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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: NARAYAN SHAMRAO PURANIK AND OTHERS

DATE OF JUDGMENT25/10/1982

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1983 AIR   46            1983 SCR  (1) 655  1982 SCC  (3) 519        1982 SCALE  (2)948

ACT:      States Reorganization  Act, 1956-Sub-s.  (3) of  s. 51- Power of  Chief Justice  to appoint  any  place  other  than principal seat  for sittings  of Judges and division Courts- Scope and effect.      States  Reorganisation  Act,  1956-Permanent  piece  of legislation-Provisions of  sub-ss. (2)  and (3) of s. 51 not ebbed out by lapse of time.      Interpretation of  statutes-A statute  can be abrogated only by  express or implied repeal-Cannot become inoperative by lapse of time.      Letters  Patent   authorising  establishment   of  High Courts-"Erect and establish"-Meaning of.

HEADNOTE:      Sub-s. (3)  of s.  51 of the States Reorganization Act, 1956, provides  that notwithstanding  anything contained  in sub-s. (1)  or sub-s.(2)  thereof the  Judges  and  division Courts of the High Court of a new State may also sit at such other place  or places  in that  State as  the Chief Justice may, with the approval of the Governor, appoint.      Prior to  the constitution of the States Reorganization Commission, leaders  of political  parties from the Marathi- speaking areas in the country had signed an agreement called the ’Nagpur  Pact’ which ultimately formed the basis for the creation of  the  Maharashtra  State.  Clause  (7)  of  this agreement stipulated  that the  provision with regard to the establishment of  a permanent  Bench of  the High  Court  at Nagpur  shall  apply  mutatis  mutandis  to  the  Marathwada region. The  States Reorganisation  Act, 1956  brought  into being the  new State  of Bombay with effect from November 1, 1956. By  virtue of  sub-s.(1) of  s. 49,  the existing High Court of  Bombay was deemed to be the High Court for the New State of  Bombay and,  by a  Presidential Order issued under sub-s. (1) of s. 51, Bombay was declared to be its principal seat. The  then Chief  Justice issued  an order under sub-s. (3) of  s. 51  appointing Nagpur  to be a place at which the Judges and  division Courts of the High Court would also sit with effect  from November  1, 1956.  The  Bench  at  Nagpur continued to  function till  May 1,  1960 when the State was bifurcated into  Maharashtra and  Gujarat and  s. 41  of the

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Bombay   Reorganisation   Act,   1960   provided   for   the establishment of a permanent Bench at Nagpur.      Due to the continued demand of the people of Marathwada region and  the passing of a unanimous resolution in support by the Legislative Assembly the 656      State Government  recommended to the Central Government in 1978  that  a  permanent  Bench  of  the  High  Court  be established at  Aurangabad under  sub s.  (2) of  s. 51  and simultaneously made  preparations, in  consultation with the Chief Justice  for setting  up the  Bench. However,  when it became evident  that the  Central Government would take time in reaching  a decision  on the proposal, it was decided, in view of  the preparations made and the mounting expectations of  the   people,  that,  pending  the  establishment  of  a permanent Bench  under sub  s. (2) of s 51, resort be had to the provisions of sub-s. (3) thereof. Accordingly, on August 27,1981, the  Chief Justice,  with the prior approval of the Governor of  the State,  issued an Order under sub-s. (3) of s. 51  appointing Aurangabad  as a place at which the Judges and division  Courts of  the High  Court  of  Judicature  at Bombay may also sit.      The respondents  challenged the  validity of  the order and the  High Court  set aside  the same  on  the  following grounds:      1. The  Act being  of a transitory nature, the exercise of the  power under  sub-s. (3) of s. 51 after a lapse of 26 years was constitutionally impermissible.      2. There  was no nexus between the purpose. and objects of the Act and the setting up of Aurangabad as an additional venue for sittings of Judges and division Courts of the High Court.      3. After  the bifurcation  of the  bilingual  State  of Bombay, the  power of the Chief Justice under sub. s. (3) of s.  51  would  no  longer  be  exercised  as  the  State  of Maharashtra was  not a  ’new State’ within the meaning of s. 51 read with s. 2(1) of the Act.      4. The  Order was  bad in law as it had brought about a territorial bifurcation  of the High Court. Under sub-s. (3) of s.  51  the  Chief  Justice  had  neither  the  power  to establish a  Bench at  any place  nor  the  power  to  issue administrative  directions  for  filing  or  institution  of proceedings at such a place.      Allowing the appeal, ^      HELD: The  Act is  a  permanent  piece  of  legislation enacted- by  Parliament  under  Articles  3  and  4  of  the Constitution. Section  14 of  the General Clauses Act, 1897, provides that,  where, by any Central Act or Regulation, any power is  conferred,  then,  unless  a  different  intention appears, that  power may  be exercised  from time to time as occasion arises.  A statute can be abrogated only by express or implied  repeal. It  cannot fall into desuetude or become inoperative through  obsolescence or  by lapse  of time. The powers conferred  on the  President and  the  Chief  Justice under sub-ss.  (2) and  (3) of  s. 51  are  intended  to  be exercised from  time to time as occasion arises, as there is no intention  to the  contrary manifested  in the  Act.  The assumption that  these provisions have ebbed out by lapse of time is  plainly contrary to the meaning and effect of s. 69 of the  Act which  in  terms  provides  that  Part  V  which contains s.  51 shall  have. effect subject to any provision that may  be made on or after the appointed day with respect to the  High Court  of any  State by  the Legislature or any other  authority   having  power  to  make  such  provision.

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Further,  the   opening  words   of  s.  41  of  the  Bombay Reorganisation  Act,   1960  manifest  a  clear  legislative intention  to   preserve  the  continued  existence  of  the provisions contained  in s.  51 of the States Reorganisation Act, 1956. [669 B-C, 668 E-G, 670 A-B] 657      R.v. London  County Council,  L.R. [1931]  2 K  B.  215 referred to.      2. It  cannot be  said that  the impugned  Order is not directly connected  with the reorganisation of States. There has been  a long-standing  demand for the establishment of a permanent Bench  of the  Bombay High  Court at Aurangabad. A solemn assurance in this behalf had been given to the people of Marathwada  region by cl. (7) of the ’Nagpur Pact’. Under the  scheme   of  the   Act  it  would  appear  that  having constituted a  High Court  for the  new State  of Bombay and conferred jurisdiction  on it under s. 52 in relation to the territories of  the new  State, Parliament  left it  to  the various high  Constitutional functionaries  designated in s. 51 to  determine the  place where  the principal seat of the High Court  should be  located and  places  where  permanent Bench or   Benches  of the High Court may be established, or where the  Judges and  division Courts of the High Court may also sit.  While Nagpur was given a Bench by an order issued under sub-s  (3) of s. 51 and the arrangement made permanent by s.41 of the Bombay Reorganisation Act, 1960, the proposal for setting  up a  permanent Bench  at Aurangabad  is  still under the  active consideration  of the  Central Government. [670 D, 671 H, 672 A-B, 661 B, 670 H, 671 F-G, 672 A]      3. The  expression "new  State" occurring in sub-s. (1) of s.  49 of  the Act is defined in s. 2(1) to mean "a State formed under the provisions of Part II". The State of Bombay was a  ’new State’ formed under s. 8 of the Act which occurs in Part  II. The High Court of Bombay was the High Court for the new  State of Bombay within the meaning of sub-s. (1) of s. 49  and therefore  the provisions  of  s.  51  are  still applicable. Sub-s. (1) of s. 28 of the Bombay Reorganisation Act, 1960 provides that as from May 1,1960, there shall be a separate High  Court for  the State  of Gujarat and that the High Court  of Bombay  shall become  the High  Court for the State of  Maharashtra and  sub-s, (2)  thereof provides that the principal  seat of  the Gujarat  High Court  shall be at such place as the President may, by notified order, appoint. It is significant that the Act contains no similar provision with regard  to the  principal seat  of the  High  Court  of Bombay. That  being  so,  the  continued  existence  of  the principal seat  of the  Bombay High Court at Bombay is still governed by  sub-s. (1)  of s.  51. If  there  is  continued existence of  sub-s.  (1)  of  s.  51  in  relation  to  the principal seat of the High Court for a new State, a fortiori there is  to an equal degree, the continued existence of the provisions contained  in sub-ss.  (2) and (3) of s. 51. That the Legislature  pre-supposed the  continued existence of s. 51 in relation to the High Court of Bombay is clear from the opening words  of s.  41 of  the Bombay  Reorganisation Act, 1960 which  provides for the setting up of a permanent Bench of the  High Court  at Nagpur.  That section begins with the words "Without  prejudice to  the provisions of s. 51 of the States Reorganisation  Act, 1956".  Thus while enacting that section, Parliament  retained in tact the power conferred on the President  of India and the Chief Justice under s. 51 of the States Reorganisation Act, 1956. [666 D, 665 H, 666 E-G, 657 C-E]      4. (a)  The Constitution  and structure of a High Court depends on the statute creating it. It is clear from sub-ss.

