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PETITIONER: UMAJI KESHAO MESHRAM & ORS.

       Vs.

RESPONDENT: RADHIKABAI W/O ANANDRAO BANAPURKAR & ANR.

DATE OF JUDGMENT14/03/1986

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) MADON, D.P.

CITATION:  1986 AIR 1272            1986 SCR  (1) 731  1986 SCC  Supl.  401     1986 SCALE  (1)681  CITATOR INFO :  E&R        1992 SC 185  (1,3,4)

ACT: Letters Patent 1929 (Bombay) Clause 15 :      Judgment of  a Single Judge in a petition under Article 226/227  -   Intra-Court  Appeal  -  Whether  competent  and maintainable.      Expression "pursuant  to section  108 of the Government of India Act" - Interpretation of.      Expression  "Power   of   superintendence   under   the provisions of  section 107  of the Government of India Act"- Whether to  be construed  as a  reference to Art. 227 of the Constitution.      Bombay High  Court Appellate Side Rules, 1960 : Rule 18 - Expression  "shall be  heard and  finally disposed  of"  - Whether negatives  filing of an appeal in a proceeding under Art. 226/227 of the Constitution.      Indian High  Courts Act, 1861, Government of India Acts 1915- 1919 and 1935 - Whether Constitutional Laws. Constitution of India, 1950 :      Articles 225,  226 and  227 - Whether confer wholly new powers on  the High  Courts existing  at the commencement of the Constitution.      Expression  "subject   to  the   provisions   of   this Constitution" in Article 225 - Interpretation of.      Joint petition under Articles 226 and 227 - Implication of - Whether to be treated as one under Article 226.      Article 227  - Power  of superintendence  - Whether  in addition to that conferred by Article 226. 732 Words and Phrases :      "Judgment" -  Meaning of  - Clause  15, Letters  Patent 1929 (Bombay).

HEADNOTE:      Clause 15 of the Letters Patent, Bombay, in its finally amended and  operative form  (January 1929) provided that an appeal shall  lie to the High Court of Judicature at Bombay, from a  judgment of one Judge of the High Court, pursuant to s.108 of  the Government of India Act of 1915, not being (a) a judgment  passed in the exercise of appellate jurisdiction in respect  of a  decree or  order made  in the  exercise of

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appellate  jurisdiction   by  a   Court   subject   to   the superintendence of  the High Court, (b) an order made in the exercise of revisional jurisdiction, (c) a sentence or order passed  or   made  in   the  exercise   of  the   power   of superintendence  under   the  provisions  of  s.107  of  the Government of  India Act of 1915, or (d) a sentence or order passed or  made in  the exercise  of criminal  jurisdiction. Rule 18  of Chapter XVII, of the Bombay High Court Appellate Side Rules,  1960, provides that applications under Art. 226 or Art.  227 of  the Constitution  arising out of the orders passed  by   the  Maharashtra  Revenue  Tribunal  under  any enactment, may  be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice. %      The  appellants’   revision  application   having  been allowed by  the  Maharashtra  Revenue  Tribunal,  the  first respondent  filed   a  petition   under  Art.   227  of  the Constitution before  the Nagpur  Bench of  the High Court of Bombay. By  reason of  the aforesaid  r.18 the  petition was heard by  a Single Judge and allowed, restoring the order of the Sub-Divisional  Officer. Against this judgment and order the appellants  filed an  appeal under  cl.15 of the Letters Patent to  a Division Bench of the Bombay High Court, Nagpur Bench, which was dismissed as not being competent in view of the earlier  decision of  a Full  Bench  in  Shankar  Naroba Salunke &  Ors.  v.  Gyanchand  Lobhachand  Kothari  &  Ors. decided on  September 3,  1980. The  Full Bench in that case had concluded  that no intra-court appeal lay under cl.15 of the Letters Patent against the judgment of a Single Judge of the Bombay  High Court in a petition filed under Art. 226 or 227 on  the premises  : (1)  that on the commencement of the Constitution cl.15 of the Letters Patent having ceased to be in operation it could not control matters expressl 733 provided in  the Constitution,  for the  High Courts then in existence became  organically different  High Courts as they acquired a  different origin, nature and character since (a) the Constitution had effected a break with the past and made absolutely a  new original  and vital  beginning as  far  as origin, source  of power  and conferment  of  constitutional authority was  concerned, and  (b) the  provision for intra- court appeal  in the  Letters Patent  dealt  with  different jurisdictions under  the ordinary  law only and not with any jurisdiction  conferred   upon  the   High  Court   by   the Constitution, (2)  that even  if cl.15 of the Letters Patent were to apply an appeal would be barred by the express words of cl.15  itself because  both Arts. 226 and 227 provide for the same  relief, namely, scrutiny of records and control of subordinate  Courts   and  Tribunals   and,  therefore,  the exercise of the jurisdiction under these Articles would fall within the expression ’revisional jurisdiction’ or "power of superintendence", and  (3) that  the  expression  "shall  be heard and  finally disposed  of" in  r.18 of Chapter XVII of the Bombay  High Court  Appellate Side Rules, 1960 negatives the filing  of any  appeal in a proceeding under Art. 226 or 227.      In this  Appeal by  Special Leave  against the order of the Division  Bench, in  determining whether  an intra-court appeal lies  under cl.15 of the Letters Patent of the Bombay High Court to a Division Bench from the judgment of a Single Judge in a petition filed under Art. 227, the correctness of Shankar Naroba Salunke’s case fell for close examination.      Dismissing the appeal, the Court, ^      HELD :  By the  Court (per  Chinnappa Reddy  and Madon,

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JJ.)      No intra-court  appeal lies  under cl.15 of the Letters Patent of  the Bombay  High Court  against the  order  of  a Single Judge  exercising jurisdiction  under Art. 227 of the Constitution. [743 D-E; 834 D]      Per Chinnappa Reddy, J.      The reference  to s.107 of the Government of India Act, 1915 in cl.15 of the Letters Patent of the Bombay High Court 734 must necessarily  be read  as a reference to Art. 227 of the Constitution. So read, an appeal under cl. 15 is clearly not maintainable against  an order made in exercise of the power under Art. 227. [743 E-F]      Per Madon, J.           1. Under  Art.  225  the  High  Courts  exercising jurisdiction in relation to provinces immediately before the commencement of  the Constitution became the High Courts for the corresponding States and exercised the same jurisdiction and administered  the  same  law  as  theretofore,  and  the respective  powers  of  the  Judges  of  such  High  Courts, including the power to make rules for the Court and regulate the sittings  of the  Court and  of members  thereof sitting singly or in Division Courts, remained the same. The Letters Patent of  the Bombay  High Court and the Rules made by that High Court  thus continued  to be  in operation by virtue of the Constitution itself. [760 C-E; 765 G-H]           2.1 The High Courts under the Constitution did not become organically different institutions from the same High Courts in existence immediately prior to the commencement of the Constitution. [754 E; 811 E]           2.2 The  Constitution did  not posit  a break from the past  and make  absolutely  a  new  original  and  vital beginning, but  was the  result of  a process  of evolution. Almost three  fourths of  it is based upon the Government of India Act, 1935, subject to modifications which were made in the light of the experience and adopted to a republican form of Government. The existing institutions, including the High Courts, as also the laws in force which were in existence at the commencement  of the  Constitution, were  preserved  and continued by the Constitution. [800 F; 802 E,C; 805 D]      State   of    Gujarat   v.   Vora   Fiddali   Badruddin Mithibarwala, [1964] 6 S.C.R. 461 referred to.           2.3 The  Indian High  Courts  Act,  1861  and  the Government of  India  Acts,  1915-1919  and  1935  were  all constitutional laws. It is erroneous to characterize them as ordinary laws. [807 C] 735      Sri Sankari  Prasad Singh  Deo v.  Union of  India  and State of  Bihar, [1952]  S.C.R 89,  Union of  India etc.  v. Tulsiram Patel  etc., [1985]  3 S.C.C.  398, 425-6., British Coal Corporation and Ors. v. The King, [1935] A.C. 500, 518, J.C.; James  v. Commonwealth  of Australia, [1936] A.C. 578, 614, J.C.,  In re  the Central  Provinces and Barar Sales of Motor Spirit  and Lubricants  Taxation  Act,  1938  (Central Provinces and Berar Act No. XIV of 1938) 1939 F.C.R. 18, 36. In re  the Hindu  Property Act,  1937, and the Hindu Women’s Rights to  Property (Amendment) Act, 1938, 119411 F.C.R. 12, 26., Navinchandra  Mafatlal v.  Commissioner of  Income Tax, Bombay City, [1955] 1 S.C.R. 829, 836, referred to.      2.4 Article  215 did not bring any revolutionary change in their nature and character. All the superior courts which preceded the High Courts were Courts of Record and the power to punish  for contempt  was inherent  in and  possessed  by every Court  of Record.  Section 106(1) of the Government of India Act  of 1915  provided that  the serveral  High Courts

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would be  Courts of  Record, and  s.220 of the Government of India Act,  1935 made an identical provision. [811 D; 810 E; 811 A]      2.5 Articles  225, 226  and 227 did not confer upon the High Courts  wholly new powers not possessed by the existing High Courts  immediately prior  to the  commencement of  the Constitution. Article  225 is  in pari materia with s.223 of the Government  of India  Act,  1935.  The  power  to  issue directions, orders and writs under Art. 226 is modelled upon the prerogative  writ jurisdiction  possessed by  the  three Chartered High  Courts in  the exercise  of  their  original jurisdiction immediately  prior to  the commencement  of the Constitution, though  under the  Constitution that power has been made  wider and more extensive and conferred upon every High Court  to enable them to reach injustice wherever found and mould  the reliefs  accordingly. Article 227 derives its origin from  s.15 of the Indian High Courts Act, 1861, s.107 of the  Government of  India Act, 1915-1919 And s.224 of the Government of  India Act,  1935 which conferred upon each of the Chartered  High Court  the power of superintendence over all courts  subject to  its appellate  jurisdiction. [813 D; 826 F; 830 B; 831 E; 815 G; 813 F-H]      Prabodh Verma  and Ors.  v. State  of Uttar Pradesh And Ors., [1985] 1 S.C.R. 216, Ryots of Garabandho and other 736 villages v.  Zamindar of  Parlakimedi and Anr., [1942-43] 70 I.A. 129.,  Election Commission, India v. Saka Venkata Subba Rao, [1953]  S.C.R. 1144,  1150, Dwarkanath  Hindu Undivided Family v. Income Tax Officer, Special Circle, Kanpur & Anr., [1965] 3 S.C.R. 536, 540-41 referred to.      3.1 It  is the charter of the High Court, whether it be a statute or Letters Patent, which generally confers a right of intra-court  appeal and  it is  the rules  made under the rule making  power of the High Court which generally provide which matters are to be heard by a Single Judge and which by a Division  Bench. Where  by the  charter of  a  High  Court matters are  not required  to be  heard  by  any  particular number of  Judges and  such charter  provides for  an intra- court appeal  from the  decision of  a Single Judge, whether such tn appeal would lie or not would depend upon whether by the rules  made by  the High  Court in  the exercise  of its rule-making power the matter is heard by a Single Judge or a Division &  Bench, subject  to the condition that such right of appeal is not otherwise excluded. [839 H; 840 A-C]      3.2 Under  c1.15 of  the Letters  Patent of  the Bombay High Court,  from the  Judgment of  a Single Judge an appeal lies to  a Division  Bench provided  it is not barred by any statute, and  provided the  conditions laid  down  by  c1.15 itself viz:  (i) that  lt must  be a  judgment  pursuant  to section 108 of the Government of India Act of 1915, and (ii) that it  must not  be a  judgment falling  within one of the excluded categories  set out  in claw  e 15,  are fulfilled. [824 A-C]      3.3 By  the Letters  Patent dated  March 11,  1919  the expression "pursuant  to s.108  of the  Government of  India Act" was substituted for the expression "pursuant to s.13 of the said  reacted Act", that is, the Indian High Courts Act, 1861. When  the Government  of India  Act of  1915-1919  was repealed and  replaced by the Government of India Act, 1935, the rule  making power  of the  High Court  and of the Chief Justice to  assign  work  either  to  Single  Judges  or  to Division Courts  were continued  unimpaired  and  unaffected under s.223  of the  latter Act. Letters Patent establishing the High  Courts sued by the Crown, falls within the meaning of the  term "instrument"  as used in s. 8(2) of the General

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Clauses Act,  1897. Therefore,  by the combined operation of s.38 of the 737 Interpretation Act,  1889 and s 8 of the General Clause Act, the expression "pursuant to s.108 of the Government of India Act", is,  on the  coming into  force of  the Government  of India Act,  1935, to  be read  as "pursuant to 6. 223 of the Government of  India Act,  1935", and  since Art  225 of the Constitution  is   in  pari  materia  with  s.  223  of  the Government of  India Act,  1935, on  the commencement of the Constitution the  expression "pursuant  to  s.  223  of  the Government of  India Act"  - deemed to have been substituted for the  expression "pursuant  to s.108 of the Government of India Act  to be  read as  "pursuant  to  Art.  225  of  the Constitution" by  virtue of  Art. 367(1),  which  makes  the General Clauses Act applicable for the interpretation of the Constitution. [824 D,G; 825 B; 826 E-H; 827 A]      National Sewing  Thread Co.  Ltd. v.  James Chadwick  & Bros. Ltd. [1953] S.C.R. 1028 referred to.      3.4 When  a single  Judge of  a  Chartered  High  Court decided a petition under Art 226 or 227, his judgment is one given pursuant  to Art. 225 and is appealable under c1.15 of the Letters  Patent  unless  it  falls  within  one  of  the excluded categories. [829 F]      3.5 Under  cl. 15  no intra-court appeal lay against an order passed  or made  in  the  exercise  of  the  power  of superintendence under  the  provisions  of  s.  107  of  the Government  of   India  Act.   By  the   same   process   of interpretation by reason of which the phrase ’pursuant to s. 108 of  the Government  of India Act’ in c1.15 is to be read as "pursuant  to Art.  225 of the Constitution of India" tho phrase "order passed or made in tho exercise of tho power of superintendence under  the  provisions  of  s.  107  of  tho Government of  India Act"  is to be read as "order passed or made in  the exercise  of power of superintendence under the provisions of  Art. 227  of the  Constitution:. So  read, an intra-court appeal  does not  lie against  the judgment of a Single Judge  of the  Bombay High  Court given in a petition under Art.  227 by  reason of  such appeal  being  expressly barred by c1.15 of the Letters Patent. [834 B-D]      J.G. Chikhale  v. G.R.  Bodbe, [1965] 67 Bom. L.R. 609; Sukhendu Barua  v. Hare  Krishna De & Ors., A.I.R. 1953 Cal. 636; Shrinivasa Reddiar and Ors. v. Krishnaswami Reddiar and Ors., A.I.R. 1955 Mad. 72;  In re : V. Tirupuliswamy Naidu, 738 I.L.R. 1955  Mad. 1083,  s.c. =  A.I.R.1955 Mad.  287; J & K Cooperative Bank  v. Shams-ud-din-Bacha,  A.I.R. 1970  J & K 190; Ishwar Singh v. Ram Piari and Anr., A.I.R. 1978 H.P. 39 and South  Asia Industries  Pvt. Ltd.  v. S.B. Sarup Singh & Ors., [1965] 2 S.C.R. 756 referred to.      In  the   instant  case   the  petition  filed  by  the appellants before  the Nagpur Bench of the Bombay High Court was admittedly  under Art.  227 and  under the  rules of the High Court  it was  heard by  a Single Judge. An intra-court appeal against the decision of the learned Single Judge in a petition under  Art. 227  having been expressly barred under cl. 15  of the Letters Patent of that High Court, the appeal filed by  the appellants  from the  decision of  the  Single Judge to  the Division  Bench was rightly dismissed as being not maintainable. r [840 D]      State of Maharashtra v. Kusum Charudutt Bharma Upadhye, [1981] 83 Bom. L.R. 75, s.c. 1981 Mah. L.J. 93 approved.      Shankar Naroba  Salunke &  Ors. v.  Gyanchsnd Lobhchand Kothair &  Ors., L.P.  As Nos. 3, 10, 11 & 17 of 1979 and 34 of 1980 decided on September 3, 1980, over-ruled in part.

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    4.1 Where  a petition filed under Art. 226 is according to the  rules of  a particular  High Court heard by a Single Judge, an  intra-court appeal  will lie from the judgment if such a  right of  appeal is  provided in the Charter whether such charter  be Letters  Patent or  a statute. Clause 15 of the Letters  Patent of the Bombay High Court gives in such a case a  right of  intra-court  appeal  and,  therefore,  the decision of  a Single  Judge given  in a petition under Art. 226 would  be appealable  to a  Division Bench  of that High Court. [831 H; 832 A-B]      4.2 The  words "be  heard and  finally disposed of by a Single Judge"  used in  r.l8 of  Chapter XVII  of the Bombay High Court  Appellate Side  Rules, 1960  do not  and  cannot possibly have  the effect  of  barring  a  right  of  appeal conferred by  the Letters  Patent. Under  r. 1 and 17 of the Rules applications  under Arts.  226 and 227 are required to be heard  and disposed  of by  a  Division  Bench.  Rule  4, however, gives  power to a Single Judge to issue a rule nisi in an  application under  Art. 226  but precludes  him  from passing any final order on such 739 application. The use of the words "finally disposed of" in A r.18 clarifies  the position that in such cases the power of the Single  Judge is  not confined  merely to  issue a  rule nisi.[837 B; 836 E-G]      4.3 Proceedings  under Art.  226  of  the  Constitution cannot be  governed by  rules made  by the High Courts under the Code  of Civil Procedure, 1908. Under ss. 122 and 125 of the Code,  the High  Courts are  conferred the power to make rules regulating  their own  procedure and  the procedure of the civil  courts and they can by such rules annul, alter or add to  all or any of the rules in the First schedule to the Code. Under  s. 141,  the procedure  provided in the Code in regard to  suits is to be followed, as far as it can be made applicable,  in  all  proceedings  in  any  court  of  civil jurisdiction but  by  virtue  of  the  Explanation  to  that section inserted  by the Code of Civil Procedure (Amendment) Act, 1976  the expression ’proceedings’ occurring therein is not to include any proceeding under Art. 226. [839 B-E]      Shah Babulal  Khimji v. Jayaben D. Kania & Anr., [1982] 1 S.C.R. 187 distinguished.      4.4 The  right of  appeal against  the  Judgment  of  a Single Judge  is given  by the Letters Patent which has been continued in  force by  Art.225. If  under the  rules of the High Court,  a matter  is heard  and disposed of by a Single Judge, an  appeal lies  against his  judgment unless  it  is barred  either  under  the  Letters  Patent  or  some  other enactment. An  intra-court appeal  against the judgment of a Single Judge in a petition under Art.226 is not barred while c1.15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Art.227. [837 A-C]      4.5 Where  the facts  justify  a  party  in  filing  an application either under Art.226 or 227 of the Constitution, and the  party chooses  to file  his application  under both these Articles, in fairness and justice to such party and in order not  to deprive  him of  the valuable right of appeal, the Court ought to treat the application as being made under Art.226, and  if in  deciding the matter, in the final order the Court  gives ancillary  directions which  may pertain to Art.227, this ought not to be held to deprive a party of the right of  appeal under c1.15 of the Letters Patent where the substantial part  of the order sought to be appealed against is under Art.226. [837 F-G] 740      Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors., [1955]

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1 S.C.R.  1104; Aidal  Singh &  Ors. v.  Karan Singh & Ors., A.I.R. 1957  All 414;  Raj Kishan Jain v. Tulsi Dass, A.I.R. 1959 Punj.  291; Barham Dutt & Ors. v. Peoples’ Co-operative Transport Society  Ltd., New Delhi & Ors., A.I.R. 1961 Punj. 24 referred to.      5.1 Unless  excluded from  the  purview  of  c1.15,  an intra-court appeal lies under that clause against a judgment delivered in  the exercise  of any of the Civil Jurisdiction conferred  by  the  Letters  Patent,  whether  by  a  clause preceding or succeeding c1.15. [819 E]      5.2 The  word "judgment" in C1.15 of the Letters Patent is not  qualified in any way as to the jurisdiction in which lt is given except that it should not be a sentence or order passed or  made in  any criminal trial. It embraces not only judgments   given   in   the   exercise   of   jurisdictions specifically mentioned in the Letters Patent but also in the exercise of  jurisdictions not  so mentioned,  except  those expressly excluded by cl. 15 itself. [818 E; 819 F; 818 H]      Saroda  Soonduree  Dossee  v.  Tincowree  Nundee,  1884 Hyde’s Reports 70; Ranee Shurno Moyee v. Luchmeeput Doogur & Ors., 1867  (7) Sutherland’s  Weekly Reporter  52;  Mohendra Lall Mitter  v. Anondo  Commer Mitter, I.L.R. 1897 (25) Cal. 236; Collection  of Bombay  v. Issac  Penhas, 1947 (49) Bom. L.R. 709  F.B.; Mahomedalli  Allabux v.  Ismailji  Khadilkar 1926 (28) Bom. L.R. 471; Raghunath Keshav Khadilkar v. Poona Municipality and  Anr., 1944  (46) Bom.  L.R. 675;  National Sewing Thread  Co. Ltd.  v. James  Chadwick  &  Bros.  Ltd., [1953] S.C.R.  1028 and  South Asia  Industries Pvt. Ltd. v. S.B. Sarup Singh & Ors., [1965] 2 S.C.R. 756 referred to.      6.1 Under  Art. 225  the jurisdiction  of existing High Courts has  been preserved  and  continued  subject  to  the provisions of  the Constitution  and of  any law made by the appropriate Legislature. It comprehends within its scope not only  the   jurisdiction  which  the  existing  High  Courts possessed immediately  prior  to  the  commencement  of  the Constitution but  also the jurisdiction and powers which the other Articles  of the  Constitution, such as Arts. 226, 227 and 228 confer upon the High Courts. [821, F-G; 822 F] 741      National Sewing  Thread Co.  Ltd. v.  James Chadwick  & Bors.  Ltd.   [1953]  S.C.R.   1028;  Chairman  Budge  Budge Municipality v.  Mongru Mia & Ors., A.I.R. 1953 Cal. 433 and Sheo Prasad  & State  of U.P., A.I.R. 1965 All. 106 referred to.      6.2 The  fact that  Art. 225  makes the jurisdiction of the  existing  High  Courts  "subject  to  the  law  of  the appropriate Legislature" does not mean that the jurisdiction under Art.  226 or  227 cannot come within the scope of Art. 225. A  law made  by an  appropriate Legislature  can  amend another law  enacted by it but it cannot amend or affect the provisions of  the Constitution,  and as  Arts. 226, 227 and 228 are  not made  subject to  any law made by Parliament or the State  Legislature, the  powers conferred by these three Articles cannot  be limited,  abridged or  taken away by any Legislature. They  can only  be  affected  by  amending  the Constitution. [832 C-D]      6.3 A  provision for a right of appeal is not one which in any  manner limits,  abridges, takes  away  or  adversely affects the  power of the High Courts under Art. 226 or 227. [823 F]      6.4 The  power  to  make  rules  for  the  exercise  of jurisdiction under  Arts. 226  and 227  by the existing High Court is  contained in Art. 225 only. This rule making power extends to  all jurisdictions  and powers  possessed by  the existing High  Courts, whether  at the date of their Letters

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Patent or  of the Government of India Act of 1915-1919 or of the Government of India Act, 1935, or conferred upon them by the Constitution itself or subsequent to the commencement of the Constitution by any amendment of the Constitution or any law made by the appropriate legislature. [829 A; 828 F-G]      7. When  an appeal is filed against the judgment of the single Judge  given in  a petition under Art. 226 or 227, it does not  amount to  filing a  second  appeal  in  the  same matter, for an appeal is not a fresh proceeding but merely a continuation of  the original  proceedings.  The  expression "High Court"  used in  statutes providing for appeals to the High Court  only means  the High  Court acting  through  one Judge or  a Division  Court consisting of two or more Judges as may  be  provided  by  the  rules  of  Court  unless  any enactment specifically  provides for  a particular number of Judges to hear any particular matter. [829 C-D] 742      Garikapatti Veeraya  v. N.  Subbiah  Choudhury,  [1957] S.C.R. 488; and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors., [1973] 1 S.C.R. 185 referred to.      8.1 Though  at times  it may  appear  that  a  Writ  of ceriorari of  Writ of  prohibition partakes  the  nature  of superintendence in  as much  as the  end result is the same, the nature  of the  power to  issue these writs is different from the supervisory or superintending power under Art. 227. [830 F-E]      8.2 The  powers conferred  by Arts.  226  and  227  are separate and distinct and operate in different fields. Their source and  origin are  different and  the models upon which they are  patterned are also different. The power to issue a writ in  the nature  of habeas  corpus or  mandamus  or  quo warranto or  prohibition or certiorari under Art. 226 cannot be equated  with  the  power  of  superintendence  over  the subordinate courts  and  tribunals  under  Art.  227.  In  a proceeding under Art. 226 the person, authority or the State against whom  the direction,  order or  writ is  sought is a necessary party.  Under Art.  227, however,  what  comes  up before the  High Court  is the order of ascertaining whether in giving  such judgment  or order that subordinate court or tribunal has acted within the authority and according to law [830 F,B,C, G-H; 831 A]      Ahmedabad Mfg.  & Calico  Ptg. Co.  Ltd. v.  Ram  Tahel Ramnand &  Ors., [1973]  1 S.C.R.  185; State  of Gujarat v. Vakhatsinghji Vajesinghji  Veghela, A.I.R.  1968 S.C.  1487, 1488; Mahomedalli  Allabux v.  Ismailji Abdulali,  [1926] 28 Bom.  L.R.   471;  Raghunath   Keshav  Khadilkar   v.  Poona Municipality &  Anr., [1944]  46 Bom.  L.R.  675;  Ryots  of Garabandho &  Other Villages  v. Zamindar  of Parlakimedi  & Anr., 1942-43 (70) I.A. 129 and Moulvi Hamid Hasan Nomani v. Banwarilal Roy  & Ors.,  L.R. [1946-47] 74 I.A, 120 referred to.      8.3  A   proceeding  under  Art.  226  is  an  original proceeding while  a proceeding  under Art.  227  is  not  an original proceeding. [831 F]      State of  Uttar Pradesh  v. Dr.  Vijay  Anand  Maharaj, [1963] 1 S.C.R. 1; Commissioner of Income-tax, Bombay & Anr. v. Ishwarlal Bhagwandas & Ors., [1966] 1 S.C.R. 190; Ramesh 743 Anr. v.  Seth Gendalal  Motilal Patni & Ors. [1966] 3 S.C.R. 198; Arbind Kumar Singh v. Nand Kishore Prasad & Ors. [1963] 3 S.C.R.  322; Ahmedabad  Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand  & Ors. [1973] 1 S.C.R. 185 and Waryam Singh & Anr. v. Amarnath & Anr. [1954] S.C.R. 565 referred to.

