and no other provision of law authorises the  Chief  Justice to define where a cause of action  in  a writ  case would be deemed to have arisen so as to determine where  it  would be filed.  The High Court in  its  impugned order  has  upheld  the  plea so  raised  and  directed  the explanation abovesaid to be struck down.  Feeling aggrieved, the  Rajasthan High Court Advocates Association, Jodhpur has filed this appeal by special leave.

     The  order  of the Chief Justice, whereto is  appended the  impugned explanation, refers to the Presidential Order, sub-section  (2)  of Section 44 of the Rajasthan High  Court Ordinance,  1949  and  Sections  54 and  57  of  the  States Reorganisation  Act, 1956 as the sources of power  exercised in  issuing the notification.  We will deal with each one of the three.

     The  Presidential Order having established a permanent bench  of  the High Court of Rajasthan at Jaipur and  having appointed  the  minimum  number of judges as  would  sit  at Jaipur proceeded to declare that the permanent bench seat at Jaipur  shall  exercise the jurisdiction and power  for  the time  being  vested  in the High Court in respect  of  cases arising  in  the  districts,  11  in  number,  as  mentioned therein.   A discretionary jurisdiction is also conferred on the  Chief Justice of the High Court to order that any  case or  class  of cases arising in any district forming part  of territorial  jurisdiction  of the permanent bench at  Jaipur shall   be   heard  at   Jodhpur  (principal   seat).    The Presidential Order is clear.  The jurisidiction allocated to the  permanent bench at Jaipur is by reference to  territory covered by the 11 specified districts.  The proviso appended to  para 2 of the Presidential Order speaks of any case  or class  of  cases  but therefrom too a power  in  the  Chief Justice to define cause of action cannot be spelled out.

     The  nature  and  extent  of power  conferred  on  the President  by  Section  51  of  the  Act  came  up  for  the consideration  of  this  Court in State of  Maharashtra  Vs. Narayan  Shamrao  Puranik  & Ors., AIR 1983 SC 46.   It  was held:

     It  is  clear upon the terms of S.51 of the Act  that undoubtedly  the  President has the power under  sub-section (1)  to  appoint the principal seat of the High Court for  a new  State.   Likewise,  the power of  the  President  under sub-section  (2)  thereof,  after   consultation  with   the Governor  of  a new State and the Chief Justice of the  High Court  for  that State, pertains to the establishment  of  a permanent Bench or Benches of that High Court of a new State at  one or more places within the State other than the place where  the  principal seat of the High Court is located  and for  any matters connected therewith clearly confer power on the  President to define the territorial jurisdiction of the permanent  Bench  in relation to the principal seat as  also for  the  conferment  of   exclusive  jurisdiction  to  such permanent  Bench to hear cases arising in districts  falling within  its jurisdiction.  The creation of a permanent Bench under  sub-section  (2)  of  Section  51  of  the  Act  must therefore  bring about a territorial bifurcation of the High Court.

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     [underlining by us]

     The  establishment of a permanent Bench at Jaipur  and defining   its  territorial  jurisdiction   brought  out   a bifurcation  of State of Rajasthan into two for the  purpose of  division  of territorial jurisdiction of the High  Court between  the  principal seat and the permanent  Bench  seat. The   Chief  Justice  of   the  State  cannot,   thereafter, artificially  or  indirectly  take   away  the  jurisdiction belonging  to one and confer it on the other.  Conferring  a discretion  on the Chief Justice to order any case or  class of  cases  arising  in any district within  the  territorial jurisdiction  of permanent Bench at Jaipur shall be heard at Jodhpur  cannot spell out a power to define where the  cause of action shall be deemed to have arisen in a writ case.

     Section  44  of  Rajasthan High Court  Ordinance  1949 provides  as  under:   44.   Distribution  of  business  and administrative control __ (1) The High Court may, by its own rules,  provide as it thinks fit for the exercise by one  or more  Judges,  or by Division Courts constituted by  two  or more Judges of the High Court, of its original and appellate jurisdiction.

     (2)  The  Chief Justice shall be responsible  for  the distribution  and conduct of the business of the High Court, and  shall determine which Judge in each case will sit alone and which Judges of the Court will constitute a Bench.