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(1) and  (2) of  s. 51  that the  President has the power to appoint the principal seat of the High Court for a new State and also  establish a  permanent Bench of that High Court at one or  more places within the State. Under these provisions the  President   has  the  power  not  only  to  define  the territorial jurisdiction  of the permanent Bench in relation to the 658 principal seat  but also confer on it exclusive jurisdiction to hear  cases arising  in the  territory falling within its jurisdiction. The creation of a permanent Bench under sub-s. (2) of  s. 51  must therefore,  bring  about  a  territorial bifurcation of the High Court. In contrast, the power of the Chief Justice  to appoint,  under sub-s.  (3) of  s. 51, the sittings of the Judges and Division Courts of the High Court at places  other than the place of the principal seat or the permanent Bench,  is in the unquestioned domain of the Chief Justice, the  only condition being that he must act Justice, the only  condition being that he must act with the approval of  the   Governor.  It  is  basically  an  internal  matter pertaining to  the High  Court. The  Chief Justice  has full power,  authority   and  jurisdiction   in  the   matter  of allocation of  the business of the High Court and this flows not only  from the  provisions contained in sub-s. (3) of s. 51 but  inheres in him in the very nature of things. The non obstante clause  contained in  sub-s. (3)  of s. 51 gives an over riding  effect to the power of the Chief Justice. There is no  territorial bifurcation  of  the  High  Court  merely because the Chief Justice directed under sub-s. (3) of s. 51 that the  Judges and  division  Courts  shall  also  sit  at Aurangabad. The Judges and division Courts at Aurangabad are part of  the same  High Court and they exercise jurisdiction as Judges  of the High Court of Bombay at Aurangabad.[673 G, 675 H, 676 A-C, D-H, 677 A]      Seth Manji  Dhana v. Commissioner of Income-tax, Bombay JUDGMENT: Bombay on July 22, 1958), approved.      Manickam Pillai Subbayya Pillai v. Assistant Registrar, High Court  of Kerala,  Trivandrum, AIR  (1958) Kerala  188; overruled.      (b) It is difficult to comprehend how the Chief Justice can arrange  for the  sittings of  the Judges  and  Division Courts at  a particular place unless there is a seat at that place. It may be true in the juristic sense that the seat of the High  Court must  mean "the  principal seat of such High Court" i.e.  the place  where the High Court is competent to transact every  kind  of  business  from  any  part  of  the territories within  its jurisdiction.  It is  impossible  to conceive of  a High  Court without  a seat being assigned to it. The  place where  its jurisdiction  can be invoked is an essential and indispensable feature of the legal institution known as  ’Court’. Where  there is only one seat of the High Court it  must necessarily  have all  the attributes  of the principal seat.  But where  the High Court has more than one seat, one  of them  may or  may not  be the  principal  seat according to  the legislative scheme. When the Chief Justice makes an  order in  terms of sub s. (3) of s. 51 that Judges and Division Courts of the High Court shall also sit at such other place,  the High Court in the generic sense has also a seat at  such other  place. It  is  both  sound  reason  and commonsense to  say that the High Court of Bombay is located at its  principal seat  at Bombay, but it also has a seat at the  permanent   Bench  at   Nagpur.  Besides  administering Justice, the  High Court has the administrative control over the subordinate  judiciary in the State. The High Court must

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necessarily carry  on the  administrative functions from the principal seat  but it  may have  more  than  one  seat  for transaction of judicial business.[673 A-G]      Nasiruddin  v.   State  Transport  Appellate  Tribunal, [1976] 1 S.C.R. 505; distinguished. 659      (c) Provisions  similar to  sub-s. (3)  of s. 51 of the Act existed  in almost  all the  Letters Patent  of the Acts under which  the various  High Courts have been constituted. Clause 31 in each of the Letters Patent under which the High Courts of  Calcutta,  Madras  and  Bombay  were  established provided for "exercise of jurisdiction elsewhere than at the ordinary place of sitting of the High Court" Whenever a High Court was  established by  Letters Patent  under s. 1 of the Indian High  Courts Act,  1861,  or  under  s.  113  of  the Government of  India Act,  1935. The High Court was ’erected and established’  at a  particular place  mentioned  in  the Letters Patent.  The expression  ’erect  and  establish’  in relation to a High Court meant nothing more than to indicate the establishment  of the  High Court  at a particular place where the High Court was competent to transact every kind of business arising  from any  part of the territory within its jurisdiction. [674 C, 675 F, 674 E-F, 675 B-C]

&      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3379 of 1981      Appeal by  Special leave  from the  Judgment and  order dated the  14th December,  1981 of  the Bombay High Court in Writ Petition No. 1104 of 1981.      F.S. Nariman,  Arvind V. Savant and M.N. Shroff for the Appellant.      A.L. Settwal,  and Mrs. Jayshree Wad for Respondent No. 1.      D.R. Dhanuka, Lalit Bhasin, Vinay Bhasin, Suraj M. Shah and Vineet Kumar for Respondent No. 2.      L.N. Sinha, Attorney General, M.K. Banerjee, Additional Solicitor General  of  India  and  Miss  A.  Subhashini  for Respondent No. 3.      S.B. Bhasme,  S.V.  Tambwekar  and  R.G.  Bhadekar  for Interveners 1-6.      V.N. Ganpule for Intervener No. 7.      The Judgment of the Court was delivered by      SEN, J.  This  appeal  by  special  leave  is  directed against the  judgment and  order of  the Bombay  High  Court dated December  14, 1981.  By its  judgment the  High  Court struck down  an order  dated August  27, 1981  by which  the Chief Justice  of the  Bombay High Court, in exercise of his powers  under   sub-s.  (3)   of  s.   51  of   the   States Reorganization Act,  1956 (Act  XXXVII of  1956) (for  short ’the Act’)  with the  prior  approval  of  the  Governor  of Maharashtra, directed that the Judges and Division Courts of the High Court of 660 Bombay shall  also sit at Aurangabad with effect from August 27, 1981  for the  disposal of  cases  arising  out  of  the Marathwada region of the State of Maharashtra.      By an order dated May 4, 1982 we allowed the appeal and set aside  the judgment  of the  High Court since it did not appear to  us that  the impugned  order issued  by the Chief Justice   suffered    from   any    infirmity,   legal    or constitutional. We now proceed to give our reasons.      By virtue  of sub-s.  (1) of  s. 49,  the High Court of