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JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3683 of 1984.      From the  Judgment and Order dated 16th September, 1980 of the  Bombay High Court in Letters Patent Appeal No. 46 of 1980.      T.U. Mehta and C.K. Ratnaparkhi for the Appellants.      Naunit Lal,  Kailash Vasdev and Mrs. Vinod Arya for the Respondents.      The following Judgments were delivered :      CHINNAPPA  REDDY,  J.  Unfamiliar  as  I  am  with  the history, tradition  and the  lore of  the city  and the High Court of  Bombay, I  content myself  by  agreeing  with  the conclusion of my learned brother that no appeal under clause 15 of  the Letters Patent lies to the High Court against the order of  a  single  judge  of  the  High  Court  exercising jurisdiction under Art. 227 of the Constitution, no less and no more  I do not have any doubt that the reference to s.107 of the  Government of  India Act,  1915 in  Clause 15 of the Letters Patent  must necessarily  be read  as a reference to Art. 227 of the Constitution. So read an appeal under clause 15 is  clearly not  maintainable against  an order  made  in exercise of the power under Art. 227. This is the view taken by all  the High  Courts in  India except  the High Court of Bombay, where alone opinion has not been unanimous.      MADON, J. The question which falls for determination in this Appeal  is ’whether  an appeal  lies under clause 15 of the Letters  Patent of  the Bombay  High Court to a Division Bench of  two judges of that High Court from the judgment of a Single  Judge of that High Court in a petition filed under Article 226 or 227 of the Constitution of India?" 744      The facts  which have  given rise  to  this  Appeal  by Special Leave  granted by  this Court  need  to  be  briefly stated. The First Respondent, Radhikabai, is a widow. She is the owner  of three  fields  situate  at  Mouza  Khed-Makta, Tahsil Brahmapuri,  District Chandrapur.  Kesheo, the father of the  Appellants, was  the tenant  of the said fields. The First Respondent filed an application under section 36(2) of the Bombay  Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958  (Bombay Act  No. XCIX of 1958), read with section 39 of  that Act  for possession  of the  said fields  on the ground that she wanted them for personally cultivating them. The said  application was allowed and she took possession of the said  fields. On  the ground  that instead of personally cultivating the  said fields the First Respondent had leased them to  the Second  Respondent,  the  Appellants  filed  an application under  section 52  of the  Tenancy Act  claiming that they  had become entitled to have the possession of the said fields  restored to  them. It was the case of the First Respondent that  the Second  Respondent was  working in  the said  fields  as  her  servant  on  a  monthly  salary.  The Appellants’ said  application was  allowed by the Additional Tahsildar, Brahmapuri. The First Respondent’s appeal against the said  order was  allowed by  the Sub-Divisional Officer, Brahmapuri. The Appellants thereupon went in revision to the Maharashtra Revenue  Tribunal at  Nagpur  and  the  Tribunal allowed the  said revision  application. Thereupon the First Respondent  filed  a  petition  under  Article  227  of  the Constitution of  India before  the Nagpur  Bench of the High Court of  Bombay being Special Civil Application No. 1392 of 1974. By  reason of the provision of Rule 18 of Chapter XVII of the  Bombay High  Court Appellate  Side Rules,  1960, the said petition  was heard  by a  learned Single  Judge of the

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said High  Court who  allowed the  petition, set  aside  the order of  the Tribunal  and restored  the order  of the Sub- Divisional Officer.  Against this  judgment  and  order  the Appellants filed  an appeal  under clause  15 of the Letters Patent to  a Division Bench of the Bombay High Court, Nagpur Bench. The  Division Bench  dismissed the said appeal as not being competent  in view  of the decision of a Full Bench of the Bombay  High Court,  Nagpur  Bench,  in  Shankar  Naroba Salunke and  others  v.  Gyanchand  Lobbachand  Kothari  and Others Letters  Patent Appeals  Nos 3, 10, 11 and 17 of 1979 and 34  of 1980  decided on September 3, 1980. It is against the said order of the Division Bench that the present Appeal by Special Leave has been filed by the Appellants. 745      As the  Appellants’ Letters Patent Appeal was dismissed as being not maintainable by reason of the judgment given by the Full  Bench of the said High Court, what really falls to be considered  in the  present Appeal  is the correctness of that Judgment.      The High  Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862, issued by the British Crown in  pursuance of  authority conferred  upon it  by the Indian High  Courts Act, 1861 (24 & 25.Vict., c.104). Clause 14 of the said Letters patent provided as follows:           "14.  Appeal   from   the   Courts   of   original           jurisdiction to  the High  Court in  its appellate           jurisdiction. -           And we  do further ordain that an appeal shall lie           to the  said High  Court of  Judicature at  Bombay           from the  judgment, in all cases of original civil           jurisdiction, of  one or  more Judges  of the said           High Court  or of  any Division Court, pursuant to           Section 13  of  the  said  recited  Act:  Provided           always that  no such  appeal shall lie to the High           Court as  aforesaid from any such decision made by           a majority  of the  full number  of Judges  of the           said High E Court, but that the right of appeal in           such case shall be to Us, Our heirs or successors,           in  Our   or  Their   Privy  Council   in   manner           hereinafter provided.      The Letters  Patent issued  in 1862  were  revoked  and replaced by  Letters Patent  dated December 28, 1865. Clause 15 of the new Letters Patent in its original form was in the following terms :           "15.  Appeal   from   the   Courts   of   original           jurisdiction to  the High  Court in  its appellate           jurisdiction. -           And we  do further ordain that an appeal shall lie           to the  said High  Court of  Judicature at Bombay,           from the  judgment (not  being a sentence or order           passed or made in any criminal trial) of one Judge 746           of the  said High  Court, or  of one  Judge of any           Division Court, pursuant to section 13 of the said           recited Act;  and that an appeal shall also lie to           the said  High Court from the judgment not being a           sentence or  order as  aforesaid, of  two or  more           Judges of the said High Court, or of such Division           Court, wherever such Judges are equally divided in           opinion, and do not amount in number to a majority           of the whole of the Judges of the said high Court,           at the  time being;  but that the right, of appeal           from other  judgments of  Judges of  the said High           Court., or of such Division Court, shall be to Us,           Our heirs  or successors,  in Our  or Their  Privy

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         Council, as hereinafter provided."      By Letters  Patent dated  March 11,  1919, published in the Bombay  Government Gazette  dated June 19, 1919, Part I, pages 1446-7,  the words  and brackets in clause 15, namely, "(not being  a sentence  or order  passed  or  made  in  any criminal trial)", were substituted by the words and brackets "(not being  an order  made in  the exercise  of  revisional jurisdiction and  not being  a sentence  or order  passed or made in  the exercise of the power of super-intendence under the provisions  of section  one hundred  and  seven  of  the Government of  India  Act,  1915,  or  in  the  exercise  of criminal jurisdiction)". By Letters Patent dated December 9, 1927, published  in  the  Bombay  Government  Gazette  dated February 2,  1928,  Part  I,  pages  196-7,  clause  is  was substituted. This  substituted clause was amended by Letters Patent dated  January 22,  1929,  published  in  the  Bombay Government Gazette  dated January 24, 1929, Part I, at pages 131-2. The substituted clause 15 as amended in 1929 reads as follows :           "15. Appeal  to the  High Court from Judges of the           Court.           And We  do further ordain that an appeal shall lie           to the  said High  Court of  Judicature at  Bombay           from the  judgment (not being a judgment passed in           the exercise  of appellate jurisdiction in respect           of a  decree or  order made  in  the  exercise  of           appellate jurisdiction  by a  Court subject to the           superintendence of  the said  High Court,  and not           being an 747           order made in the exercise of revisional Jurisdic-           tion and  not being  a sentence or order passed or           made in  the exercise  of the  power  of  superin-           tendence under  the provisions  of section  107 of           the Government  of India Act or in the exercise of           criminal jurisdiction)  of one  Judge of  the said           High Court  or one  Judge of  any Division  Court,           pursuant to section 108 of the Government of India           Act,    and    that    notwithstanding    anything           hereinbefore provided  an appeal  shall lie to the           said High  Court from  a judgment  of one Judge of           the said  High Court  or one Judge of any Division           Court, pursuant  to section  108 of the Government           of India  Act made  on or  after the  first day of           February One thousand nine hundred and twenty-nine           in  the  exercise  of  appellate  jurisdiction  in           respect of  a  decree  or  ?  order  made  in  the           exercise of  appellate  jurisdiction  by  a  Court           subject to  the superintendence  of the  said High           Court, where  the Judge  who passed  the  judgment           declares that  the case  is a  fit one for appeal;           but that  the right of appeal from other judgments           of Judges  of the  said  High  Court  or  of  such           Division Court  shall  be  to  Us,  Our  Heirs  or           Successors in  Our or Their Privy Council, as here           inafter provided." In clause  15 as  substituted in 1927 the words "on or after the first  day of  February One  thousand nine  hundred  and twenty nine"  did not  find a place but were inserted by the said Letters Patent of 1929.      It may  be pointed  out that the provision in clause 15 providing for  an appeal from a judgment, in a second appeal decided by  a Judge of the High Court if such Judge declares that the  case is  a fit  one  for  appeal  has  now  become inoperative in  view of  section 100A  of the  Code of Civil

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Procedure, 1908, which was inserted in that Code by the Code of Civil  Procedure (Amendment)  Act, 1976,  under which  no further appeal  is to lie against the judgment of a single - Judge of the High Court in a second appeal. The provision in clause 15 providing for an appeal from the Judgment of one y Judge of  any Division  Court has  also become redundant and inoperative after the amendment of clause 36 of the Letters 748 Patent by the said Letters Patent dated December 9, 1927. Prior to  such amendment where a Division Bench was composed of two or more Judges and the Judges were equally divided in opinion as  to the  decision to  be given  on any point, the opinion of  the senior Judge was to prevail and under clause 15 an  appeal lay  from his judgment. After the amendment of clause 36,  if the  Judges of the Division Bench are equally divided, they  are to state the point upon which they differ and the  case has then to be heard upon that point by one or more of  the other  Judges and  the point  is to  be decided according to  the opinion  of the majority of the Judges who have heard the case including those who first heard it.      When analysed  and broken  up into  its competent parts clause 15 in its finally amended and operative form reads as follows :           An  appeal   shall  lie   to  the  High  Court  of           Judicature at Bombay -           (1) from a judgment           (2) of one Judge of the High Court           (3) pursuant  to section  108 of the Government of           India Act of 1915           (4) not being -           (a) a judgment passed in the exercise of appellate           jurisdiction in  respect of a decree or order made           in the  exercise of  appellate jurisdiction  by  a           Court subject  to the  superintendence of the High           Court,           (b) an  order made  in the  exercise of revisional           jurisdiction,           (c) a  sentence or  order passed  or made  in  the           exercise of the power of superintendence under the           provisions of  section 107  of the  Government  of           India Act of 1915, or 749           (d) a  sentence or  order passed  or made  in  the           exercise of criminal jurisdiction.      The Letters  Patent of  the Calcutta, Bombay and Madras High Courts  are mutatis  mutandis in  the same  terms  with minor  variations,   mostly  as   a  result   of  amendments subsequently made. The word "judgment" is not defined in the Letters  Patent   and  has   been  the   subject-matter   of conflicting  decisions  by  these  three  High  Courts.  The question fell  for  consideration  of  this  Court  in  Shah Babulal Khimji  v. Jayaben  D. Kania  and Another  [1982]  I S.C.R. 187.  In that  case, a  Single Judge  sitting on  the Original  Side   of  the  Bombay  High  Court  dismissed  an application made  by the  appellant for  appointment  of  an interim receiver  and the grant of an interim injunction. An appeal against  that order was dismissed by a Division Bench of the High Court on the ground that it was not maintainable under clause  15 of  the Letters  Patent. After  considering various  authorities  a  three-Judge  Bench  of  this  Court reversed the  judgment and  order of  the Division Bench and held that  an appeal  under clause  15 of the Letters Patent lay against  the said  order because section 104 of the Code of Civil  Procedure, 1908,  applied to  the Original Side of the Bombay  High Court and such an order would be appealable

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under that  section read  with Rule  1 of Order XLIII of the Code and also because such an order even on merits contained the  quality   of  finality   and  would,  therefore,  be  a "judgment" within  the meaning  of clause  15 of the Letters Patent. The  question whether the judgment of a Single Judge in a  petition  filed  under  Article  226  or  227  of  the Constitution of  India was  not before  the  Court  in  Shah Babulal Khimji case and was not decided by it.      There was no dispute before us that the decision of the learned  Single   Judge  allowing   the  First  Respondent’s petition  under  Article  227  of  the  Constitution  was  a "judgment" within  the meaning  of clause  15 of the Letters Patent. What  was disputed was whether an appeal lay against that judgment under clause 15 of the Letters Patent. G      In Jagannath  Ganbaji Chikhale  v.  Gulabrao  Raghobaji Bobde [1965] 67 Bom. L.R. 609, s.c. = (1965) Mah. L.J. 426 a Division Bench  of the Bombay High Court, Nagpur Bench, held that no  appeal lies  against the judgment of a Single Judge in a  petition under Article 227 of the Constitution because after 750 the coming into force of the Constitution the words "section 107 of  the Government  of  India  Act"  (that  is,  of  the Government of India Act of 1915) in clause 15 should be read as "Article 227 of the Constitution" inasmuch as Article 227 confers a  power of superintendence as wide as was available to the  High Court  under section  107 of  the Government of India Act  of 1915. Later, a group of Letters Patent appeals from the  judgments  of  different  Single  Judges  in  writ petitions filed  either under  Article 226  or  227  of  the Constitution came before a Full Bench of three Judges which, as mentioned  earlier, held  that no appeal lay under clause 15 of  the Letters  Patent against  the judgment of a Single Judge of  that High  Court in a petition filed under Article 226 or Article 227 of the Constitution. The reasons given by the Full  Bench for reaching this conclusion (quoting as far as possible its own words) were as follows :           (1) The  Constitution of  India  brought  about  a           fundamental change  in the  character of  the High           Courts which  were in  existence on  the date  the           Constitution came  into force.  According  to  the           Full Bench, the Constitution "purports to lay down           an original  institutional matrix  of its own". It           observed that  "it is  not out  of the  historical           ramparts that  something is  being put  up, but  a           fundamental scheme,  though mostly  drawn  on  the           historical feed back, is conceived and constructed           . .  . Source  of founding  the High Court is thus           changed and  is now  referable to the terms of the           paramount law of the Constitution."           (2) the  Constitution made  a break  with the past           and had  made absolutely  a new original and vital           beginning and  it, therefore, followed as a matter           of law  that as far as origin, source of power and           the conferment  of constitutional  authority  were           concerned,   the   Letters   Patent   or   earlier           legislating  had  mere  historical  relevance  and           could not  control matters  expressly provided  in           the Constitution.           (3) The  High Courts  were created  as a result of           the Letters  Patent issued  under the  Indian High           Courts Act,  1861 (24  & 25  Vict. c.  104),  and,           therefore, 751           the establishment,  creation and  jurisdiction  of

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         the High  Courts had  their origin in the ordinary           law made by the "Imperial Parliament".           (4) The  phraseology of  the Letters  Patent,  the           Government of India Act of 1915 and the Government           of India Act, 1935, make it obvious that the words           "original"  and   "appellate"   were   used   with           reference  to  legal  jurisdictions  of  the  High           Courts  created   by  ordinary   legislations   as           distinct   from    organic    or    Constitutional           jurisdiction  not   subject  to   such  laws.  The           Constitutional jurisdiction  conferred by  Article           226 or  227 cannot  be equated  with nor  can form           part  of  any  of  the  jurisdictions  within  the           contemplation of the Letters Patent.           (5) The historical origin of clause 15 lies in the           Imperial device  to provide  an intra-court appeal           in causes  heard in  the exercise  of its original           civil jurisdiction by the High Court acting by its           Single Judge’s  Court,  all  other  appeals  being           differently provided for.           (6) The  fact  that  the  Letters  Patent  can  be           amended by  ordinary legislating  shows  that  the           jurisdiction of  the High Court under Articles 226           and 227  could not  fall within the purview of the           Letters Patent.           (7) Articles  226  and  227  of  the  Constitution           contain inbuilt  rule-making power and, therefore,           after the  coming into  force of the Constitution,           the authority  to make rules is not required to be           traced to  section 108  of the Government of India           Act, 1915,  but resides in Articles 226 and 227 of           the  Constitution   supplemented  with  regard  to           identical matters by Article 225.           (8) Both Articles 226 and 227 of the Constitution,           in substance, provide for the same relief, namely,           scrutiny of  records and  control  of  subordinate           courts and  tribunals and, therefore, the exercise           of jurisdiction  under these  Articles would  fall           within the expression "revisional jurisdiction" or 752           ’power of  superintendence" and  hence even  under           clause 15 of the Letters Patent an appeal would be           barred.           (9) When  by virtue  of the rules made by the High           Court a Single Judge exercises the power conferred           upon the  High Court  under Article 226 or Article           227, it follows that the power is exercised by him           for the  entire High  Court  and,  therefore,  the           filing of  an appeal  against his  judgment  would           amount to  filing a  second writ  petition in  the           same matter which is not permissible.           (10) The  expression "shall  be heard  and finally           disposed of"  in Rule  18 of  Chapter XVII  of the           Bombay High  Court  Appellate  Side  Rules,  1960,           negatives the filing of any appeal in a proceeding           under Article 226 or 227 of the Constitution.      The question  thereafter came  to be  considered  by  a Special Bench  of five  Judges of  the Bombay  High Court in State of  Maharashtra  v.  Kusum  Charudutt  Bharma  Upadhye [1981] 83  Bom. L.R.  75, s.c.  s (1981)  Mah. L.J.  93. The Special Bench  traced in great detail the origin, growth and development of  the different powers and jurisdiction of the Bombay High Court and referred to various authorities on the point canvassed before it. It held that under Article 225 of the Constitution  of  India,  the  High  Courts  of  various

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Provinces which  were in  existence immediately  before  the commencement of  the Constitution continued on and from that date as  the High  Courts of corresponding States possessing all the  jurisdictions and  powers which  they had  prior to that date.  It further held that Articles 226 and 227 of the Constitution did  not confer  upon the  existing High Courts wholly new  powers not  reflected in  any of  the powers  or jurisdictions possessed  by any  of them at the commencement of the  Constitution. According  to the  Special Bench,  the power under  Article 226  was modelled  upon the prerogative writ jurisdiction  possessed by  the  three  Chartered  High Courts, namely,  the High  Courts of  Calcutta,  Bombay  and Madras, in  the exercise  of  their  original  jurisdiction, though that  power had  been made much wider by Article 226, and that  Article 227  derives its origin from section 15 of the Indian 753 High Courts  Act, 1861,  section 107  of the  Government  of India A  Act of  1915 and  section 224  of the Government of India Act,  1935, and  that this  power also  existed in the former Supreme Court of Judicature at Bombay with respect to the Court of Requests and the Court of Quarter Sessions. The Special Bench  also held that by reason of the provisions of section 38(1)  in the  Interpretation Act (52 & 53 Vict., c. 63) and  section 8  of the General Clauses Act, 1897, and on well-established principles  of interpretation  of  statutes the words "the power of superintendence under the provisions of section  107 of the Government of India Act" occurring in clause 15  of the  Letters Patent  were to  be read  as "the power of superintendence under the provisions of section 224 of the Government of India Act, 1935" when the 1935 Act came into force  and by  the same  process of interpretation when the Constitution  of India  came into  force the  words "the power of superintendence under the provisions of Article 227 of the Constitution" are to be read for the words "the power of superintendence  under the  provisions of  section 224 of the Government of India Act, 1935". According to the Special Bench an  appeal against the judgment of a Single Judge is a proceeding  under  Article  227  of  the  Constitution  was, therefore, expressly  barred by  clause 15  of  the  Letters Patent. The  Special Bench  also held  that Articles 226 and 227 of  the Constitution  operated in  different fields  and that in the exercise of its power under Article 226 the High Court exercises original jurisdiction as contrasted with its appellate or  revisional jurisdictions  and that  where  the original  proceeding   under  Article  226  concerned  civil rights,  the  proceeding  under  Article  226  would  be  an original civil  proceeding and,  therefore, an  appeal would lie under  clause 15  of  the  Letters  Patent  against  the judgment of a Single Judge in such a proceeding. The Special Bench  further  held  that  the  words  ’heard  and  finally disposed of"  in Rule  18 of  the Chapter XVII of the Bombay High Court  Appellate Side  Rules, 1960,  did not  imply any exclusion of a Letters Patent appeal against the judgment of a Single  Judge in  a proceeding  under Article  226 of  the Constitution. According  to the  Special  Bench,  where  the facts justified  a party  in  filing  an  application  under either Article  226 or 227 of the Constitution and the party chooses to  file his  application under both these Articles, the court  ought to  treat the application as being one made under Article  226. The Special Bench overruled the decision in Shankar Nhroba Salunke and others v. Gyanchand Lobbachand Kothari and others except for the conclusion 754 reached in  that case that no appeal lies under clause 15 of

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the Letters Patent against the judgment of a Single Judge of the High  Court in  a proceeding  under Article  227 of  the Constitution.      Though the Petition for Special Leave to Appeal in this matter was  filed in  the end of April 1983 nearly two and a half years  after the  judgment of  the  Special  Bench  was delivered and  nearly  two  years  after  it  was  reported, strangely enough  what was  challenged in  the Petition  for Special Leave  was only  the correctness  of the judgment of the Full  Bench and  not that of the Special Bench. None the less, in  view of  the importance  of the question raised by this Appeal,  the correctness  of the  Full  Bench  decision requires to be examined by this Court.      The judgment  of the Full Bench is based upon one major premise and  two minor  premises -  the major  premise being that on the commencement of the Constitution the High Courts then in  existence became  organically different High Courts as they  acquired a  different origin, nature and character; the minor  premises being  (i) that  the  provision  for  an intra-court  appeal   in  the   Letters  Patent  dealt  with different jurisdictions  under the ordinary law only and not with any  jurisdiction conferred  upon the High Court by the Constitution, and e (ii) that Rule 18 of Chapter XVII of the Bombay High  Court Appellate Side Rules, 1960, negatived any right  of  appeal.  Each  of  these  premises  is,  however, vitiated by a fallacy.      As  the   High  Court   of  Bombay   was  in  existence immediately prior  to the  commencement of the Constitution, we will  first  turn  to  the  relevant  provisions  of  the Constitution  as  originally  enacted,  pointing  out  where necessary the subsequent changes made therein.      Clause (14)  of Article 366 of the Constitution defines the term "High Court" as follows :           "(14) ’High Court’ means any Court which is deemed           for the purposes of this Constitution to be a High           Court for any State and includes -           (a)  any   Court  in   the  territory   of   India           constituted   or    reconstituted    under    this           Constitution as a High Court, and 755           (b) any  other Court  in the  territory  of  India           which may be declared by Parliament by law to be a           High Court  for all or any of the purposes of this           Constitution".      Chapter V  of Part  VI of  the Constitution  deals with High Courts  and is  headed "The High Courts in the States". Article 214 as originally enacted provides as follows :           "214. High Courts for States. -           (1) There shall be a High Court for each State.           (2) For the purposes of this Constitution the High           Court exercising  jurisdiction in  relation to any           Province immediately  before the  commencement  of           this Constitution  shall be  deemed to be the High           Court for the corresponding State.           (3) The  provisions of this Chapter shall apply to           every High Court referred to in this article." Clauses (2) and (3) of this Article were omitted with effect from  November   1,  1956,   by  the  Constitution  (Seventh Amendment) Act,  1956, in  order to  implement the scheme of reorganization of States.      Clauses (1) and (2) of Article 1 of the Constitution as originally enacted provided as follows :           "(1) India,  that is  Bharat, shall  be a Union of           States.           (2) The  States and  the territories thereof shall

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         be the  States and  their territories specified in           Parts A, B and C of the First Schedule." Clause (2)  was substituted  by  the  Constitution  (Seventh Amendment)  Act,   1956,  to   read  "The   States  and  the territories thereof  shall be  as  specified  in  the  First Schedule." Under the First Schedule to the Constitution, the territory comprised  in the  Province of  Bombay became  the territory of  the State  of Bombay, and by reason of Article 214(2) read with 756 clause (14)  of Article  366 of  the Constitution  the  High Court for  the Province  of Bombay became the High Court for the State of Bombay. Article 215 provides as follows :           "215. High Courts to be courts of record. -           Every High  Court shall  be a  court of record and           shall  have   all  the  powers  of  such  a  court           including the  power to  punish  for  contempt  of           itself."           Article 225 reads as follows :           "225. Jurisdiction of existing High Courts. -           Subject to the provisions of this Constitution and           to the  provisions of  any law  of the appropriate           Legislature made  by virtue of powers conferred on           that  Legislature   by  this   Constitution,   the           jurisdiction of,  and the law administered in, any           existing High  Court, and the respective powers of           the   Judges    thereof   in   relation   to   the           administration of  justice in the Court, including           any power  to make  rules of Court and to regulate           the sittings  of the  Court and of members thereof           sitting alone  or in Division Courts, shall be the           same as  immediately before  the  commencement  of           this Constitution:           Provided  that   any  restriction   to  which  the           exercise of  original jurisdiction  by any  of the           High Courts  with respect to any matter concerning           the revenue  or concerning any act ordered or done           in the  collection thereof was subject immediately           before the commencement of this Constitution shall           no  longer   apply  to   the  exercise   of   such           jurisdiction." The proviso  to Article  225 was omitted by the Constitution (Forty-second  Amendment)   Act,  1976,   with  effect  from February 1,  1977, and  was reinserted with effect from June 20, 1979,  by the Constitution (Forty-fourth Amendment) Act, 1978. Clause (1)  of Article 226 as originally enacted provided as follows : 757           "226. Power of High Courts to issue certain writs.           (1) Notwithstanding  anyching in Article 32, every           High  Court   shall  have  power,  throughout  the           territories in  relation  to  which  it  exercises           jurisdicition,  to   issue  to   any   person   or           authority,  including  in  appropriate  cases  any           Government, within  those territories  directions,           orders or  writs, including writs in the nature of           habeas corpus, mandamus, prohibition, quo warranto           and  certiorari,   or  any   of  them,   for   the           enforcement of any of the rights conferred by Part           III and for any other purpose." This clause  was substituted  by  the  Constitution  (Forty- second Amendment)  Act, 1976.  Clause (1)  as so substituted was amended by the Constitution (Forty-third Amendment) Act, 1977, and  the Constitution  (Forty-fourth  Amendment)  Act,

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1978, with the result that clause (1) of Article 226 has now been restored to its original form. Article 227 as originally enacted provided as follows :           "227. Power  of superintendence over all courts by           the High Court. -           (1) Every  High Court  shall have  superintendence           over  all  courts  and  tribunals  throughout  the           territories in  relation  to  which  it  exercises           jurisdiction.           (2) Without  prejudice to  the generality  of  the           foregoing provision, the High Court may -           (a) call for returns from such courts;           (b) make  and issue  general rules  and  prescribe           forms for  regulating the practice and proceedings           of such courts; and           (c) prescribe  forms in  which books,  entries and           accounts shall be kept by the officers of any such           courts. 758           (3) The High Courts may also settle tables of fees           to be  allowed to  the sheriff  and all clerks and           officers  of   such  courts   and  to   attorneys,           advocates and pleaders practising therein:           Provided that  any rules made, forms prescribed or           tables settled  under clause  (2)  or  clause  (3)           shall not  be inconsistent  with the  provision of           any law  for the  time being  in force,  and shall           require the previous approval of the Governor.           (4) Nothing  in this  article shall  be deemed  to           confer on  a High  Court powers of superintendence           over any court or tribunal constituted by or under           any law relating to the Armed Forces." Clause (1)  of Article  227 was substituted with effect from February  1,   1977,  by   the  Constitution   (Forty-second Amendment) Act,  1976, to read, "Every High Court shall have superintendence over  all courts  subject to  its  appellate jurisdiction". The  clause was  further substituted so as to restore it  to its original form by the Constitution (Forty- fourth Amendment) Act, 1978, with effect from June 20, 1979.      It is  also relevant  to  set  out  the  provisions  of Article 228. That Article is as follows:           "228. Transfer of certain cases to High Court. -           If the High Court is satisfied that a case pending           in  a   court  subordinate   to  it   involves   a           substantial   question    of   law   as   to   the           interpretation   of    this    Constitution    the           determination  of   which  is  necessary  for  the           disposal of  the case,it  shall withdraw  the case           and may -           (a) either dispose of the case itself, or           (b) determine  the said question of law and return           the case to the court from which the case has been           so withdrawn  together with a copy of its judgment           on such  question, and  the said  court  shall  on           receipt thereof  proceed to dispose of the case in           conformity with such judgment." 759 The  above   Article  was   amended  by   the   Constitution (Fortysecond Amendment)  Act, 1976.  It was again amended by the  Constitution  (Forty-third  Amendment)  Act,  1977,  to restore it to its original form.      Article 230 as originally enacted provided as follows:           ’230.  Extension   of  or   exclusion   from   the           jurisdiction of High Courts. -           Parliament may by law -

