Umaji Keshao Meshram & Ors. v. Radhikabai W/O Anandrao Banapurkar & Anr.
.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 IDJSt
necessarily be read as a reference to Art. 227 of the
Constitution. So read an appeal under clause 15 is clearly
not maintainable against an order made in exercise of the
power under Art. 227. This is the view taken by all the High
Courts in India except the High Court of Bombay, where alone
opinion has not been unanimous.
MADON, J. The question which falls for determination in
this Appeal is ''Whether an appeal lies under clause 15 of the
Letters Patent of the Bombay High Court to a Division Bench of
two judges of that High Court from the judgment of a Single
Judge of that High Court in a petition filed under Article 226
or 227 of the Constitution of India?"
744 SUPREME COURT REPORTS (19861 1 s.c.R.
The facts which have given rise to this Appeal by
Special Leave granted by this Court need to be briefly stated.
The First Respondent, Radhikabai, is a widow. She is the owner
of three fields situate at Mouza Khed-Makta, Tahsil Brahma
puri, District Chandrapur. Kesheo, the father of the Appel
lants, was the tenant of the said fields. The First Respondent
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 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
l.<>hhach!lnd Kothari and Others Letters Patent Appeals Nos 3,
10, 11 and 17 of 1979 and 34 of 1980 decided on September 3,
1980. It is against the said order of the Division Bench that
the present Appeal by Special Leave has been filed by the
Appellants.
UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J,] 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 Viet., c.104). Clause 14
of the said Letters Patent provided as follows:
"14. Appeal from the <:ourts of original c
jurlscliction to tbe High <:ourt in its Sppellate
jurisdiction. -
And we do further ordain that an appeal shall
lie to the said High Court of Judicature at Bombay
from the judgment, in all cases of original civil D
jurisdiction, of one or more Judges of the said
High Court or of any Di vision Court, pursuant to
Section 13 of the said recited Act: Provided always
that no such appeal shall lie to the High Court as
aforesaid from any such decision made by a majority
of the full number of Judges of the said High E
Court, but that the right of appeal in such case
shall be to Us, Our heirs or successors, in Our 0r
Their Privy Council in manner hereinafter pro
vided.11
The Letters Patent issued in 1862 were revoked and F
replaced by Letters Patent dated December 28, 1865. Clause 15
of the new Letters Patent in its original form was in the
folloWing terms
' 115. Appeal from the <:ourts of original
jurlscliction to tbe High <:ourt in its appellate G
jurisdiction. -
And we do further ordain that an appeal shall lie
to the said High Court of Judicature at Bombay,
from the judgment (not being a sentence or order
passed or made in any criminal trial) of one Judge H
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 a100unt in number to a majority
of the whole of the Judges of the said High Court,
at the time being; but that the right of appeal
from other judgments of Judges of the said High
Court, or of such Division Court, shall be to Us,
Our heirs or successors, in Our or Their Privy
Council, as hereinafter provided."
By Letters Patent dated March 11, 1919, published in the
Bombay Government Gazette dated June 19, 1919, Part I, pages
1446-7, the words and brackets in clause 15, namely, "(not
being a sentence or order passed or made in any criminal
trial)", were substituted by the words and brackets "(not
being an order made in the exercise of revisional jurisdiction
and not being a sentence or order passed or made in the
exercise of the power of superintendence under the provisions
of section one hundred and seven of the Government of India
Act, 1915, or in the exercise of criminal jurisdiction)", By
Letters Patent dated December 9, 1927, published in the Bombay
Government Gazette dated February 2, 1928, Part I, pages
196-7, clause 15 was substituted. This subgtituted clause was
amended by Letters Patent dated January 22, 1929, published in
the Bombay Government Gazette dated January 24, 1929, Part I,
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 superin
tendence of the said High Court, and not being an
UMAJI KESHAO MESHRAM v. RADHIKABAI [MAOON, J. J 7 4 7
order made in the exercise of revisional jurisdic
tion and not beirig a sentence or order passed or
made in the exercise of the power of superin
tendence under the provisions of section 107 of the
Government of India Act or in the exereise of
criminal jurisdiction) of one Judge of the ·said B
High Court or one Judge of any Division Court,
pursuant to section 108 of the Government of India
Act, and that notwithstanding anything hereinbefore
provided an appeal shall lie to the said High Court
from a judgment of one Judge of the said High Court
or one Judge of any Division Court, pursuant to
section 108 of the Government of India Act made on c
or after the first day of· February One thousand
nine hundred and twenty-nine in the exercise of
appellate jurisdiction in respect of a decree or
order ·made in the exercise of appellate jurisdic
tion by a Court subject to the superintendence of
the said High Court, where the Judge who passed the o
judgment declares that the case is a fit one for
appeal; but that the right of appeal from other
judgments of Judges of the said High Court or of
such Division Court shall be to Us, Our Heirs or
Successors in Our or Their Privy Council, as here-
inafter provided." E
In clause 15 as substituted in 1927 the words "on or after the
first day of February One thousand nine · hundred and twenty
nine" did not find a place but were inaerted by the said
Letters Patent of 1929.
' It may be pointed out that the provision in clause 15
providing for an appeal from a judgment , in a second appeal
decided by a Judge of the High Court if such Judge declares
that the case is a fit one for appeal has now become
inoperative in view of section lOOA of the Code of Civil
Procedure, 1908, which was insf!rted in that Code by the Code
of Civil Procedure (Amendment) Act, 1976, · under which no
further appeal is to lie against the judgment of a single
Judge of the High Court in a second appeal. The provision in
clause 15 providing for an appeal from· the judgment of one
Judge of any Di vision Court has also become redundant and
inoperative after the amendment of clause 36 of the Letters
H '
,
Patent by the said Letters Patent dated December 9, 1927.
Prior to such amendment where a Division Bench was composed of
two or more Judges and ~he Judges were equally divided in
opinion as to the decisiqn to be given on any point, the
opinion of the senior Judge was to prevail and under clause 15
an appeal lay from his judgment. After the amendment of clause
36, if the Judges of the Division Bench are equally divided,
they are to state the point upon which they differ and the .J '
case has then to be heard upon that point by one or more of
the·other·Judges and the point is to be decided according to
the opinion of the majority of the Judges who have heard the
case including those who first heard it.
c When · analysed snd broken up into its competent parts .
clause 15 in its finally amended and operative form reads as
follows :
An appeal shall lie ·to the High Court of Judicature
at Bombay - I"'....,
(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
• 'i-
-"
UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J. ] 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 tmltatis tmltandis 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 Babula! Khimji v. Jayaben D. Kania and
Another [1982] l S.C.R. 187. In that case, a Single Judge
sitting on the Original Side of the Bombay High Court dismiss
ed an application made by the appellant for appointment of an
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 under that section read
with Rule 1 of Order XLlll of the Code and also because such
an order even on merits contained the quality of finality and E
would, therefore, be a "judgment" within the meaning of clause
15 of the Letters Patent. The question whether the judgment of
a Single Judge in a petition filed under Article 226 or 227 of
the Constitution of India was not before the Court in Shah
' Babula! Khintli's case and was not decided by it.
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.
In Jagaunath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde
[1965] 67 Bom. L.R. 609, s.c. (1965) Mah. L.J. 426 a
Di vision 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
• the coming into force of the Constitution the words "section
107 of the Government of India Act" (that is, of the
Government of India Act of 1915) in clause 15 should be read
as "Article 227 of the Constitution" inas111.1ch as Article 227
confers a power of superintendence as wide as was available to
the High Court under section 107 of the Government of India
-'( .
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 Co11stitution."
(2) the Constitution made a break with the past and
had made absolutely' a new original and vital begin
ning and it, therefore, followed as a matter of law
that as far as origin, source of power and the
conferment of constitutional authority were con
cerned, the Letters Patent or earlier legislation
had mere historical relevance and could not control
matters expressly provided in the Constitution.
(3) The High Courts were created as a result of the t'-~
Letters Patent issued under. the Indian High Courts
Act, 1861 (24 & 25 Viet. c. 104), and, therafore,
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 751
the establishment, creation and jurisdiction of the
High Courts had their. origin in the ordinary law
made by the "Imperial Parliament".
(4)_ The phraseology of the Letters Patent, the
Government of India Act of 1915 and the Government B
of India Act, 1935, make it obvious that the words
"original" and "appellate" were used with reference
to legal jurisdictions of the High Courts created
by ordinary legislations as distinct from organic
or Constitutional jurisdiction not subject to such
laws. The Constitutional jurisdiction conferred by
Article 226 or 227 cannot be equated with nor can c
form part of any of the jurisdictions within the
contemplation of the Letters Patent.
(5) The historical origin of clause 15 lies in the
Imperial device to provide an intra-court appeal in
causes heard in the exercise of its original civil D
jurisdiction by the High Court acting by its Single
Judge's Court, all other appeals being differently
provided for.
(6) The fact that the Letters Patent can be amend.id
by ordinary legislation shows that the jurisdiction E
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 "rev~sional jurisdiction" or
752 SUPREME COURT REPORTS [19861 1 s.c.R.
"power of superintendence 11 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 thst the power is exercised by him ;..,
for the entire High Court and, therefore, the
filing of an appeal against his judgment would
amount to filing a second writ petition in the same
matter which is not permissible.
(10) The expression "shall be heard and finally
disposed of" in Rule 18 of Chspter XVII of the
Bombay High Court Appellate Side Rules, 1960,
negatives the filing of any appeal in a proceeding
under Article 226 or 227 of the Constitution.