     (3) The administrative control of the High Court shall vest in the Chief Justice who may exercise it in such manner and  after such consultation with the other Judges as he may think  fit or may delegate such of his functions as he deems fit to any other Judges of the High Court.

     Sub-section  (2)  abovesaid has to be read along  with sub-section  (1).   It  entrusts   the  Chief  Justice  with responsibility  for distribution and conduct of the business of  the  High Court and to determine which Judge  shall  sit singly  and which in a Bench.  The responsibility  entrusted carries  with  it,  as a necessary  concomitant,  the  power needed  in  the  Chief  Justice to  effectively  fulfil  the responsibility.   The provision is what is popularly called, a power to frame a roster.  This provision too does not vest the  Chief Justice with power to enact an explanation as  is in  question.   Roster  is framed generally  by  identifying particular  subject matter or nature of cases which will  be listed  for  hearing before different  Benches  consistently with the rules of business of the Court.  Thereafter listing of cases is to be done by the Registrar in a routine.  Power to   frame  a  roster  vests   the  Chief  Justice  with  an administrative  control  over the distribution  of  judicial work  of  the Court.  It has nothing to do with how a  Judge would then judicially function in dealing with a case listed before  him as per roster.  A writ case when listed before a Judge  for hearing as per roster may be heard or refused  to be  heard  by  him depending on his opinion  formed  on  the judicial side on the question whether the cause of action in that  case arises within the territorial jurisdiction of the bench  seat  or  not.   Whether or not a case  arises  in  a district lying within the jurisdiction of bench seat __ is a question  to be decided judicially, in case to case, and not

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by  an  administrative  order  of  the  Chief  Justice  made generally.

     Section 54 of the Act speaks of practice and procedure in the High Court.  Section 57 speaks of powers of the Chief Justice, Single Judges and Division Courts of the High Court and  provides that the laws in force immediately before  the appointed  day  relating to such powers 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.  None of the two provisions can spell out any legislative power having been conferred on the Chief Justice to define cause of action.

     The expression similar to the one in respect of cases arising  in  the  districts  of as used in para  2  of  the Presidential  Order  came  up  for the  consideration  of  a 4-Judges  Bench  of  this  Court in  Nasiruddin  Vs.   State Transport  Appellate Tribunal - AIR 1976 SC 331.  It was  in the  context of division of territorial jurisdiction between Allahabad  and Lucknow benches in Uttar Pradesh.  This Court held :-

     .  .  .  .  .  .  the expression cause of action in an  application under Article 226 would be as the expression is  understood  and if the cause of action arose because  of the appellate order or the revisional order which came to be passed  at  Lucknow  then Lucknow  would  have  jurisdiction though  the original order was passed at a place outside the areas  in  Oudh.  It may be that the original order  was  in favour  of the person applying for a writ.  In such case  an adverse  appellate order might be the cause of action.   The expression cause of action is well-known.  If the cause of action  arises  wholly  or  in part at a  place  within  the specified   Oudh   areas,  the   Lucknow  Bench  will   have jurisdiction.   If the cause of action arises wholly  within the  specified  Oudh  areas,  it is  indisputable  that  the Lucknow  Bench  would have exclusive jurisdiction in such  a matter.   If  the cause of action arises in part within  the specified areas in Oudh it would be open to the litigant who is  the  dominus  litis to have his forum  conveniens.   The litigant  has  the right to go to a Court where part of  his cause  of action arises.  In such cases, it is incorrect  to say  that  the litigant chooses any particular  Court.   The choice  is by reason of the jurisdiction of the Court  being attracted  by  part  of cause of action arising  within  the jurisdiction  of  the  Court.  Similarly, if  the  cause  of action  can  be said to have arisen partly within  specified areas  in Oudh and partly outside the specified Oudh  areas, the  litigant will have the choice to institute  proceedings either  at Allahabad or Lucknow.  The Court will find out in each  case whether the jurisdiction of the Court is  rightly attracted by the alleged cause of action.

     the  expression  cause of action with regard  to  a civil matter means that it should be left to the litigant to institute  cases  at  Lucknow Bench or  at  Allahabad  Bench according  to the cause of action arising wholly or in  part within  either of the areas.  If the cause of action  arises wholly  within  Oudh areas then the Lucknow Bench will  have jurisdiction.   Similarly,  if  the cause of  action  arises wholly  outside  the specified areas in Oudh then  Allahabad will  have  jurisdiction.   If the cause of action  in  part arises  in the specified Oudh areas and part of the cause of

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action  arises outside the specified areas, it will be  open to  the litigant to frame the case appropriately to  attract the jurisdiction either at Lucknow or at Allahabad.