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         (a) extend the jurisdiction of a High Court to, or           (b) exclude the jurisdiction of a High Court from,           any State  specified in  the First  Schedule other           than, or  any area  not within, the State in which           the High Court has its principal seat." This Article  was substituted  by the  Constitution (Seventh Amendment) Act,  1956, when the distinction between Parts A, B and  C States  was done  away with,  and the  Article  now confers power  upon Parliament to extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union Territory.           Article 372(1) provides as follows :           "372. Continuance  in force  of existing  laws and           their adaptation. -           (1)   Notwithstanding    the   repeal    by   this           Constitution of  the  enactments  referred  to  in           Article 395 but subject to the other provisions of           this Constitution,  all the  law in  force in  the           territory  of   India   immediately   before   the           commencement of  this Constitution  shall continue           in force  therein until  altered  or  repealed  or           amended  by   a  competent  Legislature  or  other           competent authority." The expression  "existing law"  is defined by clause (10) of Article 366  to mean  "any law,  Ordinance, order,  bye-law, rule or regulation passed or made before the commencement of this 760 Constitution by  any Legislature, authority or person having power to  make such a law, Ordinance, order, by-law, rule or regulation".      Under Article  367(1),  unless  the  context  otherwise requires, the  General Clauses  Act, 1897,  subject  to  any adaptations and  modifications that  may be  made therein by any Presidential order made under Article 372 to bring it in conformity with  the provisions  of the  Constitution, is to apply for the interpretation of the Constitution.      The result  of the  above Constitutional provisions may be summed up thus :           (1) Under  Article 225, the High Courts exercising           jurisdiction  in   relation   to   the   Provinces           immediately  before   the  commencement   of   the           Constitution  (hereinafter  referred  to  as  "the           existing High  Courts") became the High Courts for           the corresponding  States and  exercised the  same           jurisdiction and  administered  the  same  law  as           theretofore; and  the  respective  powers  of  the           Judges of  such High  Courts in  relation  to  the           administration  of   justice   in   such   Courts,           including the  power to  make rules  for the Court           and regulate  the sittings  of the  Court  and  of           members thereof  sitting  singly  or  in  Division           Courts, remained  the same  as immediately  before           the commencement of the Constitution.           (2) The  proviso to Article 225 removed the bar to           the  exercise  of  original  jurisdiction  by  the           existing High  Courts in  matters  concerning  the           revenue  contained   in  section   226(1)  of  the           Government of India Act, 1935.           (3) Articles  226, 227  and 228  provided for  the           exercise of  certain specific powers by every High           Court, whether  an existing  High Court  or a High           Court which  may come  to be established after the           commencement of  the  Constitution  as  some  High           Courts in  fact were, for example, the High Courts

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         of  Andhra   Pradesh,  Gujarat  and  Delhi.  These           specific powers are the power to issue directions, 761           orders and  writs under  Article 226, the power of           superintendence  over   subordinate   courts   and           tribunals under  Article 227,  and the power under           Article  228   to  withdraw   to  itself   from  a           subordinate court  a case  involving a substantial           question of  law as  to the  interpretation of the           Constitution.      By section  8 of  the States  Reorganisation Act,  1956 (Act 37  of 1956),  a new  State of  Bombay was  formed with effect from  "the appointed  day", namely, November 1, 1956, comprising inter  alia certain territories which then formed part of the State of Madhya Pradesh and were by that section transferred from  that State  to the  new State  of  Bombay. These territories  comprised what  is known as the "Vidarbha Region" consisting  of  the  districts  of  Buldana,  Akola, Amravati,  Yeotmal,  Wardha,  Nagpur,  Bhandara  and  Chanda (later named  Chandrapur). It  is from  this region that the appeals before  the Full  Bench as  also the  present Appeal arise.           Section 49(1) of that Act provides as follows :           "49. High Courts for the new States -           (1) The  High Courts exercising immediately before           the appointed  day jurisdiction in relation to the           existing States  of  Bombay,  Madhya  Pradesh  and           Punjab shall, as from the appointed day, be deemed           to be  the High  Courts  for  the  new  States  of           Bombay, Madhya Pradesh and Punjab, respectively.      Under Section  51(1), the  principal seat  of the  High Court for  a new  State was  to be  at  such  place  as  the President may,  by notified  order, appoint.  Under  section 51(2), the  President could,  after  consultation  with  the Governor of  a new  State and  the Chief Justice of the High Court for  that State,  by notified  order, provide  for the establishment of  a permanent  Bench or Benches of that High Court at  one or more places within the State other than the principal seat  of  the  High  Court  and  for  any  matters connected therewith.  Sub-section (3) of section 51 provided that notwithstanding  anything contained  in sub-section (1) or sub-section  (2), the  Judges and  Division Courts of the High Court for a new State may also sit at such 762 other place  or places  in that  State as  the Chief Justice may, with the approval of the Governor, appoint.      By a  Presidential Order, namely, S.R.O. No. 2514 dated October  27,   1956,  published  in  the  Gazette  of  India Extraordinary, 1956,  Part II,  Section 3, at page 2195, the principal seat  of the  Bombay High Court was notified to be at Bombay.  A temporary  Bench of  the Bombay High Court was established at Nagpur.      Sections 52, 54 and 57 of the Act provide as follows :           "52. Jurisdiction of High Courts for new States -           The High  Court for  a new  State shall  have,  in           respect of any part of the territories included in           that new  State, all  such original, appellate and           other jurisdiction  as  under  the  law  in  force           immediately   before   the   appointed   day,   is           exercisable in  respect of  that part  of the said           territories  by   any  High   Court  or   Judicial           Commissioner’s Court for an existing State.           "54. Practice and procedure -           Subject to the provisions of this Part, the law in           force immediately  before the  appointed day  with

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         respect to pratice and procedure in the High Court           for the  corresponding State shall, with necessary           modifications, apply in relation to the High Court           for a  new State,  and accordingly, the High Court           for the  new State  shall have  all such powers to           make rules and orders with respect to practice and           procedure as are, immediately before the appointed           day,  exercisable   by  the  High  Court  for  the           corresponding State:           Provided that  any rules  or orders  which are  in           force immediately  before the  appointed day  with           respect to  practice and  procedure  in  the  High           Court for  the corresponding  State  shall,  until           varied or  revoked by  rules or orders made by the           High Court for a new State, apply with the 763           necessary modifications  in relation  to  practice           and procedure  in the High Court for the new State           as if made by that Court."           "57. Powers of Judges -           The law  in force immediately before the appointed           day relating  to the  powers of the Chief Justice,           Single Judges  and Division  Courts  of  the  High           Court for the corresponding State and with respect           to matters  ancillary to  the  exercise  of  those           powers shall,  with the  necessary  modifications,           apply in  relation to  the High  Court for  a  new           State."      The State  of Bombay  underwent another  reorganisation with effect from May 1, 1960, by the enactment of the Bombay Reorganisation Act,  1960, (Act 11 of 1960). By section 3 of that Act,  as from  the appointed  day, namely, May 1, 1960, certain territories  comprised in  the State  of Bombay were formed into  a new  State to  be  known  as  "the  State  of Gujarat" and "the residuary State of Bombay" was to be known as "the  State of  Maharashtra". By section 28 of the Bombay Reorganisation Act, a separate High Court was formed for the State of  Gujarat from  the appointed  day. Section 28(1) of that Act  further provided  that "the  High Court  of Bombay shall become  the High  Court for  the State  of Maharashtra (hereinafter referred  to as  ’the High Court of Bombay’). " Section 41  of the  Bombay Reorganisation  Act  provided  as follows:           "41. Permanent  Bench  of  Bombay  High  Court  at           Nagpur. -           Without prejudice  to the provisions of Section 51           of  the  States  Reorganisation  Act,  1956,  such           Judges of the High Court at Bombay, being not less           than three  in number,  as the  Chief Justice  may           from time to time nominate, shall sit at Nagpur in           order to  exercise the  jurisdiction and power for           the time  being  vested  in  that  High  Court  in           respect of  cases  arising  in  the  districts  of           Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur,           Bhandara, Chanda and Rajura: 764           Provided  that  the  Chief  Justice  may,  in  his           discretion, order  that any  case arising  in  any           such districts shall be heard at Bombay." It was  the Permanent  Bench of  the Bombay  High  Court  at Nagpur which  decided the  said Full  Bench case  of Shankar Naroba Salunke  and others  v. Gyanchand  Lobhachand Kothari and others  as also passed the order appealed against in the case before  us. The  Special Bench  case of  the  State  of Maharashtra v. Kusum Charudutt Bharma Upadhye was decided by

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the Bombay  High Court  sitting at  its  principal  seat  at Bombay.      Before proceeding  further we  may as well complete the post-Constitution history  of the  Bombay High Court. At the request of  the Varishta  Panchayat and  the people  of Free Dadra and  Nagar Haveli, the areas of Dadra and Nagar Haveli were integrated with the Union of India as a Union Territory by the Constitution (Tenth Amendment) Act, 1961, with effect from August  11, 1961.  The Dadra and Nagar Haveli Act, 1961 (Act No.  XXXV of  1961), was  enacted to make provision for the representation  in Parliament and for the administration of that Union Territory and for matters connected therewith. Section 11  of that  Act provided that "As from such date as the Central  Government may, by notification in the Official Gazette, specify,  the jurisdiction  of the  High  Court  at Bombay shall  extend to  Dadra and  Nagar  Haveli."The  date specified was July 1, 1965, by notification published in the Gazette of  India Extra-ordinary  dated June  17, 1965, Part II, Section  3(ii), at  page 579.  In exercise  of the power conferred by  Article 230  Parliament enacted the High Court at Bombay  (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981  (Act No.26  of 1981).  Under that Act as from the appointed day,  the jurisdiction of the High Court at Bombay was extended  to the  Union Territory  of Goa, Daman and Diu and the  Judicial Commisioner’s  Court which  was till  then functioning there  was abolished.  By  Government  of  India Notification in  the Ministry  of Law,  Justice and  Company Affairs No.  64/1/81 Jus. dated October 8, 1982, the Central Government appointed  October 30, 1982, as the date on which the said  Act would  come into  force, and  with effect from that date  a Permanent  Bench of  the Bombay  High Court was established at  Panaji. Under  section 51(3)  of the  States Reorganisation Act,  with effect  from August  27,  1981,  a temporary Bench of the Bombay High Court was 765 established at  Aurangabad for  the Marathwada  Region which consists of the territories of the former State of Hyderabad transferred to  the new State of Bombay by section 8 of that Act and  now forming  part of the State of Maharashtra. By a Presidential Order,  namely, G.S.R.  475 E  dated  June  26, 1984, entitled "The High Court of Bombay (Establishment of a Permanent Bench  at Aurangabad)  Order, 1984,  issued  under section 51(2)  of that  Act a  Permanent Bench of the Bombay High Court  was established at Aurangabad on and from August 27, 1984,  for the Marathwada Region, that is, the districts of Aurangabad,  Beed, Jalna,  Latur, Nanded,  Osmanabad  and Parbhani.      The effect  of the  above Constitutional  and statutory provisions so  far as  they concern the High Court of Bombay is that  the High  Court of  Bombay which was the High Court for  the   Province  of   Bombay  immediately   before   the commencement of  the Constitution  continued in existence on the coming  into force of the Constitution as the High Court for  the   pre-Reorganization  State   of  Bombay   and  the jurisdiction of,  and the  law administered  in, the  Bombay High Court  and the  respective powers of the Judges thereof in relation  to the  administration of Justice in the Court, including the  power to  make rules of Court and to regulate the sittings  of the  Court and  of members  thereof sitting alone or  in Division  Courts, continued  to be  the same as they  were   immediately  before  the  commencement  of  the Constitution. Further, the Bombay High Court was also vested with the  specific powers conferred by Articles 226, 227 and 228 of  the Constitution.  All  existing  laws,  Ordinances, Orders,  bye-laws,   rules  and   regulations  made  by  any

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competent Legislature,  authority or  person continued to be administered by  the Bombay  High  Court  until  altered  or repealed or  amended by  a competent  Legislature  or  other competent authority.  Thus, by  the Constitution  itself the High Court  for the  former Province  of Bombay was made the High Court  for the  pre-Reorganisation State of Bombay with the same  jurisdictions and  powers,  including  rule-making power and  the power  to regulate  the sittings of the Court either by Judges sitting alone or in Division Benches, which it previously  possessed. The  Letters Patent  of the Bombay High Court  and the  rules made  by  that  High  Court  thus continued to  be in  operation by virtue of the Constitution itself. The statutory provisions referred to above show that the Bombay High Court as the High Court for 766 the pre-Reorganization State of Bombay continued as the High Court for  the post-Reorganization State of Bombay and there after  for   the  State   of  Maharashtra   with  the   same jurisdiction and  powers  which  it  possessed,  exercisable either by  Judges sitting  singly  or  in  Division  Courts, whether at  its principal seat or at one of its Benches at a place other than its principal seat.      It is, therefore, necessary to see the jurisdiction and powers which  the High  Court for  the  Province  of  Bombay possessed immediately  prior  to  the  commencement  of  the Constitution, namely,  immediately before  January 26, 1950, and to  ascertain whether  the powers  specified in Articles 225, 226  and 227  of the  Constitution formed  part of  its existing jurisdiction  or were  conferred for the first time upon that  High Court  when it became the High Court for the pre-Reorganization  State  of  Bombay  on  the  Constitution coming into force. This involves tracing in brief the origin and development  of judicial institutions and administration of justice  in the former Province of Bombay. Apart from the various Charters  and Letters  Patent granted by the British Crown and  the statutes  passed by  the British  Parliament, much useful  information in this regard can be gathered from other  sources,  particularly  "The  Imperial  Gazetteer  of India" published  under the  authority of  the Secretary  of State  for  India  in  Council;  "Gazetteer  of  the  Bombay Presidency" in  twenty-eight volumes  published  in  1882-84 under Government  orders; "The  Gazetteer of Bombay City and Island" in  three volumes  compiled under  Government orders and published in 1909; and books such as "The Administration of Justice  in British India" by William H. Morley published in 1858.  Herbert  Cowell’s  Tagore  Law  Lectures  entitled "History and  Constitution of  the  Courts  and  Legislative Authorities in  India" published  in 1872,  "Bombay  in  the Making -  Being Mostly a History of the Origin and Growth of Judicial Institutions  in the Western Presidency, 1661-1726" by Phiroze  B.M. Malabari  published in 1910, "First Century of British  Justice in  India" by  Sir  Charles  Fawcett  (a former Judge  of the  Bombay High  Court) published  in 1934 under the  patronage of  the Secretary of State for India in Council, M.C.  Setalvad’s Hamlyn  Lecture on "The Common Law in India"  published in  1960, "Famous  Judges, Lawyers  and Cases of  Bombay -  A Judicial  History of Bombay during the British Period"  by P.B.  Vacha published  in 1962, "City of Gold - The Biography of 767 Bombay" by  Gillian Tindall published in 1982, and "The East India Company’s  Sadar Courts 1801-1834" by Sir Orby Mootham (former Chief Justice of the Allahabad High Court) published in  1982.   A  judicial  decision  in  which  much  valuable information can  be found  is the  judgment of Westropp, J.,

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who spoke  for the  Court in  the case of Naoroji Beramji v. Henry Rogers [1866-67] 4 Bom. H.C.R. 1.      Bombay consisted  originally of  seven small islands in addition to  some islets  in the  harbour. The seven islands which became  the City and Island of Bombay were Colaba, Old Woman’s Island,  Bombay which was the main island, Mazagaon, Parel (also  at times called by some writers by the names of its other three sections - Matunga, Dharavi and Sion), Mahim and Worli.  These seven  islands practically  retained their original shape  until the  eighteenth century. Some scholars believe Bombay  to be  the  ’Haptanesia’  mentioned  by  the second-century  astronomer,   geographer  and   cosmographer Ptolemy  (Claudius   Ptolomaeus  )   in   his   ’Geographike Huphegesis’ (’Guide  to Geography’).  It is  unnecessary  to trace the  history of Bombay from its earliest days. Suffice it to  say that  after passing through various hands it came to form  part of  the territories  of Sultan Bahadur Shah of Gujarat. By  the Treaty  of Bassein dated December 23, 1534, negotiated by  Shah Khwajeh  on behalf  of Bahadur  Shah and Nano da  Cunha the  Viceroy of Goa, on behalf of the King of Portugal, and  signed on  board the  galleon  "San  Mateos", Bahadur Shah  ceded to  the King  of Portugal  "the City  of Bassein, its  territories, islands and seas" (which included the above-mentioned  seven islands) in return for Portuguese assistance  against  the  Mogul  Emperor.  This  treaty  was confirmed the  next year on October 25, 1535, by a treaty of peace and commerce between Bahadur Shah and Nuno da Cunha on behalf of  the King  of Portugal.  The natural advantages of Bombay  soon   aroused  the  cupidity  of  the  English  who recognized its  value as a naval base. They, therefore, with the Dutch  as their  allies, landed  at Bombay and burnt the manor-house in  1626 and,  according  to  some  contemporary reports,  actually   seized  it   from  the  Portuguese  but thereafter abandoned  it for some unknown reason. There were regular efforts  made by  the Company  of  London  merchants (hereinafter referred to as "the London Company"), which had obtained by  Royal Charter  the right to trade with the East Indies, urging  the Crown  and thereafter the Lord Protector Oliver Cromwell to 768 purchase Bombay  from the  Portuguese.  These  efforts  bore fruit when  King Charles  II married Infanta Donna Catherine of Braganza,  sister of Alfonso VI, King of Portugal. By the Treaty of  Marriage dated  June 23, 1661, and ratified about two months  later, in  addition to  the  City  and  Fort  of Tangier, by Article 11 of that Treaty Alfonso VI, as part of the marriage  dowry, granted and confirmed "unto the King of Great Britain,  his heirs  and successors for ever, the Port and Island of Bombay in the East Indies with all the rights, profits, territories and appurtenances whatsoever there-unto belonging, and together with all income and revenue, as also the direct and absolute Dominion and Sovereignty of the said Port and  Island of  Bombay and  premises,  with  all  their royalties, freely,  fully, entirely and absolutely." What is significant about  this Marriage Treaty is that while in the case of  Tangier the  third article  of the  Treaty provided that "they (the inhabitants of the City and Fort of Tangier) shall be  ruled and governed by the same laws and customs as being hitherto  used and  imposed in  the aforesaid town and castle", the  Marriage  Treaty  did  not  contain  any  such provision so  far as  Bombay was  concerned. The  reason for this distinction  will be  pointed out  later.  Yet  another significant thing about this Marriage Treaty was that as the King of  Portugal had full and complete sovereignty which he transferred to the King of Great Britain, it made Bombay the

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only part  of India  directly under  the British Crown while the rest of British India was until 1858 held by the British under the ’firman’ of the Mogul Emperor Shah Alam granted on August 12,  1765, and  grants made  and territories ceded by other Indian rulers and the territories acquired by the East India Company  by conquest.  Though the King of Portugal did not realize  the value  and Potentialities  of  Bombay,  the Portuguese Viceroy  of Goa,  Don Antonio de Mello de Castro, who  exercised   viceroyalty   over   all   the   Portuguese possessions in  India including Bombay did and he temporized and put  off  handing  over  possession  of  Bombay  to  the representatives of  the British  Crown so  that the  English Fleet under  the Earl  of  Marlborough  (later  Duke)  which arrived at Bombay in September 1662 was kept off from taking possession and  sailed away  on January 14, 1663, and it was not until  February 18, 1665, that Bombay was handed over to the British.      Upon obtaining  possession of  the  Island  of  Bombay, Charles II, in return for a substantial loan by a Charter 769 dated March  27, 1668,  after reciting the Letters Patent of 1661 granted  by him  to the  London Company  and  the  said Marriage Treaty,  proceeded to  "give, grant,  transfer, and confirm" to the London Company the Port and Island of Bombay "with   all    the   rights,   profits,   territories,   and appurtenances thereof  whatsoever,"  etc.,  in  as  large  a manner as  the Crown  of England  enjoyed or  ought to enjoy them under  the grant  of the  King of  Portugal by the said Marriage Treaty  "and not further or otherwise," and created the  London   Company  "the  true  and  absolute  Lords  and Proprietors of  the Port  and Island and premises aforesaid, and  of   every  part   and  parcel  thereof,  "(saving  the allegiance due  to the Crown of England, and its royal power and  sovereignty   over  its   subjects  in   and  over  the inhabitants of  the Port and Island), "to have, hold," etc., the said  Port and  Island, etc.,  "unto  them  (the  London Company), to  the only  use of  them (the  London  Company), their successors  and assigns  for evermore, to be holden of Us, Our  Heirs and  Successors  as  of  the  Manor  of  East Greenwich in  the County of Kent, in free and common Socage, and not  in Capite, nor by Knight’s Service," at the rent of ten pounds yearly payable to the Crown.      We may  pause here  to cast a look backwards to see how the London  Company came  into existence. The London Company came into  being on  December 31,  1601,  when  by  a  Royal Charter granted  on that  date, Queen  Elizabeth I created a body corporate  consisting of  "the Governor  and Company of the Merchants  of London  trading  into  the  East  Indies". Amongst  other  things  the  Charter  empowered  the  London Company to make and enforce laws "for the good government of the said Company, and of all factors, masters, mariners, and other officers  employed or  to be  employed in any of their voyages, and  for the  better advancement and continuance of the said trade and traffic . . . Soe alwais the said lawes . . .  be reasonable  and not  contrary or  repugnant  to  the lawes, statutes  or Customes  of  this  Our  Realm."  It  is pertinent to  note that this power to legislate contained no express reference  to factories  or  territories.  This  was pointed out  by Westropp  J., in  Naoroji Beramji  v.  Henry Rogers [1866-67]  4 Bom.  H.C.R. 1. This Charter was renewed and confirmed in nearly identical language by Letters Patent granted by  James I  on May 31, 1609, and again by a Charter granted on  February 4,  1622,  by  the  same  monarch.  The Charter of 1622 also empowered the Company 770

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to chastise  and correct all English persons residing in the East Indies  and committing  any  misdemeanour  either  with martial law  or otherwise.  On his restoration to the throne Charles II  confirmed both  the above  Charters  by  Letters Patent granted on April 3, 1661. This Charter conferred upon the Governor and his Council of each place where the Company had or  should have  a factory  or place of trade within the East Indies the power to "judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this  Kingdom and to execute judgment accordingly". Thus, the London Company got under this Charter the power to judge according to  the laws  of England not only its own servants but  all  persons  who  should  live  under  it  -  a  power excerciseable by  it not  only in  the places  where it  had factories or  places of trade but also in those places where it may have in future any factories or places of trade. This was the  first  Charter  that  actually  created  Courts  of Justice in  British India  by making  the Governor  and  the Council of  each such factory or place of trade the judge in all civil  or criminal  matters according  to  the  laws  of England. The  reason for  the Marriage  Treaty of Charles II not containing  in the case of Bombay a provision similar to that in  the case of Tangier for the inhabitants to be ruled and governed  by Portuguese  laws and  customs  now  becomes obvious. Since  the Charter of 1661 empowered the Company to establish Courts  of Justice  and further  provided that the laws of  England should  prevail in  all the  factories  and settlements subordinate  to it,  a provision in the Marriage Treaty that  Portuguese laws  and customs  should prevail in Bombay would  have been  inconsistent with  the  Charter  of 1661, as  Charles II always contemplated handing over Bombay to the London Company.      A word  about the  free and  common socage tenure under which the  London Company held the Port and Island of Bombay would not be out of place. Socage was a form of land tenure. Originally, it  was of  two kinds  - free socage and villein socage, depending  upon whether  the services  were free  or base. Thus,  where a  man held  land by  fealty and  a fixed rent, the  tenure was  free socage.  Free socage  was of two kinds -  socage in capite and common socage. Free and common socage by which the London Company was to hold the Island of Bombay under  the Charter  of 1668  was the  modern ordinary freehold tenure. The 771 Charter also  enabled the  Company "as  a general  court, to establish under  their common  seal, any laws whatsoever for the good  government of  Bombay, and the inhabitants thereof ... provided  that the said laws ... be consonant to reason, and not  repugnant to  the laws of this Our Realm of England ..." The  London Company  placed Bombay under the control of the Governor and his Council at Surat with a Deputy Governor at Bombay.      In  1669   the  London   Company  sent   out   detailed instructions for  the establishment of a Court of Justice in Bombay but it was, however, not until three years later that the first  court was  established by  Gerald Aungier who was the President  of the  Surat Council and the second Governor of Bombay  and who  may well  be called  the Father  of  the modern City  of Bombay  for which  he visualized  a splendid future, calling  it "the  city which  by God’s assistance is intended to  be built",  and it  was to  this  end  that  he directed his  administration and efforts. For the purpose of establishing a  Court of  Judicature in  Bombay he  issued a proclamation "for  abolishing the  Portuguese laws,  and for

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establishing the English" from and after August 1, 1673. The opening ceremony  of the Court took place on August 8, 1672, commencing with a ceremonial procession from the Fort to the guild-hall. Aungier  then entered the Court, took the chair. After the Letters Patent granted by Charles II to the London Company for  the Island of Bombay were read and the oaths of office administered  to the Judge and others, Aungier made a speech. Today,  when there is so much concern for preserving the independence  of the  judiciary, it is worth reproducing that speech. Aungier said :           "The  Inhabitants   of  this   Island  consist  of           several/nations and  Religions to  wit -  English,           Portuguese  and   other  Christians,  Moores,  and           Jentues, but  you, when  you sit  in this  seat of           Justice and Judgment, must look upon them with one           single eye as I doe, without distinction of Nation           or Religion,  for they  are all  his Majesties and           the Hon’ble Company’s subjects as the English are,           and have  all an equall title and right to Justice           and you  must  doe  them  all  justice,  even  the           meanest person  of the  Island, and in particulare           the Poore, 772           the Orphan,  the Widdow  and the  stranger, in all           matters of  controversy, of Common right, and Meum           and Tuum; And this not only one against the other,           but even  against myself  and  those  who  are  in           office under  me, nay  against the Hon’ble Company           themselves  when  Law,  Reason  and  Equity  shall           require you  soe to doe, for this is your Duty and           therein will  you be  justified, and  in soe doing           God will  be  with  you  to  strengthen  you,  his           Majestie and  the Company  will  commend  you  and           reward you,  and I, in my place, shall be ready to           assist, Countenance, honour and protect you to the           utmost of the power and Authority entrusted to me;           and soe I pray God give his blessing to you."           The late  Mr. M.C.  Setalvad in his Hamlyn Lecture "The Common  Law in  India" has  thus eulogized  this speech (pp. 10-11) :           "The noble words of Governor Aungier ... enunciate           principles which  in  the  course  of  years  that           followed set the pattern for the administration of           justice not  only in the island but in other areas           in the country which gradually fell under the sway           of the  British ... Thus were laid the foundations           in the  seventeenth century  albeit in  the  small           area of  the town  and island  of  Bombay  of  the           application of English laws to Indians residing in           the  Presidency   Towns  and   of  the  system  of           administering justice  fostered by  the common law           in England."      Governor Aungier  also established an inferior Court of Justice consisting  of a civil officer of the London Company assisted by  Indian officers  with jurisdiction  to try  all disputes under  200 xeraphins.  Appeals from the decision of the inferior  court lay  to the superior Court. The superior Court was  composed of  the Deputy  Governor in Council with the title of the "Judge of the Courts of Judicature." It not only heard  appeals from the decisions of the inferior Court but also took cognizance of civil causes of the value of and exceeding 200 xeraphins and all criminal actions. All trials before the superior Court were jury trials. 773      By  a   Charter  dated  October  5,  1677,  Charles  II