The question thereafter came to be considered by a
Special Bench of five Judges of the Bombay High Court in State
of Maharashtra v. Kuaum Oiarudutt Bharma Upadhye [ 1981] 83
l!Qm, L.R. 75, s.c. = (1981) Mah. L.J. 93. The Special Bench
traced in great detail the origin, growth and development of
the different powers and jurisdiction of the Bombay High Court
and referred to various· authorities on the point canvassed
before it. It held thst under Article 225 of the Constitution
of India, the High Courts of various Provinces which were in
existence immediately before the commencement of the Consti
tution continued on and from that date as the High Courts of
corresponding States possessing all the jurisdictions and
powers which they hsd prior to that date. It further held thst
Articles 226 and 227 of the Constitution did not confer upon
the existing High Courts wholly new powers not reflected in
any of the powers or jurisdictions possessed by any of them at
the commencement of the Constitution. According to the Special
Bench, the power under Article 226 was toodelled upon the.
prerogative, writ jurisdiction possessed by the three Chartered
High Courts, namely, the High Courts of Calcutta, Bombay and
Madras, in the exercise of their original jurisdiction, though
that power had been made 1111ch wider by Article 226, . and that
Article 227 derives its origin from section 15 of the Indian ""
\, ~.
}
""'·
UMAJI KESHAO MESllRAM v. RADHIXABAI [MADON, J. ] 7 53
High Courts Act, 1861, section 107 of. the Government of India
Act of 1915 and section 224 of the Government of India Act,
1935, and that this power also existed in the former Supreme
Court of Judicature at Bombay with respect' to the Court of
Requests and the Court of Quarter Sessions. The Special Bench
also held that by reason of the provisions of section 38(1) of
the Interpretation Act (52 & 53 Viet., c. 63) and section 8 of
the General Clauses Act,-1897, and on well-established princi
ples of interpretation of statutes the words "the power of
superintendence under the provisions of section 107 of the
Government of India Act" occurring in clause 15 of the Letters
Patent were to be read as "the power of superintendence under
the provisions of section 224 of the Government of India Act,
1935" when the 1935 Act came into force and by the same
process of interpretation when the Constitution of India came
into force the words "the power of superintendence under the
provisions of Article 227 of the Constitution" are to be read
for the words "the power of superintendence under the provi
sions of section 224 of the Government of India Act, 1935".
According to the Special Bench an appeal against the judgment
of a Single Judge in a proceeding under Article 227 of the
Constitution was, therefore, expressly barred by clause 15 of
the Letters Patent. The Special Bench also held that Articles
226 and 227 of the Constitution operated in different fields
and that in the exercise of its power under Article 226 the
High Court exercises original jurisdiction as contrasted with
its appellate or revisional jurisdictions and that where the
original proceeding under Article 226 concerned civil rights,
the proceeding under Article 226 would be an original civil
proceeding and, therefore, an appeal would lie under clause 15
of the Letters Patent against the judgment of a Single Judge
in such a proceeding. The Special Bench further held that the
words "heard and finally disposed of" in Rule . 18 of the
Chapter XVII of the Bombay High Court Appellate Side Rules,
1960, did not imply any exclusion of a Letters Patent appeal
against the judgment of a Single Judge in a proceeding under
Article 226 of the Constitution. According to the Special
Bench, where the facts justified a party in filing an applica
tion under either Article 226 or 227 of the Constitution and
the party chooses to file his application under both these
Articles., the court ought to treat the application as being
one made under Article 226. The Special Bench overruled the
decision in Sha*u llaroba Salm*e and otbem v. Gyancband
Lohhvbpnd Iothari and others except for the conclusion H
754 SUPREME COURT REPORTS (1986] 1 s.c.R.
A reached in that case that no appeal lies under clause 15 of
the Letters Patent against the judgment of a Single Judge of
the High Court in a proceeding under Article 227 of the
Constitution.
Though the Petition for Special Leave to Appeal in this
matter was filed in the end of April 1983 nearly two and a
half years after the judgment of the Special Bench was
delivered and nearly two years after it was reported,
strangely. enough what was challenged in the Petition for
Special Leave was only the correctness of the judgment of the
Full Bench and not that of the Special Bench. None the less,
in view of the iqiortance of the question raised by this
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 jurisdic
tions under the ordinary law only and not with any jurisdic
tion conferred upon the High Court by the Constitution, and
(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 ori
ginally enacted, pointing out where necessary the subsequent
changes made therein.
Clause (14) of Article 366 of the Constitution defines
the term ''High Court" as follows :
"(14) 'High Court' means any Court which is deemed
for the. purposes of this Coilstitution to be a High
Court for any State and. includes - /:" ....
(a) any Court in the territory of India constituted
or reconstituted under this Constitution as a High
Court, and
UMAJI KESHAO MESllRAM v. RADHIKABAI [MAOON, J,] 755
A (b) any other Gourt in the territory of India which
may be declared by Parliament by law to be a High
Court for all or any of the purposes of this
Constitution".
Chapter V of Part VI of the Constitution deals with High 11 Courts and is headed "The High Courts in the· States''. Article
214 as originally enacted provides as follows
"214. High Courts for States. -
(1) There shall be a High Court for each State.
(Z) For the purposes of this Constitution the High
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 referreci to in this article."
Clauses (2) and (3) of this Article were omitted with effect
from'November 1, 1956, by the Constitution (Seventh Amendment)
Act, 1956, in order to .implement the scheme of reorganization
of States.
Clauaes (1) and (2) of Article 1 of the Constitution as
originally enscted provided as follows
"(l) India, that is Bharat, shall be a Union of
States.
(2) The States and the.territories thereof shall be
the States and their territories specified in Parts
A, B and C of the First Schedule."
Clauae (2') was substituted by the Constitution (Seventh
Amendment) Act, 1956, to read "The States and the territories
thereof shall be as specified in the First Schedule." Under
the First Schedule to the Constitution, the territory
coq>rised in the Province of Bombay became the territory of
the State of Bombay, and by reason of Article 214(2) read with
p
756 SUPREME COURT REPORTS (1986] 1 S.C.R.
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 ~s. -
Subject to the provisions of this Constitution and
to the provisions of any law of the appropriate
Legislature made by virtue of powers conferred on
that Legislature by this Constitution, the juris
diction of, and the law administered in, any exist
ing High Court, and the res pee ti ve powers of the
Judges thereof in relation to the administration of
justice in the Court, including any power to make
rules of Court and to regulate the sittings of the
Court and of members thereof sitting alone or in
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
G (Forty-,.econd Amendment) Act, 1976, with effect from February
1, 1977, and was reinserted with effect from June 20, 1979, by
the Constitution (Forty-fourth Amendment) Act, 1978.
Clause (1) of Article 226 as originalli enacted provided as
follows :
i- ....
I, ·,
UMAJI KESllAO MESllRAM v~ RADHIKABAI [MAOON, J,] 757
"226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in Article 32, every
High Court shall have power, throughout the
territories in relation to which it exercises
jurisdicition, to issue to any person or authority,
including in appropriate cases any Government,
within those territories directions, orders or
writs, including writs in the nature of habeas
~· mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of
any of the rights conferred by Part Ill and for any
other purpose."
This clause, was substituted by the Constitution (Forty-second
Amendment) Act, 1976. Clause (1) as so substituted was
amended by the Constitution (Forty-third Amendment) Act,
1977, and the Constitution (Forty-fourth Amendment) Act, 1978,
with the result that clause (1) of Article 226 has now been
restored to its original form.
Article 227 as originally enacted provided as follows :
"22 7. Poooer of superinl:endence over all courts by
the High Court. - E
( 1) Every High Court shall have superintendence
over all courts and tribunals throughout the
territories in relation to which it exercises
jurisdiction.
(2) Without prejudice to the generality of the
foregoing provision, the High Court may c-
(a) call fer returns from such courts;
(b) make and issue general rules and prescribe G
form for regulating the practic_e and proceedings
of such courts; and
(c) prescribe form in which books, entries and
accounts shall be kept by. the officers of any such
courts. H
758 SUPREME COURT REPORl'S [19861 1 s.c.R.
(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 (!) of Article 227 was substituted with effect from
February I, 1977, by the Constitution (Forty-second Amendment)
Act, 1976, to read, "Every High Court shall have superin
tendence over all courts subject to its appellate jurisdic
tion". The clause was further substituted so as to restore it
to its original form by the Constitution (Forty-fourth Amend
ment) Act, i978, with effect from June 20, 1979.
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 neces
·sary 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."
•Y
UMAJI KE~HAO MESHRAM v, RADHIKABAI [MADON, J, ) 759
The above Article was amended by the Constitution (Forty-
second Amendment) Act, 1976; It was again amended by the
Constitution (Forty-third Amendment) Act, 1977, to resto~e it
to its original form. ·
Article 230 as originally enacted provided as follows: B
'230. Extension of or esclusion f.- the
jurisdiction of High Courts. -
Parliament may by law -
(a) extend the jurisdiction of a High Court to, or C
(b) exclude the jurisdiction of a High Court from,
any State specified in the First Schedule other
than, or any area not within, the State in which
the High Court has its principal seat."
This Article was substitute\! by the Constitution (Seventh
Amendment) Act, 1956, when the distinction between Parts A, B
and C States was done away with, and the Article now confers
power upon Parliament to extend the jurisdiction of a High
Court to, or exclude the jurisdiction of a High Court from, E
any Union Territory.
Article 372(1) provides as follows :
"372, Continuance in force of erlstl.ng 1- and
their adaptation. - · F
(1) Notwithstanding the repeal by this Constitution
of the enactments referred to in Article 395 but
subject to the other provisions of this Constitu
tion, all the law in force in the territory of
India immediately before the commencement of this G
Constitution shall continue in force therein until
altered or repealed or amended by a competent
Legislature or other competent authority."
The expression "existing law" is defined by clause (10) of
Article 366 to .mean "any' law, Ordinance, order, bye-law, rule H
or regulation passed or made before the commencement of this
760 SUPREME COURT REPORTS [19B6l l s.c.R.
Constitution by any Legislature, authority or person having
power to make such a law, Ordinance, order, by-law, rule or
regulatioil". , .