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Bombay exercising  immediately before the appointed day i.e. November 1,  1956, jurisdiction  in relation to the existing State of Bombay, was deemed to be the High Court for the new State of Bombay constituted under sub-section (1) of s. 8 of the Act.  Immediately before  the  appointed  day,  i.e.  on October   27,    1956,   the    Central   Government   while telegraphically communicating  to  the  then  Chief  Justice (Chagla, C.J.)  the issue of a Presidential Order under sub- s. (1)  of s.  51 of  the Act  appointing Bombay  to be  the principal seat of the High Court for the new State of Bombay with effect  from November  1, 1956,  conveyed that  as from that date  the High  Court shall function only at that place unless the Chief Justice issued an order under sub-s. (3) of s. 51 of the Act that temporary Benches may also function at other places.  The then  Chief Justice  was advised  that he should issue  such notification  on the  appointed day, i.e. November 1,  1956, for  the establishment of Circuit Benches at Nagpur  and Rajkot with a view to preserve the continuity of judicial  administration, since  the High Court of Madhya Pradesh had  its principal seat at Nagpur and the High Court of Saurashtra  at Rajkot,  prior to  the appointed  day. The then Chief  Justice accordingly issued an order under sub-s. (3) of  s. 51  of the  Act with  the prior  approval of  the Governor by  which he  appointed Nagpur  and  Rajkot  to  be places at which the Judges and Division Courts of the Bombay High Court would also sit with effect from November 1, 1956. The two  Benches at  Nagpur and Rajkot continued to function till May  1, 1960  when the  bilingual State  of Bombay  was bifurcated into two separate States-The State of Maharashtra and the  State of  Gujarat-by the Bombay Reorganization Act, 1960 (Act, XI OF 1960).      Prior to  the constitution of the States Reorganization Commission in   December  1953, leaders of political parties from  the   Marathi-speaking  areas   in  the  Vidarbha  and Marathwada regions and of the then State of Bombay signed an agreement or pact called 661 the Nagpur  pact on  September 23, 1953 which formed a basis for  joint   representation  to  the  States  Reorganization Commission  and   was  the   basis  for   the  formation  of Maharashtra as  a new  State for the Marathi-speaking people of the  former State  of Bombay,  the Vidarbha region of the former State of Madhya Pradesh, and the Marathwada region of the erstwhile State of Hyderabad. CI. (7) of the Nagpur Pact provides that the provision with regard to the establishment of a permanent Bench of the High Court at Nagpur shall apply mutatis mutandis to the Marathwada region.      It appears  that due  to continued demand of the people of Marathwada  region for  the establishment  of a permanent Bench of the High Court at Aurangabad under sub-s. (2) of s. 51 of  the Act, the State Government first took up the issue with the  then Chief  Justice (Kantawala,  C.J.) in 1977. On March 22,  1978, the  State Legislative  Assembly  passed  a unanimous   resolution   supporting   a   demand   for   the establishment of  a permanent  Bench of  the High  Court  at Aurangabad to the effect:           "With a  view to  save huge expenses and to reduce      the inconvenience  of the  people of the Marathwada and      Pune regions in connection with legal proceedings, this      Assembly recommends to the Government to make a request      to the  President to establish a permanent Bench of the      Bombay High Court having jurisdiction in Marathwada and      Pune regions, one at Aurangabad and the other at Pune." The said demand for the constitution of a permanent Bench of the High  Court at Aurangabad was supported by the State Bar

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Council of  Maharashtra, Advocates’.  Association of Western India, several bar associations and people in general. It is necessary here  to mention that the resolution at originally moved made  a demand for the setting up of a permanent Bench of the High Court of Bombay at Aurangabad for the Marathwada region, and  there was  no reference to Pune which was added by way  of amendment. Initially, the State Government made a recommendation to  the Central  Government in  1978 for  the establishment of  two permanent  Benches under sub-s. (2) of s. 51  of the  Act, one at Aurangabad and the other at Pune, but later  in 1981 confined its recommendation to Aurangabad alone.      The State Government thereafter took a Cabinet decision in January,  1981 to establish a permanent Bench of the High Court at 662 Aurangabad and  this was  conveyed by  the Secretary  to the Government  of  Maharashtra,  Law  &  Judiciary  Department, communicated by  his letter  dated February  3, 1981  to the Registrar and  he was  requested, with the permission of the Chief Justice,  to submit  proposals regarding accommodation for the  Court and  residential bungalows  for  the  Judges, staff, furniture etc. necessary for setting up the Bench. As a result  of this  communication, the Chief Justice wrote to the Chief  Minister on  February  26,  1981  signifying  his consent  to  the  establishment  of  a  permanent  Bench  at Aurangabad.  After   adverting  to   the   fact   that   his predecessors had  opposed such  a move  and  had  indicated, amongst other things, that such a step involved, as it does, breaking up of the integrity of the institution and the Bar, which would  necessarily impair  the quality and quantity of the disposals, he nonetheless went on to say:           "As against  that I  am personally  aware  of  the      difficulties to which the litigant public of Marathwada      is subjected to, in regard to their causes in this High      Court since  the Marathwada  area became  a part of the      Bombay State  with  effect  from  1.11.1956,  resulting      virtually in  the stifling  of the  genuine  litigation      therefrom.  Grievances  on  this  count  are  many  and      genuine to  my knowledge.  Establishment and  continued      existence of  the Benches  in the High Courts of Madhya      Pradesh, Uttar  Pradesh, Bihar,  Kerala and  a Bench at      Nagpur in  our own State, make it difficult for them to      believe that their claim for a Bench alone is liable to      be  ignored  because  of  any  such  view  of  the  Law      Commission or the Jurists. This only goes to deepen the      bitterness and  sense of  injustice that  is  prevalent      among them."      It however  became evident  by the middle of June, 1981 that the  Central Government  would take  time in reaching a decision  on   the  proposal  for  the  establishment  of  a permanent Bench  under sub  s. (2)  of s.  51 of  the Act at Aurangabad as  the question  involved a  much larger  issue, viz. the  principles to  be adopted  and the  criterion laid down for  the establishment  of permanent  Benches  of  High Courts generally.  This meant that there would be inevitable delay in  securing concurrence of the Central Government and the issuance of a Presidential Notification under sub-s. (2) of s.  51 of the Act. On June 12, 1981, the State Government accordingly  took   a  Cabinet  decision  that  pending  the establishment of a permanent Bench under 663 sub-s. (2)  of s.  51 of  the  Act  at  Aurangabad  for  the Marathwada region, resort be had to the provisions of sub-s. (3) thereof. On June 20, 1981 Secretary to the Government of