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confirmed the  Letters Patent  of 1661  and the  Charter  of 1668, and  by another  Charter  dated  August  9,  1683,  he confirmed the earlier Charters granted by Elizabeth I, James I and  himself and  inter alia  provided for  establishing a Court of  Judicature to  be  held  at  such  places,  forts, plantations or  factories  upon  the  coast  as  the  London Company should  from time  to time direct. This Charter also authorized the  establishment of  admiralty jurisdiction  in India with  the object  of enabling  the London  Company  to seize and  condemn the  ships of those whom it considered as interlopers and  a special  Admiralty Judge  for Bombay  was appointed by  the King.  James II by his Charter dated April 12, 1686, confirmed the Charter granted by his elder brother Charles II  and when  William III  and Mary  II ascended the throne they  confirmed the  earlier Charters  by  a  Charter dated October  7, 1693. Under it, the laws which the Company had power  to make  were not  to be contrary or repugnant to the laws, statutes or customs of England.      Meanwhile the  London Company’s rivals had formed a new society and  had demanded  a Charter.  To enable  this to be done, Parliament  enacted Statute  9 and  10 Wm.  III, c.44, providing for  "raising a  sum not  exceeding two  millions, upon a  Fund for  payment of  Annuities, after  the rate  of eight pounds  per centum  and for  settling the Trade to the East Indies."  Section 62  of that  Statute  authorized  the King, if  the said  sum or  half of  it were  subscribed  by September 29,  1698, by  Letters Patent under the Great Seal of England,  to incorporate the subscribers, by such name as he may  think fit,  "to be one Company, with power to manage and carry on their trade to the East Indies." The whole fund being subscribed,  William III by Charter dated September 5, 1698, incorporated  the subscribers  "to be one body politic and corporate, by the name of the English Company trading to the East  Indies" (hereinafter  referred to  as "the English Company").   This    Charter   contained    provisions   for establishing Courts  to try  mercantile and  maritime causes similar to  those provided  for in  the Charters of 1683 and 1686 granted  to the London Company. An Act of Parliament of 1698 ultimately  granted the  monopoly of  Indian  trade  to those who  contributed to  it a  loan  of  L-20,00,000.  The London Company  gave a  loan of  L-3,15,000 and retained its supremacy, keeping  its forts  and privileges  in India, but the English Company had gained a foothold in the 774 Indian trade.  Rivalry between  the two  Companies continued and an effort was made in 1702 to resolve it by an Indenture Tripartite dated July 22, 1702, made between Queen Anne, the London Company  and its rival the English Company, which had as its  object  the  union  of  the  two  Companies  at  the expiration of  seven years.  Under this Indenture the London Company was  to convey Bombay and the Island of Saint Halena to the  English Company.  The London Company also covenanted to surrender  to the  Queen its  Charters within  two months after the expiration of seven years and from thenceforth the English Company  was to  be called  "The United  Company  of Merchants of  England trading  to the  East Indies".  By  an Indenture Quinquepartite  dated July  22, 1702, made between various parties,  the London Company conveyed to the English Company all  its forts, settlements, and dead stock of every description including  the Port and Island of Bombay as also its factories  at Surat  and other places. An Act was passed by Parliament  in the  sixth year of the reign of Queen Anne to bring  about a  speedy and  complete  union  of  the  two Companies and  in pursuance  of the  said Act all matters in dispute between the two Companies were referred to the final

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arbitrament  of   the  Earl  of  Godolphin,  the  Lord  High Treasurer. By  a Deed  Poll dated  September 29,  1708, Lord Godolphin made his award by virtue of which the union of the two Companies  was completed.  By a  Deed Poll  enrolled  in Chancery, dated  March 22,  1709,  the  London  Company,  in pursuance of  Lord Godolphin’s  award, and  for  the  entire extinguishment   of   its   corporate   capacity,   granted, surrendered, yielded,  and gave  up to  the Queen, her heirs and success  ors, its corporate capacity or body politic and all its  charters, capacities,  powers and  rights whatever, for acting  as  or  continuing  to  be  a  body  politic  or corporate, by  virtue of  any Acts  of  Parliament,  Letters Patent, or Charters what-ever. The United Company which thus emerged will  be herein-after referred to as "the East India Company". It  may be mentioned that section 111 of Statute 3 and 4  Wm. IV c.85, provided that in all suits, proceedings, and transactions  whatsoever, the  United Company  be called "The East-India Company."      The working  of Company’s  Courts proved so ineffective that the Court of Directors of the East India Company made a representation to the King in which they emphasized the need for "a competent power and authority" at Madras, Bombay and 775 Calcutta "for  the more  speedy and factual administering of justice in  civil cases  and for the trying and punishing of capital and  other criminal offences and misdemeanours," and begged permission  to establish a Mayor’s Court at all these centres. On  September 24,  1726, King George I issued a new Charter for  a Mayor’s Court at Bombay, Madras and Calcutta. The Mayor’s  Court was  to  consist  of  a  Mayor  and  nine Aldermen. The  Mayor’s Court  was declared a Court of Record and was  empowered to  hear civil cases of all kinds subject to an  appeal to  the Governor  and Council  and  a  further appeal to  the Privy Council if the amount involved exceeded Rs.3,000. The  Mayor’s Court  had also  authority  to  grant probate and  letters of  administration. By the same Charter the Governor  and Council were constituted a Court of Record and were  authorized to hold quarter sessions. The President and five senior members of the Council were created Justices of the  Peace and  constituted a  Court of Oyer and Terminer and Gaol Delivery. The Governor and Council had jurisdiction to try  all offences except high treason. The Mayor’s Courts were to be the Courts of the King of England and were not to be the  Company’s Courts  though at  that time  the King  of England had  no claim  to sovereignty  over any  part of the country except  the Island  of Bombay.  By the Charter dated November 17,  1727, George  II granted  to  the  East  India Company the fines imposed by these Courts. The Mayor’s Court was established at Bombay on February 10, 1728.      The   working    of   the    Mayor’s   Court    created dissatisfaction, particularly  in the  matter of  the  ’cow- oath’ which  the  Mayor’s  Court  insisted  upon  all  Hindu witnesses taking  and which  consisted of  the witness being made to  take hold  of a  cow’s tail  in court  and swear to speak the  truth. Ultimately,  the  Court  of  Directors  in England prohibited  this  practice.  The  administration  of criminal justice  by the  Court of  the Governor and Council proved  equally   unsatisfactory  for   that  Court   failed lamentably to  live up to the noble principles enunciated by Governor Aungier  while  establishing  the  first  Court  of Judicature at  Bombay. For  instance, when  the slave boy in collusion with  the housekeeper  of one Jenkinson robbed his escritoire of  fifteen guineas,  they were both sentenced to be hanged  but when  George Scott,  a member of the Council, Justice of  the Peace,  Marine Paymaster  and Keeper  of the

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Custom-house of Mahim, was convicted of the gross oppression 776 of three Indians for the purpose of extorting ten rupees, he was merely fined five pounds and deprived of his Commission. The defects  in the  working of  these Courts  had become so patent by  the middle  of the  eighteenth century  that  the Court of  Directors was obliged to request for a new Charter which was  granted by King George II on January 8, 1753, and by this  Charter, the  Mayor’s Courts were re-established as Courts of  Record with similar jurisdiction but curtailed in several respects;  for instance,  the  Charter  limited  the civil jurisdiction  of the  Mayor’s Courts  to suits between non-Indians and  forbade the  Court from  entertaining suits between Indian inhabitants of Bombay except with the express consent of  parties, while  the jurisdiction of the Governor and Council  in criminal  matters was  limited to an offence committed  within   Bombay.  A   Court  of   Requests   (the predecessor of  the Bombay Presidency Small Cause Court) was also created  for the  summary disposal  of small  cases not exceeding five pagodas or rupees fifteen in value.      For the  first time the British Parliament asserted its authority  and   control  over   the  East  India  Company’s activities both  in India and in England by enacting Statute 13 Geo. III, c.63, of 1773, commonly known as the Regulating Act. Under  this Statute  the Governor  of Bengal became the Governor-General in Council with a certain amount of control over  the   Presidencies  of   Bombay  and  Madras  and  the appointment of  the Governor-General  had to  be approved by the  Crown.   This  Statute  also  empowered  the  Crown  to establish a  Supreme Court  of Judicature,  in lieu  of  the Mayor’s Court,  at Fort William (Calcutta), to be a Court of Record and  to consist  of a  Chief Justice and three puisne Judges. Accordingly,  by a Charter of George III dated March 26, 1774,  a Supreme  Court of Judicature was established at Fort William.  Soon a  controversy arose  between  the  said Supreme Court  and the  Governor-General,  Warren  Hastings, supported by  his Council, with respect to the powers of the said Supreme  Court in revenue matters. This controversy was settled in  favour of  the Governor-General by Parliament by providing in  section 8  of the East India Company Act, 1780 (21 Geo.III,  c.70) that  "the said  Supreme Court shall not have or  exercise any  jurisdiction in any matter concerning revenue." The  East India  company Act,  1797  (37  Geo.III, c.142), limited  the number  of puisne Judges of the Supreme Court at Fort William to two and further authorized 777 the Crown  to establish at Madras and Bombay, in lieu of the Mayor’s Courts,  Recorder’s Courts  consisting of the Mayor, three Aldermen  and a  Recorder. By  a Charter of George III dated February  20, 1798, Recorder’s Courts were established both at  Madras and Bombay with jurisdiction similar to that of  the  Court  of  King’s  Bench  in  England  "as  far  as circumstances  would   admit".  An   equitable  jurisdiction similar to  that of  the Court  of Chancery  in England  was given  to  the  Recorder’s  Courts  as  also  ecclesiastical jurisdiction which  included the power to grant probates and letters of  administration, and  admiralty jurisdiction. The Recorder’s Courts were also made Courts of Oyer and Terminer to administer  criminal justice  as in England "or as nearly thereto as  the condition and circumstances of the pleas and persons would  admit." The  Recorder’s  Courts  were  to  be Courts of  Record and  an appeal  lay from their decision to the  Privy  Council.  The  Recorder’s  Courts  also  had  no jurisdiction in respect of revenue matters.      The Recorder’s  Court which  had been  set up at Madras

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was abolished  by the Government of India Act, 1800 (39 & 40 Geo.III, c.79),  which provided for the establishment in its place of  a Supreme  Court to  be a  Court of  Record and to consist of  a Chief Justice and two puisne Judges possessing the like  jurisdiction and  the same  powers, and subject to the same restrictions, as the Supreme Court at Fort William. The Charter  of the  Supreme Court  at Madras was granted on December 26,  1801. The  Indian Bishops and Courts Act, 1823 (4  Geo.IV,  c.71)  authorized  the  Crown  to  abolish  the Recorder’s Court at Bombay and in its place to establish for Bombay and its dependencies a Supreme Court to be a Court of Record consisting of the same number of Judges, possessing a similar jurisdiction  and the same powers and subject to the same restrictions  as the  Supreme Court at Fort William. In pursuance of  the said  Statute, King  George IV  by Letters Patent issued  on December  8, 1823, established at Bombay a Court  of   Record  to  be  called  "the  Supreme  Court  of Judicature at  Bombay." It  is interesting  to note  that in those days  when there was no income-tax, under the said Act of 1823, Bombay Rupees 52,500 was fixed as the annual salary of the  Chief Justice  of the Supreme Court of Judicature at Bombay and Bombay Rupees 43,500 as the annual salary of each of the  puisne Judges  which salaries  were increased by the Indian Salaries and Pensions Act, 1825 (6 Geo.IV, c.85) with retrospective effect from the 778 date of the inauguration of the said Supreme Court up to the date of  passing of  the said Act (namely, July 15, 1825) to Bombay Rupees  58,000 and  Bombay Rupees 48,000 respectively and from  the date  of the passing of the said Act to Bombay Rupees 60,000 and Bombay Rupees 50,000 respectively.      The Supreme  Court of Judicature at Bombay was formally inaugurated on  May 8,  1824. Clause 1 of the Letters Patent created and constituted the said Supreme Court to be a Court of Record  to consist  of a  Chief Justice  and  two  puisne Judges. Clause  5 of  the said  Letters Patent  provided  as follows :           "5. The Court invested with a jurisdiction similar           to  the   Jurisdiction  of  the  King’s  Bench  in           England.-           AND it  is our further will and pleasure, That the           said Chief  Justice and  the said  Puisne Justices           shall, severally  and respectively,  be, and  they           are, all and every of them, hereby appointed to be           Justices  and   Conservators  of  the  Peace,  and           Coroners, within  and throughout the Settlement of           Bombay, and the Town and Island of Bombay, and the           limits  thereof,  and  the  Factories  subordinate           thereto and  all the  territories which now are or           hereafter may  be subject  to, or  dependent upon,           the Government  of Bombay,  aforesaid, and to have           such jurisdiction and authority as our Justices of           our Court  of King’s  Bench have  and may lawfully           exercise, within that part of Great Britain called           England, as far as circumstances will admit."                (Emphasis supplied) Clause 23  conferred upon  the said Supreme Court all powers possessed by  the Mayor’s Court and the Recorder’s Court. By clause 25  the jurisdiction  of the  said Supreme  Court was inter alia  expressly barred  in all revenue matters. Clause 26 conferred  power upon the said Supreme Court to punish by fine, imprisonment  or other  corporeal punishment witnesses who committed  contempt of  Court by  refusing to appear, or wilfully neglecting  to  appear  and  be  sworn,  or  to  be examined and  subscribe his  or her  deposition. By  various

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clauses original 779 civil jurisdiction,  equitable jurisdiction  of the Court of Chancery in  Great Britain, criminal jurisdiction as a Court of Oyer  and Terminer, jurisdiction over persons and estates of infants  and lunatics,  and ecclesiastical, testamentary, intestate, and  admiralty jurisdictions  were conferred upon the said Supreme Court. Clause 32 conferred upon the Supreme Court the  power to frame, process and make rules. Clause 55 made the Court of Requests and the Court of Quarter Sessions established at  Bombay subject to the control of the Supreme Court of  Judicature at  Bombay, and  was in  the  following terms :           "55.  Court  of  Requests  and  Quarter  Sessions,           subject to this Court. -           AND to  the end that the Court of Requests and the           Court of Quarter Sessions, erected and established           at Bombay  aforesaid, and  the Justices  and other           Magistrates appointed  for the  Town and Island of           Bombay, and the Factories subordinate thereto, may           better the  ends of their respective institutions,           and act  conformably to law and justice, it is our           further will and pleasure and we do hereby further           grant, ordain,  and establish  that all  and every           the said  Courts and  Magistrates shall be subject           to the order and control of the said Supreme Court           of Judicature at Bombay, in such sort, manner, and           form, as  the Inferior  Courts and  Magistrates of           and in  that part of Great Britain called England,           are by law subject to the order and control of our           Court of  King’s Bench;  to which  end,  the  said           Supreme Court  of Judicature  at Bombay  is hereby           empowered and authorized to award and issue a writ           or writs  of Mandamus,  Certiorari, Procedendo, or           Error, to  be prepared  in manner  abovementioned,           and directed  to such Courts or Magistrates as the           case may  require,  and  to  punish  any  contempt           thereof, or wilful disobedience thereunto, by fine           and imprisonment."                (Emphasis supplied.) Clause 56  provided for  an appeal to the Privy Council from any judgment or determination of the said Supreme Court. 780      Three things  are pertinent  to note  about the Letters Patent of  the Supreme  Court of  Judicature at  Bombay. The first is  that by  clause 5  it was  invested with  the same jurisdiction as  was possessed  by the Court of King’s Bench in England  which included  the power of issuing prerogative writs. The  second is  that under  clause 55  the  Court  of Requests and the Court of Quarter Sessions at Bombay and the Justices and  other Magistrates  appointed for  the Town and Island of  Bombay and the factories subordinate thereto were made "Subject  to the  order and control of the said Supreme Court" in  the same  way as  the  inferior  Courts  and  the magistrates in England were subject to the order and control of the  Court of  King’s Bench and for this purpose the said Supreme Court was empowered and authorized to issue writs of mandamus, certiorari,  procedendo and  error. The  third  is that there  was no  intra-court appeal  provided against the judgment and  decree of  any Judge  or Judges  of  the  said Supreme Court  but under clause 56 an appeal lay directly to the Privy Council.      Before we  turn to the establishment of the High Courts in India,  it will  not be  out of  place  to  consider  the position with  respect to  the judicial  institutions in the

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rest of  the Bombay  Presidency. Until 1765 the jurisdiction of the  East India  Company’s Law Courts was confined to the factories of  the Company  and its  branches. In 1765 Robert Clive secured,  or rather  exacted, the  Dewany  of  Bengal, Bihar and Orissa from the titular Mogul Emperor Shah Alam in Delhi. In  this delegated  capacity, the  East India Company derived its  title  to  administer  the  revenue  and  civil affairs  of   these  provinces,  and  for  this  purpose  it established in  Bengal, Bihar  and Orissa, civil and revenue Adalats.  The   delegated  capacity  was,  however,  a  mere fiction.  The  real  source  of  the  East  India  Company’s authority to  administer these  provinces was  the sword and not the ’firman’ of the Mogul Emperor. The Regulating Act of 1773 vested  in the  Governor-General in  Council the  whole civil and military government of the Presidency of Bengal as also the  government of  the  territorial  acquisitions  and revenues in  Bengal, Bihar  and  Orissa  which  were  Dewany lands. By  the East  India Company  Act, 1780, the Governor- General in  Council was  empowered to  frame regulations for the  "provincial   Courts  and   Councils"  which  could  be disallowed within  two years  by the  Court of Directors and the Secretary of State. By the Government of India Act, 1800 (39 Geo.III, 781 c.79), the  Madras Government  and by Statute 47 Geo.III, c. 68,  the   Bombay  Government   were  invested   within  the territories subject to their respective governments with the same legislative  powers and exerciseable in the same manner as had  previously been given to and exercised for Bengal by the Governor-General in Council.      Meanwhile in  1797 the  Governor-General in  Council of Bengal authorized  the Bombay  Government to set up Adalats, both Dewany and Nizami, within its territories on principles similar to those on which the courts in the Bengal Provinces had been established. Progress in this respect was, however, gradual and it was in 1799 that such courts were established at Thana  for the  islands of Salsette and Caranja and their dependencies, Elephanta  and Hog,  by Bombay Regulations III and V  of 1799  and in  1800 at  Surat for that city and the town of  Randeir by  Bombay Regulations  I and  III of 1800. These courts were subordinate to the Governor in Council who heard civil appeals in a separate department of Sadar Adalat in pursuance  of Bombay  Regulations III  of 1799  and I  of 1800, and also disposed of criminal matters as "the tribunal of  the   Governor  in   Council"  in  pursuance  of  Bombay Regulations V  of 1799  and  III  of  1800.  The  name  "the tribunal  of   the  Governor  in  Council"  was  changed  to "Superior  Tribunal  or  Chief  Criminal  Court"  by  Bombay Regulation IX  of 1812.  By Bombay  Regulation II  of 1805 a Provincial Court of Appeal was established at Broach. It was also a  Court of  Circuit and  in that capacity replaced the Court of  Session which  had been  established at  Surat  in 1800. Though  the setting  up of this Court eased the burden on the  Governor in  Council  on  the  civil  side,  as  the Governor in  Council had  also to deal with revenue matters, in  January  1820  the  Governor,  Mountstuart  Elphinstone, decided that  it had  become  "utterly  impossible  for  the Governor in Council to continue to execute the duties of the Sadar Adalat  and Superior Tribunal without neglecting other important duties".  Consequently by Bombay Regulations V and VII of  1820, which  came into force on January 1, 1821, the Provincial Court  of Appeal and of Circuit was abolished and the then  existing Sadar  Adalat and  the Superior  Tribunal were replaced  by new  Courts, namely, the Sadar Adalat (the former name  being retained)  and the Sadar Foujdari Adalat.

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The seat  of the  Sadar Adalat  was  also  transferred  from Bombay to Surat. Under Bombay Regulation V of 1820 an appeal lay from  the decision  of the  Sadar Adalat  to  the  Privy Council. 782      On becoming Governor, Mountstuart Elphinstone set up in August 1820  a committee  "to examine  the existing  law and practice and  to prepare  a comprehensive code, expressed in non-technical language,  which  would  as  far  as  possible preserve   native    institutions".   Following   upon   the recommendations  of  the  committee,  on  January  1,  1827, twenty-six Regulations  known as  the Elphinstone  Code were passed which  (with the  exception of Regulation XVIII) came into force  on September  1,  1827.  Under  this  Code,  the judicial system  was reorganized  and the  Sadar  Court  was replaced by  a "Sadar  Adalat" which  in the exercise of its civil jurisdiction  was named  "the Sadar Dewani Adalat" and in the  exercise of  its criminal jurisdiction as "the Sadar Foujdari Adalat".  In 1827  the jurisdiction  of  the  Sadar Adalat was  extended to  Khandesh and  Deccan which had been formed into  the zillas  of Poona and Ahmednagar and in 1830 to that part of the Southern Mahratha country which had been formed into  the zilla  of Dharwar. In 1828 the Sadar Adalat was transferred  to Bombay  from Surat  for the  convenience both of  the litigating  public  and  the  judges  going  on circuit.      Prior  to   1827,  subordinate  courts  had  also  been established and they too were reorganized by the Elphinstone Code. Bombay  Regulation II  of 1827  established  Zilla  or District Courts. An appeal lay from a decree or order passed by a  Zilla Court  to the  Sadar  Dewany  Adalat  which  was invested with  civil jurisdiction  over  the  whole  of  the Bombay Presidency  except the Town and Island of Bombay. The decisions of the Sadar Dewany Adalat were made subject to an appeal to the Privy Council by Bombay Regulation IV of 1828.      Bombay  Regulation   XIII  of   1827  reorganized   the structure of subordinate criminal courts, and Zilla Criminal Courts were  established in certain parts of the Presidency. The Sadar  Foujdari Adalat  was vested with supreme criminal jurisdiction over  the whole of the Bombay Presidency except the Town  and Island  of Bombay.  It was,  however,  not  an appellate court. It exercised a general supervision over the administration of justice in criminal cases, and to this end it had  the power  to call  for the proceedings of the lower courts and pass such orders on them as it considered proper. It alone  had the  power  to  confirm  sentences  of  death, transportation for  life or  life imprisonment passed by the Judges of the Court when on 783 circuit. All  sentences of  imprisonment for  more than  two years passed by the lower criminal courts had to be referred to it.  The Court  construed its  powers of revision widely. Thus, in  Wittoojee Rugshette’s  Case [1831]  1 Bellasis 52, where the  prescribed procedure  had not  been followed, the Court annulled the proceedings and ordered a fresh trial.      The Sadar  Dewany Adalat  and the Sadar Foujdari Adalat were Courts of Record.      We will  now briefly  look at the important legislative measures relating  to the government of India which preceded the setting up of High Courts in the country.      The Government  of India  Act of  1833 (3  & 4  Wm. IV, c.85)  introduced   important  changes   in  the  system  of legislation in  India, vesting the sole legislative power in India in  the  Governor-General  in  Council.  The  existing powers of  the Councils  of Madras  and Bombay  to make laws

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were superseded and they were merely authorized to submit to the Governor-General  in Council  drafts or  projects of any law which they might think expedient. After considering such drafts and  projects the  Governor-General in Council was to communicate his  decision thereon  to the  local  government which had  proposed them.  This Statute  expressly saved the right of  the British Parliament to make laws for India. All laws  made   previously  to   this   statute   were   called "Regulations", but  laws which were made in pursuance of the Statute of  1833 were  known as  "Acts". The  Government  of India Act  of 1853 (16 & 17 Vict., c.95) renewed the Charter granted to the East India Company by the Government of India Act of  1833. Under  this Statute  the  territories  in  the possession and  under  the  government  of  the  East  India Company were  continued under  such government  in trust for the Crown  until the  British  Parliament  should  otherwise provide. This  Statute also  set up  a  Legislative  Council which was to include some Judges.      From about  1852 the  Parliamentary Committee  for East Indian affairs was considering a proposal to consolidate the Supreme and  Sudder Courts  into one  Court in  each of  the three Presidencies  of Bengal,  Madras  and  Bombay  in  the interest of  the public administration of justice. Meanwhile the events  of 1857  led to the passing of the Government of India Act of 1858 784 (21 & 22 Vict., c.106). Under that Act the government of the territories in the possession or under the government of the East India  Company and all rights in relation to government vested in  or exercised  by the East India Company ceased to be vested  or exercised  by it  and  became  vested  in  the British Crown,  and India  was thenceforth to be governed by and in  the name  of the  Queen of England. By section 64 of the 1858  Act all  existing Acts  and provisions  concerning India were to continue in force subject to the provisions of the said  Act and  similarly  by  section  59  all  existing Orders, Regulations  and Directions  given or  made  by  the Court of  Directors or  the Commissioners for the Affairs of India were  to continue in force. This Act, however, did not make any  provision for setting up of new Courts. An Act for this purpose  was passed  by the British Parliament in 1861, that being  the Indian High Courts Act, 1861 (24 & 25 Vict., c.104), referred  to in  many judgments  as the Charter Act. Under it,  the Crown  was authorized to issue Letters Patent or Charters  for the  purpose of  erecting and  establishing High Courts  of Judicature  at Fort William in Bengal and at Madras and  Bombay for  these three Presidencies, to consist of a  Chief Justice  and a  certain number  of other Judges. Upon the  Letters Patent being issued and the High Court for a Presidency  being established  under section 8 of that Act the Supreme  Court of Judicature and the Sadar Dewany Adalat and the  Sadar Foujdari  Adalat of  that Presidency  were to stand abolished.      Sections 9,  10 and  11 of  the Indian High Courts Act, 1861, are  material  for  our  purpose  and  require  to  be reproduced in extenso. They provided as follows :           "9. Jurisdiction and Powers of High Courts. -           Each of  the High  Courts to  be established under           this Act  shall have  and exercise all such Civil,           Criminal,    Admiralty     and     Vice-Admiralty,           Testamentary,    Intestate,     and    Matrimonial           Jurisdiction, original and appellate, and all such           Powers and  Authority for  and in  relation to the           Administration of  Justice in  the Presidency  for           which it  is established,  as Her  Majesty may  by

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         such Letters 785           Patent as  aforesaid grant  and  direct,  subject,           however, to  such Directions and Limitations as to           the  Exercise   of  original  Civil  and  Criminal           Jurisdiction beyond  the Limits  of the Presidency           Towns as  may be  prescribed thereby; and, save as           by such  Letters Patent may be otherwise directed,           and  subject   and  without   prejudice   to   the           Legislative Powers  in relation  to the Matters as           aforesaid of  the  Governor-General  of  India  in           Council, the  High Court to be established in each           Presidency   shall    have   and    exercise   all           Jurisdiction and Power and Authority whatsoever in           any Manner vested in any of the Courts in the same           Presidency abolished under this Act at the Time of           the Abolition of such last-mentioned Courts.           10. High  Courts to  exercise same jurisdiction as           Supreme Courts. -           Until the  Crown shall otherwise provide under the           powers of this Act, all Jurisdiction now exercised           by the  Supreme Courts  of  Calcutta,  Madras  and           Bombay respectively over inhabitants of such Parts           of India  as may not be comprised within the local           limits of  the Letters  Patent to  be issued under           this Act establishing High Courts at Fort William,           Madras and Bombay, shall be exercised by such High           Courts respectively.                                     (Emphasis supplied)           11.Existing  Provisions   applicable  to   supreme           Courts to apply to High  Courts. -           Upon the  Establishment of the said High Courts in           the said  Presidencies respectively all Provisions           then in  force in  India of Acts of Parliament, or           of any  Orders  of  her  Majesty  in  Council,  or           Charters, or  of any  Acts of  the Legislature  of           India, which  at the  Time or  respective Times of           the  Establishment   of  such   High  Courts   are           respectively applicable  to the  Supreme Courts at           Fort  William   in  Bengal,   Madras  and   Bombay           respectively, or to the 786           Judges of  those Courts,  shall  be  taken  to  be           applicable to  the said  High Courts  and  to  the           Judges thereof  respectively, so  far  as  may  be           consistent with  the provisions  of this  Act, and           the Letters  Patent  to  be  issued  in  pursuance           thereof, and  subject to the Legislative Powers in           relation to the Matters aforesaid of the Governor-           General of India in Council."      Section 13  of the said Act conferred rule-making power upon the High Courts and section 14 conferred power upon the Chief Justice  from time to time to determine what Judges in each case  should sit  alone and  what Judges  of the Court, whether with or without the Chief Justice, should constitute the several  Division Courts.  These two  sections  were  in these terms :           "13. Power  to High Courts to provide for Exercise           of  Jurisdiction  by  single  Judges  or  Division           Courts. -           Subject to  any Laws  or Regulations  which may be           made by  the Governor  General in Council the High           Court established in any Presidency under this Act           may by  its own Rules provide for the Exercise, by           one  or   more  Judges,   or  by  Division  Courts