Under Article 367(1), unless the context otherwise
requires, the General Clauses Act, 1897, subject to any
adaptations and modlf ications that may be made therein by any
Presidential order made under Article 372 to bring it in
conformity with the provisions of the Constitution, is to
apply for the interpretation of the Constitution.
The result of the above Constitutional provisions may be
C su111111ed up thus
(1) Under Article 225, the High Courts exercising
jurisdiction in relation to the Provinces imne
diately before the commencement of the Constitution
(hereinafter referred to as "the exi~ting High
Courts") became the High Courts for the correspond- .).-'<"
ing States and exercised the same jurisdiction and
administered the same law as theretofore; and the
respective powers of the Judges of such High Courts
in relation to the administration of justice in
such Courts, including the power to make rules for
the Court and regulate the sittings of the Court
and of members thereof sitting singly or in
Di vision Courts, remained the same as immediately
before the connnencement of the Constitution.
(2) The proviso to Article 225 removed the bar to
the exercise of original jurisdiction by the ', ~
existing High Courts in matters concerning the r ·
revenue contained in section 226(1) of the
Goverrunent of India Act, 1935.
(3) Articles 226, 227 and 228 provided for the
exercise of certain specific powers by every High
Court, whether an existing High Court or a High
Court which may come to be established after the
coII1Dencement of the Constitution as some High
Courts in fact were, for example, the High Courts 'r'"'""
of Andhra Pradesh, Gujarat and Delhi. These speci-
fic powers are the power to issue directions,
•Y
UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J, ) 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 subordi-
nate court a case
of law as to
Constitution.
involving a substantial question
the interpretation of the
By section 8 of the States Reorganisation ACt, 1956 (Act
37 of 1956), a new State of Bombay was formed with effect from
"the appointed day", namely, November I, 1956, comprising
inter alia certain territories which then formed part of the
State of Madhya Pradesh aitd were by that section transferred
from that State to the new State of Bombay. These territories
comprised what l.s known as the "Vidarbha Region" consisting of
the districts of Buldana, Akola, Amravati, Yeotmal, Wardha,
Nagpur, Bhandara and Chanda (later named Chandrapur). It is
from this region that the appeals before the Full Bench as
also the present Appeal arise.
Section 49(1) of that Act provides as follows
"49, High Courts for the new States -
A.
( 1) 'll)e High Courts exercising immediately before E
the appointed day jurisdiction in relation to the
existing States , of Bombay, Madhya Pradesh and
Punjab shall, as from the appointed day, be deemed
to be the High Courts for the new States of Bombay,
Madhya Pradesh and Punjab, respectively.
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 (I) or sub-section (2), the Judges and Division
Courts of the High Court for a new State may also sit at such
p
762 SUPREME COURT REPORTS [19861 1 s.c.R.
other place or places in that State as the Chief Justice may,
with the approval of the Governor, appoint.
By a Presidential Order, namely, S.R.0, No. 2514 dated
October 27, 1956, published in the Gazette of India Extra
ordinary, 1956, Part II, Section 3, at page 2195, the princi
pal seat of the Bombay High Court was notified to be at
Bombay. A teq>orary Bench of the Bombay High Court waa·
established at Nagpur.
Sections 52, 54 and 57 of that Act provide as follows :
"52. Jurisdiction of Bigb. Courts for - States -
The High Court for a new State shall have, in
respect of any part of the territories included in
that new State, all such original, appellate and
other jurisdiction aa under the law in. force imme
diately before the appointed day, is exercisable in
respect of that part of the said territories by any
High Court or Judicial Colllllissioner' s Court for an
existing State.
"54. Practice and procedure -
Subject to the provisions of this Part, the law in
force immediately before the appointed day with
respect to practice and procedure in the High Court
for the corresponding State shall, with necessary
modifications, apply in relation to the High Court
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
•Y
UMAJI KE SHAO MESHRAM v. RADHIKABAI [MADON, J. ] 763
necessary modifications in relation to practice and
procedure in the High Court for the new State as if
made by that Court."
"5 7. Powers of Judges -
The law in force inmediately before the appointed
day relating to the· powers of the Chief Justice,
Single Judges and Division Courts of the High Court
for the corresponding State and with respect to
matters ancillary to the exercise of those powers
shall, with the necessary modifications, apply in
relation to the High Court for a new State."
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 Boml>ay" was to be known as "the
State of Maharashtra". By section 28 of the Bombay Reorgani
sation Act, a separate High Court was formed for the State of
Gujarat from the appointed day. Section 28(1) of that Act
further provided that "the High Court of Bombay shall become
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:
Provided that the Chief Justice may, in his
discretion, order that any case arising in any such
districts shall be heard at Bombay."
It was the Permanent Bench of the Bombay High Court at Nagpur
which decided the said Full Bench · case of Sbankar Naroba
Sal•mke and others' v. GyMchand Lobbachand Kothari and others
as also passed the order appealed against in the' case before
us. The Special Bench case of the State of Maharashtra v.
lusua llw:udutt llharma Upadhye was decided by the Bombay High
Court sitting at its principal seat at Bombay.
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 re
presentation in Parliament and for the administration of that
Union Territory and for matters connected therewith. Section
11 of that Act provided that "As from such date as the Central
Government may, by notification in the Official Gazette,
specify, the jurisdiction of the High Coutt at Bombay shall
extend to Dadra and Nagar llaveli." The date specified was July
1, 1965, by notification published in the Gazette of India
Extra-ordinary dated June 17, 1965, Part II, Section 3(ii), at
page 579. In exercise of the power conferred by Article 230
Parliament enacted the High Court at Bombay (Extension of
Jurisdiction to Goa, Daman and Diu) Act, 1981 (Act No.26 of
1981). Under that Act as from the appointed day, the
jurisdiction of the High Court at Bombay was extended to the
Union Territory of Goa, Daman and Diu and the Judicial Conmis
sioner's Court which was till then functioning there was
abolished. By Government of India Notification in the Ministry
of Law, Justice and Company Affairs No. 64/1/81 Jus. dated
October 8, 1982, the Central Government appointed October 30,
1982, as the date on which the said Act would come into force,
and with effect from that date a Permanent. Bench of the Bombay
High Court was established at Panaji. Under sectfo11 51(3) of
the States Reorganisation Act, with effect from August 27,
1981, a temporary Bench of the Bombay High Court "'"'
y ..
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 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-Reorganiza- D
tion State of Bombay and the jurisdiction of, and the law
administer~d in, the Bombay High Court and the respective
powers of the Judges thereof in relation to the administration
of Justice in the Court, including the power to make rules of
Court and to regulate the sittings of the Court and of members
thereof sittlng alone or in Division Courts, continued to be E
the same as they were immediately before the commencement of
the Constitution. Further, the Bombay High Court was also
vested with the specific powers conferred bY Articles 226, 227
and 228 of the Constitution. All existing laws, Ordinances,
Orders, bye-laws, rules and regulations made by any competent
Legislature, authority or person continued to be administered F
by the Bombay High Court until altered or repealed or amended
bY a competent Legislature or other competent authority.
Thus, by the Constitution itself the High Court for the former
Province of Bombay was made the High Cour~ for .the pre
Reorganisation State of Bombay with the same jurisdictions
and powers, including rule-making power and the power to G
regulate the sittings of the Court either by Judges sitting
alone or in Division Benches, which it previously possessed.
The Letters Patent of the Bombay High Court and the rules made
by that High Court thus continued to be in operation by virtue
of the Constitution itself. The statutory provisions referred
to above show that the Bombay High Court as the High Court for H
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-Reorgani
zation 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, llllch useful.infor-
mation 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 Mministration of Justice in British India" by William H.
Morley published in 1858. Herbert Cowell' s Tagore Law Lectur- 1-- ·
es entitled "History and Constitution of the Courts and Legis-
lative Authorities in India" published in 1872, "Bombay in the
Making - Being Mostly a History of the Origin and Growth of
Judicial Institutions in the Western Presidency, 1661-1726" by
Phiroze B.M. Malabari published in 1910, "First Century of
British Justice in India" by Sir Charles Fawcett (a former
Judge of the Bombay High Court) published in 1934 under the
patronage of the Secretary of State for India in Council, M.C.
Setalvad's Hamlyn Lecture on "The ComrDJn Law in India" 'r-..,._
published in 1960, "Famous Judges, Lawyers and Cases of Bombay
- A Judicial History of Bombay during the British Period" by
P.B. Vacha published in 1962, "City of Gold - The Biography of
UMAJI KESHAO MES!IRAM v. RADHIKABAI [MA!XlN, J,] 767
Bombay" by Gillian Tindall published in 1962, and "The East
India Company's Sadar Courts 1601-1634" by Sir Orby Mootham
(former Chief Justice of the Allahabad High Court) published
in 1962. A judicial decision in which IDlch valuable infor
mation can be found is the judgment of Westropp, J,, who spoke
for the Court in the case of llaoroji Berugi v. Henry Rogers B
[1866-67] 4 Bom. H.C.R. 1.
Bombay consisted originally of seven small islands in
addition to some islets in the harbour. The seven islands
which became the City and Island of Bombay were Colaba, Old
Woman's Island, Bombay which waa the main island, Mazagaon,
Pare! (also at times called by some writers by the names of C
its other three sections - Matunga, Dharavi and Sion), Mahim
and Worli. These seven islands practically retained their
original shape until the eighteenth century. · Some scholars
believe Bombay to be the 'Haptanesia' mentioned by the second
century astronomer, geographer and cosmographer Ptolemy
(Claudius Ptolomaeus ) in his 'Geographike Huphegesis' ('Guide D
to Geography'). It is unnecessary to trace the history of
Bombay from its earliest days. Suffice it to say that after
passing through various hands it came to form part of .the
territories of Sultan Bahadur Shah of Gujarat. By'the Treaty
of Bassein dated December 23, 1534, negotiated by Shah Khwajeh
on behalf of Bahadur Shah and Nano da Cunha the Viceroy of E
Goa, on behalf of. the King of Portugal, and signed on board
the galleon "San Mateos", Bahadur Shah ceded to the King of
Portugal "the City of Bassein, its territories, islands and
seas" (which included the above-mentioned seven islands) in
return for Portuguese assistance against the Mogul Emperor.