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Maharashtra, Law  and  Judiciary  Department  wrote  to  the Registrar stating  that there was a possibility of the delay in securing  concurrence of  the Central  Government and the issuance of a notification by the President under sub-s. (2) of s.  51 of  the Act  for the  establishment of a permanent Bench  at   Aurangabad  and   in  order  to  tide  over  the difficulty, the provisions of sub-s. (3) of s. 51 of the Act may be  resorted to  and he  therefore requested  the  Chief Justice to  favour the  Government with  his  views  in  the matter at  an early date. On July 5, 1981, the Law Secretary waited on  the Chief  Justice in that connection. On July 7, 1981 the  Chief Justice wrote a letter to the Chief Minister in which  he stated  that the  Law Secretary had conveyed to him the  decision of  the State Government to have a Circuit Bench at  Aurangabad under  sub-s. (3)  of s. 51 pending the decision of  the Central Government to establish a permanent Bench there  under sub-s. (2) of s. 51 of the Act. The Chief Justice then added:           "I agree  that some such step is necessary in view      of the  preparations made  by the  Government  at  huge      costs and  the  mounting  expectations  of  the  people      there." Rest of  the  letter  deals  with  the  problem  of  finding residential accommodation for the Judges, staff, increase in strength of Judges etc.      On July  20, 1981, the Law Secretary addressed a letter to  the  Registrar  requesting  him  to  forward,  with  the permission of  the Chief  Justice, proposal  as is  required under sub-s.  (3) of  s. 51 for the setting up of a Bench at Aurangabad. In  reply to  the same,  the  Registrar  by  his letter dated  July 24,  1981 conveyed that the Chief Justice agreed with  the suggestion  of the  State  Government  that action had  to be taken under sub-s. (3) of s. 51 of the Act for which  the approval of the Governor was necessary and he enclosed a  copy of  the draft order which the Chief Justice proposed to  issue under  sub-s. (3) of s. 51 of the Act. On August 10, 1981, the Law Secretary conveyed to the Registrar the approval  of the Governor. On August 27, 1981, the Chief Justice issued an order under sub-s. (3) of s. 51 of the Act to the effect: 664           "In exercise of the powers conferred by sub-s. (3)      of s.  51 of the State Reorganization Act, 1956 (No. 37      of 1956)  and all  other powers  enabling him  in  this      behalf,  the   Hon’ble  the  Chief  Justice,  with  the      approval of  the Governor of Maharashtra, is pleased to      appoint Aurangabad  as a  place at  which  the  Hon’ble      Judges  and  Division  Courts  of  the  High  Court  of      Judicature at Bombay may also sit."      The High  Court has set aside the impugned notification issued by the Chief Justice under sub-s. (3) of s. 51 of the Act on the following grounds, namely: (1) The impugned order issued by  the Chief Justice under sub-s. (3) of s.51 of the Act was  not directly  connected with or related to problems arising out  of the  reorganization of the States i.e. there is no  nexus between  the purpose and objects of the Act and the setting  up of Aurangabad as a venue for additional seat of the  High Court,  (2) The  provisions of  the Act  and in particular of  s. 51  were not  intended to  be operative in definitely and  they  were  meant  to  be  exercised  either immediately or  within a  reasonable time  and therefore the exercise of  the power by the Chief Justice under sub-s. (3) of s.  51 of  the Act appointing Aurangabad as a place where the Judges  and Division  Courts of  the High Court may also sit  after   a  lapse   of  26   years  is  constitutionally

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impermissible, (3)  The State  of Maharashtra  was not a new State within  the meaning  of s. 51 read with s. 2(1) of the Act after  the bifurcation  of the bilingual State of Bombay into the  State of  Maharashtra and  the  newly  constituted State of  Gujarat under  s. 3  of the  Bombay Reorganization Act, 1960  and therefore the power of the President of India to establish  a permanent Bench or Benches of the High Court under sub-s.  (2) of  s. 51 of the Act and that of the Chief Justice to appoint with the prior approval of the Governor a place or  places where the Judges and the Division Courts of the High Court may also sit under sub-s. (3) thereof, can no longer be  exercised, (4)  The power  conferred on the Chief Justice under  sub s.(3)  of s.  51 of  the Act to appoint a place or  places where  the Judges or the Division Courts of the High  Court may  also sit,  does not  include a power to establish a  Bench or  Benches at such places, and he had no power or  authority under  sub-s. (3) of s. 51 of the Act to issue  administrative   directions   for   the   filing   or institution of  proceedings at  such a  place  and  (5)  The impugned notification issued by the Chief Justice under sub- s. (3)  of s.  51 of  the Act  was a  colourable exercise of power and therefore liable to be struck down. We are afraid, the High Court has proceeded on wholly wrong premises. 665      Section 51 of the Act provides as follows:           "51. Principal seat and other places of sitting of      High Courts for new States.           (1)  The principal  seat of  the High  Court for a                new State  shall be  at  such  place  as  the                President may, be notified order, appoint.           (2)  The President  may, 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 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.           (3)  Notwithstanding   anything    contained    in                subsection (1) or sub-section (2), the Judges                and Division  Courts of  the High Court for a                new State may also sit at such other place or                places in  that State  as the  Chief  Justice                may,  with  the  approval  of  the  Governor,                appoint."      There questions arise for consideration in this appeal: (1): Whether  the power of the President under sub-s. (2) of s. 51  of the  Act or  that of the Chief Justice of the High Court under sub-s. (3) of s. 51 of the Act, can no longer be exercised due  to lapse of time. (2) Whether the exercise of power by  the Chief Justice under sub-s. (3) of s. 51 of the Act appointing  Aurangabad to be a place at which the Judges and Division  Courts of the High Court shall also sit is co- related to  the reorganization  of the  States, or he has no nexus with  the object and purposes sought to be achieved by the  Act   and  is   only  a   part  of   the   demand   for decentralization of  the administration  justice in general. (3) Whether  the power of the Chief Justice under sub-s. (3) of s.  51 of the Act does not include a power to establish a Bench or  Benches  at  such  place  or  places  carving  out territorial jurisdiction  for such  Benches and  authorising the filing or institution of proceedings at such places.      It is  difficult to  agree with the High Court that the High Court  of Bombay  is not  the High Court of a new State