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         constituted by  two or  more Judges,  of the  said           High  Court,   of  the   original  and   appellate           Jurisdiction vested  in such Court, in such Manner           as may  appear to  such Court to be convenient for           the due Administration of Justice.           14. Chief  Justice to  determine what Judges shall           sit alone or in the Division Courts. -           The Chief  Justice of  each High  Court shall from           Time to  Time determine  what Judge  in each  case           shall sit  alone, and  what Judges  of the  Court,           whether with  or without  the Chief Justice, shall           constitute  the   several   Division   Courts   as           aforesaid."      Section 15  of the  said Act  conferred upon  the  High Court the 787 power of  superintendence over  all Courts  subject  to  its appellate jurisdiction.  This power  of superintendence  was very similar  to the  like power  conferred later by section 107 of  the Government of India Act of 1915. As under clause 15 of the Letters Patent of the Bombay High Court as amended by Letters  Patent dated  March  11,  1919,  an  intra-court appeal does  not lie  against a  sentence or order passed or made by  a Single  Judge in  the exercise  of his  power  of superintendence under  the provisions  of section 107 of the Government of  India Act  of 1915,  it would  be relevant to reproduce section  15 of  the Indian  High Courts Act, 1861. The said section 15 provided as follows :           15. High  Court to  superintend and to frame Rules           of Practice for subordinate Courts.-           Each of the High Courts established under this Act           shall have  Superintendence over  all Courts which           may be  subject to  its appellate Jurisdiction and           shall have  Power to  call  for  Returns,  and  to           direct the transfer of any Suit or Appeal from any           such Court to any other Court of equal or superior           Jurisdiction and  shall have  Power  to  make  and           issue General  Rules for  regulating the  Practice           and  Proceedings  of  such  Courts,  and  also  to           prescribe Forms  for every  Proceeding in the said           Courts for  which it  shall think necessary that a           form be  provided, and also for keeping all Books,           Entries, and  Accounts to be kept by the officers,           and also to settle Tables of Fees to be allowed to           the  Sheriff,   Attorneys,  and   all  Clerks  and           Officers of Courts, and from Time to Time to alter           any such  Rule or  Form or Table; and the Rules so           made, and  the Forms  so framed  and the Tables so           settled shall  be used  and observed  in the  said           Courts, provided that such General Rules and Forms           and Tables be not inconsistent with the Provisions           of any  law in  force, and  shall before  they are           issued  have   received  the   Sanction,  in   the           Presidency  of   Fort  William,  of  the  Governor           General in Council, and in Madras or Bombay of the           Governor   in    Council   of    the    respective           Presidencies".                                    (Emphasis supplied.) 788      In pursuance  of the power conferred by the Indian High Courts Act,  1861, Letters  Patent were  issued on  May  14, 1862, establishing  the High  Court of  Judicature  at  Fort William in  Bengal for the Bengal Division of the Presidency of Fort Bengal (now the Calcutta High Court) and on June 26, 1862, establishing the Bombay High Court and the Madras High

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Court  for   the   Presidencies   of   Bombay   and   Madras respectively. The  Letters Patent  of the  Madras and Bombay High Courts  were mutatis  mutandis in  identical terms with the Letters  Patent of  the  Calcutta  High  Court.  In  the Despatch dated  May 14, 1862, from the Secretary of State to the  Governor-General   in  Council  which  accompanied  the Letters Patent  of the  Calcutta High  Court, these  Letters patent were  referred to ’as the Letters Patent or Charter". Hence the Indian High Courts Act, 1861, is commonly referred to as the Charter Act and the three High Courts of Calcutta, Bombay and Madras as the Chartered High Courts.      After referring  to the  provisions of  the Indian High Courts Act,  1861, the  Letters Patent  for the  Bombay High Court by  clause  1  established  the  High  Court  for  the Presidency of  Bombay, to  be  called  "the  High  Court  of Judicature at  Bombay" and  expressly constituted  the  High Court to  be "a  Court of Record". Clauses 11 to 17 formed a group of  clauses which bore the heading "Civil Jurisdiction of the  High Court".  Under clause  11 the High Court was to have and exercise Ordinary Original Jurisdiction within such local limits  as may,  from time  to time,  be declared  and prescribed by  any law or regulation made by the Governor in Council, and  until such  local limits  were so declared and prescribed, within the limits of the then local jurisdiction of the  Supreme Court  of Judicature  at Bombay.  Clause  12 prescribed when  the ordinary original civil jurisdiction in suits was exercisable by the High Court. Clause 13 conferred upon the  High  Court  the  power  to  remove  and  try  and determine as  a Court of extraordinary original jurisdiction any suit  in any court subject to the superintendence of the High Court,  whether such  court was  within or  without the Presidency of  Bombay. Clauses 14 and 15 dealt with appeals; clause 14  dealing with  appeals from the judgments given in the exercise  of original  civil jurisdiction  of  the  High Court  and   clause  15   dealing  with   appeals  from  the subordinate civil courts in the Presidency. Other clauses of the 1862 Letters Patent conferred upon the Bombay High Court 789 jurisdiction   over   infants   and   lunatics,   insolvency jurisdiction,  civil   and  criminal,  admiralty  and  vice- admiralty,   testamentary    and   intestate   jurisdiction, matrimonial  jurisdiction  and  ordinary  and  extraordinary original criminal  jurisdiction over all persons residing in places within  the jurisdiction of any court then subject to the superintendence  of the  Sadar Foujdari  Adalat, whether within or without the Presidency of Bombay. Clause 24 barred any appeal from any sentence or order passed in any criminal trial before  the Courts  of original  criminal jurisdiction constituted by  one or more judges of the High Court. Clause 25, however,  conferred in such cases a power of review upon the High  Court in certain circumstances. Clause 26 ordained the High  Court to  be a  court of  appeal from the criminal courts of the Presidency of Bombay and from all other courts which were  subject to appeal to the Court of Sadar Foujdari Adalat. Clause 36 provided that any function which under the said Letters Patent was to be performed by the High Court in the exercise of its original or appellate jurisdiction might be performed  by any  Judge or  by any Division Court of the High Court  appointed or  constituted for  such  purpose  by section 13 of the Indian High Courts Act, 1861. Under clause 44 of  the said Letters Patent so much of the Letters Patent of the  Supreme  Court  of  Judicature  at  Bombay  as  were inconsistent "with  the said  recited  Act"  (that  is,  the Indian High  Courts Act,  1861) and  with the  said  Letters Patent of  1862 were  to "cease,  determine, and  be utterly

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void to all intents and purposes whatsoever."      The Bombay  High Court  was  formally  inaugurated  and commenced its  work on  August 14, 1862, the Judges making a declaration that  they would  from that day sit as Judges of the High Court.      Under section  17 of  the Indian High Courts Act, 1861, the Crown  could, if  it so  thought fit, at any time within three years  after the establishment of any High Court under that Act,  by Letters  Patent revoke  all or  such parts  or provisions of  the Letters  Patent by  which such  Court was established and  could grant  and make such other powers and provisions as  the Crown  thought fit. The said section also conferred power  by similar  Letters  Patent  to  grant  any additional or  supplementary powers  and provisions  without revoking the  earlier Letters  Patent. By  the  Indian  High Courts Act, 1865 790 (28 &  29 Vict.,  c.15), the  time for issuing fresh Letters Patent was  extended to January 1, 1866. In pursuance of the above  power,   the  Letters   Patent  issued  in  1862  for establishing the  three chartered  High Courts  were revoked and replaced  by Letters  Patent dated  December  28,  1865, which, with  amendments, still  continue to  be the  Letters Patent of those High Courts.      Clause 2  of the 1865 Letters Patent of the Bombay High Court provided  that notwithstanding  the revocation  of the 1862 Letters  Patent the  High Court of Judicature at Bombay "shall be  and continue  as from  the time  of the  original erection  and  establishment  thereof,  the  High  Court  of Judicature at  Bombay for the Presidency of Bombay" and that "the said  Court shall  be and  continue a Court of Record". Clauses 11 to 18 of the Letters Patent are grouped under the heading "Civil Jurisdiction of the High Court". Under clause 11 the  High Court is to have and exercise ordinary original civil jurisdiction  within such  local limits as might, from time to  time, be declared and prescribed by any law made by the Governor in Council, and until such local limits were so declared and  prescribed, with  in the  limits of  the local jurisdiction  of   the  High   Court  at  the  date  of  the publication of  the 1965 Letters Patent. Clause 12 specifies the suits  with respect  to  which  the  High  Court  is  to exercise its ordinary original civil jurisdiction. Clause 13 confers upon  the High  Court the power to remove and to try and  determine,   as  "a  Court  of  extraordinary  original jurisdiction",  any   suit  being   or  falling  within  the jurisdiction of  any Court,  whether within  or without  the Presidency  of   Bombay,  subject   to  the   High   Court’s superintendence, either when the High Court thinks proper to do so  on the agreement of the parties to that effect or for purposes of justice. Clause 15 deals with intra-Court appeal from the judgment of a Single Judge, and clause 16 makes the High Court  a Court  of Appeal  from the Civil Courts of the Presidency of  Bombay and  from all  other Courts subject to its superintendence.  Jurisdiction with  respect to  infants and lunatics,  insolvency jurisdiction,  ordinary and extra- ordinary criminal jurisdiction, civil and criminal admiralty and vice-admiralty  jurisdiction, testamentary and intestate jurisdiction, and  matrimonial jurisdiction  were  conferred upon the  High Court by various clauses. The provisions with respect to  criminal appellate  jurisdiction in  the Letters Patent of 1865 is in almost the same terms as 791 in the  earlier Letters  Patent. Clause  36  as  amended  by further Letters Patent dated March 11, 1919, and December 9, 1927, inter alia provides as follows :

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         " 36. Single Judges and Division Courts.           And we  do hereby declare that any function, which           is hereby  directed to  be performed  by the  said           High Court of Judicature at Bombay in the exercise           of its  original or appellate jurisdiction, may be           performed by  any  Judge  or  any  Division  Court           thereof, appointed or constituted for such purpose           in pursuance  of section  One hundred and eight of           the Government of India Act, 1915 . . . "                                    (Emphasis supplied.)      The words  "in pursuance  of section  One  hundred  and eight of the Government of India Act, 1915" were substituted for the  words "under  the provisions of the 13th section of the aforesaid  Act of  the  Twenty-fourth  and  Twenty-fifth Years of  Our reign"  by the  Letters Patent dated March 11, 1919. The  said clause  further went  on to state what is to happen if  the Judges  constituting  a  Division  Court  are equally divided  in opinion.  This part  of the  clause  was amended by the Letters Patent dated December 9, 1927. Clause 37 confers  upon the  High Court the power to make rules and orders, from time to time, for the purpose of regulating all proceedings in  civil cases, which may be brought before the High Court,  including proceedings  in its  admiralty, vice- admirality,   intestate    and   matrimonial   jurisdictions respectively, with this proviso that the High Court is to be guided in  making such  rules and  orders as  far as  may be possible by  the provisions  of the  Code of Civil Procedure (Act No.  VIII of  1859) and the provisions of any law which was  made   amending  or  altering  the  same  by  competent legislative authority.  Clause  41  deals  with  appeals  in criminal cases. Clause 44 made the Letters Patent subject to the legislative power of the Governor-General in Council and provided that  they could  in all  respects be  amended  and altered thereby. Claue 45 inter alia provides that :           "so much  of the  aforesaid Letters Patent granted           by His  Majesty King  George the  Fourth (that is,           the 792           Letters Patent  of the  Supreme Court)  as was not           revoked or  determined by  the said Letters Patent           of the  Twenty-sixth of  June One  Thousand  Eight           hundred and  Sixty-two, and  is inconsistent, with           these Letters  Patent, shall cease, determine, and           be  utterly  void  to  all  intents  and  purposes           whatsoever."      Section  16  of  the  Indian  High  Courts  Act,  1861, conferred power upon the Crown to erect and establish a High Court of  Judicature in  any portion  of British  India  not included within  the limits  of the  local  jurisdiction  of other High  Courts. In  pursuance of  this power  by Letters Patent dated  March 17,  1866, a  High Court was erected and established  for   the  North-Western   Provinces   of   the Presidency  of   Bengal  which  by  section  101(5)  of  the Government of  India Act  of 1915  came to  be styled as the High Court  of Judicature at Allahabad and the High Court at Fort William  in Bengal  was styled  as the  High  Court  at Calcutta. Section  2 of  the Indian  High Courts  Act, 1911, amended section  16 of  the Indian High Courts Act, 1861, to enable the Crown to establish by Letters Patent a High Court in any  portion of  British India  whether or  not  included within the  limits of the local jurisdiction of another High Court and  to alter by Letters Patent the local jurisdiction of that High Court.      The next  statute with  which we  are concerned  is the Government of  India Act,  1915 (5  & 6 Geo. V, c. 61). This

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Act  was   amended  in  1916  by  the  Government  of  India (Amendment) Act, 1916 (6 & 7 Geo. V. c. 37), and principally by the Government of India Act, 1919 (9 & 10 Geo. V,c. 101). The Government  of India Act, 1915, as so amended, is, under section 135  of that  Act, to be cited as "the Government of India Act".  The Government of India Act introduced a scheme of dyarchy  in the  Provinces but  the constitutional set-up still remained  unitary. The  Act of  1915 repealed  several statutes including the High Courts Acts 1861, 1865 and 1911. Under section  130, such repeal was inter alia not to affect "the validity of any law, charter, letters patent. . . under any  enactment   hereby  repealed   and  in   force  at  the commencement of"  the Act  of 1915.  The provisions  of  the Government of  India Act  with which we are really concerned are those  contained in  Part IX  thereof which consisted of sections 101 to 114 and was 793 headed "THE  INDIAN HIGH  COURTS". Sections  101 to 105 bore the sub-heading "Constitution" (that is, the constitution of the High  Courts); sections  106  to  111,  the  sub-heading "Jurisdiction"  (that  is,  the  jurisdiction  of  the  High Courts);  section  113,  the  sub-heading  "Additional  High Courts";  and   section  114,   the  sub-heading  "Advocate- General". Sections  101(1), 106,  107 and  108  provided  as follows :           "101. Constitution of high courts. -           (1) The  high courts  referred to  in this Act are           the high  courts of  judicature for the time being           established in British India by letters patent.           106 Jurisdiction of high courts.-           (1)The several  high courts  are courts  of record           and have such jurisdiction original and appellate,           including admiralty  jurisdiction  in  respect  of           offences committed  on the high seas, and all such           powers and  authority over  or in  relation to the           administration  of  justice,  including  power  to           appoint clerks  and other  ministerial officers of           the court,  and power to make rules for regulating           the practice  of the  court, as are vested in them           by letters  patent, and, subject to the provisions           of any such letters patent, all such jurisdiction,           powers and authority as are vested in those courts           respectively at the commencement of this Act.           (1-A) The  letters patent  establishing or vesting           jurisdiction, powers  or authority in a high court           may be amended from time to time by His Majesty by           further letters patent.           (2) The  high courts have not and may not exercise           any original jurisdiction in any matter concerning           the revenue, or concerning any act ordered or done           in the  collection thereof  according to the usage           and practice  of the  country or  the law  for the           time being in force.           107.Powers  of   high  courts   with  respect   to           subordinate court.- 794           Each of  the high  courts has superintendence over           all courts  for the  time  being  subject  to  its           appellate jurisdiction,  and may  do  any  of  the           following things, that is to say, -           (a) call for returns,           (b) direct the transfer of any suit or appeal from           any such  court to  any other  court of  equal  or           superior jurisdiction;           (c) make  and issue  general rules  and  prescribe

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         forms for  regulating the practice and proceedings           of such courts;           (d) prescribe  forms in  which books,  entries and           accounts shall be kept by the officers of any such           courts; and           (e) settle  tables of  fees to  be allowed  to the           sheriff, attorneys, and all clerks and officers of           courts :           Provided that  such rules,  forms and tables shall           not be inconsistent with the provisions of any law           for the time being in force, and shall require the           previous approval,  in the  case of the high court           at Calcutta,  of the  Governor-General in Council,           and in other cases of the local government.           108. Exercise  of jurisdiction by single judges or           division courts. -           (1) Each  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 the original           and appellate jurisdiction vested in the court.           (2) The  chief justice  of each  high court  shall           determine what  judge in each case is to sit alone           and what  judges of  the court,  whether  with  or           without the  chief justice,  are to constitute the           several division courts." 795      Section 113  of the  Government of  India Act conferred power upon  the  Crown,  by  Letters  Patent,  to  establish additional High  Courts. Under it the Crown could by Letters Patent establish a High Court of Judicature in any territory in British  India, whether or not included within the limits of the local jurisdiction of another High Court; and where a High Court  was so  established in  any area included within the limits  of the local jurisdiction of another High Court, the Crown  could by  Letters Patent  alter those  limits. In pursuance of  the power  conferred by  the said section 113, Letters Patent were issued on February 9, 1916, establishing the High  Court of  Judicature at  Patna; on March 21, 1919, establishing the  High Court of Judicature at Lahore; and on January 2,  1936, establishing  the High Court of Judicature at Nagpur.      The Government  of India  Act 1915  was replaced by the Government of  India Act,  1935 (25  & 26  Geo.  V.  c.  42, reprinted  in   pursuance  of   the  Government   of   India (Reprinting) Act,  1936 (26  Geo. V  & 1  Edw. VIII,  c.  2) (hereinafter referred  to as  "the 1935  Act"). The 1935 Act envisaged a  federal constitution.  It made  a  division  of powers  between   the  Centre  and  the  Provinces,  certain subjects  being   exclusively  assigned   to   the   Central Legislature and  others to  the Provincial  Legislature.  In another  field   the   two   Legislatures   had   concurrent legislative powers. The 1935 Act came into force with regard to the  Provinces on April 1, 1937. The federal structure of the Centre,  however, never  came into  existence,  and  the Central Government  continued to be carried on in accordance with the  provisions of  the old  Government  of  India  Act except  that  its  executive  and  legislative  powers  were restricted to  the matters  assigned to  it by the 1935 Act. Part IX of the 1935 Act was headed "THE JUDICATURE". Chapter 1 of  Part IX  dealt with the establishment and constitution of  the  Federal  Court.  Chapter  II,  which  consisted  of sections 219  to 231, was headed "THE HIGH COURTS IN BRITISH INDIA". Section  219, without the proviso to sub-section (1) thereof which  is not  material for our purpose, provided as

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follows :           "219. Meaning of ’High Court’.--           (1) The  following courts  shall  in  relation  to           British India  be deemed to be High Courts for the           purposes of this Act, that is to say, the High 796           Courts in  Calcutta,  Madras,  Bombay,  Allahabad,           Lahore and  Patna, the  Chief Court  in Oudh,  the           Judicial  Commissioner’s  Courts  in  the  Central           Provinces and  Berar, in  the North-West  Frontier           Province and  in Sind,  any other court in British           India  constituted   or  reconstituted  under  the           chapter as  a High Court, and any other comparable           court  in  British  India  which  His  Majesty  in           Council may  declare to  be a  High Court  for the           purposes of this Act:           x         x              x               x           (2) The  provisions of this chapter shall apply to           every High Court in British India." Section  220(1),   as  amended   by  the   India  and  Burma (Miscellaneous Amendments) Act, 1940 (3 & 4, Geo. VI, c. 5), provided as follows :           "220. Constitution of High Courts.-           (1) Every  High Court  shall be  a court of record           and shall  consist of  a chief  justice  and  such           other judges  as His Majesty may from time to time           deem it necessary to appoint :           x         x               x              x There was  a proviso  to this  sub-section with which we are not concerned.  Sections 223 to 225 require to be reproduced in extenso. They were as follows :           "223. Jurisdiction of existing High Courts.--           Subject to  the provisions  of this  Part of  this           Act, to  the provisions  of any  Order in  Council           made under  this or  any  other  Act  and  to  the           provisions  of   any  Act   of   the   appropriate           Legislature enacted  by virtue of powers conferred           on that  Legislature by this Act, the jurisdiction           of and  the law administered in, any existing High           Court, and  the respective  powers of  the  judges           thereof in relation 797           to the  administration of  justice in  the  court,           including any  power to make rules of Court and to           regulate the  sittings of the Court and of members           thereof sitting alone or in division courts, shall           be the same as immediately before the commencement           of Part III of this Act.           "224. Administrative functions of High Courts.           (1) Every  High Court  shall have  superintendence           over all  courts  in  India  for  the  time  being           subject to  its appellate jurisdiction, and may do           any of the following things, that is to say,--           (a) call for returns;           (b) make  and issue  general rules  and  prescribe           forms for  regulating the practice and proceedings           of such courts;           (c) prescribe  forms in  which books,  entries and           accounts shall be kept by the officers of any such           courts; and           (d) settle  tables of  fees to  be allowed  to the           sheriff, attorneys, and all clerks and officers of           courts;           Provided that  such rules,  forms and tables shall           not be inconsistent with the provisions of any law

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         for the time being in force, and shall require the           previous approval of the Governor.           (2) Nothing  in this section shall be construed as           giving  to   a  High  Court  any  jurisdiction  to           question any  judgment of any inferior court which           is not otherwise subject to appeal or revision."           "225. Transfer  of certain cases to High Court for           trial.           (1) If  on an  application made in accordance with           the provisions of this section a High Court is 798           satisfied that  a  case  pending  in  an  inferior           court, being a case which the High Court has power           to transfer  to itself  for trial,  involves or is           likely to  involve the question of the validity of           any Federal  or Provincial  Act, it shall exercise           that power.           (2)  An  application  for  the  purposes  of  this           section shall not be made, except in relation to a           Federal Act,  by  the  Advocate-General,  for  the           Federation and,  in relation  to a Provincial Act,           by the  Advocate-General for the Federation or the           Advocate for the Province." Section 226 barred the High Court’s original jurisdiction in any matter  concerning the  revenue or  concerning  any  act ordered or  done in  the collection thereof unless otherwise provided by an Act of the appropriate Legislature. Under the 1935 Act the jurisdiction and powers of the High Courts with respect to  any of  the matters  in the  Federal Legislative List were  to be  a Federal  subject (Sch.VII, List 1, Entry 53), with  respect to  any of  the matters in the Provincial Legislative List  were to  be a Provincial subject (Sch.VII, List II, Entry 2), and with respect to any of the matters in the Concurrent  Legislative List  were to  be  a  concurrent subject (Sch.VII, List III, Entry 15).      The political  events with  which everyone  is familiar led to  the passing of the Indian Independence Act, 1947 (10 & 11,  Geo. VI c. 30). Under the Act as from August 15, 1947 (referred to  in the  said Act  as "the appointed day"), two independent Dominions  were set  up in  India, to  be  known respectively as  India and  Pakistan. In each Dominion there was to be a Governor-General to be appointed by the King and the paramountcy  of the British Crown over the Indian States was  to   lapse.  As  from  August  15,  1947,  the  British Government was to have no responsibility with respect to the Government of  India or Pakistan. The Legislature of each of the new  Dominions was  to have full legislative sovereignty and no  Act passed  by the  British Parliament  on or  after August 15,  1947,  was  to  extend  to  either  of  the  new Dominions as  part of the law of that Dominion unless it was extended thereto  by law of the Legislature of the Dominion. The powers of the Legislature of the 799 Dominion were  exerciseable by  the Constituent Assembly and the Constituent  Assembly was  not  to  be  subject  to  any limitation whatsoever  in exercising its constituent powers. Until a new Constitution was made, each of the new Dominions and all  Provinces  and  other  parts  thereof  were  to  be governed as nearly as may be in accordance with the 1935 Act with such modifications and adaptations, as may be specified by the  Governor-General, and  similarly all  existing  laws with  necessary   modifications  and   adaptations  were  to continue as law of each of the new Dominions and the several parts thereof  until other provision was made by laws of the Legislature of  the Dominion  in question  or by  any  other

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Legislature or  other authority having power in that behalf. Sub-section (3)  of section 19 defined the term "Constituent Assembly". Clause  (a) thereof  defined it  in  relation  to India and  clause (b)  in relation  to  Pakistan.  The  said clause (a) was as follows :           "19. Interpretation, etc.-           x          x             x               x           (3) References  in this  Act  to  the  Constituent           Assembly of  a  Dominion  shall  be  construed  as           references -           (a) in  relation  to  India,  to  the  Constituent           Assembly, the  first sitting  whereof was  held on           the ninth  day of  December, nineteen  hundred and           forty-six, modified -           (i) by  the exclusion  of the members representing           Bengal, the  Punjab, Sind and British Baluchistan;           and           (ii) should it appear that the North-West Frontier           Province  will  form  part  of  Pakistan,  by  the           exclusion  of   the  members   representing   that           Province; and           (iii) by  the inclusion  of  members  representing           West Bengal and East Punjab; and           (iv) should it appear that on the appointed day, a 800           part of  the Province  of Assam is to form part of           the new  Province of East Bengal, by the exclusion           of  the   members  theretofore   representing  the           Province of  Assam, and  the inclusion  of members           chosen  to   represent  the   remainder  of   that           Province;           x         x              x              x"      The Constituent  Assembly for India so set up under the Indian Independence  Act adopted and enacted on November 26, 1949, in  the name  of the people of India, the Constitution of India.  Under  Article  394  of  the  Constitution,  that Article and  Articles 5  to 9,  60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force at once and the remaining provisions were to come into force on January 26, 1950. This date is  referred to in the Constitution as the commencement of the  Constitution. The  Constitution  repealed  both  the Government of  India Act,  1935, and the Indian Independence Act, 1947.  The relevant provisions of the Constitution have already been noticed.      There is  an underlying  assumption running through the entire judgment  of the  Full Bench that the Constitution of India is  a unique  document -  the first  of its kind. This assumption has  led it  to conclude  that  the  Constitution "purports to  lay down  an original  institutional matrix of its own",  that "it  is not  out of  the historical ramparts that something  is being  put up, but a fundamental scheme", and that  "in the  matters of  powers  of  the  High  Court, therefore, there  is clear  evidence that  the  Constitution posits a  break from that past and has made absolutely a new original and vital beginning." We are constrained to observe that the above assumption made and the conclusion reached by the Full Bench are both erroneous. How unwarranted these are is shown  by the  words of  Dr. Ambedkar when introducing to the Constituent  Assembly the  Draft Constitution as settled by the  Drafting Committee  and moving that it be taken into consideration.  Dr.Ambedkar   said   (Constituent   Assembly Debates - Official Report, Volume VII, pp. 37-38) :           " It  is said  that there  is nothing  new in  the           Draft Constitution, that about half of it has been           copied from  the Government  of India  Act of 1935

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         and that 801           the  rest   of  it  has  been  borrowed  from  the           Constitutions of  other countries.  Very little of           it can claim originality.           "One likes  to ask  whether there  can be anything           new in  a Constitution  framed at this hour in the           history of the world. More than hundred years have           rolled over  when the  first written  Constitution           was  drafted.   It  has   been  followed  by  many           countries reducing their Constitutions to writing.           What the  scope of  a Constitution  should be  has           long  been   settled.  Similarly   what  are   the           fundamentals of  a Constitution are recognized all           over   the   world.   Given   these   facts,   all           Constitutions in  their main  provisions must look           similar. The only new things, if there can be any,           in a  Constitution framed  so late  in the day are           the variations  made to  remove the  faults and to           accommodate it to the needs of the country....           "As to  the accusation that the Draft Constitution           has reproduced  a good  part of  the provisions of           the Government  of India  Act,  1935,  I  make  no           apologies. There  is nothing  to be  ashamed of in           borrowing. It involves no plagiarism. Nobody holds           any patent  rights in  the fundamental  ideas of a           Constitution. What  I am  sorry about  is that the           provisions taken from the Government of India Act,           1935,   relate    mostly   to   the   details   of           administration.  I   agree   that   administrative           details should  have no place in the Constitution.           . . .           "In these  circumstances it  is wiser not to trust           the   Legislature    to   prescribe    forms    of           administration.  This  is  the  justification  for           incorporating them in the Constitution. . . . "                                    (Emphasis supplied.)      The opening words of our Constitution "WE THE PEOPLE OF INDIA" follow  the pattern  set by  the Constitutions of the United States  of America,  Eire and  Japan. The Preamble to our Constitution contains echoes of the Preamble to the 802 Constitution of  the United  States of  America and of Eire. The concepts  of Fundamental Rights and Directive Principles of  State   Policy  are   also  not  something  new  in  our Constitution. The  first ten  Amendments to the Constitution of  the   United  States  of  America,  which  reproduce  in substance the  American Bill  of Rights, contain rights akin to the  Fundamental Rights  in our  Constitution though  not designated as  such. The  Constitution of Eire has a Chapter headed  "FUNDAMENTAL  RIGHTS"  and  another  chapter  headed "DIRECTIVE PRINCIPLES OF SOCIAL POLICY". The Constitution of Japan contains  a chapter  headed "Rights  and Duties of the People". These Constitutions came into existence before ours did. Almost  three-fourths of our Constitution is based upon the Government  of India Act, 1935, subject to modifications which were  made in the light of experience and adapted to a republican form  of government.  Apart  from  the  forms  of administration taken from the Government of India Act, 1935, the federal  form of our Constitution is also erected on the foundation of that Act and shaped mostly in the light of the Constitution of  the Dominion  of Canada.  The principle  of responsible   Government   is   taken   from   the   British constitutional system.  The provisions relating to emergency are also patterned on the Government of India Act, 1935.