This treaty was confirmed the next year on October 25, 1535, F
by a treaty of peace and commerce between Bahadur Shah and
Nuno da Cunha on behalf of the King of Portugal. The natural
advantages of Bombay soon aroused the cupidity of the English
who recognized its value as a naval baae, They, therefore,
with the Dutch aa their allies, landed at Bombay and burnt the
manor-house in 1626 and, according to some contemporary G
reports, actually seized it from the Portuguese but thereafter
abandoned it for some unknown reason. There were regular
efforts made by the Company of London merchants (hereinafter
referred to aa "the London Company"), which , had obtained by
Royal Charter the right to trade with the East Indies, urging
the Crown at)d thereafter the Lord Protector Oliver Cro..,ell to H
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, terri
tories and appurtenances whatsoever there-unto belonging, and
together with all income and revenue, as also the direct and
absolute Dominion and Sovereignty of the said Port and Island
of Bombay and premises,, with all their royalties, freely,
fully, entirely and absolutely." What is significant about
this Marriage Treaty is that while in the case of Tangitr the
third article of the Treaty provided that "they (the inhabi
tants of the City and Fort of Tangier) shall be ruled and
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 only part of India directly under the
British Crown while the rest of British India was until 1858
held by the British under the 'fil'llllll' of the Mogul Emperor
Shah Alam granted on August 12, 1765, and grants made and
territories ceded by other Indian rulers and the territories
acquired by the East India Company by conquest. Though the
King of Portugal did not realize the value and Potentialities
of Bombay, the Portuguese Viceroy of Goa, Don Antonio de Mello
de Castro, who exercised viceroyalty over all the Portuguese
possessions in India including Bombay did and he teq>oriZed
and put off handing over possession of Bombay to the'tepresen
tatives of the British Crown so that the English Fleet under
the Earl of Marlborough (later Duke) which arrived at Bombay
in September 1662 was kept off from taking ptisS!'BSion and
sailed away on January 14, 1663, and it was not until February
18, 1665, that Bombay was handed over to the British.
Upon obtaining possession of the Island of Bombay,
Charles II, ill return for a substantial loan by a Charter
'( .
{
" '
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON,' J.] 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 tl\e Poi:t and Island of Bombay
"with all the rights, profits, territories, and. appurtenances
thereof . whatsoever," etc., in as large a manner as the Crown
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
inhnbitants of the Port and Island), "to hsve, hold," etc.,
the S!lid Port and Island, etc., "unto them (the London
Company), to the only use of them (the London Company), their
successors and assigns for evermore, to be holden of Us, Our
Heirs and Successors as of the Manor of East Greenwich in the
County of Kent, in fre1! and common Socage, and not in Capite,
nor by Xnight' s Service," at the rent of ten pounds yearly
payable to the Crown. ·
We may pause here to cast a look backwards to see how
the London Company came into existence. The London Company
came into being on December 31, 1601, when by a Royal Charter
granted on thst date, Queen Elizabeth I created a body
corporate consisting of "the Governor and Coqiany of the
Merchants of Londo.n trading into the East Indies". Amongst
other things the Charter empowered the London Company to make
and enforce laws "for the good government of the said Coqiany,
and of all factors, masters, mariners, and other officers
P.mployed or to be employed in any of their voyages, and for
the better advancement and continuance of the said trade and
traffic • • • Soe alwais the said lawes • · • • be reasonable
and not contrary or repugnant to the lawes, statutes or
Cl18tomes of this Our Realm." It is pertinent to note that
this pawer to legislate contained no express reference to
factories or territories. This was pointed out by Westropp J.,
in Naoroji Beramji v. Henry Bogen [1866-67] .4 Bom. H.C.R. 1.
This Charter was renewed and confirmed in nearly identical
language by Letters Patent granted by James I on May 31, 1609,
and again by a Charter granted on February 4, 1622, by the
same monarch. The Charter of 1622 also empowered the Company
770 SUPREME COURT REPORTS [19861 1 s.c.R.
to chastise and correct all English persons residing in the
East Indies and colllldtting any misdemeanour either with
martial law or otherwise. On his restoration to the throne
Charles II confirmed both the above Charters by Letters Patent
granted on April 3, 1661. This Charter conferred upon the
Governor and his Council of each place where the Company had
or should have a factory or place of trade within the Eaat
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
!J>ndon Company got under this Charter the power to judge
according to the laws of England not only its """ servants but
all pP.rsons who should live under it - a power excerciseable
by it not only in the places where it had factories or places
of trade but also in those places where it may have in future
any factories or places of trade. This was the first Charter
that actually created Courts of Justice in British India by
making the Governor and the Council of each such factory or
place of trade the judge in all civil or criminal matters
according to the laws of England. The reason for the Harriage
Treaty of Charles II not containing in the case of Bombay a
provision similar to that in the case of Tangier for the
inhabitants to be ruled and governed by Portuguese laws and
customs now becomes obvious. · Since the Charter of 1661
empowered the Company to establish Courts of Justice and
further provided that the laws of England should prevail in
all the factories and settlements subordinate to it, a provi
sion in the Harriage Treaty that Portuguese laws and custo1111
should prevail in Bombay would have been inconsistent with the
Charter .of 1661, as Charles II always contemplated handing
over Bombay to the London Company.
A word about the free and co111110n socage tenure under
which the !J>ndon Company held the Port and Island of Bombay
would not be out of place. Socage was a form of land tenure.
Originally, it was ~f two kinds - free socage and villein
socage, depending upon whether the services were free or base.
Thus, where a man held land by fealty· and a fixed rent, the
teilllre was free socage. Free socage was of two kinds - eocage
in capite and c0111110n socage. Free and co11111Dn socage by which
the London Company was to hold the Island of Bombay under the
Charter of 1668 was the modern ordinary freehold tenure. The
UMAJI KESHAO MESllRAM v, RADHIKABAI [MADON, J. ] 771
Charter also enabled the Company "as a general court, to
establish under their colllll¥ln seal, any laws whatsoever for the
good government of Bombay, and the inhabitants thereof .. ,
provided that the said laws , , , be consonant to reason, and
not repugnant to the laws of this Our Realm of England .. , "
The London Company placed Bombay under the control of the
Governor and his Council at Surat with a Deputy Governor at
Bombay.
In 1669 the London Company sent out detailed
instructions for the establishment of a Court of Justice in
Bombay but it was, however, not until three years later that
the first court was established by Gerald Aungier who was the C
President of the Surat · Council and the second Governor of
Bombay and who may well be ,called the Father of the modem
City of Bombay for which he visualized a splendid future,
calling it "the city which by God's assistance is intended to
be built", and it was to this end that he directed his
administration and efforts. For the purpose of establishing a D
Court of Judicature in Bombay he issued a proclamation "for
abolishing the Portuguese laws, and for establishing the
English" from and after August 1, 1673, The opening ceremny
of the Court took place on August 8, 1672, commencing with a
ceremonial procession from the Fort to the guild-hall.
Aungier then entered the Court, took the chair. After the E
Letters Patent granted by Charles II to the London Company for
the Island of Bombay were read and the oaths of office
administered to the Judge and others, Aungier made a speech.
Today, when there is so 1111ch concern for preserving the
independence of the judiciary, it is worth reproducing that
speech •. Aungier said : F
"The Inhabitants of this Island consist of
several/nations and Religions to wit - English,
Portuguese and other Christians, Moores, and
Jentues, but ·you, when you sit in this seat of
Justice and Judgment, 1111st look upon them with one
single eye as I doe, without distinction of Nation
or Religion, for they are all his Majesties and the
Hon'ble Company's 'subjects as the English are, and
have all an equal! title and right to Justice and
you IDJSt doe them all justice, even the meanest
person of the Island, and in particulare the Poore,
l!
772 SUPREME COURT REPORTS (19861 i s.c.a.
the Orphan, the Widdow and the stranger, in all
matters of controversy, of Connon right, and llewa
and Tuum; And this not only one against the other,
but even against myself and those who are in office
under me, nay against the Hon 'ble Company
themselves when Law, Reason and Equity shall
require you soe to doe, for this is your Duty and
therein will you be justified, and in soe doing God
will be with you to strengthen you, his Majeatie
and the Company will commend you and reward you,
and I, in my place, shall be ready to assist,
Countenance, honour and protect you to the ut111Dst
of tlie power and Authority entrusted to me; and eoe
I pray God give his blessing .to you."
The late Mr. M. c. Set al vad in hie Hamlyn Lecture
"The Common Law in India" has thus eulogized this speech (pp.
10-11) :
"The noble ""rds of Governor Aungier ,,, enunciate
principles which in the course of years that
followed set the pattern for the administration of
justice not only in the island but in other areas
in the country which gradually fell under the s1<ay
of the British .. • Thus were laid the foundations
in the seventeenth century albeit in the small area
of the town and island of Bombay of the application
of English laws to Indians residing in the
Presidency Towns and of the system of administering
justice fostered by the common law in Engl.and."
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
aleo took cognizance of civil causes of the value of and
exceeding 200 xeraphins and all criminal actions. All trials
before the superior Court were jury trials,
y
'
. ..,
'
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 773
By a Charter dated October 5, 1677, Charles 11 confirmed
the Letters Patent of 1661 and the Charter of 1668, and by
another Charter dated August 9, 1683, he confirmed the earlier
Charters granted by Elizabeth I, James I and himself and inter
alia provided for establishing a Court of Judicature to be
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 Ill and Mary 11
ascended the throne they confirmed the earlier Charters by a
,Charter dated October 7, 1693. Under it, the laws which the
Company had power to make were not to be contrary or repugnant
to the laws, statutes or customs of England.