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within the meaning 666 of sub-s.  (1) of  s. 49  of the  Act,  merely  because  the bilingual State  of Bombay  was bifurcated into two separate States of  Maharashtra and  Gujarat under s. 3 of the Bombay Reorganization Act,  1960. Nor do we see any valid basis for the view  taken by  the High  Court that  the power  of  the President to  establish a  permanent Bench or Benches of the High Court  under sub-s.  (2) of s. 51 of the Act or that of the Chief  Justice to  appoint, with  the  approval  of  the Governor, a  place or  places where  the Judges and Division Courts may  also sit  under sub-s.  (3) of s. 51 of the Act, can no longer be exercised, in relation to the High Court of Bombay. It was right by not disputed before us that the High Court of  Bombay was  the High  Court for  the new  State of Bombay within  the meaning of sub-s. (1) of s. 49 of the Act and therefore  the provisions  of s. 51 of the Act are still applicable. That must be so because the High Court of Bombay owes its  principal seat at Bombay to the Presidential Order issued under  sub-s. (1) of s. 51 of the Act. The expression "new State"  occurring in  sub-s. (1) of s. 49 of the Act is defined in  s. 2(i)  to  mean  "a  State  formed  under  the provisions of  Part II". The State of Bombay was a new State formed under  s. 8  of the Act, which occurs in Part II. The Bombay Reorganization  Act, 1960  (Act No.XI  of 1960) which reconstituted the  erstwhile State  of Bombay into the State of Maharashtra  and the  State of  Gujarat  provides,  inter alia, by  sub-s. (1)  of s.  28 that,  as from the appointed day, i.e.  May 1, 1960, there shall be a separate High Court for the  State of  Gujarat and that the High Court of Bombay shall become  the High  Court for  the State of Maharashtra. Sub-s. (2)  of s. 28 of that Act provides that the principal seat of the Gujarat High Court shall be at such place as the President may,  by notified  order, appoint.  It  is  rather significant  that   the  Bombay   Reorganization  Act,  1960 contains no  similar provision  with regard to the principal seat of  the High  Court  of  Bombay.  That  being  so,  the continued existence of the principal seat of the Bombay High Court at  Bombay is still governed by sub-s. (1) of s. 51 of the Act.  This conclusion  of  ours  is  reinforced  by  the opening words  of s.  41 of  that Act which provides for the setting up  of a permanent bench of the Bombay High Court at Nagpur, and it reads:           "41. Permanent  Bench  of  Bombay  High  Court  at      Nagpur-Without prejudice  to the provisions of s. 51 of      the States Reorganization Act, 1956, such Judges of the      High Court at Bombay, being not less than three in 667      number, as  the Chief  Justice may  from time  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 Rajpura:                Provided that  the Chief  Justice may, in his           discretion, order  that any  case arising  in  any           such districts shall be heard at Bombay."      The legislative intent is clear and explicit by the use of the  words "Without  prejudice to the provisions of s. 51 of the  States Reorganization  Act, 1956".  The  legislature pre-supposed the  continued existence of s. 51 of the Act in relation to  the High Court of Bombay. That shows that while enacting s.41  of the  Act, Parliament retained the power of the President  of India both under sub-s. (1) and sub-s. (2) of s.51  of the Act and that of the Chief Justice under sub-

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s. (3)  thereof. If  there is  continued existence of sub-s. (1) of  s.51 of the Act in relation to the principal seat of the High  Court for a new State, a fortiori, there is, to an equal degree,  the continued,  existence of  the  provisions contained in  sub-ss. (2)  and (3) of s. 51 of the Act. This is also  clear from the provisions of s. 69 of the Act which in terms provides that Part V which contains s.51 of the Act shall have effect subject to any provision that may be made, on or after the appointed day with respect to the High Court of a  new State,  by the  Legislature or any other authority having power to make such provision.      Nor can  we subscribe to the proposition that the power of the  President under  sub-s. (2)  of s. 51 of the Act, or that of  the Chief  Justice of the High Court of a new State under sub-s. (3) of that section, can no longer be exercised due to lapse of time. The High Court is of the view that the provisions of  the Act and in particular of s. 51 were meant to be  exercised either  immediately or  within a reasonable time of  the reorganization  of the States and therefore the exercise of  the power by the Chief Justice under sub-s. (3) of s.  51 of  the Act appointing Aurangabad as a place where the Judges  and Division  Courts of  the High Court may also sit,  after   a  lapse  of  26  years,  is  constitutionally impermissible. Any  other view, according to the High Court, is bound  to give  rise to  a very anamolous situation as in nine out of sixteen States not affected by the Act, 668 the creation of a permanent Bench of a High Court must be by an Act  of Parliament while in seven new States formed under the Act,  the same  could  be  achieved  by  a  Presidential Notification  under   sub-s.  (2)  of  s.  51  of  the  Act. Furthermore,  in   States  where   the  High   Courts   were established by  Letters Patent,  the powers conferred on the Chief Justices  of the  High Courts  qua sittings  of single Judges and  Division  Courts  can  be  exercised  only  with legislative sanction  whereas under  sub s.  (3) of s. 51 it can be done by the Chief Justice of the High Court for a new State, with the approval of the Governor of that State. Such a construction  of the provisions of s. 51 of the Act would, according  to   the   High   Court,   result   in   creating discrimination between the States. The reasoning of the High Court that  the  Act  being  of  a  transitory  nature,  the exercise of  the power  of the President under sub-s. (2) of s. 51  of the  Act, or of the Chief Justice under sub-s. (3) thereof, after,  a lapse  of 26  years, would  be a complete nullity, does  not impress us at all. The provisions of sub- ss. (2)  and (3)  of s.  51 of  the Act  are supplemental or incidental to  the provisions made by Parliament under Arts. 3 and  4 of  the Constitution.  Art. 3  of the  Constitution enables Parliament  to make a law for the formation of a new State. The  Act is a law under Art. 3 for the reorganization of the  States. Art. 4 of the Constitution provides that the law referred  to in  Art. 3  may contain "such supplemental, incidental and  consequential provisions  as Parliament  may deem necessary".  Under the  scheme of the Act, these powers continue to  exist by  reason of  Part V  of the  Act unless Parliament by  law  otherwise  directs.  The  power  of  the President under  sub-s. (2) of s. 51 of the Act, and that of the Chief Justice of the High Court under sub-s. (3) thereof are intended  and meant to be exercised from time to time as occasion arises,  as there  is no  intention to the contrary manifested in  the Act  within the  meaning of  s. 14 of the General Clauses  Act. The  High Court  has assumed  that the provisions of  sub-ss (2)  and (3)  of s. 51 of the Act have ’ebbed out’  by lapse  of time.  This assumption  is plainly

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contrary to the meaning and effect of s. 69 of the Act which in terms  provides that  Part V  which contains s. 51 of the Act, shall  have effect subject to any provision that may be made on  or after the appointed day with respect to the High Court  of  any  State,  by  the  Legislature  or  any  other authority having power to make such provision.      It is  a matter  of common  knowledge  that  Parliament considered it necessary to reorganize the existing States in India and  to provide  for it  and other  matters  connected therewith  and   with  that   end  in   view,   the   States Reorganization Act, 1956 was enacted. As a result 669 of reorganization,  boundaries of  various  States  changed. Some of the States merged into other States in its entirety, while some States got split and certain parts thereof merged into  one   State  and   other  parts  into  another.  These provisions were  bound to  give rise,  and did give rise, to various complex  problems. These problems are bound to arise from  time  to  time.  The  Act  is  a  permanent  piece  of legislation on  the Statute  Book. Section 14 of the General Clauses Act,  1897 provides  that, where, by any Central Act or  Regulation,  any  power  is  conferred,  then  unless  a different intention  appears, that  power may  be  exercised from time to time as occasion arises. The Section embodies a uniform  rule   of  construction.  That  the  power  may  be exercised from  time to  time when  occasion arises unless a contrary intention  appears is  therefore  well  settled.  A statute can  be abrogated only by express or implied repeal. It cannot  fall into desuetude or become inoperative through obsolescence or  by lapse  of time.  In R. v. London Country Council(1), Scrutton L.J. put the matter thus:           "The doctrine  that, because  a certain  number of      people do  not like  an Act  and because  a  good  many      people disobey  it, the  Act is therefore "obsolescent"      and no  one need  pay any  attention to,  it is  a very      dangerous proposition  to hold  in  any  constitutional      country. So  long as  an Act is on the statutebook, the      way to  get rid  of it  is to  repeal or  alter  it  in      Parliament, not  for subordinate  bodies, who are bound      to obey  the law, to take upon themselves to disobey an      Act of Parliament." As to  the theory  of desuetude,  Allen in  his ’Law  in the Making, 5th edn. p. 454 observes:           "Age cannot wither an Act of Parliament, and at no      time, so  far as  I am aware, has it ever been admitted      in  our  jurisprudence  that  a  statute  might  become      inoperative through obsolescence."      The learned  author mentions that there was at one time a theory  which, in  the name  of ’non-observance’ came very near to  the doctrine  of Desuetude,  that if  a statute had been in  existence for  any considerable period without ever being put  into operation  it may be of little or no effect. The rule concerning desuetude has 670 always met  with such general disfavour that it seems hardly profitable to  discuss it  further. It  cannot be  said that sub-s. (2)  or (3)  of s.  51 of  the Act can be regarded as obsolescent. The  opening words  of  s.  41  of  the  Bombay Reorganization  Act,   1960  manifest  a  clear  legislative intention  to   preserve  the  continued  existence  of  the provisions contained  in s.  51 of the Act. It was as recent as December 8, 1976 that the President issued a notification under sub-s.  (2) of  s. 51 of the Act for the establishment of a  permanent Bench of the Rajasthan High Court at Jaipur. The High  Court is therefore not right in observing that the