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    Historical evidence shows that our Constitution did not make a  break with  the past but was the result of a process of   evolution.   Politically   India   achieved   her   own independence,   but   legally   and   constitutionally   the independence of  India was an act of the British Parliament. The legal  and constitutional  basis of our independence was the Indian  Independence  Act,  1947,  and  it  was  in  the exercise of power conferred by that Act that the Constituent Assembly adopted  and enacted the Constitution of India. The setting up  of the Constituent Assembly itself was an act of the British  Parliament. In 1940 the Coalition Government in Great Britain  recognized the  principle that Indians should themselves frame a new Constitution for an autonomous India. Repeated efforts  were made  to bring  about unanimity among different political  parties with  respect to  the basis for such a Constitution. Ultimately, elections for a Constituent Assembly were  held, and  the Constituent Assembly first sat on December  9, 1946.  The Constituent Assembly was composed of representatives  of  the  Provinces  and  of  the  Indian States, on the basis of one re- 803 presentative   for    a   million    of   the    population. Representatives of the Provinces were elected by the members of the  lower Chamber  of the  Provincial Legislatures where the Legislatures  were bicameral  and by  the Chamber of the Provincial  Legislatures   where   the   Legislatures   were unicameral.  In   the  case  of  the  Indian  States,  their representatives   were   elected   by   electoral   colleges constituted by  the Indian Rulers. This Constituent Assembly was not  a sovereign body for its authority was limited both in respect  of basic  principles and  procedure. It  was the Indian  Independence   Act,  1947,   which  established  the sovereign character of the Constituent Assembly and freed it from all  limitations. This  is the harsh reality of history which one cannot escape. On the midnight of August 14, 1947, the  Constituent   Assembly  reassembled  as  the  sovereign Constituent Assembly  for the Dominion of India. As a result of the  Partition, the  representatives of  Bengal,  Punjab, Sind North-West  Frontier  Province,  Baluchistan,  and  the Sylhet District  of Assam  (which District  had  joined  the Dominion of  Pakistan by  a referendum)  ceased  to  be  the members of the Constituent Assembly of India, and there were fresh elections in the new Provinces of West Bengal and East Punjab. The  result was  that when  the Constituent Assembly reassembled on  October 31,  1947, its  membership  was  299 only, including  70 representatives of the Indian States. Of this total  number of  members of  the Constituent Assembly, 284 were  actually present  on November  26, 1949, to append their signatures  to the Constitution as finally passed (See Basu’s "Introduction  to the  Constitution of India", eighth edn., pp.  13 to  18; Basu’s "Commentary on the Constitution of  India",  sixth  edn.,  vol.  A,  pp.  1  to  6;  Sukla’s "Constitution of India", seventh edn., pp. A-16 to A-18).      In  State   of  Gujarat   v.  Vora   Fiddali  Badruddin Mithibarwala [1964]  6 S.C.R.  461 a  contention was  raised before a  Constitution Bench  of seven  Judges of this Court that the  sovereignty of  the Dominion  of India  and of the Indian States  was surrendered to the people of India and in the exercise  of  their  sovereign  power  the  people  gave themselves the  new Constitution  as from  January 26, 1950. Rejecting this  contention, Shah,  J., observed  (at pp. 580 and 582-3) :           " It  has also  to be remembered that promilgation           of the Constitution did not result In transfer of 804

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         sovereignty from  the Dominion  of  India  to  the           Union.  It  was  merely  change  in  the  form  of           Government. By  the Constitution, the authority of           the  British   Crown   over   the   Dominion   was           extinguished and  the sovereignty  which was  till           then  rooted   in  the   Crown   was   since   the           Constitution came  into  force  derived  from  the           people of  India. It is true that whatever vestige           of authority  which the British Crown had over the           Dominion of  India, since  the Indian Independence           Act was  thereby extinguished,  but there  was  no           cession,  conquest,   occupation  or  transfer  of           territory. The  new governmental  set up  was  the           final step  in the  process of  evolution  towards           self-government. The  fact that it did not owe its           authority to  an outside  agency but  was taken by           the  representatives   of  the   people  made   no           difference in  its true character. The continuance           of the  governmental machinery  and of the laws of           the  Dominion,   give  a  lie  to  any  theory  of           transmission of  sovereignty or  of the extinction           of the  sovereignty of  the Dominion, and from its           ashes, the springing up of another sovereign . . .           "These assumptions are not supported by history or           by constitutional  theory. There is no warrant for           holding that at the stroke of midnight of the 25th           January,  1950,  all  our  pre-existing  political           institutions ceased  to exist,  and  in  the  next           moment arose  a new  set of institution completely           unrelated to  the past.  The Constituent  Assembly           which gave form to the Constitution functioned for           several years under the old regime, and set up the           constitutional machinery on the foundations of the           earlier political  set up.  It  did  not  seek  to           destroy  the   past  institutions:  it  raised  an           edifice on  what existed  before. The  Constituent           Assembly moulded  no new  sovereignty:  it  merely           gave shape  to the  aspirations of  the people  by           destroying  foreign   control   and   evolving   a           completely democratic  form  of  government  as  a           republic. The  process was not one of destruction,           but of evolution."                                     (Emphasis supplied) 805 Though some  of the  Judges in that case differed on certain points, on this point none expressed a dissent or a contrary opinion.      The  historical   evidence  and   earlier  legislations referred to  above, the  political, legal and constitutional position  accepted   and  acknowledged  by  the  Constituent Assembly itself  when considering the Draft Constitution and in enacting  it, and  the observations  of Shah, J., in Vora Fiddali,s  Case   falsify  the   assumption  made   and  the conclusion reached  by the  Full Bench that the Constitution made  a   total  break   with  the   past  and  set  up  new institutions. On  the contrary,  what is  established by the above data is that not only was there no break with the past but the  Constitution was the culmination of the aspirations of the  people of India to be independent and to be governed by their  own elected  representatives and that the existing institutions, including the High Courts, as also the laws in force which  were in  existence at  the commencement  of the Constitution,  were   preserved   and   continued   by   the Constitution. What  the Constitution  did  was  to  put  its imprimatur upon them and upon their continuance.

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    According to the Full Bench, under the Constitution the existing High  Courts acquired  a wholly  different  origin, nature and  character from  what they  possessed immediately prior to  the commencement  of the  Constitution because the Constitution of  India is  a constitutional  law  while  the Indian High Courts Act, 1861, the Government of India Act of 1915-1919 and  the  Government  of  India  Act,  1935,  were ordinary laws.  To emphasize this distinction made by it the Full Bench has referred to earlier legislations as "Imperial legislations" and  the Letters  Patent of the Chartered High Courts as having been issued by the "Imperial Sovereign". We may preface  our discussion with respect to this distinction made by  the Full  Bench  by  pointing  out  that  as  Queen Victoria (in  whose reign the Government of India Act, 1858, was passed)  was proclaimed "Empress of India" only in 1876, to refer  to the  Indian High Courts Act, 1861, as "Imperial Legislation" or  to the  Letters Patent  issued in  1862 and 1865 as issued by the "Imperial Sovereign" is not correct.      Jowitt’s Dictionary  of English  Law" (second  edition, p.430) defines  the term "Constitution" as "any regular form or 806 system of  government" and  the term "constitutional law" as "all  rules   which  directly   or  indirectly   effect  the distribution or  exercise of  the sovereign  power; the  law relating  to   the  legislature,   the  executive   and  the judiciary." According  to Dicey, constitutional law includes "all  rules   which  directly   or  indirectly   affect  the distribution or  the exercise  of the sovereign power in the State". (Dicey’s "An Introduction to the Study of the Law of the Constitution",  tenth edn., p.23). What a constitutional law usually  embraces within its scope has been thus set out by Hood  Phillips in  his "Constitutional and Administrative Law" (sixth edn., p.11) :           "More specifically,  constitutional  law  embraces           that part of a country’s laws which relates to the           following topics,  among others  : the  method  of           choosing  the  Head  of  State,  whether  king  or           president;  his   powers  and   prerogatives;  the           constitution of  the legislature;  its powers  and           the privileges  of its  members; if  there are two           Chambers, the  relations between  them; the status           of  Ministers   and  the  position  of  the  civil           servants who  act under them; the armed forces and           the power  to control  them; the relations between           the  central  government  and  local  authorities;           treaty-making power;  citizenship; the raising and           spending of  public money;  the general  system of           courts, and  the tenure  and immunities of judges;           civil  liberties   and  their   limitations;   the           parliamentary franchise  and electoral boundaries;           and  the  procedure  (if  any)  for  amending  the           Constitution."                                    (Emphasis supplied.) In Sri  Sankari Prasad Singh Deo v. Union of India and State of Bihar  [1952] S.C.R.  89, Patanjali  Sastri, J., speaking for the Court, said (at page 106) :           "Although   ’law’    must    ordinarily    include           constitutional law,  there is  a clear demarcation           between ordinary law, which is made in exercise of           legislative power,  and constitutional  law, which           is made  in exercise  of constituent  power. Dicey           defines constitutional law as including ’all rules           which 807

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         directly or  indirectly affect the distribution or           the exercise of the sovereign power in the State.’           It is  thus mainly  concerned with the creation of           the  three   great  organs   of  the   State,  the           executive, the  legislature and the judiciary, the           distribution of  governmental power among them and           the definition of their mutual relation."                                    (Emphasis supplied.)      In the  sense defined above the Indian High Courts Act, 1861, and the Government of India Acts of 1915-1919 and 1935 were all  constitutional laws.  The Indian  High Courts Act, 1861, provided  for the  creation of the superior judiciary, one of  the three  organs of  the State.  The Government  of India Acts  of 1915-1919  and 1935  dealt with all the three organs of  the State, namely, the executive, the legislature and the  judiciary, and  the  distribution  of  governmental power  among   them  and  the  definition  of  their  mutual relation. The  fact that  the Indian  High Courts Act, 1861, and the  Government of India Acts were passed by the British Parliament  does   not  make  any  difference.  The  British Parliament  is  a  sovereign  and  supreme  legislative  and constituent body  and can make, and has made, laws affecting "the three  great organs  of the  State, the  executive, the legislature  and   the  judiciary,   the   distribution   of governmental power  among them  and the  definition of their mutual relation."  The sovereign  character of Parliament in England has been pointed out by a Constitution Bench of this Court in Union of India etc. v. Tulsiram Patel etc. [1985] 3 S.C.C. 398,  425-6. Instances of constitutional laws enacted by the  British Parliament  are the Act of Settlement, 1701, which varied and finally fixed the descent of the Crown, the Act of  Union with  Scotland of  1706, and  the Act of Union with Ireland  of 1800. Acts passed by the British Parliament for  the   governments  of  various  parts  of  the  Crown’s territories have  been judicially recognized as Constitution Acts. For  instance, in  British Coal Corporation and Others v. The  King  [1935]  A.C.  500,  518,  J.C.,  the  Judicial Committee referred  to the  British North  America Act, 1867 (30 &  31 Vict.,  c.3), which  was passed to provide for the establishment in  Canada of  one Dominion,  as a constituent statute and  in James  v. Commonwealth  of Australia  [1936] 578, 614, J.C., it referred to the Commonwealth of Australia Constitution Act of 1900 (63 & 64 808 Vict., c.12), as a Constitution. So far as the Government of India Act,  1935, is  concerned, the  Federal Court in In re the Central  Provinces and  Berar Sales  of Motor Spirit and Lubricants Taxation  Act, 1938  (Central Provinces and Berar Act No.  XIV of  1938) [1939]  F.C.R. 18,  36 and  In re the Hindu Women’s  Rights to  Property Act,  1937, and the Hindu Women’s Rights  to Property  (Amendment)  Act,  1938  [1941] F.C.R. 12, 26 and this Court in Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City [1955] 1 S.C.R. 829, 836 have  referred to  it as a Constitution Act. The British Parliament has  also recognized the Government of India Act, 1935, as a Constitution Act. In moving the second reading of the Bill  which when  enacted became the Indian Independence Act, 1947, the Prime Minister, Mr. Attlee observed :           "This Bill  is, unlike  other Bills,  dealing with           India. It does not lay down as in the Act of 1935,           a new  Constitution for  India providing for every           detail. It  is  far  more  in  the  nature  of  an           enabling   Bill   -   a   Bill   to   enable   the           representatives of  India and  Pakistan  to  draft           their own  Constitution and  to  provide  for  the

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         exceedingly difficult period of transition."                                    (Emphasis supplied.) The Indian Legislature has also recognized the Government of India Act,  1935, as  a Constitution  Act. The  Statement of Objects and  Reasons to the Legislative Assembly Bill No. 32 of 1942,  which when  enacted,  became  the  Code  of  Civil Procedure (Amendment)  Act, 1942,  whereby Order XXVII-A was inserted in  the Code  of Civil  Procedure,  1908,  for  the purpose of giving notice to the Advocate-General of India or the Advocate-General of a Province as the case may be, where in  a   suit  a  substantial  question  of  law  as  to  the interpretation of  the Government of India Act, 1935, or any Order-in-Council made  thereunder was  involved, referred to the Government  of India  Act, 1935, as the Constitution Act (Gazette of  India dated  September 10, 1942 Part V, p.140). What is  more important  is  that  the  Constitution  itself accepts this position. Article 132 provides for an appeal to the Supreme  Court from  any judgment, decree or final order of a  High Court  on a  certificate given  by the High Court that "the case involves a 809 substantial question  of law  as to  "the interpretation  of this Constitution." Under Article 145(2), the minimum number of Judges  of the Supreme Court required to decide "any case involving  a   substantial  question   of  law   as  to  the interpretation of this Constitution" is to be five. Articles 132 and  145 are in Chapter IV of Part V of the Constitution which Chapter  deals with the "Union Judiciary." Article 228 confers upon  the High  Court the  power to  transfer a case pending in  a court subordinate to it for disposal by itself if "it  involves a  substantial question  of law  as to  the interpretation of  this Constitution."  Article  228  is  in Chapter V of Part VI of the Constitution which Chapter deals with "The  High Courts  in  the  States".  The  phrase  "any substantial question of law as to the interpretation of this Constitution" is  defined by  Article 147. Article 147 which occurs in Chapter IV of Part V provides as follows :           "147. Interpretation. -           In this  Chapter and  in Chapter  V  of  Part  VI,           references to  any substantial  question of law as           to the  interpretation of  this Constitution shall           be  construed   as  including  references  to  any           substantial   question    of   law   as   to   the           interpretation of  the Government  of  India  Act,           1935  (including   any   enactment   amending   or           supplementing that  Act), or  any Order in Council           or  order   made  thereunder,  or  of  the  Indian           independence  Act,  1947  or  of  any  order  made           thereunder."      What has  been stated  above  would  show  that  it  is erroneous to  characterize the  Government of  India Acts as ordinary laws  and not  as constitutional  laws. It  is true that these Constitution Acts were given to a subject country by a  foreign constituent  and legislative  body but then we must remember  that it was this very foreign constituent and legislative body  which brought  into being  the Constituent Assembly, freed  it of  all limitations and made it possible for it to give to India its Constitution.      In order  to emphasize  its conclusion  that  the  High Courts under  the Constitution  were  organically  different institutions  from   the  same   High  Courts  in  existence immediately prior to 810 the commencement  of the Constitution, the Full Bench relied upon Article  215 of  the Constitution.  Under Article  215,

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every High  Court is  to be a Court of Record and is to have all the powers of such a court including the power to punish for contempt  of itself.  According to  the Full  Bench this Article "subserves  the need to indicate that the High Court under the  Constitution has an institutional permanence". We are afraid  that the  Full Bench  has misunderstood  what  a Court of  Record is.  Jowitt’s "Dictionary  of English  Law" (second edition, page 493) under the heading "Court", states :           "A court  of record  is one  whereof the  acts and           judicial proceedings  are enrolled for a perpetual           memory and  testimony, and  which has authority to           fine and  imprison for  contempt of its authority.           Such were the superior courts of common law before           their abolition,  and such  are the  High Court of           Justice  and  Court  of  Appeal,  and  the  county           courts; many  of the  ancient inferior courts were           also courts of record." Unless otherwise  provided, the power to punish for contempt is thus  inherent in and possessed by every Court of Record. It is fallacious to think that the High Courts became courts of record  for the  first time  on the  commencement of  the Constitution. All  the superior  courts which  preceded  the High Courts  were courts  of record. Under the Charter dated September 24,  1726, granted by George I, the Mayor’s Courts which were  established at  Calcutta, Madras and Bombay were expressly made  Courts of  Record,  and  this  position  was reiterated when  a fresh  Charter dated January 8, 1753, was granted by  George  II.  Similarly,  the  Recorder’s  Courts established at  Bombay and  Madras by Charter dated February 20, 1798, granted by George III, were made Courts of Record. Statute 4,  Geo, IV,  c.71 of  1823 authorized  the Crown to abolish the  Recorder’s Court at Bombay and establish in its place a  Supreme Court  to be a Court of Record and when the Supreme Court  of  Judicature  at  Bombay  was  established, clause 1  of its  Letters Patent expressly made that Court a Court of  Record. The  Sadar Dewany  Adalat  and  the  Sadar Foujdari Adalat  were both Courts of Record. Clause 1 of the Letters  Patent  of  1862  constituted  the  High  Court  of Judicature at  Bombay to  be a  Court of  Record, and it was this High Court which by clause 1 of the Letters 811 Patent of 1865 was continued as the High Court of Judicature at Bombay for the Presidency of Bombay as a Court of Record. Section 106(1)  of the  Government of  India  Act  of  1915, provided that  the several  High Courts  would be  Courts of Record, and  section 220  of the  Government of  India  Act, 1935, made  an identical  provision. The scheme of Chapter V of Part  VI of the Constitution which deals with High Courts closely follows  the scheme  of Part IX of the Government of India Act  of 1915,  and  Chapter  II  of  Part  IX  of  the Government of India Act, 1935, both of which dealt with High Courts. These  Chapters provided for the constitution of the High Courts as Courts of Record, for the salaries and tenure of judges  of the  High Courts,  the power to make rules and regulate  the   sittings  of   the  High   Courts,  and  the continuance of  the jurisdiction of the High Courts existing as at  the date  of coming  into force  of each  of the  two Government of  India Acts,  just as  Chapter V of Part VI of the Constitution  does. These  two Acts  also  provided  for continuance in  force of  laws in existence at the date when these Acts  respectively came  into force.  Article 215 thus did not  bring any  revolutionary change  in the  nature and character of  the High  Courts existing  at the  date of the commencement of  the Constitution but merely followed a well

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established pattern  and practice in drafting constitutional legislations.      Yet another  reason given by the Full Bench for holding that the High Courts under the Constitution were organically different from the same High Courts immediately prior to the commencement of  the Constitution  was that  unlike  in  the past, under  the Constitution  the  existence  of  the  High Courts is  no more dependent upon ordinary legislation. This reasoning  is   erroneous  for  it  overlooks  the  relevant provisions of  the Constitution and the earlier Constitution Acts. By  clause 44  of the  Letters  Patent  of  the  three Chartered High  Courts, the Letters Patent were made subject to  the   legislative  powers  of  the  Governor-General  in Council. By further Letters Patent dated March 11, 1919, for the words  "powers of  the Governor-General  in Council" the words "powers of the Governor-General in Legislative Council and  also   of  the   Governor-General  in   Council"   were substituted. Further,  under section  9 of  the Indian  High Courts  Act,  1861,  read  with  the  said  clause  44,  the Governor-General in  Council had  the power  to  remove  any place or  territory from  the jurisdiction  of a  High Court (see Queen v. Burah) [1877-78] 5 I.A. 178. Under sub-section (1a) 812 of section  106 of the Government of India Act of 1915-1919, the Letters  Patent establishing  or  vesting  jurisdiction, powers or  authority in  a High  Court could be amended from time to time by the Crown by issuing further Letters Patent. Under section  223 of the Government of India Act, 1935, the jurisdiction of the existing High Courts which was continued by that  section was  made subject to the provisions of Part IX of  that Act  and of any Order in Council made under that Act or any other Act and to the provisions of any Act of the appropriate  Legislature.   Under  that   Act,  the  Federal Legislature had  the power  to legislate with respect to the jurisdiction and  powers of  all courts  except the  Federal Court with  respect to any matter in the Federal Legislative List, the  Provincial Legislature with respect to matters in the Provincial  Legislative List and the Federal Legislature as also  the Provincial  Legislature with respect to matters in the  Concurrent Legislative  List. The position under the Constitution is  the same. By Article 225 the continuance of the jurisdiction of the existing High Courts is made subject to the  provisions of the Constitution and of any law of the appropriate  Legislature.   Under  Schedule   VII   to   the Constitution, the  power to  legislate with  respect to  the jurisdiction and  powers of  all courts  except the  Supreme Court is  with Parliament  with respect to any matter in the Union List  (List I,  Entry 95), with the State Legislatures with respect to any matter in the State List (List II, Entry 65) and with both Parliament and the State Legislatures with respect to  any matter  in the  Concurrent List  (List  III, Entry 46).  Further, Parliament  alone  can  legislate  with respect to  the Constitution  and organization  of the  High Courts  (List   I,  Entry  78)  and  the  extension  of  the jurisdiction of  a High  Court  to,  and  exclusion  of  the jurisdiction of a High Court from, any Union Territory (List I, Entry 79). Under Article 214 of the Constitution there is to be  a High  Court for  each State.  Under Article 1(2) as originally enacted  the territories which were to constitute the States  at the  commencement of the Constitution were to be as  set out  in the  First Schedule  to the Constitution. Under that  Schedule the nine Provinces under the Government of India  Act,  1935,  with  the  territorial  modifications resulting from the Partition, became the nine Part A States.