Meanwhile the London Company's rivals had formed a new
society and had demanded a Charter. To enable this to be
done, Parliament enacted Statute 9 and 10 Wm. Ill, c.44,
providing for "raising a sum not exceeding two millions, upon
a Fund for payment of Annuities, after the rate of eight
powids per centum and for settling the Trade to the East
Indies." Section 62 of that Statute authorized the King, if
the said sum or half of it were subscribed by September 29,
1698, by Letters Patent under the Great Seal of England, to
incorporate the subscribers, by such name as he may think fit,
"to be one Company, with power to manage and carry on their
trade to the East Indies." The whole fund being subscribed,
·William Ill by Cha~ter dated September 5, 1698, incorporated
the subscribers "to be one body politic and corporate, by the
name of the English Company trading to the East Indies"
(hereinafte~ referred to as "the English Company"). This
Charter contained provisions for establishing Courts to try
mercantile and maritime causes similar to those provided for
in the Charters of 1683 and 1686 granted to the London
Company. An Act of Parliament of 1698 ultimately granted the
monopoly of Indian trade to those who contributed to it a loan
of ~20,00,000. The London Company gave a loan of )l:-3, 15,000
and retained its supremacy, keepihg its forts and privileges
in India, but the English Company had gained a foothold in the
774 SUPREME COURT REPORTS [19861 1 s.c.R.
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 ~een Anne to bring about a speedy and coq>lete
union of the two Companies and in pursuance of the said Act
all matters in dispute between the two Companies were ref erred
to the final arbitrament of the Earl of Godolphin, the Lord
High Treasurer. By a Deed Poll dated September 29, 1708, Lord
Godolphin made his award by virtue of which the union of the
two Companies was completed. By a Deed Poll enrolled in
Chancery, dated March 22, 1709, the London Company, in
pursuance of Lord Godolphin's award, and for the entire
extinguishment of its corporate capadty, granted, surrender
ed, yielded, and gave up to the Queen, her heirs and success
ors, its corporate capacity or body politic and all its
charters, capacities, powers and rights whatever, for acting
as or continuing to be a body politic or corporate, by virtue
of any Acts of Parliament, Letters Patent, or Charters what
ever. The United Company which thus emerged will be herein
after referred to as "the East India Company". It may be
mentioned that section 111 of Statute 3 and 4 Wm. IV c.85,
provided that in all suits, proceedings, and transactions
whatsoever, the United Company be called "The East-India
Company."
The working of Company's Courts proved so ineffective
that the Court of Directors of the East India Company made a
representation to the King in which they emphasized the need
for "a competent power and authority" at Madras, Bombay and
!MA.JI KESllAO MESHRAM v. RADHIKABAI [MADON, J,] 775
Calcutta "for the more speedy and factual administering of
justice in civil cases and for the trying and punishing of
capital and other criminal offences and misdemeanours," and
begged permission to establish a Mayor's Court at all these
centres. On September 24, 1726, King George I issued a new
Charter for a Mayor's Court at Bombay, Madras and Calcutta. B
The Mayor's Court was to consist of a Mayor and nine Aldermen.
The Mayor's Court was declared a Court of Record and was
empowered to hear civil cases of all kinds subject to an
appeal to the Governor and Council and a further appeal to the
Privy Council if the amount involved exceeded Rs.3,000. The
Mayor's Court had also authority to grant probate and letters
of administration. By the same Charter the Governor and c
Council were constituted a Court of Record and were authorized
to hold quarter sessions. The President and five senior
members of the Council were created Justices of the Peace and
constituted a Court of Oyer and Terminer and Gaol Delivery.
The Governor and Council had jurisdiction to try all offences
except high treason. The Mayor's Courts were to be the Courts D
of the King of England and were not to be the Company's Courts
though at that time the King of England had no claim to
sovereignty over any part of the country except the Island of
Bombay. By the Charter dated November 17, 1727, George II
granted to the East India Company the fines imposed by these
Courts. The Mayor's Court was established at Bombay on E
February 10, 1728,
The working of the Mayor's Court created dissatisfac
tion, particularly in the matter of the 'cow-oath' which the
Mayor's Court insisted upon all Hindu witnesses taking and
which consisted of the witness being made to take hold of a F
cow's tail in court and swear to speak the truth. Ultimately,
the Court of Directors in England prohibited this practice.
The administration of criminal justice by the Court of the
Governor and Council proved equally unsatisfactory for that
Court failed lamentably to live up to the noble principles
enunciated by Governor Aungier while establishing the first G
Court of Judicature at Bombay. For instance, when the slave
boy in collusion with the ·housekeeper of one Jenkinson robbed
his escritoire of fifteen guineas, they were both sentenced to
be hanged but when George Scott, a member of the Council,
Justice of the Peace, Marine Paymaster and' Keeper of the
Custom-house of Mahim, was convicted of the gross oppression H
776 SUPREME COURT REPORTS (19861 1 s.c.R.
of three Indians for the purpose of extorting ten rupees, he
was merely fined five pounds and deprived of his Connnission.
The defects in the working of these Courts had beco100 so
patent by the middle of the eighteenth century that the Court
of Directors was obliged to request for a new Charter which
was granted by King George II on January 8, 1753, and by this
y
B Charter, the Mayor's Courts were re-established as Courts of ~
Record with similar jurisdiction but curtailed in several
respects; for instance, the Charter limited the civil juris
diction of the Mayor's Courts to suits between non-Indians and
forbade the Court from entertaining suits between Indian
inhabitants of Bombay except with the express consent of
C parties, while the jurisdiction of the Governor and Council in
criminal matters was limited to an offence colllllitted within
Bombay. A Court of Requests (the predecessor of the Bombay
Presidency Small Cause Court) was also created for the summary
disposal of small cases not exceeding five pagodas or rupees
fifteen in value. -~
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. lII,
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 M8Yor' 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. Ill, 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
i
UMA.Jl KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 777
A 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 Ill
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 B
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 jurisdictio.n. 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 circum- C
stances 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 Courf which had been set up at Madras was D
abolished by the Government of India Act, 1800 (39 & 40
Geo.Ill, 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 E
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 Co-~rt at
Bombay and in its place to establish for Bombay and its
dependencies a Supreme Court to be a Court. of Re.cord consist
ing of the same number of Judges, possessing a similar juris- F
diction and the same powers and subject to the same restric
tions 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 G
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 H.
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 Sup.-eme Court of Judicature at Bombay was formally
inaugurated on May 8, 1824. <:lause 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 followa :
"5, Tue Court invested with a jurisdiction silll.lar
to the Jurisdiction of the Kl.ng 's Bench in
England.-
AND it is our further will and pleasure, That the
said ad.ef 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 Coro
ners, within and .throughout the Settlement of
Bombay, and the Town and Is land of Bombay, and the
limits thereof, and the Factories subordinate
thereto and all the territories which now are ''<>r
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 Kl.ng' s Bench have and may lawfully exer
c:l.se, within that part of Great Britain called
England, as far as cirCUEtances 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 clauses original
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 779
A 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, intes
tate, and admiralty jurisdictions were conferred upon the said
Supreme Court. Clause 32 conferred upon the Supreme Court the B
power to frame> process and make rules. Clause SS made the
Court of Requests and the Court of Quarter Sessions establish-
ed at Bombay subject to the control of the Supreme Court of
Judicature at Bombay, and was in the following terms
"SS. Court of Requests and ~er
subject to this Court. -
Sessions,
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 D
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 llagistrates shall be subject to the
order and control of the said Supreme Court of E
Judicature at Bombay, in such sort, ll8Dller, and
fona, as ·the Inferior Courts and Magistrates of and
in that part of Great Britain called l!ogland, 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 F
ellpOlft!red and authorized to mnml and issue a writ
or writs of Kandpnw1s, 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 llDY contempt thereof, or
wilful disobedience thereunto, by fine and .im-
prisonment."
(Emphasis supplied.}
Clause 56 provided for an appeal to the Privy Council from any
judgment or determination of the said Supreme Court.
Three things are pertinent to note about the Letters
Patent of the Supreme Court of Judicature at Bombay. The first
is that by clause S 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 SS 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 manda:nus, 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 S6 an appeal .....
lay directly to the Privy Council. "
Before we turn to tne 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 rest of the
Bombay Presidency. Until 176S the jurisdiction of the East
India Company's Law Courts was confined to the factories of
the Company and its branches. In 176S Robert Clive secured, or
rather exacted, the Dewany of Bengal, Bihar and Orissa from
the titular Mogul Emperor Shah Alam in Delhi. In this delegat-
ed capacity, the East India Company derived its title to
adm.inister 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 T
Company's authority to adm.inister these provinces was the
sword and not the 'firman' of the Mogul Emperor. The Regulat-
ing 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,
'
'I
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 781
c.79), the Madras Government and by Statute 47 Geo.Ill, c. 68, A
the Bombay Government were invested within the territories
subject to their respective governments with the same legis
lative 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 Gover~nt 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 establishe'd
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 Ill 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 Crlminal
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 Vll 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. 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.