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provisions of  s. 51  of the  Act were  not intended  to  be operative indefinitely  and they  were meant to be exercised either immediately  or within a reasonable time, or that the powers of  the President or the Chief Justice thereunder can no longer  be exercised  in relation  to the  High Court  of Bombay.      The conclusion  reached by  the  High  Court  that  the impugned notification issued by the Chief Justice under sub- s. (3)  of s.  51 of the Act was not directly connected with the reorganization  of the  States, or had no nexus with the objects and  purposes sought  to be  achieved by the Act but was only  as part  of the demand for decentralization of the administration of  justice in general, can only be justified as a necessary corollary flowing from its views expressed on other aspects  of the  matter. The creation of 14 new States by Part  II of the Act based on a linguistic basis virtually led to  the re-drawing  of the  political map  of India as a whole. Even  after the reorganization of the States in 1956, the political  map of India continued to change owing to the growing   pressure    of   political    considerations   and circumstances. The  formation of  the  linguistic  State  of Bombay constituted  under s.  8 of the Act became the source of struggle between the Gujarati and Marathi-speaking people as a  result of  which  the  State  of  Bombay  was  further bifurcated in  1960.  These  political  changes  necessarily affected the  constitution and  structure of the High Court. Under the Constitution, Parliament alone has the legislative competence to make a law relating to the subject under Entry 78 of List I of the Seventh Schedule which reads:           "78.  Constitution   and  organisation  (including      vacations) of  the High  Courts except provisions as to      officers and  servants of High Courts: persons entitled      to practise before the High Courts:      Under the  scheme of  the Act,  it  would  appear  that having constituted  a High Court for the new State of Bombay under sub-s. 671 (1) of  s. 49  of the  Act and  conferred jurisdiction on it under s. 52 in relation to the territories of the new State, Parliament  left  it  to  the  various  high  Constitutional functionaries designated  in the three sub-sections of s. 51 of the  Act to  determine the place where the principal seat of the  High  Court  should  be  located  and  places  where permanent  Bench  or  Benches  of  the  High  Court  may  be established or  where the  Judges and Division Courts of the High Court may also sit. on the reorganization of the States as  from  the  appoint  day,  i.e.  November  1,  1956,  the territories of  the new State of Bombay formed under s. 8 of the Act  and with  it the jurisdiction of the High Court was considerably extended.  The merger of the new territories of the Vidarbha  region of  the former  State of Madhya Pradesh and  the   Marathwada  region  of  the  erstwhile  State  of Hyderabad together  with the  Saurashtra region of the newly constituted State  of Gujarat  was an  additional source  of strength of the High Court. It became necessary for the more convenient transaction of judicial business to establish, as from the  appointed day,  two Benches  of the  High Court at Nagpur and Rajkot to deal with matters arising from Vidarbha and Saurashtra  regions respectively.  The formation  of the separate State  of Gujarat  in 1960 under s. 3 of the Bombay Reorganization Act,  1960 resulted  in severance of ties not only with  the Saurashtra  region but  also with the Gujarat districts  over   which  the   High  Court   had   exercised jurisdiction for  about a  century. The High Court of Bombay therefore underwent  a major transformation in 1956 when the

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bilingual State  of Bombay  was formed under s. 8 of the Act and then again in 1960 when with the formation of a separate State of  Gujarat under  s. 3  of the  Bombay Reorganization Act, the  residuary State  of Bombay  was to be known as the State of  Maharashtra. Nagpur which ceased to be the seat of the High Court of the new State of Madhya Pradesh, was given a Bench  by an order issued by the then Chief Justice of the High Court  under sub  s. (3)  of s.  51  of  the  Act.  The arrangement was  made permanent  by s.  41 of that Act which provided for  the establishment  of  a  permanent  Bench  at Nagpur to  deal with  cases  arising  out  of  the  Vidarbha region. It was a solemn assurance given to the people of the Marathwada region of the erstwhile State of Hyderabad by cl. (7) of the Nagpur Pact that the provision with regard to the establishment of  a permanent  Bench at  Nagpur  shall  also apply mutatis mutandis to the Marathwada region.      There has  been a  long-standing demand  ever since the formation of the bilingual State of Bombay under s. 8 of the Act for the establishment of a permanent Bench of the Bombay High Court at 672 Aurangabad under  sub-s. (2)  of s.  51 of  the Act  for the disposal of  cases arising  out of  the Marathwada region of the State  of Maharashtra  and the matter is still under the active consideration  of the Central Government. Pending the decision   of   the   Central   Government   regarding   the establishment of  a permanent  Bench of the High Court under sub-s. (2)  of s.  51 of  the  Act  at  Aurangabad  for  the Marathwada region,  the Chief  Justice of  the  Bombay  High Court issued  the impugned  order for the establishment of a Bench at Aurangabad with effect from August 27, 1981.      The only other point to be considered, and this was the point principally  stressed in  this appeal,  is whether the power conferred  on the Chief Justice under sub-s. (3) of s. 51 of  the Act to appoint a place or places where the Judges and Division  Courts may  also sit, does not include a power to establish a Bench or Benches at such place or places, nor that he  had any  power or  authority  thereunder  to  issue administrative directions  for the  filing or institution of proceedings at  such a place. There is quite some discussion in the judgment of the High Court on the distinction between the "sittings"  of the  Judges and  Division Courts  and the "seat" of the High Court and after going into the history of the constitution of the various High Courts in India and the Letters Patent constituting such High Courts, the High Court holds that  the exercise  of the  power by the Chief Justice under sub-s.  (3) of  s. 51  of the  Act is bad in law as it brings about  a territorial  bifurcation of  the High Court. According to  the High Court, the Judges and Division Courts at Aurangabad  were  competent  to  hear  and  decide  cases arising out  of  the  districts  of  the  Marathwada  region assigned to them by the Chief Justice, but the Chief Justice had no  power or  authority under sub s. (3) of s. 51 of the Act to  issue administrative  directions for  the filing  or institution of  proceedings at such a place. The judgment of the High  Court mainly  rests on  the decision of the Kerala High Court  in Manickam  Pillai Subbayya Pillai v. Assistant Registrar, High Court Kerala, Trivandrum(1) and the minority view of  Raina, J. in Abdul Taiyab Abbasbhai Malik & Ors. v. The Union of India & Ors.,(2) following the Kerala view.      It is  not necessary  for our  purposes to  go into the distinction sought to be drawn between the "sittings" of the Judges and  Division Courts at a place and the "seat" of the High Court. It is 673