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Clause (2)  of Article 215 of the Constitution, prior to its deletion by  the Constitution (Seventh Amendment) Act, 1956, provided that  for the purposes of the Constitution the High Court exercising 813 jurisdiction  in   relation  to   any  Province  before  the commencement of  the Constitution  shall be deemed to be the High Court  for the  corresponding state.  Article 2 confers powers upon  Parliament by  law to  admit into the Union, or establish, new States. Article 3 confers upon Parliament the power by  law to form a new State by separation of territory from any  State or by uniting two or more States or parts of States or  by uniting  any territory to a part of any State, as also  to increase  or diminish  the area  of any State or alter the  boundaries or  name of  any State.  All this  the Parliament can  do by  ordinary law.  Once a  new  State  is formed, Article  214 requires  that it  should have  a  High Court and  the power to establish such High Court vests with Parliament under  Entry 78 of List I in the Seventh Schedule to the Constitution, and, in fact, Parliament has done so in a number  of cases when the States were reorganized or a new State formed or admitted into the Union.      The next  question which  falls  to  be  considered  is whether  the  powers  conferred  upon  the  High  Courts  by Articles 226, 227 and 228 of the Constitution are wholly new powers not possessed by the existing High Courts immediately prior to the commencement of the Constitution as held by the Full  Bench.  This  conclusion  of  the  Full  Bench  is  as erroneous as the other conclusions reached by it and is once again based  upon an  inadvertence to  notice  the  relevant provisions of  the earlier  Constitution Acts.  A  provision similar to Article 228 was to be found in section 225 of the Government of  India Act,  1935. Article  227 has  a  longer ancestry. Clause  55 of  the Charter of the Supreme Court of Judicature at  Bombay made  the Court  of Requests  and  the Court of  Quarter Sessions  subject to the order and control of the  said Supreme  Court in  the same  manner as inferior courts and  Magistrates in England were subject to the Court of King’s  Bench. Section  15 of the Indian High Courts Act, 1861, conferred  upon each  of the Chartered High Courts the power of  superintendence over  all courts  subject  to  its appellate jurisdiction.  A similar  power of superintendence was conferred  upon the  High Courts  by section  107 of the Government of  India Act  of 1915-1919,  and a  more limited power of  superintendence was conferred upon them by section 224 of  the Government  of India Act, 1935. The powers under Articles 227  and 228,  though in a somewhat different form, were thus  possessed by the existing High Courts immediately prior to  the commencement  of the  Constitution. The  power conferred by 814 Article 226,  however, stands  on a  different footing. This was not  a power  possessed by every existing High Court but only by  the three  Chartered High  Courts.  The  Recorder’s Courts established  at Madras  and Bombay were invested with jurisdiction similar to the Court of King’s Bench in England "as far  as circumstances  would admit". The Court of King’s Bench possessed  the jurisdiction to issue prerogative writs of various  kinds. A brief account of the origin, nature and development of  the various prerogative writs in England has been set  out in the judgment of this Court in Prabodh Verma and Ors.  v. State  of Uttar  Pradesh & Ors. [1985] 1 S.C.R. 216. Clause 55 of the Letters Patent of the Supreme Court of Judicature at  Bombay conferred upon that Court the power to issue writs  of Mandamus, Certiorari, Procedendo or Error to

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the Court  of Requests  and the  Court of  Quarter Sessions. Procedendo was  a prerogative which issued out of the common law jurisdiction of the Court of Chancery when Judges of any subordinate  court   delayed  the   parties  by  not  giving judgment. In  such a  case the  writ was  known as a writ of procedendo ad  judicium (see Jowitt’s "Dictionary of English Law", second  edn., p.  1438). A writ de non procedendo rege inconsulte was  issued at  the intervention  of the  King to withdraw from  the  cognizance  of  the  common  law  courts proceedings in  which he  claimed to  have interest  (see De Smith’s "Judicial  Review of  Administrative Action", fourth edn., p.585).  More  important  than  this  power  to  issue certain writs to Courts of Requests and Quarter Sessions was the conferment  upon the  said Supreme  Court by clause 5 of its Letters  Patent of  the jurisdiction which the Judges of the Court  of  King’s  Bench  possessed.  This  jurisdiction included the  power to  issue prerogative  writs. A  similar jurisdiction was conferred upon the two other Chartered High Courts. Under Section 9 of the Indian High Courts Act, 1861, the High  Courts were  to have and exercise all jurisdiction and every  power and  authority vested  in any of the Courts abolished by the said Act, which included the Supreme Courts of Judicature  and the  Sadar Dewany  Adalat and  the  Sadar Foujdari Adalat.  Under section  10 of  the  said  Act,  all jurisdiction  then   exercised  by  the  Supreme  Courts  of Judicature of  Calcutta, Madras  and Bombay respectively was to be  exercised by  each of the three Chartered High Courts subject to the legislative powers of the Governor-General of India in Council. By clause 44 of the Letters Patent of 1862 so much of 815 the Letters  Patent  of  the  said  Supreme  Court  as  were inconsistent with the said Letters Patent stood revoked, and when the Letters Patent of 1862 were replaced by new Letters Patent in  1865, clause  45 of  the Letters  Patent of  1865 expressly provided that so much of the Letters Patent of the said Supreme  Courts as  were not  revoked  by  the  earlier Letters Patent  of  1862  and  were  inconsistent  with  the Letters Patent  of 1865  should stand  revoked. Neither  the Letters Patent  of 1862  nor  the  Letters  Patent  of  1865 contained any provision inconsistent with the Chartered High Courts possessing  the jurisdiction  of the  Court of King’s Bench which  had been  conferred upon  the Supreme Courts of Judicature by  their respective  Letters Patent, and each of the  three  Chartered  High  Courts  on  its  Original  Side continued  to  possess  the  power  inter  alia  of  issuing prerogative writs. In Ryots of Garabandho and other villages v. Zemindar  of Parlakimedi  and Anr. [1942-43] 70 I.A. 129, the Judicial  Committee of  the Privy Council held that this power of  the High  Court of  Madras was confined to issuing such writs  only within  the local  limits of  its  original civil jurisdiction,  this power  being derived  by that High Court as  successor of  the Supreme  Court of  Judicature at Madras which  had  been  exercising  jurisdiction  over  the Presidency Town  of Madras,  and that  there was no power in that High Court to issue such a writ beyond the local limits of its  original civil jurisdiction. In Election Commission, India v.  Saka Venkata  Subba Rao,  [1953] S.C.R. 1144, 1150 this Court  reiterated what  had been held in the above case by the  Judicial Committee and pointed out that the position with respect to the two other Chartered High Courts, namely, the High  Courts of  Calcutta and  Bombay, was  the same. As explained by  this  Court  in  Dwarkanath,  Hindu  Undivided Family v.  Income-Tax Officer,  Special Circle,  Kanpur, and Another  [1965]   3  S.C.R.   536,  540-41  Article  226  is

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designedly couched  in a  wide  language  in  order  not  to confine the power conferred by it only to the power to issue prerogative  writs  as  understood  in  England,  such  wide language being  used to  enable the  High  Courts  to  reach injustice wherever  found and  to mould  the reliefs to meet the peculiar  and complicated  requirements of this country. The power  to issue  prerogative  writs  though  in  a  much restricted form  was thus  already possessed  by  the  three Chartered High  Courts immediately prior to the commencement of the Constitution.      A question  may  well  be  asked  why  it  was  thought necessary   to   incorporate   in   the   Constitution   the jurisdiction and powers 816 conferred by  Articles 226,  227  and  228.  The  answer  is obvious. Provisions  similar to Articles 227 and 228 already existed in  a Constitution  Act, namely, in sections 224 and 225 of  the Government of India Act, 1935. The said sections 224 and  225 were not made subject to the provisions of Part IX of  the said  Act and  of any Order in Council made under the said  Act or  any other  Act or to the provisions of any Act of  the appropriate  Legislature as  the jurisdiction of the existing High Courts was by section 223 of the said Act. These sections could, therefore, have been amended only by a legislation made  by the  British Parliament by amending the Government of  India Act, 1935. The Government of India Act, 1935, was  repealed by  Article 395  of the Constitution. It was, therefore,  necessary to  re-enact these provisions and the only way in which it could be done was to insert them in the Constitution  because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by  the appropriate  Legislature. So far as Article 226 is concerned,  the power  to  issue  prerogative  writs  was possessed by  the three  Chartered High  Courts only. As the Constitution-makers intended  to confer  the enlarged  power under Article  226 upon  all High Courts, and not merely the three Chartered  High Courts,  this power had to be embodied in an  Article of  the Constitution. It should also be borne in mind  that the  jurisdiction under  Articles 226, 227 and 228 was  intended to be conferred upon all High Courts - not only the  existing High Courts but also any other High Court as and  when it  came  to  be  established  in  the  future. Further, the  insertion of  Articles 226, 227 and 228 in the Constitution without  making them  subject to  any law to be made by  the  appropriate  Legislature  put  these  Articles beyond the  legislative reach  of Parliament  and the  State Legislatures with the result that the jurisdiction conferred by these  Articles can  only be  curtailed or  excluded with respect to  any matter by a constitutional amendment and not by ordinary legislation.      We are  not concerned  in this  Appeal with Article 228 but only with Articles 226 and 227 or more specifically with the maintainability  of an  intra-court appeal  against  the judgment of  a Single  Judge in a petition under Article 226 or 227.  The Full  Bench took the view that clause 15 of the Letters Patent  provides for  an intra-court  appeal only in causes heard in the 817 exercise of original civil jurisdiction by a Single Judge of the High  Court and  does not,  therefore, comprehend within its scope  a judgment  passed  by  a  Single  Judge  in  the exercise of  jurisdiction  under  Article  226  or  227.  In support of  this  conclusion  the  Full  Bench  relied  upon paragraph 22  of the Despatch dated March 14, 1862, from the

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Secretary of  State to  the  Governor-General  of  India  in Council which  accompanied the  first Letters  Patent of the Calcutta High Court. The said paragraph 22 was as follows :           "22. Clauses 14 and 15. -           Clauses   14   and   15   give   effect   to   the           recommendations of  the law Commissioners that the           High  Court   shall   have   all   the   appellate           jurisdiction which  is now exercised by the Sudder           Dewany Adawlut,  and a  new appellate jurisdiction           in  civil  cases,  from  the  Courts  of  original           jurisdiction, constituted  by one  or more  of its           own Judges,  except that in the case of a decision           which has  been passed  by a  majority of the full           number of  the Judges  of the  Court,  the  appeal           shall lie to Her Majesty in Council." Presumably, a  similar Despatch  also accompanied  the first Letters Patent  of the  Madras and Bombay High Courts but in any event  as the  Letters Patent  of these  two High Courts were mutatis  mutandis in  identical terms  with the Letters Patent of  the Calcutta  High Court,  whether such  Despatch accompanied them  or not  would not make any difference. The reliance placed  by the Full Bench upon the said Despatch of the Secretary  of State  was, however,  wholly misconceived. This Despatch accompanied the Letters Patent of 1862 and not the Letters  Patent of  1865 and the provision for an intra- court appeal  in the  Letters Patent  of 1865 was materially different from that contained in the Letters Patent of 1862. The Letters Patent of 1862 conferred upon the Chartered High Courts the jurisdictions which in England, until November 1, 1875, when  the Supreme Court of Judicature Acts of 1873 and 1875 came  into force,  were exercised  by different  courts such as  the Court  of King’s  Bench, the  Court  of  Common Pleas, the  Court of  Chancery, the  Court of Exchequer as a common law  court, the High Court of Admiralty, the Court of Probate, the Court for 818 Divorce and  Matrimonial Causes,  and the  London  Court  of Bankruptcy. These  several jurisdictions were conferred upon the High  Courts by different clauses of the Letters Patent. Clause 14, however, specifically provided for an intra-court appeal only  from judgments  "in all cases of original civil jurisdiction". The  marginal note  to clause  14 was "Appeal from the  Courts of  original jurisdiction to the High Court in its  appellate jurisdiction".  Jurisdictions  other  than ordinary  and   extra-  ordinary  civil  jurisdictions  were conferred by  clauses which  followed clause  14.  For  this reason, it  was doubted  at one  time whether an intra-court appeal would  lie from  the judgment  of one  Judge  in  the exercise of  original testamentary  jurisdiction but  in the case of  Saroda Soonduree  Dossee v. Tincowree Nundee [1884] Hyde’s Reports  70, a  Division Bench of three Judges of the Calcutta High  Court by  a majority held that such an appeal would lie.  The Letters  Patent of 1865 followed the pattern of the  Letters Patent  of 1862.  Clause 15  forms part of a group of  clauses consisting  of clauses  11  to  18  headed "Civil Jurisdiction of the High Court". Clause 12 deals with original jurisdiction  as to suits and clause 13 with extra- ordinary original  civil jurisdiction  while clause 14 deals with  joinder  of  several  causes  of  action.  Though  the marginal note  to clause  15 was the same as that to the old clause 14,  a most  material change was made in clause 15 by providing that  intra-court  appeals  would  lie  "from  the judgment (not  being a  sentence or  order passed or made in any criminal  trial) of one Judge of the said High Court, or of one  Judge of any Division Court." The word "judgment" in

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clause 15 is not qualified in any way as to the jurisdiction in which it is given except that it should not be a sentence or  order  passed  or  made  in  any  criminal  trial,  thus excluding  judgments  given  in  the  exercise  of  criminal jurisdiction.  Criminal  jurisdiction  is  provided  for  in clauses 22 to 29. Various other jurisdictions conferred upon the High  Courts, except  ordinary and  extra-ordinary civil jurisdiction, also  feature in  clauses subsequent to clause 15. Marginal  notes or headings to groups of sections cannot control  the   meaning  of  a  section  if  the  section  is unambiguous and  its meaning  plain. Not only is the wording of clause  15 unambiguous  but  there  is  strong  intrinsic evidence in  that clause  itself to  show that it applies to all jurisdictions  mentioned in  different  clauses  of  the Letters Patent,  whether preceding  clause 15  or subsequent thereto,  except  those  expressly  excluded  by  clause  15 itself. 819 Had it not been so, there would have been no need to exclude expressly a judgment from a sentence or order passed or made in any  criminal  trial  from  the  purview  of  clause  15. Further, under  clause 15  an appeal  also lies  against the judgment of one Judge of any Division Court where the Judges are equally  divided in  opinion. Under the unamended clause 36, in  such a  case the  opinion of the senior Judge was to prevail and  under clause  15  an  appeal  lay  against  his judgment. A Division Bench may hear an original matter or an appeal from a subordinate court. The omission from clause 15 of the  words "in  all cases of original civil jurisdiction" which occurred  in clause 14 made the judgment of the senior Judge of  the Division Bench appealable whether it was given in an  original matter  or in  an appeal  from a subordinate court even  though the  appellate jurisdiction  of the  High Court in  respect of  decisions  given  in  civil  cases  by subordinate courts  is  conferred  by  clause  16  which  in numerical order  follows clause  15. Such was the view taken by a  Full Bench  of seven Judges of the Calcutta High Court in Ranee  Shurno Moyee v. Luchmeept Doogur and others [1867] 7 Sutherland’s Weekly Reporter 52 as far back as January 23, 1867. Since  then all  the Chartered  High Courts have taken the same  view and  have held  that unless excluded from the purview of  clause 15, an intra-court appeal lies under that clause against the judgment delivered in the exercise of any of  the  jurisdictions  conferred  by  the  Letters  Patent, whether by  a clause preceding or succeeding clause 15. When clause 15  was substituted  by Letters Patent dated December 9, 1927,  the marginal  note was  changed to  "Appeal to the High Court  from the  Judges  of  the  Court".  This  change brought the  marginal note in conformity with what clause 15 provides.      There has  also been unanimity among the Chartered High Courts that  the word  "judgment" in  clause 15 embraces not only  judgments  given  in  the  exercise  of  jurisdictions specifically mentioned in the Letters Patent but also in the exercise of  jurisdictions not  so mentioned.  For instance, the jurisdiction  to commit  for contempt  is not  expressly mentioned in  the Letters Patent but the Calcutta High Court in Mohendra  Lall Mitter  v.  Anundo  Commar  Mitter  I.L.R. (1897) 25 Cal. 236 and the Bombay High Court in Collector of Bombay v.  Issac Penhas  (1947) 49  Bom. L.R.  709 F.B. have held that  an order  made by  a Single  Judge  committing  a person for contempt is appealable 820 under  clause  15.  Similarly,  in  Mahomedalli  Allabux  v. Ismailji Abdulali  (1926) 28  Bom. L.R. 471, the Bombay High

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Court held  that an  appeal lay  from an  order passed  by a Single Judge  directing a writ of habeas corpus to issue and in Raghunath  Keshav Khadilkar  v.  Poona  Municipality  and another (1944) 46 Bom. L.R. 675; s.c. A.I.R. 1945 Bom. 7, it held that  an appeal  lay under  clause 15  of  the  Letters Patent against the issue of a writ of certiorari by a Single Judge.      Revisional jurisdiction  is not  expressly mentioned in clause 15 but as the Chartered High Courts were entertaining intra-court appeals  from judgments given in the exercise of revisional  jurisdiction,   when  the  Letters  Patent  were amended in  1919 an intra-court appeal from an order made in the  exercise   of  revisional  jurisdiction  was  expressly excluded. Similarly,  to prevent intra-court appeals from an order passed  by a Single Judge in the exercise of the power of superintendence  under the  provisions of  section 107 of the Government  of India  Act of  1915-1919, an  appeal from such an  order was  expressly barred by the amending Letters Patent of  March 11,  1919. It should be remembered that the Government of  India Act of 1915-1919 was a Constitution Act and, therefore,  the jurisdiction  which was  conferred upon the  High   Courts  by   section  107  of  that  Act  was  a jurisdiction conferred upon them by a Constitution Act.      The above view consistently held by the High Courts has found favour  with this Court. In National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. [1953] S.C.R. 1028, this Court, after  considering the  relevant  provisions  of  the Government of  India Act  of 1915-1919,  which are  in their contents similar  to the  corresponding  provisions  of  the Constitution of  India, held  that under that Act the Bombay High Court  possessed all  the jurisdictions  that it had at the commencement  of that  Act and  could also  exercise all such jurisdictions that would be conferred upon it from time to time  by the legislative power conferred by that Act and, therefore,  unless   the  right   of  appeal  was  otherwise excluded, an  intra-court appeal  lay under clause 15 of the Letters Patent  of the  Bombay  High  Court.  The  same,  of course, would  apply to  the Letters  Patent of the Calcutta and Madras  High Courts. The Letters Patent establishing the Lahore High  Court constitute the Charter of the Punjab High Court. Clause 10 of 821 those Letters  Patent is  in pari  materia with clause 15 of the Letters  Patent of  the Chartered High Courts. Referring to clause 10 of the Letters Patent of the Punjab High Court, this Court  in South  Asia Industries  Private Ltd.  v. S.B. Sarup Singh  and Ors.  [1965] 2  S.C.R. 756,  said (at pages 761-62) :           "A plain reading of the said clause indicates that           except in  the 3  cases  excluded  an  appeal  lay           against the judgment of a single Judge of the High           Court to  the High  Court in exercise of any other           jurisdiction. . . Looking at the first part of the           amended clause  excluding the  exceptions,  it  is           obvious that its wording is general. . . It is not           permissible,  by  construction,  to  restrict  the           scope of  the generality  of the provisions of cl.           10 of the Letters Patent."      The Full  Bench sought  to distinguish  the judgment of this Court  in National  Sewing Thread Company’s case on the ground that  the jurisdiction  which the  Single  Judge  was exercising in  that case  was one under the ordinary law and not under  a Constitutional law, namely, the Constitution of India, and  that if  the powers  of  the  High  Court  under Articles 226  and 227  of the  Constitution were  also to be

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made subject  to the rules of the High Court and the Letters Patent,  these  powers  could  be  altered  or  affected  by ordinary legislation.  Article 225 of the Constitution is by its  term   made  "Subject   to  the   provisions  of   this Constitution and  to  the  provisions  of  any  law  of  the appropriate Legislature  made by  virtue of powers conferred on that  Legislature  by  this  Constitution".  Thus,  under Article 225 the jurisdiction of the existing High Courts and the law  administered by  them and  the powers  of the  High Courts to  make rules  and to  regulate the  sittings of the Court and  of members  thereof sitting singly or in Division Courts have  been preserved  and continued  subject  to  the provisions of  the Constitution  and of  any law made by the appropriate Legislature.  According to  the Full  Bench  the words "Subject to" create a limitation upon the jurisdiction and powers  of the  existing High  Courts.  This  is  not  a correct  interpretation.   Article  225  follows  a  pattern established by  earlier legislation.  Under section 9 of the Indian High Courts Act, 1861, the jurisdiction and powers of the High  Courts were made subject to the legislative powers of the Governor-General of 822 India in  Council. Clause  44 of  the Letters Patent of 1865 earlier made the provisions of the Letters Patent subject to the same  legislative powers  and after the amendment of the said clause  by the  amending Letters  Patent of  March  11, 1919, subject  to the  legislative powers  of the  Governor- General in  Legislative Council  and also  of the  Governor- General in  Council. Under section 106(1a) of the Government of India  Act, 1915-1919, the Letters Patent of a High Court could be  amended from  time to time by the Crown by further Letters Patent.  Section 223 of the Government of India Act, 1935, continued the jurisdiction of the existing High Courts subject to  the provisions  of Part  IX  of  that  Act,  the provisions of  any Order  in Council  made under that Act or any  other  Act  and  the  provisions  of  any  Act  of  the appropriate Legislature  enacted by  virtue  of  the  powers conferred on  that Legislature by that Act. In the same way, Article 225  is  made  subject  to  the  provisions  of  the Constitution  and   the  provisions   of  any   law  of  the appropriate Legislature  made by  virtue of powers conferred on that  Legislature by  the Constitution. The opening words of  Article   225  "Subject   to  the   provisions  of  this Constitution and  to  the  provisions  of  any  law  of  the appropriate  Legislature   made  by  virtue  of  the  powers conferred on  that Legislature  by this  Constitution"  only mean that  Article 225 is subject to what is provided in the Constitution and  in law made by an appropriate Legislature. The words  "Subject to"  cannot be  construed, as  the  Full Bench has done, as referring only to a provision limiting or restricting the  jurisdiction of  the existing  High Courts. They  also   include  a   provision   which   enlarges   the jurisdiction and powers of the existing High Courts. Article 225, therefore,  comprehends within  its scope  not only the jurisdiction  which   the  existing  High  Courts  possessed immediately prior  to the  commencement of  the Constitution but  also  the  jurisdiction  and  powers  which  the  other Articles of  the Constitution, such as Articles 226, 227 and 228, confer  upon the  High Courts.  A Special  Bench of the Calcutta High Court in Chairman, Budge Budge Municipality v. Mongru Mia and Ors. A.I.R. 1953 Cal. 433, took the view that the words  "Subject to"  in the  opening part of Article 225 also covered  enlargement of  jurisdiction and  these  words would, therefore, import into Article 225 the enlargement of its jurisdiction,  for example,  by Article  226. Das Gupta,

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J.,  however,  gave  a  dissenting  judgment  in  that  case following the  line of reasoning adopted by a Division Bench of that High 823 Court in  India Electric  Works Ltd.  v. Registrar  of Trade Marks A.I.R.  1947 Cal.  49 in  which a  contrary  view  was taken. The case of India Electric Works Ltd. v. Registrar of Trade  Marks  was  expressly  overruled  by  this  Court  in National Sewing Thread Company’s case. Other High Courts, as for example,  the Allahabad  High Court  in Sheo  Prasad  v. State of U.P., A.I.R. 1965 All. 106 have also taken the same view as  the majority  judgment in  Budge Budge Municipality Case.      The fact  that Article  225 makes  the jurisdiction and powers of  the existing  High Courts subject to a law of the appropriate Legislature  does not mean that the jurisdiction under Article  226 or  227 cannot  come within  the scope of Article 225.  A law  made by  an appropriate Legislature can amend another  law enacted  by it  but it  cannot  amend  or affect the  provisions of  the Constitution, and as Articles 226, 227  and 228  are not  made subject  to any law made by Parliament or  the State  Legislatures, the powers conferred by these three Articles cannot be limited, abridged or taken away by  any Legislature.  They  can  only  be  affected  by amending the Constitution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing  High   Court  is   one   conferred   by   ordinary legislation,  it   can  be   affected,  either   by  way  of abridgement or enlargement, by a law made by the appropriate Legislature and  if it is one conferred by the Constitution, it can  only be  so affected  by a constitutional amendment. What has  escaped the  notice of  the Full  Bench is  that a provision for  a right  of appeal  is not  one which  in any manner limits, abridges, takes away or adversely affects the power of  the High  Court under  Article 226  or 227. Such a provivion merely  regulates the exercise of the powers under these Articles.  We may  point out  here that Article 145(1) confers upon  this Court  the power  to make rules including rules as to the proceedings in the Court for the enforcement of any  of the  rights  conferred  by  Part  III,  that  is, Fundamental Rights.  By the opening clause of Article 145(1) this power  is made  "Subject to  the provisions  of any law made by  Parliament". Therefore,  the practice and procedure in respect of petitions under Article 32 for the enforcement of Fundamental  Rights are regulated by rules framed by this Court and  by any  law made by Parliament in that behalf. We fail to  see why  the practice  and procedure  in respect of petitions under  Articles 226  and 227  should  stand  on  a different footing. 824      The position which emerges from the above discussion is that under  clause 15 of the Letters Patent of the Chartered High Courts,  from the  judgment (within the meaning of that term as  used in  that clause) of a Single Judge of the High Court an  appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the  jurisdiction exercised  by the  Single  Judge  while passing his  judgment, provided  an appeal  is not barred by any statute  (for example, section 100A of the Code of Civil Procedure, 1908)  and provided  the conditions  laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15  in this  behalf are  : (1)  that  it  must  be  a judgment pursuant  to section 108 of the Government of India Act of  1915, and  (2) it  must not  be a  judgment  falling within one of the excluded categories set out in clause 15.

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    What falls  next  to  be  considered  is  the  question whether the  judgment of a Single Judge of the High Court in a petition  under Article  226 or 227 is a judgment pursuant to section  108 of the Government of India Act of 1915-1919. The expression "pursuant to section 108 of the Government of India Act"  was substituted  for the expression "pursuant to section 13  of the  said recited  Act", that  is, the Indian High Courts Act, 1861, when clause 15 was amended by Letters Patent dated  March  11,  1919.  Section  13  provided  that subject to  any laws or regulations which may be made by the Governor-General in  Council, the  High Court established in any Presidency  under that  Act may  by  rules  made  by  it provide for  the exercise  by  one  or  more  Judges  or  by Division Courts  constituted by  two or  more Judges  of the original and  appellate jurisdiction  vested  in  such  High Court. Section 108(1) of the Government of India Act of 1915 made similar  provision, while section 108(2) reproduced the power conferred by section 14 of the Indian High Courts Act, 1861, upon  the Chief Justice of the High Court to determine what Judges,  whether with  or without  the  Chief  Justice, should sit  alone  or  in  the  Division  Courts.  When  the Government of  India  Act  of  1915-1919  was  repealed  and replaced by  the Government of India Act, 1935, and the 1935 Act was  repealed and  replaced  by  the  Constitution,  the expression "pursuant  to section  107 of  the Government  of India Act"  in clause  15 remained  unamended. The fact that this expression  remained  unaltered  makes  no  difference. Section 223  of the  Government of  India Act,  1935,  while continuing the 825 jurisdiction and  powers of  the Judges of the existing High Courts and  the respective  powers of  the Judges thereof in relation to  the administration  of  justice  in  the  court expressly provided that such powers shall include "any power to make  rules of  Court and to regulate the sittings of the Court and  of members  thereof sitting alone or any division court". Thus, the rule-making power of the High Court and of the Chief Justice of the High Court to assign work either to Single Judges  or to  Division Courts  and to determine what Judges, whether  with or  without the  Chief Justice,  would constitute the  several Division  Courts remained unimpaired and unaffected.  Section 38(1)  of the  Interpretation  Act, 1889  (52   &  53   Vict.,  c.63),   now  repealed   by  the Interpretation Act,  1978 (1978  Eliz.2, c.30),  provided as follows :           "38. Effect of repeal in future Acts. -           (1) Where  this Act  or any  Act passed  after the           commencement of  this Act  repeals and  re-enacts,           with or  without modification, any provisions of a           former Act,  references in  any other  Act to  the           provisions so repealed, shall, unless the contrary           intention appears,  be construed  as references to           the provisions so re-enacted."      Section 8  of the  General Clauses Act, 1897, (Act X of 1897) provides as follows :           "8.  Construction   of  references   to   repealed           enactments. -           (1)  Where   this  Act   or  any  Central  Act  or           Regulation made  after the  commencement  of  this           Act,  repeals   and  re-enacts,  with  or  without           modification, any provision of a former enactment,           then references  in any  other enactment or in any           instrument to  the provision  so  repealed  shall,           unless a different intention appears, be construed           as references to the provision re-enacted.