On becoming Governor, Mountstuart Elphinstone set' up in
August 1820 a committee "to examine the existing law and
pracl:ice and to prepare a comprehensive code, expressed in
non-technical language, which would as far as possible
preserve native institutions• 1• Following upon the recommend
ations of the committee, on January 1, 1827, twenty-six
Regulations known as the Elphinstone Code were passed which
(with the exception of Regulation XVIII) crune 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 waa 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 I
Foujdari Adalat was vested with supreme criminal jurisdiction
over the whole of the Bombay Presidency- except the Town and
Island of Bombay. It waa, 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
'r-
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J, ] 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 Rugsbette'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 ~etting 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 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~neral in Council was to comnrunicate 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 1aws which were
made in pursuance of the Statute of 1833 were known as
"Acts". The Government of India Act of 1853 (16 & 17 Viet.,
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 other
wise 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
185? led to the passing of the Government of India Act of 1858
784 SUPREME COURT REPORTS. [19861 1 s.c.R.
(21 & 22 Viet., 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
~nd 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, 1S61 (24 & 25 Viet., 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, Testamen
tary, 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 Ber Majesty 118J by such Letters
I
UMAJI KESHAO MESllRAM v, RADHIKABAI [MAOON, J, ] 785
A Patent aa aforesaid grant and direct, subject,
however, to such Directions and Limitations as to
the EKercise of original Civil and Criminal Juris
diction beyond the Limits of the Presidency Towns
as may be prescribed thereby; aud, save aa by such
Letters Patent may be otherwise directed, and B
subject and without prejudice to the Legislative
Powers in relatioo to the Mattera aa aforesaid of
the Governo~ral 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 c
this Act at the Time of the Abolition of such ',
last-mentioned Courts.
10. High Courts to exercise same jurisdiction aa
Supreme Courts. -
Until the Crown shall otherwise provide under the
Powers of this Act, all .Jurisdiction ,_ """rcised
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 """rcised by such High
Courts respectively.
(Emphasis supplied)
"11. l!rlsting Provisions applicable to Supreme
Courts to apply to High Courts. -
Upon the Establishment of the said High Courts in
the said Presidencies respectively i'll 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 Establish
ment of such High Courts are respectively appli -
cable to the Supreme Courts at Fort William in
Bengal, Madras and Bombay respectively, or to the
A.
Judges of those Courts, shall be taken to be appli
cable 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 A.ct 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
C with or without the Chief Justice, should constitute the
several Division Courts. These two sections were in thes~
terms :
"13. POiler to High Courts to provide for Exercise ~
of Jurisdiction by single Judges or Di vision ·
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
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. -
Th,. 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 A.ct conferred upon the High Court the
UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.] 787
power of superintendence qver 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 B
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 subonllnate Courts.-
Each of the High Courts established under this Act
shsll have Superintendence over all Courts which
may be subject to its appellate Jurisdiction and
shsll have Power to call for Returns, and to direct
tbe 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 Account-s 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 sha11
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 i"ssued 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.)
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 Court
for the Presidencies of Bombay and Madras respectively. The
Letters Patent of the Madras and Bombay· High Courts were
1111tatis 1111tandis 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
D .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". Clauaes 11 to 17 formed a group of clauses which bore
the heading "Civil Jurisdiction of the High Court". Under
E 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 regula
tion 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
p 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 superin
tendence of the High Court, whether such court was within or
G 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 subor
dinate civil courts in the Presidency. Other clauses of ·the
1862 Letters Patent conferred upon the Bombay High Court
\
lil!AJI KESHAO MESHRAM v. RADHIKABAl [MADON, J,] 789
jurisdiction over infants and lunatics, inaolvency jurisdic
tion, civil and criminal, admiralty and vice-admiralty, testa
mentary and intestate jurisdiction, matrimonial jurisdiction,
and ordinary and extraordinary original criminal jurisdiction
over all persona residing in places within the jurisdiction of
any court then subject to the superintendence of the Sadar a
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 conatituted by one or more Judges of the
High Court. Clause 25, however, cot1ferred 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 C
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 juris
diction might be performed by any Judge or by any Division D
Court 9f the High Court appointed or conatituted for S\lCh
purpose by section 13 of the Indian High Courts Act, 1861,
Under clause 44 of the said Letters Patent so DUCh of the
Letters Patent of the Supreme Court of Judicature at Bombay as
were inconaistent "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 utter1y void t9 al1
intents and purpr;>ses whatsoever."
The Bombay -High Court was fol'111!1lly 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 F
High Court.
Under section 17 of the Indian High Courts Act, 1S61, the
Crow'n 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 provisiona G
of the Letters Patent by which such Court was established and
could grant and make such other powers and provisiona as the
Crown thought fit. The said section also conferred power by
similar Letters Patent to grant any additional or
supplementary powers and provisiona without revoking the
earlier Letters Patent. By the Indian High Courts Act, 1865 H
(28 & 29 Viet., c.15), the time for issuing fresh Letters
Patent was extended to January l, 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 !ugh
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 Jurisdic
tion 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 juris
diction", 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, testament
ary 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
\
UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J. ] 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 :
" 36. Single Judges and Division Courts.
And we do hereby declare that any function, which
is hereby directed to be perfomed by the said High
Court of Judicature at Bombay in the exercise of
ita original or appellate jurisdiction, may be
perfored bJ any Judge or any Division Court
thereof, appointed or constituted for such purpose,
in pursuance of section One hundred and eight of C
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 D
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 clauae was amended by the Letters E
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 proceed
ings in its admiralty, vice-admirality, intestate and matri
mnial jurisdictions respectively, with this proviso that the F
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. Clauae 41 deals with appeals in
criminal cases. Clauae 44 made the Letters Patent subject to _ G
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 IIllch of the aforesaid Letters Patent granted by
His Majesty King George the Fourth (that is, the H
Letters Pate\lt 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 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 unitacy, 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 comnencement 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
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 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 B
101(1), 106, 107 and 108 provided as follows : ,
"101. Constitution of high C011rta. -
(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 D
offences committed on the high seas, and all such
powers and authority over or fo 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 E
letters patent, and, subject to the provisions of
any such letters patent, all such jurisdiction,
powers and authority as are v_ested in those courts
respectively at the commencement of this Act.
(1-A) The letters patent establishing or vesting F
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 G
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 C011rts with respect to H
subordinate COllrta. -
/
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 i:.ay, -
(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
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. -
(I ) 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. 11
;
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 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 B
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, C
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)
V-./, Act., 1936 (26 Geo. V & 1 Edw. VIII, c. 2) (hereinafter D
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 E
~orce with regard to the Provinces on April 1, 1937. The
federal structure of the Centre, however, never came into
existence, and the Centr~l 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. F
Part IX of the 1935 Act was headed "THE JUDICATURE". Chapter I
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 follows G
"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 H
Courts in Calcutta, Madras, Bombay, Allahabad,
Lahore and Patna, the Chief Court in Oudh, the
Judicial 1 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."
y
Sec~ion 220(1), as amended by the India and Burma (Miscella
neous Amendments) Act, 1940 (3 & 4, Geo. VI, c. 5), provided
as follows \.-..,.
"220. Constitution of High Courta. --
(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
'nlere was a proviso to this sub-sec~ion 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
)
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 797
to the administration of justice in th.e 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 Ill 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
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
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-{;eneral, for the Federation
and, in relation to a Provincial Act, by the
Advocate-{;eneral for the Federation or the Advocate
for the Province. 11
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 I, 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-{;eneral 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 Legis-·
lature of the Dominion. The powers of the Legislature of the
UMAJI KESllAO MESHRAM v. RADHIKABAI [MADON, J.] 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 near
ly 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 contimie 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 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
fort)J-six, modified -
(i) by the exclusion of the members representing F.
Bengal, the Punjab, Sind and British Baluchistan;
and
(ii) should it
Province will
ex cl us ion of
Provi nee; and
appear that the North-West F.rontier
form part of Pakistan, by the
the members representing that
(iii) by the inclusion of members representing West
Bengal and East Punjab; and
(iv) should it appear that on the appointed day, a H
0
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 co11111encement of the
Constttution. 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 11 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 unw~rranted 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 and that
IJMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.) 801
the rest . of it hss 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 B
history of the world. !lore 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 shoul;i be has long been
settled. Similarly what are the fundamentals of a
Constitution are recognized all over the wor.ld. c
Given these facts, all Constitutions in their llllin
provisions. mat look eiml.lar. 'l'he only new things,
if there can be any, in a Constitution framed ao
late in tbe clay are tbe variations lllde to remove
tbe faults and to accomodate it to the neecle of
the COUDtl'J • • • • D
"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 E
rights in the fundamental ideas of a Constitution.
What I ain sorry about is that the provisions taken
from the Government of India Act, 1935, relate
mostly to the details of administration. 1 agree
that administrative details should have no place in
the Constitution. • • • F
"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 H
0
Constitution of the United States of America and of Eire. The
concepts of Fundamental Rights and Directive Principles of
State Policy are ale10 not something new in our Constitution.
The first ten Amendments to the Constitution of the Unite<!