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difficult to  comprehend how  the Chief  Justice can arrange for the  sittings of  the Judges  and Division  Courts at  a particular place  unless there  is a  seat at that place. It may be  true in the juristic sense that the seat of the High Court must  mean "the  principal seat  of such  High Court," i.e. the place where the High Court is competent to transact every kind  of business  from any  part of  the  territories within its  jurisdiction. It  is impossible to conceive of a High Court  without a  seat being  assigned to it. The place where it would sit to administer justice or, in other words, where its  jurisdiction can  be invoked  is an essential and indispensable feature  of the  legal institution, known as a Court. Where  there is  only one  seat of the High Court, it must necessarily  have all  the attributes  of the principal seat. But  where the  High Court has more than one seat, one of them  may or  may not  be the principal seat according to the  legislative   scheme.  It  is  both  sound  reason  and commonsense to  say that the High Court of Bombay is located at its  principal seat  at Bombay, but it also has a seat at the permanent  Bench at Nagpur. When the Chief Justice makes an order  in terms  of sub-s.  (3) of  s. 51 of the Act that Judges and  Division Courts of the High Court shall also sit at such  other places,  the High  Court in the genetic sense has also  a seat  at such  other places.  We may  drew  some analogy from  the provisions of Art. 130 of the Constitution which reads:           "130. The  Supreme Court  shall sit in Delhi or in      such other  place or  places, as  the Chief  Justice of      India may,  with the  approval of  the President,  from      time to time, appoint."      It is necessary to emphasize that besides administering justice, the  High Court has the administrative control over the subordinate  judiciary in  State. The  High  Court  must necessarily carry  on its  administrative functions from the principal  seat,   i.e.  the  place  where  the  High  Court transacts every  Kind of business in all its capacities. The High Court  as such  is located  there, but it may have more than one  seat for  transaction of  judicial  business.  The constitution and  structure of the High Court depends on the statute creating  it. The  decision in  Nasiruddin v.  State Transport Appellate  Tribunal(1) is not directly in point as it turned  on the construction of the provisions of the U.P. High Courts  (Amalgamation) order,  1948. It  is however  an authority for the proposition that after the 674 amalgamation of  the High  Court of  Allahabad and the Chief Court of  Oudh, the  two High  Courts ceased  to  exist  and became Benches  of the  newly constituted  High Court by the name of  the High Court of Judicature at Allahabad. Further, the Court  held that  a case  "instituted" at  a  particular Bench had  to be  "heard" at  that Bench. It recognized that there can be two seats of the High Court without a principal seat.      It must  here be  mentioned that  provisions similar to sub-s.(3) of  s. 51  of the  Act existed  in almost  all the Letters Patent  or the  Acts under  which the  various  High Courts have  been constituted. While introducing the Bill of 1861 in  the British Parliament for the establishment of the High Courts  for the  Bengal Division  of the  Presidency of Fort William  and also  at Madras  and Bombay,  Sir  Charles Wood, Secretary  of State  for India,  laid  stress  on  the advantage of  the Judges  of the new Courts going on circuit to try criminal cases. He said:           "Now according to the provisions of this Bill, the      Judges of  the Supreme  Court may  be sent  on  circuit

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    throughout the  country......It may  be impossible in a      country like  India to  bring justice  to  every  man’s      door, but  at all  events the  system now proposed will      bring it far nearer than at present."      When we  examine the  constitution of  the various High Courts in  India, one  thing is  clear that  whenever a High Court was  established by  Letters patent  under s. 1 of the Indian High  Courts Act,  1861 called  the Charter  Act,  or under s.  113 of the Government of India Act, 1935, the High Court was  created and  established at  a  particular  place mentioned in  the Letters  Patent. S.  1 of  the Charter Act provided that it shall be lawful for Her Majesty, by Letters Patent under  the great seal of the United Kingdom, to erect and establish  a High Court of Judicature at Fort William at Bengal for the Bengal Division of the Presidency of the Fort William, and  by like Letters Patent, to erect and establish like High Courts at Madras and Bombay for these Presidencies respectively. In  pursuance of  these provisions  by Letters Patent issued  by Her  Majesty in  1862, the  Chartered High Courts of  Calcutta, Madras  and Bombay were established. In virtue of the powers conferred by s. 16 of the Act the Crown by Letters  Patent established  in 1866 at Agra a High Court of Judicature for North-Western Provinces for the Presidency of Fort William, to be called a High Court of Judicature for North 675 Western Provinces.  The seat of the High Court for the North Western Provinces was shifted from Agra to Allahabad in 1869 and its  designation  was  altered  to  the  High  Court  of Judicature at  Allahabad  by  Supplementary  Letters  Patent issued in  1919 in pursuance of s. 101 (5) of the Government of India  Act, 1915. The expression "erect and establish" in relation to a High Court meant nothing more than to indicate the establishment  of the  High Court  at a particular place where the High Court was competent to transact every kind of business arising  from any  part of the territory within its jurisdiction.      Cl. 31  of the  Letters Patent  for the  High Court  of Calcutta provides  for "exercise  of jurisdiction  elsewhere than at the ordinary place of sitting of the High Court" and it reads as follows:           "And we  do further  ordain that whenever it shall      appear to  the Governor  General in  Council convenient      that the  jurisdiction and  power by  these our Letters      Patent, or  by the recited Act, vested in the said High      Court of  Judicature at  Fort William in Bengal, should      be exercised  in any  place within  the jurisdiction of      any Court  now subject  to the  superintendence of  the      said High  Court, other than the usual place of sitting      of the  said High  Court, or  at several such places by      way of  circuit, the  proceedings in  cases before  the      said High  Court at  such  place  or  places  shall  be      regulated by any law relating thereto which has been or      may be  made by  competent  legislative  authority  for      India." The Letters  Patent for the High Courts of Madras and Bombay are mutatis  mutandis in  almost the  same terms.  Cl. 31 of these Letters  Patent similarly  provided for  "exercise  of jurisdiction elsewhere than at the ordinary place of sitting of the High Court." It would appear therefrom that the power to direct that the High Court shall sit at a place or places other than  the usual  place of sitting of these High Courts was a  power of  the Governor-General  in Council,  and  the proceedings in  cases before  the said  High Courts  at such place or  places were  to be  regulated by  any law relating

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thereto which  had  been  or  might  be  made  by  competent legislative authority for India.      It is  clear upon  the terms  of s.  51 of the Act that undoubtedly the  President has the power under sub-s. (1) to appoint the principal 676 seat of  the High Court for a new State. Likewise, the power of  the   President  under   sub-s.   (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-s. (2) of s. 51 of the Act must therefore bring about a territorial bifurcation of the  High Court. Under sub-s. (1) and sub-s. (2) of s. 51 of the  Act the  President has  to act  on the advice of the Council of  Ministers as  ordained  by  Art.  74(1)  of  the Constitution. In both the matters the decision lies with the Central Government.  In contrast,  the power  of  the  Chief Justice to  appoint under  sub-s.(3) of s. 51 of the Act the sittings of the Judges and Division Courts of the High Court for a  new State  at places  other than  the  place  of  the principal seat or the permanent Bench is in the unquestioned domain of  the Chief  Justice, the only condition being that he must  act with  the  approval  of  the  Governor.  It  is basically an  internal matter  pertaining to the High Court. He has  full power, authority and jurisdiction in the matter of allocation  of business of the High Court which flows not only from  the provision  contained in sub-s.(3) of s. 51 of the Act but inheres in him in the very nature of things. The opinion of the Chief Justice to appoint the seat of the High Court for  a new  State at  a place other than the principal seat under  sub-s. (3)  of s.  51 of  the Act must therefore normally prevail  because it  is  for  the  more  convenient transaction of  judicial business.  The non  obstante clause contained in  sub-s. (3) of s. 51 given an overriding effect to the  power of  the Chief Justice. There is no territorial bifurcation of  the High  Court  merely  because  the  Chief Justice directs  under sub-s.  (3) of  s. 51 of the Act that the Judges  and Division Courts shall also sit at such other places as  he  may,  with  the  approval  of  the  Governor, appoint. It  must accordingly  be held  that  there  was  no territorial bifurcation  of the  Bombay  High  Court  merely because the  Chief  Justice  by  the  impugned  notification issued under  sub-s. (3)  of s.  51 of the Act directed that the Judges and Division Courts shall also sit at Aurangabad. The Judges and Division Courts at Aurangabad are 677 part of  the same  High Court as those at the principal seat at Bombay  and they  exercise jurisdiction  as Judges of the High Court  of Bombay at Aurangabad. The Chief Justice acted within the  scope of  his powers. We see no substance in the charge that  the impugned  notification issued  by the Chief Justice under  sub-s.  (3)  of  s.  51  of  the  Act  was  a colourable exercise of power.      As to  the scope  and effect  of sub-s. (3) of s. 51 of the Act,  the question  came  up  for  consideration  before Chagla,  C.J.   and  Badkas,   J.  in  Seth  Manji  Dana  v.