     Applications  under  Article 226 will  similarly  lie either  at Lucknow now or at Allahabad as the applicant will allege  that  the  whole of cause of action or part  of  the cause  of action arose at Lucknow within the specified areas of  Oudh  or  part of the cause of action arose at  a  place outside the specified Oudh areas.

     [underlining by us]

     The  abovesaid view of the law has been reiterated  by this  Court recently in U.P.  Rashtriya Chini Mill  Adhikari Parishad Vs.  State of U.P., (1995) 4 SCC 738, Pr.14.

     The  expression  cause  of  action  has  acquired  a judicially  settled meaning.  In the restricted sense  cause of  action means the circumstances forming the infraction of the  right or the immediate occasion for the action.  In the wider  sense  it  means  the necessary  conditions  for  the maintenance  of the suit, including not only the  infraction of  the  right,  but the infraction coupled with  the  right itself.  Compendiously the expression means every fact which it  would  be  necessary  for the  plaintiff  to  prove,  if traversed,  in order to support his right to the judgment of the  Court.  Every fact which is necessary to be proved,  as distinguished   from  every  piece  of  evidence  which   is necessary  to  prove  each  fact,  comprises  in  cause  of action.   It  has  to  be left to  be  determined  in  each individual case as to where the cause of action arises.  The Chief  Justice of the High court has not been conferred with the  legislative competence to define cause of action or  to declare where it would be deemed to have arisen so as to lay down  artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases.  The permanent  bench  at  Jaipur  has been  established  by  the Presidential  Order issued under sub-section (2) of  Section 51  of  the  Act.   The   territorial  jurisdiction  of  the permanent  bench at Jaipur is to be exercised in respect  of the  cases arising in the specified districts.  Whether  the case arises from one of the specified districts or not so as to  determine  the  jurisdictional  competence  to  hear  by reference to territory bifurcated between the principal seat and  the  bench seat, shall be an issue to be decided in  an individual case by the judge or judges hearing the matter if a  question  may  arise  in   that  regard.   The   impugned explanation appended to the Order of the Chief Justice dated 23rd  December, 1976 runs counter to the Presidential  Order and  in a sense it is an inroad into the jurisdiction of the judges  hearing  a particular case or cases,  pre-empting  a decision to be given in the facts of individual case whether it  can  be  said  to  have arisen in  the  territory  of  a particular  district.  The High Court is right in taking the view which it has done.

     It was submitted at the end by the learned counsel for the  appellant that the Division Bench of the High Court  in its  impugned order has observed that the permanent bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out of the 11 specified districts and the High Court at  Jodhpur shall not have jurisdiction to hear those  cases

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which  fall  within the territorial jurisdiction  of  Jaipur Bench.   He  submitted  that  the use  of  word  exclusive pre-fixed  to  jurisdiction is uncalled for.  We  find  no substance  in  this contention as well.  The purpose of  the Presidential  Order  is to carve out and define  territorial jurisdiction  between the principal seat at Jodhpur and  the permanent  bench seat at Jaipur.  The cases are to be  heard accordingly  unless  the Chief Justice may exercise  in  his discretion  the power vested in him by the proviso to para 2 of  the Presidential order.  Clauses (1) and (2) of  Article 226 of the Constitution provide how territorial jurisdiction shall  be  exercised by any High Court.  Although  the  said clauses  do not deal with principal seat or permanent  bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning  of  the   bifurcated  territorial  jurisdiction between  the principal seat and permanent bench seat of  any High  Court.   In  case  of a  dispute  arising  whether  an individual  case  or  cases  should be filed  and  heard  at Jodhpur  or Jaipur, the same has to be found out by applying the test __ from which district the case arises, that is, in which  district  the  cause of action can be  said  to  have arisen  and  then exercising the jurisdiction under  Article 226 of the Constitution.

     For  the  foregoing reasons we do not find  any  fault with  the findings arrived at by the High Court.  The appeal is dismissed.  No order as to the costs.