States of America, which reproduce in substance the Amerkan
Bill of Rights, contain rights akin to the Fundamental Rights
in our Consti.tution though not designated as such. The
Constitution of Eire has a Chapter headed "FUNDAMENTAL RIGHTS" j
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. Almst three-fourths of our
Constitution is based upon the Goverillllj'nt 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 mstly in the light of the Constitution of the Dominion ~-·--
of Canada. The principle of responsible Government is taken
from the British •oonstitutional system. The provisions
relating to emergency are also patterned on the Government of
India Act, 1935,
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 constltutionally 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 Constitu-
tion for an autonomous India. Repeated efforts were made to
bring about unanimity amng different political parties with
respect to the basis for such a Constitution. Ultimately,
elections for a Consti.tuent Assembly were held, and the Cons-
tituent Assembly first sat on December 9, 1946. ,The Consti- ~
tuent Assembly was composed of representatives of the
Provinces and of the Indian States, on the basis of one re-
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 803
presentative for ~ 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 Legisla
tures where the Legislatures were unicameral. In the case of
the Indian States, their representatives were elected by elec- B
toral colleges constituted by the Indian Rulers. This Consti
tuent 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 tile harsh reality of history
which one cannot escape. On the midnight of August 14, 1947, c
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
~!strict of Assam (which District had joined the Dominion of
Pakistan by a referendum) ceased to be the members of the D
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
mem:bers of the Constituent Assembly, 284 were actually present E
on November 26, 1949, to append their signatures to the Cons
titution as finally passed (See Basu' s 0 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; Suk.la's "Constitution of India", seventh edn.,
PP• A-16 to A-18). F
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 G
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 pl'ODllgation of
the Constitution did not result Jn transfer of H
804
8
sovereignty from the Dominion of India to the
Union. It was merely change in the fora of
Goverwnt. 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
extinguish,ed, but there was no cession, conquest,
occupation or transfer of territory. The new
govemmentlll. 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 p<!ople 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 traDSllission of sovereignty or
of the atinction of the sovereignty of the
Doml.nion, and from its ashes, the springing up of
another SO'lereign • • •
"These assu°"tions are not supported by history or
by constitutional theory. There is no warrant for
holding that at the stroke of midnight of the 25th
Jauuaxy, 1950, all our pre-edsting political
institutions ceased to esist, and in the nest
- arose a new set of institutions C011>letely
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
constitutfonal machinery on the foundations of the
earlier poUtical 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 co°"letely democratic form
of government as a republic. The process was not
one of desttuetion, llllt of evolution."
(Emphasis supplied)
UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J, J 805
Though some of t~e Judges in that case differed on certain A
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 Co~stitution 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 aild continued
by the Constitution. What the Constitution did was to put its
imprimatur upon them and upon their continuance.
According' to the Full Bench, under the Constitution the
existing High Courts acquired a wholly different origin,
nature and character from what they possessed inmediately
prior to the commencement of the Constitution because the
Constitution of India is a constitutional law while the Indian
High Courts Act, 1861, the Governnient 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 pr<>claimed "Empress of India" <>nly in 1876, t<> refer to
the Indian High Courts Act, 1861, as "Imperial Leglslat'i<>n" or
to the Letters Patent issued in 1862 and 1865 as issued by the
"Imperial Sovereign
11
is not correct.
Jowitt 's Dictionary of English Law'' (second edition,
p.430) defines the term "Constitution" as "any regular form or
system of government" and the term "constitutional law" as
"all rules which dinoctly or indirectly effect the distribu
tion or eXercise of the sovereign power; the law relating to
the legfalature, the executive and the judiciary." According
to Dicey, constitutional law includes "all rules which direct
ly or indirectly affect the distribution or the exercise of
the sovereign power ·in the State". (Dicey
1
s "An Introduction
to the Study of the Law of the Constitution", tenth edn., T
p.23). What a constitutional law usually embraces within its
scope has been thus set out by Hood Phillips in his "Consti
tutional and Administrative Law" (sixth edn., p.11) :
1
'More spe1:ifically, constitutional law embraces
that part ,of a country's laws which relates to the
following topics, among others : the method of
choosing the Head Qf State, whether king or
president; his powers and prerogatives; the 4
cODStitution 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 mornoy; the general system of conrts, and the
tenure and immnities of judges; civil liberties
and their limitations; the parliamentary franchise
and electoral boundaries; and the procedure (if
any) for amending the Constitution."
(Emphasis supplied.) f
In Sri Sankarl 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 1.06) :
I
"Although wlaw Tlllst ordinarily include constitu-
tional law 1 there is a clear demarcation between
·ordinary law, which is made in exercise of legis
lative power, and constitutional law, which is made
in exercise of constituent power. Dicey defines
constitutional law as including 'all rules which
....
I
4
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 807
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 amng them and the definition B
of their mtual 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, C
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 amng
them and the definition of their Dlltual relation. The fact D
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
macie, laws affecting "the three great organs .of the State, the
executive, the legislature and the judiciary, the distribution E
of governmental power amng 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 F
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. 1be ling [1935] A.C. G
500, 518, J.C., the Judicial Committee referred to the British
North America Act, 1867 (30 & 31 Viet., c.3), which was passed
to provide for the establishment in Canada of one Dominion, as
a constituent statute and in James v. Coim>nwealtb of
.Australia [1936] 578, 614, J.C., it referred to the
ColllJDOnwealth of Australia Constitution Act of 1900 (63 & 64 H
Viet., 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
Ro. nv 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 (Adl!lldEnt) Act, 1938 [1941] F.C.R. 12, 26
and this Cour~ in Navinchandra Mafatlal v. The Couroissioner of
1ncoE Tm<, Bomay 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 Constitu
tion 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
a:nd to provide for the exceedingly difficult period
of transitton.
11
(Emphasis supplied.)
The Indian Legislature has also recognized the Government of
India Act, 1935, as a Constitution 1kt. 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, 19'12, 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 Provir1ce 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 certifi
cate given by th~~ High Court that "the case involves a
/
- ....
UMAJI KE SHAO MESHRAM v, RADllIKABAI [MAOON, J, J 809
substantial question of law as to "the interpretation of this
Constitution." Under Article i45(2), the minillllm number of
Judges of the Supreme Court required to decide "any case
involving a substantial question of law as to the interpre
tation of this Constitution" is to be five. Articles 132 and
145 are in Chapter IV of Part V of the Constitution which B
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 io in Chapter V of Part Vl of the
Constitution which Chapter deals with "The High Courts in the
States". The phrase "any substantial question of law as to the C
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 i&w-as to
the interpretation of this Constitution shall be
construed as including references to any substan
tial questio~ of law as to the interpretation of
the Government of India Act, 1935 (including any E
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 Goverrunent 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 legislat~ve body but then we 111.lSt
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.
ln 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 ~:UPREME COURT REPORTS [19861 1 s.c.R.
the coamencement of the Constitution, the Full Bench relied
upon Article 215 of the Constitution. Under Article 215, 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 :
11A court of record is one whereof the acts and
judicial proceedings are enrolled for a perpetual
metoory and testitoony, and which has authority to
fine and imprison for contempt of its authority.
Such were the superior courts of counnon 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 provl.ded, the power to punish for contempt i-s
thus inherent in and possessed by every Court of Record. It is
fallacious to think that the High Cpurts became courts of
record for the first time on the commencement of the Consti
tution. All the superl.or 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 Calcutt.a, 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
Ill, 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
IJMAJI KESllAO MESHRAM v, RADHIKABAI [MADON, J, ] 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, pro
vided 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 V1 of the B
Constitution which deals with High Courts closely follows the
scheme of Part IX of the Government of India Act of 1915, and
Chapter 11 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 C
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 VT.
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 D
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 established
pattern and practice in drafting constitutional legislations •.
Yet another. reason given by the Full Bench for holding E
that the High Courts under the Constitution were organically
different from the same High Courts illllll0d1ately 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 rea•oning is
erroneous for it overlooks the relevant provisions of the F
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--Oeneral 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 G
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
~ v. Bllrllh) [1877-78] 5 I,A, 178. Under sub-section (la) H
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 juris
diction of the existing High Courts which was continued by
B 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 appro
priate 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
~ C to any matter in the Federal Legislative List, the Provincial
Legislature with respect to matters in the Provincial Legis
lative List and the F'ederal Legislature as also the Provincial
Legislature with respect to matters in the Concurrent Legis
lative List. The position under the Constitution is the same.
By Article 225 the continuance of the jurisdiction of the
D 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
E State Legislatures with respect to any matter in the State
List (List II, Entry 65) and with both Parliament and the
State Legislatures •rith respect to any matter in the Con
current List (List III, Entry 46). Further, Parliament alone
can legislate with respect to the Constitution and · organi
zation of the High C,ourts (List I, Entry 78) and the extension
F 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 cormnencement of the Constitution were to be
G 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. Clause (2)
of Article 215 of the Constitution, prior to its deletion by ~
the Constitution (Seventh Amendment) Act, 1956, provided that
H for the purposes of the Constitution the High Court exercising
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 813
jurisdiction in relation to any Province before the commence
ment 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 reor
ganized 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 ;md 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 imnediately prior to the
commencement of the Constitution. The power conferred by
814 S\JPREME COURT REPORTS [19861 1 s.c.R.
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 circulliStances 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 Judi
cature at Bombay conferred upon that Court the power to issue
writs of """""'&, Certiorari, Procadendn or Error to the
Court of Requests and the Court of Quarter Sessions.
Procedendo was a prerogative which issued out of the comon
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 ~
judici1111 (see Jowitt. 's "Dictionary of English Law'', second
edn., P• 1438), A writ de oon procedendo rege f.nconsulte was
issued at the interv·ention of the King to withdraw from the
cognizance of the comon 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
eimilar jurisdiction was conferred upon the two other Charter-
ed High Courts. Under Section 9 of the Indian High Courts Act, r--
1861, the High Courts were to have and exercise all juris
diction and every power and authority vested in any of the
Courts abolished by the said Act, which included the Supreme
Courts of Judicatur<! and the Sadar Dewany Adalat and the Sadar
Foujdari Adalat. Under section 10 of the said Act, all juris
diction 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 nuch of
UMAJI KESHAO MESHRAM v. RADHlKABAl [MADON, J,] 815
the Letters Patent of the said Supreme Court as were inconsis
tent 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 tm1ch 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 con
ferred upon the Supreme Courts of Judicature by their respec
tive 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 Gara
bandho and other villages v. Zemindar of Parlak.imedi 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 Judica
ture 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 nection Coamlsaion, 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 Dwarltanath, Hindu Undivided P&llily v.
Income-Tax Officer, Special Circle, Kanpqr, and Another [1965]
3 S.C.R. 536, 540-41 Article 226 is 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
-', 1111ch 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 SUPREME COURT REPORTS [1986) 1 s.c.R.