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Commissioner of Income-tax, Bombay & Ors.(1) decided on July 22, 1958.  This was  an application by which the validity of r. 254 of the Appellate Side Rules was challenged insofar as it provided  that all  income-tax  references  presented  at Nagpur should  be heard  at the  principal seat  of the High Court at  Bombay, and  the contention was that the result of this rule  was that  it excluded  income-tax references from the jurisdiction of the High Court functioning at Nagpur. In repelling the contention, Chagla, C. J. observed :           "Legally,  the  position  is  quite  clear,  under      section 51  (3) of  the State  Reorganization Act,  the      Judges sitting  at Nagpur constitute a part of the High      Court of  Bombay. They  are as  much a part of the High      Court of  Bombay, and  if we might say so distinguished      part of  the High  Court of  Bombay, as  if  they  were      sitting under the same roof under which Judges function      in Bombay.  All that happens is that the Chief Justice,      under the  powers given to him under the Letters Patent      distributes the  work to  various  Judges  and  various      Divisional Benches,  and acting  under  that  power  he      distributes certain  work  to  the  Judges  sitting  at      Nagpur." He then continued:           "All that  rule 254  does is to permit as a matter      of convenience  certain  matters  to  be  presented  at      Nagpur to  the Deputy  Registrar. If  rule 254  had not      been enacted, all matters would have to be presented at      Bombay  and   then  the   Chief  Justice   would   have      distributed those  matters to different Judges, whether      sitting in Bombay or at Nagpur. It is out of regard and      consideration for the 678      people of  Vidarbha and for their convenience that this      rule is enacted, so that litigants should not be put to      the inconvenience of going to Bombay to present certain      matters. Therefore,  this particular  rule has  nothing      whatever to do either with section 51 (3) of the States      Reorganisation Act or with the Constitution." With regard to r. 254, he went on to say :      "Now, having  disposed  of  the  legal  aspect  of  the      matter, we  turn to  the practical  aspect, and  let us      consider whether this rule inconveniences the people at      Nagpur. If  it does,  it  would  certain  call  for  an      amendment of that rule. Now, there is particular reason      why all Income Tax References should be heard in Bombay      and that  reason is  this. The High Court of Bombay for      many  years,   rightly  or   wrongly,  has  followed  a      particular policy  with regard to Income Tax References      and that  policy is  that the  same Bench  should  hear      Income Tax  References,  so  that  there  should  be  a      continuity with  regard to the decisions given on these      References. I know that other High Courts have referred      to this  policy with  praise because they have realised      that the result of this policy has been that Income Tax      Law has  been laid  down in a manner which has received      commendation from  various sources. The other reason is      and we  hope we  are not mistaken in saying so that the      number of  Income Tax  References from  Nagpur are very      few. If the number was large, undoubtedly a very strong      case would  be made  out for these cases to be heard at      Nagpur." He then concluded :           "After all,  Courts exist  for the  convenience of      the  litigants   and  not  in  order  to  maintain  any      particular system  of law  or any  particular system of

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    administration.  Whenever   a  Court   finds   that   a      particular rule  does  not  serve  the  convenience  of      litigants, the  Court  should  be  always  prepared  to      change the rule." 679 The ratio  to be  deduced from the decision of Chagla, C. J. is that  the Judges  and Division  Courts sitting  at Nagpur were functioning  as if  they were  the Judges  and Division Courts of the High Court at Bombay.      In Manickam  Pillai’s case  (supra),  the  Kerala  High Court  held   that  the   curtailment  of   the  territorial jurisdiction of  the main  seat of  the High  Court of a new State is  a necessary  concomitant to the establishment of a permanent Bench  under sub-s.  (2) of s. 51 of the Act while contrasting sub-s.  (3) with  sub-s. (2).  There, a question arose whether  the temporary  Bench of  the  High  Court  of Kerala with  its principal  seat at Ernakulam created by the Chief Justice  at Trivandrum by an order issued under sub s. (3) of  s. 51  of the  Act was not the High Court of Kerala, and the  Judges and  Division Courts  sitting at  Trivandrum were precisely  in the  same position as Judges and Division Courts sitting  in the several court-rooms of the High Court at its  principal seat  in Ernakulam.  In other  words,  the contention was  that the  Judges and Division Courts sitting at Trivandrum  could only  hear and dispose of such cases as were directed  to be posted before them by the Chief Justice but no  new case  could be instituted there. Raman Nayar, J. (as he  then was)  speaking for  the  Court  held  that  the Trivandrum Bench  was not  the High  Court of Kerala and the Judges and  Division Courts sitting at Trivandrum could hear and dispose  of only  such cases as may be assigned to them. With respect,  we are of the opinion that the view expressed by Chagla,  C. J.  in Manji  Dana’s case,  (supra), is to be preferred. Chagla,  C. J.  rightly observes  that the Judges and Division  Courts at  a temporary Bench established under sub-s. (3)  of s.  51 of  the Act  function  as  Judges  and Division Courts of the High Court at the principal seat, and while so sitting at such a temporary Bench they may exercise the jurisdiction  and power  of the  High  Court  itself  in relation to all the matters entrusted to them.      In the  result, the appeal must succeed and is allowed. The judgment and order passed by the High Court is set aside and  the   writ  petition  filed  by  respondent  No.  1  is dismissed. In  terms of  the order  passed by  us on  May 4, 1982, we  direct that  in accordance  with the  notification issued by  the Chief  Justice of  the High  Court of  Bombay dated August  27, 1981,  the  sittings  of  the  Judges  and Division Courts  may be  held and  continue to  be  held  at Aurangabad with  full and  normal powers  to  entertain  and dispose of all matters 680 arising out  of the  Marathwada region,  that is to say, the area comprising  the districts  of Aurangabad,  Bhir, Jalna, Nanded, Osmanabad  and Parbani. All cases pertaining to that region and pending as on May 4, 1982 at the main seat of the High Court  at Bombay shall be dealt with and disposed of as the Chief Justice of the High Court may direct. consistently with the  terms of  the aforesaid  notification dated August 27, 1981.      There shall be no order as to costs. H. L. C.                                   Appeal dismissed. 681