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         (2) Where  before the  fifteenth  day  of  August,           1947, any  Act of Parliament of the United Kingdom           repealed and re-enacted, with or without modifi- 826           cation, any  provision of a former enactment, then           references in any Central Act or in any Regulation           or instrument  to the provision so repealed shall,           unless a different intention appears, be construed           as reference to the provision so re-enacted." Sub-section (2) was inserted in section 8 by Act 18 of 1919. The opening  words of  sub-section  (2)  "Where  before  the fifteenth day  of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted" were substituted for the words  "Where any  Act of  Parliament  repeals  and  re- enacts" by  the Adaptation  of Laws  Order,  1950.  Although section 38(1) of the Interpretation Act speaks of references in any  other Act  to the  provisions of  a repealed and re- enacted Act,  section 8 of the General Clauses Act speaks of references to  a repealed and re-enacted Act not only in any Act  or   Regulation  but   also  in  any  "instrument".  An "instrument" is  a writing, and generally means a writing of a formal  nature. (See Jowitt’s "Dictionary of English Law", second edn., vol. 1, p.988). Letters Patent mean writings of the sovereign,  sealed with the Great Seal, whereby a person or company  is enabled  to do acts or enjoy privileges which he or it could not do or enjoy without such authority (ibid, vol. 2,  p.1085). Letters  Patent thus  mean  an  instrument issued  by   the  Crown  or  government  (see  Black’s  "Law Dictionary", fifth  edn., p.815).Letters Patent establishing the High  Courts issued  by the Crown would thus fall within the meaning of the term "instrument" as used in section 8(2) of the  General Clauses Act. Thus, by the combined operation of section 38 of the Interpretation Act and section 8 of the General Clauses Act, the expression "pursuant to section 108 of the Government of India Act", is on the coming into force of the  Government  of  India  Act,  1935,  to  be  read  as "pursuant to  section 223  of the  Government of  India Act, 1935." Article  225 of  the Constitution  is in pari materia with section  223 of  the Government  of  India  Act,  1935. Article 367(1) of the Constitution provides that the General Clauses Act, 1897, shall apply for the interpretation of the Constitution as  it applies for the interpretation of an Act of the  Legislature of  the Dominion  of India. Thus, by the combined operation  of section  38(1) of  the Interpretation Act and section 8 of the General Clauses Act, the expression "pursuant to  section 223  of the  Government of  India Act, 1935," which was deemed to have been substituted 827 for  the   expression  "pursuant   to  section  108  of  the Government of  India Act" in clause 15 of the Letters Patent is, on  the commencement  of the Constitution, to be read as "pursuant to Article 225 of the Constitution."      In National  Sewing Thread  Company’s case  this  Court said (at pages 1036-7) :           "As  a   matter  of  history  the  power  was  not           conferred for the first time by section 108 of the           Government of India Act, 1915. It had already been           conferred by  section 13 of the Indian High Courts           Act of  1861. We  are further  of the opinion that           the  High   Court  was  right  in  the  view  that           reference in  clause 15  to section  108 should be           read  as   a  reference   to   the   corresponding           provisions of  the 1935  Act and the Constitution.           The canon of constrution of statutes enunciated in           section  38   of  the   Interpretation   Act   and

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         reiterated with some modifications in section 8 of           the  General   Clauses  Act   is  one  of  general           application where  statutes or  Acts  have  to  be           construed and  there is  no reasonable  ground for           holding that  that rule of construction should not           be applied  in  construing  the  charters  of  the           different High Courts. These charters were granted           under statutory  powers and  are  subject  to  the           legislative  power   of  the  Indian  Legislature.           Assuming,  however,   but  not   conceding,   that           strictly   speaking    the   provisions   of   the           Interpretation Act  and the General Clauses Act do           not for  any reason apply, we see no justification           for holding  that the  principles of  construction           enunciated in those provisions have no application           for construing these charters."      The Full  Bench sought  to distinguish  the decision in National Sewing  Thread Company’s  case by  relying  upon  a judgment of  the Assam  High Court  in Radha Mohan Pathak v. Upendra Patowary  and Ors.  A.I.R. 1962  Assam 71. That case had no  relevance to  the point  which the Full Bench had to decide for  it turned upon its own special facts. By section 3 of  the Assam  Revenue Tribunal  (Transfer of Powers) Act, 1948, the  Assam High  Court was  empowered to exercise such jurisdiction 828 to entertain  appeals and  revise decisions in revenue cases as was  vested  in  the  Provincial  Government  immediately before April  1, 1937,  under any  law for the time being in force. Section  5 of the said Act provided that no appeal or revision should  lie against  any order  passed by the Assam High Court  in the  exercise of  its  powers  in  appeal  or revision under  the said  Act. A  Letters Patent  appeal was sought to be filed against the decision of a Single Judge of the said  High Court  given under section 3 of the said Act. The Assam  High Court  held that  such  an  appeal  was  not competent. Section  5 of  the said Act itself showed that no further appeal  lay against  a decision of the High Court in an appeal  filed under section 3 of the said Act even though given by  a Single  Judge. The  Assam High Court pointed out that the  power exercised  by the  High Court under the said Act was  a special  jurisdiction and  was an exercise by the High Court  of powers possessed by the Provincial Government and the Tribunal which were transferred to the High Court by the said  Act and  was not the exercise by the High Court of its powers  as a  High Court  under the  Act by which it was established. Thus,  this was a case of a statutory exclusion of a  right of second appeal in a matter decided by the High Court as  an appellate  and revisional authority constituted by a special Act passed by the Provincial Legislature in the exercise of its legislative power.      The Full  Bench has  confused the  source of power with the exercise of that power. Conferment of power is one thing while the  exercise of  such power  is  a  wholly  different thing. Articles  226 and  227 confer certain powers upon the High Courts while Article 225 of the Constitution deals with the power to make rules for the exercise of powers possessed by the  existing High  Courts. The rule-making power extends to all  jurisdictions and  powers possessed  by the existing High Courts,  whether at the date of their Letters Patent or of the  Government of  India Act  of  1915-1919  or  of  the Government of  India Act,  1935, or conferred upon it by the Constitution itself or subsequent to the commencement of the Constitution by any amendment of the Constitution or any law made by  the appropriate  Legislature. According to the Full

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Bench, the  rule-making power  under Article  225 would  not extend to  the exercise of jurisdiction under Article 226 or 227  because  these  Articles  contain  inbuilt  rule-making power. This  is equally  incorrect. Such a rule-making power is neither  expressly provided  for nor implied in either of these 829 these two Articles. The power to make rules for the exercise of jurisdiction  under Articles  226 and 227 by the existing High Courts is contained in Article 225 only.      Yet another  reason given  by the Full Bench for coming to the  conclusion that  the rule-making  power of  the High Court would  not apply to the exercise of power conferred by Articles 226  and 227  is that  as these  powers were  to be exercised by  the High  Court, when a Single Judge exercised either of  these powers,  he did  it on  behalf of the whole High Court  and filing an appeal against the judgment of the Single Judge  given in a petition filed under Article 226 or 227 would  be tantamount  to filing a second petition in the same matter.  It is  difficult to  understand this  line  of reasoning. Various  statutes provide for appeals to the High Court. When  the expression  "High Court"  is used,  it only means the  High Court acting through one Judge or a Division Court consisting of two or more Judges as may be provided by the  rules   of  Court  unless  any  enactment  specifically provides for  a particular  number of  Judges  to  hear  any particular matter.  What the  Full Bench overlooked was that an  appeal   is  not   a  fresh   proceeding  but  merely  a continuation  of   the  original   proceeding  as  is  well- established by  decisions of  this Court  see, for instance, Garikapatti Veeraya  v. N.  Subbiah Choudhury  [1957] S.C.R. 488, and  Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand & Ors., [1973] 1 S.C.R. 185.      From what  has been said above it must follow that when a Single  Judge of a Chartered High Court decides a petition under Articles  226  or  227,  his  judgment  is  one  given pursuant  to   Article  225   of  the  Constitution  and  is appealable under  clause 15  of the Letters Patent unless it falls within one of the excluded categories.      According to  the Full  Bench even  were clause  15  to apply, an  appeal would  be barred  by the  express words of clause 15  because the  nature  of  the  jurisdiction  under Article 226  and 227  is the same inasmuch as it consists of granting the  same relief,  namely, scrutiny  of records and control of  subordinate courts and tribunals and, therefore, the exercise  of jurisdiction  under these Articles would be covered by  the  expression  "revisional  jurisdiction"  and "power of superin- 830 tendence". We  are afraid,  the Full Bench has misunderstood this scope  and effect  of the  powers  conferred  by  these Articles. These  two Articles stand on an entirely different footing. As  made abundantly  clear in  the earlier  part of this judgment, their source and origin are different and the models upon  which they  are patterned  are also  different. Under Article  226 the  High  Courts  have  power  to  issue directions, orders  and writs  to any  person  or  authority including any Government. Under Article 227 every High Court has  the  power  of  superintendence  over  all  courts  and tribunals throughout  the territory  in relation to which it exercises jurisdiction.  The power to issue writs is not the same as  the power  of superintendence.  By  no  stretch  of imagination can  a writ  in the  nature of  habeas corpus or mandamus or  quo warranto  or prohibition  or certiorari  be equated with  the power  of superintendence. These are writs

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wich are  directed  against  persons,  authorities  and  the State. The  power of  superintendence conferred  upon  every High Court  by Article  227 is  a  supervisory  jurisdiction intended to ensure that subordinate courts and tribunals act within the  limits of  their authority  and according to law (see State  of Gujarat  v. Vakhatsinghji Vajesinghji Vaghela A.I.R. 1968  S.C. 1487,  1488, and  Ahmedabad Mfg.  & Calico Ptg. Co.  Ltd. v.  Ram Tahel  Ramanand &  Ors.). The orders, directions and  writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High  Courts by  Article 227  is  in  addition  to  that conferred upon the High Courts by Article 226. Though at the first blush  it may seem that a writ of certiorari or a writ of prohibition  partakes of  the nature  of  superintendence inasmuch as  at times the end result is the same, the nature of the  power to  issue these  writs is  different from  the supervisory or  superintending power  under Article 227. The powers conferred  by Articles  226 and  227 are separate and distinct and  operate in different fields. The fact that the same result  can at  times  be  achieved  by  two  different processes does not mean that these processes are the same.      Under Article  226 an  order, direction  or writ  is to issue to  a person,  authority or the State. In a proceeding under that  Article the  person, authority  or State against whom the  direction, order  or writ is sought is a necessary party. Under  Article 227, however, what comes up before the High Court  is the  order or judgment of a subordinate court or 831 tribunal for  the purpose  of ascertaining whether in giving such judgment  or order  that subordinate  court or tribunal has acted  within its  authority and according to law. Prior to the  commencement of the Constitution, the Chartered High Courts as  also the  Judicial Committee  had held  that  the power to  issue prerogative writs possessed by the Chartered High Courts  was an  exercise of  original jurisdiction (see Mahomedalli Allabux  v. Ismailji  Abdulali, Raghunath Keshav Khadilkar  v.   Poona  Muncipality  and  another,  Ryots  of Garabandho and other villages v. Zamindar of Parlakimedi and another and  Moulvi Hamid Hasan Nomani v. Banwarilal Roy and others L.R. [1946-47] 74 I.A. 120, 130-31; s.c.= A.I.R. 1947 P.C. 90,  98). In  the last  mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held :           "In their  Lordships’ opinion  any original  civil           jurisdiction possessed  by the  High Court and not           in express  terms conferred  by the Letters Patent           or later  enactments falls  within the description           of ordinary original civil jurisdiction." By Article  226  the  power  of  issuing  prerogative  writs possessed  by   the  Chartered  High  Courts  prior  to  the commencement of  the Constitution  has been  made wider  and more extensive  and conferred  upon every  High  Court.  The nature of  the exercise  of the  power  under  Article  226, however, remains  the same  as in  the case  of the power of issuing prerogative  writs possessed  by the  Chartered High Courts. A  series of  decisions of  this  Court  has  firmly established that  a  proceeding  under  Article  226  is  an original proceeding and when it concerns civil rights, it is an original  civil proceeding  (see, for  instance, State of Uttar Pradesh  v. Dr. Vijay Anand Maharaj [1963] 1 S.C.R. 1, 16,  Commissioner  of  Income-tax,  Bombay  and  another  v. Ishwarlal Bhagwandas  and others [1966] 1 S.C.R. 190, 197-8, Ramesh and another v. Seth Gendalal Motilal Patni and others [1966] 3 S.C.R. 198, 203, Arbind Kumar Singh v. Nand Kishore

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Prasad &  Ors. [1968] 3 S.C.R. 322, 324 and Ahmedabad Mfg. & Calico Ptg.  Co. Ltd.  v. Ram  Tahel Ramnand & Ors. [1973] 1 S.C.R. 185).      Consequently, where  a petition filed under Article 226 of  the   Constitution  is  according  to  the  rules  of  a particular High  Court heard  by a  Single Judge,  an intra- court appeal will 832 lie from that judgment if such a right of appeal is provided in the  charter of  that High Court, whether such Charter be Letters Patent or a statute. Clause 15 of the Letters Patent of the  Bombay High  Court gives  in such  a case a right of intra-court appeal  and, therefore, the decision of a Single Judge of  that High  Court given in a petition under Article 226 would  be appealable  to a  Division Bench  of that High Court.      It is  equally well-settled  in law  that a  proceeding under Article  227 is  not an  original proceeding.  In this connection, we  need refer  to only  two decisions  of  this Court. In Ahmedabad Mfg. & Calico Ptg. Co.’s Case this Court said (at pages 193-4) :           "Article 227 of the Constitution no doubt does not           confer on  the High Court power similar to that of           an ordinary  court of appeal. The material part of           this   Article    substantially   reproduces   the           provisions of  s. 107  of the  Government of India           Act, 1915 except that the power of superintendence           has been  extended by this Article to Tribunals as           well.Section 107  according  to  preponderance  of           judicial opinion  clothed the  High Courts  with a           power of  judicial superintendence  apart from and           independently of  the provisions of the other laws           conferring on  them revisional  jurisdiction.  The           power  under  Art.  227  of  the  Constitution  is           intended  to   be  used   sparingly  and  only  in           appropriate cases,  for the purpose of keeping the           subordinate courts and tribunals within the bounds           of their  authority and,  not for  correcting mere           errors :  see Narayan  Singh v.  Amar Nath, [1954]           S.C.R.  565.   .  .   .  Under  Art.  226  of  the           Constitution it  may in this connection be pointed           out the  High Court  does not  hear an appeal or a           revision :  that court is moved to interfere after           bringing  before  itself  the  record  of  a  case           decided by  or pending  before a court, a tribunal           or an authority, within its jurisdiction." The origin  and  nature  of  the  power  of  superintendence conferred upon  the High  Courts by  Article  227  was  thus stated 833 by this  Court in  Waryam Singh  and another v. Amarnath and another [1954]  S.C.R. 565.  It reads  as follows  (at pages 570-1) :           "The material  part of  article 227  substantially           reproduces the  provisions of  section 107  of the           Government of  India Act,  1915, except  that  the           power of  superintendence has been extended by the           article also  to tribunals.  . . The only question           raised is  as  to  the  nature  of  the  power  of           superintendence   conferred    by   the   article.           Reference is  made to clause (2) of the article in           support of  the contention  that this article only           confers   on   the   High   Court   administrative           superintendence over  the subordinate  courts  and           tribunals. We are unable to accept this contention

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         because clause  (2) is  expressed  to  be  without           prejudice to  the generality  of the provisions in           clause (1). Further, the preponderance of judicial           opinion in  India was  that section  107 which was           similar in  terms to section 15 of the High Courts           Act,   1861,    gave   a    power   of    judicial           superintendence to  the High  Court apart from and           independently of  the  provisions  of  other  laws           conferring revisional  jurisdiction  on  the  High           Court. In  this connection it has to be remembered           that section  107 of  the Government of India Act,           1915, was  reproduced in  the Government  of India           Act, 1935, as section 224. Section 224 of the 1935           Act, however,  introduced sub-section  (2),  which           was new,  providing that  nothing in  the  section           should be  construed as  giving the High Court any           jurisdiction  to  question  any  judgment  of  any           inferior court  which was not otherwise subject to           appeal or  revision. The  idea presumably  was  to           nullify  the   effect  of  the  decisions  of  the           different High  Courts referred  to above. Section           224 of  the 1935  Act  has  been  reproduced  with           certain  modifications   in  article  227  of  the           Constitution. It  is significant to note that sub-           section (2)  to section  224 of  the 1935  Act has           been omitted  from article  227. This  significant           omission has  been regarded  by all High Courts in           India before whom this question has 834           arisen as  having restored  to the  High Court the           power of  judicial superintendence  it  had  under           section 15  of the  High  Courts  Act,  1861,  and           section 107 of the Government of India Act, 1915."      Under clause  15 of  the Letters  Patent of  the Bombay High Court  no intra-court  appeal  lay  against  an  "order passed  or   made  in   the  exercise   of  the   power   of superintendence under  the provisions  of section 107 of the Government  of   India  Act".   By  the   same  process   of interpretation by  reason of  which the  phrase "pursuant to section 108  of the Government of India Act" in clause 15 is to be  read as  "pursuant to Article 225 of the Constitution of India",  the phrase "order passed or made in the exercise of the  power of  superintendence under  the  provisions  of section 107 of the Government of India Act" is to be read as "order passed  or made  in the  exercise  of  the  power  of superintendence under  the provisions  of Article 227 of the Constitution". The result is that an intra-court appeal does not lie against the judgment of a Single Judge of the Bombay High Court  given in  a petition under Article 227 by reason of such  appeal being  expressly barred  by clause 15 of the Letters Patent  of that  High Court.  This is  the view also taken by different High Courts (see, for instance, Jagannath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde, Sukhendu Barua v. Hare  Krishna De  & Ors. A.I.R. 1953 Cal. 636, Shrinivasa Reddiar and  Ors. v.  Krishnaswami Reddiar  and Ors., A.I.R. 1955 Mad. 72, In re V. Tirupuliswamy Naidu, I.L.R. 1955 Mad. 1083, s.c. A.I.R. 1955 Mad. 287, J. and K. Co-Operative Bank v. Shams-ud-din-  Bacha, A.I.R.  1970 J  & K 190, and Ishwar Singh v. Ram Piari and Anr, A.I.R. 1978 H.P. 39).      According to  the Full Bench, a right of appeal against the judgment  of a Single Judge in a petition under Articles 226 or 227 is expressly barred by Rule 18 of Chapter XVII of the  Bombay   High  Court   Appellate   Side   Rules,   1960 (hereinafter referred  to as "the Appellate Side Rules"). In order to  reach this  conclusion the  Full Bench relied upon

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the phrase  "finally disposed of" occurring in the said Rule 18. It  is not possible to accept the construction placed by the Full  Bench upon the said Rule 18. The Bombay High Court possesses both  an Original  Side and an Appellate Side. The Judges of  the High Court have, therefore framed two sets of rules of  Court, one for the Original Side and the other for the Appellate Side. We need not 835 trouble ourselves  with the  earlier sets  of rules but will confine ourselves  only to  referring to  the rules  now  in force. Under  Rule 636(1)  of the Rules of the High Court of Judicature at  Bombay (Original  Side), 1980, an application for the  issue of  a direction,  order or writ under Article 226 other than an application for a writ of habeas corpus is to be filed on the Original Side if the matter in dispute is or has  arisen substantially within Greater Bombay and is to be heard  and disposed  of by such one of the Judges sitting on the  Original Side  or any specially constituted Bench as the Chief  Justice may appoint. The provision in the earlier Original Side  Rules was  the same.  Under Chapter XXVIII of the Appellate  Side Rules,  all applications  for  writs  or orders in the nature of writs of habeas corpus under Article 226 of  the Constitution  are  to  be  made  and  heard  and disposed of  by the  Division Bench taking criminal business of the  Appellate Side  of the  High Court.  Under Rule 1 of Chapter XVII, of the Appellate Side Rules, every application for the  issue of  a direction,  order or writ under Article 226, if the matter in dispute is or has arisen substantially outside Greater  Bombay, is to be heard and disposed of by a Division Bench  appointed by  the Chief  Justice. Rule  4 of Chapter XVII is as follows :           "4. Division  Bench to dispose of the application;           rule nisi may be granted by a Single Judge.           Applications under  Rule  1  shall  be  heard  and           disposed of  by a  Division Bench;  but  a  Single           Judge may  grant rule nisi, provided that he shall           not pass any final order on the application." Under Rule  17 of  Chapter XVII, an application invoking the jurisdiction of  the High  Court under  Article 227  of  the Constitution or  under Article 228 of the Constitution is to be filed  on the Appellate Side and to be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The relevant provisions of Rule 18 are as follows :           "18. Single  Judge’s powers  to finally dispose of           applications under Article 226 or 227. -           Notwithstanding anything  contained in  Rules 1, 4           and 17 of this Chapter, applications under Article 836           226  or   Article  227  of  the  Constitution  (or           applications styled  as applications under Article           227 of  the Constitution  read with Article 226 of           the Constitution) arising out of -           (1) the  orders passed  by the Maharashtra Revenue           Tribunal under any enactment.           x           x             x                 x           may be  heard and  finally disposed of by a Single           Judge to  be appointed in this behalf by the Chief           Justice. x         x           x             x                 x The omitted portion of Rule 18 sets out the orders passed by authorities under  various statutes  and decrees  and orders passed by  subordinate courts  in any  suit  or  proceeding, excluding those  arising out  of the Parsi Chief Matrimonial Court, which  are to  be heard  and disposed  of by a Single Judge.

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    The  non   obstante  clause   in   Rule   18,   namely, "Notwithstanding anything  contained in Rules 1,4, and 17 of this Chapter",  makes it abundantly clear why that rule uses the words  "finally disposed of". As seen above, under Rules 1 and  17,  applications  under  Article  226  and  227  are required to  be heard  and disposed  of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi in  an application  under Article 226 but precludes him from passing  any final  order on  such application.  It  is because a  Single Judge has no power under Rules 1, 4 and 17 to hear  and dispose  of a petition under Article 226 or 227 that the non-obstante clause has been introduced in Rule 18. The use  of the words "be heard and finally disposed of by a Single Judge"  in Rule 18 merely clarifies the position that in such  cases the power of the Single Judge is not confined merely to issuing a rule nisi. These words were not intended to bar  a right  of appeal.  To say  that the words "finally disposed of"  mean finally  disposed of  so far  as the High Court is  concerned is  illogical because  Rules 1, 4 and 17 use the words "be heard and disposed of by a Division Bench" and were  the reasoning  of the Full Bench correct, it would mean that so far as the High Court is 837 concerned, when  a Single  Judge hears a matter and disposes it of,  it is  finally disposed of and when a Division Bench disposes it  of, it is not finally disposed of. The right of appeal against  the judgment  of a  Single Judge is given by the Letters  Patent which  have been  continued in  force by Article 225  of the  Constitution. If under the rules of the High Court,  a matter  is heard  and disposed of by a Single Judge, an  appeal lies  against his  judgment unless  it  is barred  either  under  the  Letters  Patent  or  some  other enactment. The  word "finally"  used in  Rule 18  of Chapter XVII of  the  Appellate  Side  Rules  does  not  and  cannot possibly have  the effect  of  barring  a  right  of  appeal conferred by  the Letters  Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition  under Article  226 is not barred while clause 15 itself bars  an intra-court appeal against the judgment of a Single Judge in a petition under Article 227.      Petitions are  at times  filed both  under Articles 226 and 227  of the Constitution. The case of Hari Vishnu Kamath v. Syed  Ahmad Ishaque  and others  [1955]  1  S.C.R.  1104, before this  Court was of such a type. Rule 18 provides that where  such  petitions  are  filed  against  orders  of  the tribunals or  authorities specified  in Rule  18 of  Chapter XVII of  the Appellate  Side Rules  or  against  decrees  or orders of courts specified in that Rule, they shall be heard and finally  disposed of  by a Single Judge. The question is whether an  appeal would lie from the decision of the Single Judge in  such a  case. In  our  opinion,  where  the  facts justify a  party  in  filing  an  application  either  under Article 226  or 227  of  the  Constitution,  and  the  party chooses to  file his  application under both these Articles, in fairness  and justice  to such  party and in order not to deprive him  of the valuable right of appeal the Court ought to treat  the application  as being  made under Article 226, and if  in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under  clause 15  of the  Letters  Patent  where  the substantial part  of the order sought to be appealed against is under  Article 226.  Such  was  the  view  taken  by  the Allahabad High  Court in  Aidal Singh  and others  v.  Karan Singh and others A.I.R. 1957 All. 414 F.B. and by the Punjab

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High Court  in Raj  Kishan Jain  v. Tulsi  Dass A.I.R.  1959 Punj. 291  and  Barham  Dutt  and  others  v.  Peoples’  Co- operative 838 Transport Society  Ltd., New  Delhi and  others A.I.R.  1961 Punj. 24 and we are in agreement with it.      For the reasons aforesaid it must be held that the Full Bench case  of Shankar  Naroba Salunke  & Ors.  v. Gyanchand Lobhachand Kothari & Ors. was wrongly decided except for the conclusion reached  by the  Full Bench  that no  appeal lies under clause  15 of  the Letters  Patent of  the Bombay High Court against  the judgment  of a  Single Judge of that High Court in  a petition  under Article  227 of the Constitution but not  the reasons  given by  the Full  Bench for reaching this particular conclusion. Accordingly, the said Full Bench decision is  hereby overruled  to the extent mentioned above and the  view  taken  by  the  Special  Bench  in  State  of Maharashtra v. Kusum Charudutt Bharme Upadhya is approved.      Before concluding the judgment on this part of the case it may  be mentioned  that in Shah Babulal Khimji v. Jayaben D. Kania  & Anr.  S. Murtaza  Fazal Ali,  J., who  spoke for himself and  Varadarajan, J.,  observed at  the end  of  his judgment as follows (at page 260) :           "Before closing this judgment we may indicate that           we have  refrained from  expressing any opinion on           the nature of any order passed by a Trial Judge in           any proceeding  under Art. 226 of the Constitution           which are  not governed  by the Letters Patent but           by rules  framed under the Code of Civil Procedure           under which in some High Courts writ petitions are           heard by  a Division  Bench. In  other High Courts           writ petitions  are heard  by a Single Judge and a           right of  appeal is  given from  the order  of the           Single  Judge   to  the   Division   Bench   after           preliminary hearing." The third member of the Bench, A.N. Sen, J., who delivered a separate judgment  did not make any observation to the above effect or concur with the above observation.      The question  whether an intra-court appeal lay against the judgment  of a  Single Judge in a petition under Article 226 or  227 of  the Constitution was not before the Court in Shah Babulal Khimji’s case and did not fall to be decided in it. In 839 fact, as  stated in  the above  passage, the Court refrained from expressing any opinion with respect to the nature of an order passed  in a  proceeding  under  Article  226  of  the Constitution. The  statement in  the above passage that such proceedings are  governed by  rules framed under the Code of Civil Procedure  and not  by Letters  Patent  was  merely  a casual and  passing observation  and not  intended to  be  a statement of  the law  on the  point. In  fact,  proceedings under Article  226 cannot  be governed  by rules made by the High Courts  under the  Code of Civil Procedure, 1908. Under sections 122  and 125  of the  Code,  the  High  Courts  are conferred the  power to  make  rules  regulating  their  own procedure and  the procedure  of the civil courts subject to their superintendence  and they  can by  such  rules  annul, alter or  add to  all or  any of  the  rules  in  the  First Schedule to  the Code.  These rules are, therefore, intended to regulate  the exercise of procedure in respect of matters to which  the Code  applies. The  Code deals  with suits and appeals, reference,  review  and  revision  arising  out  of orders and  decrees passed  in suits. Under section 141, the procedure provided  in the  Code in regard to suits is to be

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followed, as  far as  it can  be  made  applicable,  in  all proceedings  in   any  court   of  civil  jurisdiction.  The Explanation to  that section  inserted by  the Code of Civil Procedure (Amendment) Act, 1976, provides as follows :           "Explanation. -  In this  section, the  expression           ’proceedings’ includes proceedings under Order IX,           but does  not include any proceeding under article           226 of the Constitution." The power  of a  High Court  to make  rules of  Court and to regulate the  sittings of  the  Court  and  members  thereof sitting singly  or in  Division Courts is to be found in its charter, whether  it be  a statute  or Letters  Patent.  The position with  respect to  existing High  Courts has already been set  out in  detail above.  So far as High Courts which came  into   existence  after   the  commencement   of   the Constitution are  concerned, whenever  new High  Courts were set up  the relevant statute made provisions in that behalf, for  instance,  the  Andhra  State  Act,  1953,  the  States Reorganisation Act,  1956, the  Bombay  Reorganisation  Act, 1960, the  Delhi High  Court Act,  1966, and  the  State  of Himachal Pradesh  Act, 1970.  It is  the charter of the High Court which generally confers a right of intra-court 840 appeal and  it is the rules made under the rule-making power of the  High Court which generally provide which matters are to be  heard by a Single Judge and which by a Division Bench though at times statutes may also do so, as for example, the Kerala High  Court Act,  1958, and  the Karnataka High Court Act, 1961.  Where by the charter of a High Court matters are not required  to be heard by any particular number of Judges and such charter provides for an intra-court appeal from the decision of a Single Judge, whether such an appeal would lie or not  would depend  upon whether  by the rules made by the High Court  in the  exercise of  its rule-making  power  the matter is  heard by  a Single  Judge  or  a  Division  Bench subject to  the condition  that such  right of appeal is not otherwise excluded.      The petition  filed by the Appellants before the Nagpur Bench of  the Bombay High Court was admittedly under Article 227 of  the Constitution  and under  the rules  of the  High Court it was heard by a Single Judge. Under clause 15 of the Letters Patent  of that  High Court  an  intra-court  appeal against  the  decision  of  the  learned  Single  Judge  was expressly barred.  The appeal  filed by  the Appellants from the decision  of the Single Judge to the Division Bench was, therefore, rightly dismissed as being not maintainable.      Learned Counsel  for  the  Appellants  also  sought  to challenge the  decision of  the learned  Single Judge on the merits. The  real object of granting Special Leave to Appeal in this  case was to consider the question of law arising in the case.  Apart from the question of maintainability of the appeal, there  was no  merit in  the  appeal  filed  by  the Appellants before the Division Bench and even otherwise that appeal deserved to be dismissed.      In the  result, this Appeal fails and is dismissed. The parties will bear and pay their own costs of this Appeal. P.S.S.                               Appeals dismissed. 841