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 l.n 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 Hi.gh 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 ju~isdiction 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
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 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 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 fir•'
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 jurisdic
tions 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 connnon law court, the
\.High Court of Admiralty, the Court of Probate, the Court for
818 SUPREME COURT REPORTS [19861 i s.c.R.
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 f
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 Doesee v.
Tincowree llundee [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 iti clause 15 by
providing that intra-court appeals would lie "from the
judgment (not being' a sentence or order passed or msde in any
criminal trial) of one Judge of the said High.Court, or of one
Judge of any Division Court." The word "judgment" in 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 j
the Letters Patent, whether preceding clause 15 or subsequent
thereto, except those expressly excluded by clause 15 itself.
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 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 Sbumo lloyee v. Wcln1mput Doogut and Ol:bers
[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 llOte in conformity "1th what clause 15
provides.
There has also been unanimity among the Chartered High
Courts that the word "judgment" in clause 1~ 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
lfl.tter v • .AllUado eoi.ar lfl.tter 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
' G
under clause 15. Similarly, in llahomedal.li Allabux v. lsllailji
Abdnlali (1926) 28 Bom. L.R. 471, the Bombay High 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
Xeshav Khadillrar v. Poona liurl.cipality and amther (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. f
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 superintend
ence 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 reniembered that the Government of India Act
of 1915-1919 was a Constitution Act and, therefore, the juris
diction which was conferred upon the High Courts by section
107 of that Act was a jurisdiction conferred upon them by a
E Constitution Act.
The above view consistently held by the High Courts has
found favour with this Court. In National Sewing 'nlread Co.
Ltd. v. Jame11 Q1adwii:k & 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 lndi.a, held that under that Act the Bombay
High Court possessed all the jurisdictions that it had at the
cormnencement 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
IJMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.] 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 Collpany'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, nainely, 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 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 Legis
lature. 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 legis
lation. 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-{;eneral of
822 SUPREME COURT REPORTS [19861 1 s.c.R.
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(la) of the Government of India Act,
1915-1919, the Letters Patent of a High Court could be amended
from time to time by t:he 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 appro
priate Legislature made by virtue of the powers conferred on
that Legislature by thi" 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 C<>urts. They also include a provision
which enlarges the jurisdiction and powers of the existing
High Courts. Art:lcle 225, therefore, comprehends within its
scope not only the jurisdiction which the existing High Courts
possessed inmediately pdor to the comnencement of the Consti
tution 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 Qlaiman, Budge Budge limicipality 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, J,,
however, gave a dissenting judgment in that case following the
line of reasoning adopted by a Division Bench of that High
)
UMAJI KESHAO MESHRAM v. RADHIKAJlAI [MAOON, J. ] 823
Court in India Electric llorka Ltd. v. Registrar of Trade Marka
A. l.R, 1947 Cal. 49 in which a contrary view was taken. The
case of India Electric Works Ltd. v. Registrar of Trade Marke
was expressly overruled by this Court in Hatio!lal 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 !Unicipality Case.
The fact that Article 225 makes the jurisdiction and
powers of the eKisting 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 Consti
tution. 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 not.ice 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
provis.ion 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 Ill, that is, Funda
mental Rights. By the opening clause of Article 145(1) this
power is made "Subject to the provisions of any law made by
~arliament". Therefore, the practice and procedure in respect
of petitions under Article 32 for the enforcement of Funda
mental Rights are regulated by rules framed by this Court and
by any law made by Parlianient 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.
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 Di vision Bench of that High Court
and there is no qualification or limitation as to the nature
of the jurisdiction e:<ercised by the Single Judge while
passing his judgment, provided an appeal is not barred by any
statute (for example, section lOOA of the Code of Civil
Procedure, 1908) and provided the conditions laid down by
clause 15 itself are folfilled. The conditions prescribed by
clause 15 in this behalf are : (1) that it tmlSt be a judgment
pursuant to section 106 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.
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 Goverrurent 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-ceneral 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 106(1) of the Government of India
Act of 1915 made sim:llar provision, while section 108(2)
reproduced the power conferred by section 14 of the Indian
High Courts Act, 1661, upon the Chief Justice of the High
Court to determine what Judges, whether with or without the
Chief Jus.tice, 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 11pufsuant 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
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,) 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 Viet., c.63), now repealed by the Interpretation Act,
1978 (1978 Eliz.2, c.30), provided as follows :
"38. Effect of repeal in future Acts.
(l) Where this Act or any Act passed after the
couanencement 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 or references
enactEnts. -
to repealed
(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.
(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 SUPREME COURT REPORTS [19861 1 s.c.R.
cation, any provision of a former enactment, then
references iln any Central Act or in any Regulation
or instrumeJ~t tQ the provision so repealed shall,
unless a different intention appears, be construed
as referencf~ to the provision so re-enacted.
11
Sub-section (2) was inserted in section 8 by Act 18 of 1919.
The opening words ol: sub-section (2) ''Where before the
fifteenth day of Augu11t, 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 (let 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. l,
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 aul:hority (ibid, vol. 2, p.1085). Letters
Patent thtls mean, an instrument issued by the Crown or govern
ment (see Black's "Law Dictionary", fifth edn., p.815),
Letters Patent eetablishing the High Courts issued by the
Crown , would thus fall within the meaning , of the term
"instrument" as ueed in section 8(2) of the General Claus~s
Act. 'l'hus, by the combined operation of section 38 of the
Interpretation Act and section 8 of the General Clauses Act,
the expression "pursu•mt 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 Consti
tution is in pari materia with section 223 of the _Government
of India ~t, 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 ~he
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 expressio11 "pursuant to section 223 of the Government of
India Act, 1935," which was deemed to have been substituted
1
UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J. ) 827
for the expression "pursuant to section 108 of the Government
of India Act" in clauae 15 of the Letters Patent is, on the
comnencement of the Constitution, to be read as "pursuant to
Article 225 of the Constitution."
In National Sewing Thread Company' a case this Court said B
(at pages 1036-7) :
"As a matte~ 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 c
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
construction of statutes enunciated in section 38
of the Interpretation Act and reiterated with some 0 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 E
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 F
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 G
judgment of the Assam High Court in lladha Koban 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 H
'
to entertain appeals and revise decisions in revenue cases as
was vested in the Provincial Government immediately before
April 1, 1937, undE!r 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
B 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
C of the said Act even though given by a Single Judge. The Assam
High ~ourt 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
D the High Court of il:s 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 e,xercise 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
F power to make rules: for the exerclse 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
Goverrunent of India Act of 1915-1919 or of the Government of
India Act, 1935, or conferred upon it by the Constitution
G itself or subsequent to the commencement of t.he Constitution
by any amendment of the Constitution or any law made by the
appropriate Legislature. According to the Full Bench, the
rule-making power under Article 225 would not extend to the
exercise of jurisdiction under Article 226 or 227 because I-
these Articles contain inbuilt rule-making power. This is
H equally incorrect. Such a ruleLBa.king power is neither
eKpressly provided for nor implied in either of these
UMAJI KE SHAO MESHRAM v, RADHIKABAI [MADON, J, ] 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 exer
cised 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
tantruoount 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 "Higb Court" is used, it only means the High Court
acting through one Judge or a Division Court consisting of
two or oore 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 proceed
ing as is well-established by decisions of this Court -
see, for instance, Garikapatti Veeraya v. N. Subbiah Choudhury
(1957] s.c.R. 488, and Ahw<lahad Mfg. &·Calico Ptg. Co. Ltd.
v. Ram Tahel l!IJJ!!!•nd & Ors., (1973] 1 S.C.R, 185,
From what has been said above it tDJSt 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 inas1111ch 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 SUPREME COURT REPORTS [19861 1 s.c.R.
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 pCMer
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 which are directed against
persons, authorities and the State. The power of superin
tendence 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. Vakhatsingbji
Vajesingbji Veghela A.I.R. 1968 S.C. 1487, 1488, and Ahmedabad
Mfg, & Calico Ptg. Co. Ltd. v. llaa Tahel Rl!!W!and & Ora.). The
orders, directions and writs under Article 226 are not intend-
ed 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 2£6. -Though at the
first blush it may seem that a writ of certiorari or a writ of
prohibition partakes of the nature of superintendence inas1J11ch
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 Ir
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 differ"ent 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
UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 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 Collllrlttee had held that the power to issue
prerogative writs possessed by the Chartered High Courts was
an exercise of original jurisdiction (see Mahomedalli Allabou:
v. Inailji Ahdul.al.i, llaghunath Kesbav Khadilkar v. Poona
Municipality and another, Ryots of Garahandbo an:! other
villages v. zaal.udar of Parlaldlll!di and another and llaulvi
Hamid Hasan llomani v. llamrarilal Roy and others L. R. [ 1946-4 7]
74 I.A. 120, 130-31; s.c,m 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 D
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. Tite 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, Coomissioner of
lncome-t:mi:, Bombay and another v. lahwarlal llbagwaodas and
others (1966] 1 s.c.R. 190, 197-8, Ramesh and another v. Seth
r.....talal Kotilal Patni and others [1966] 3 S.C.R. 198, 203,
Arhind Kumar Singh v. Hand Kishore Prasad & Ors. (1968] 3
S.C.R. 322, 324 and Almedabad Mfg. & Calico Ptg. Co. Ltd. v.
Ram Tahel Rmnnanc! & 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
S32 SUPREME COURT REPORTS [19861 i s.c.R.
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
Almedabad 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 pro
visions 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 independ
ently of the provisions of the other laws conferr
ing 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
UMA.JI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 833
by this Court in Wary am Singh and another v. Aaarnath 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 B
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 oniy confers on c
the High Court administrative superintendence over
the subordinate courts and.tribunals. We are unable
to accept this contention 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 D
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 E
that section 107 of the Government of India Act,
191 ~, 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 Juris- F
diction 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 G
in article 227 of the Constitution. It is signifi
cant 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 SUPREME COURT REPORTS [19861 i s.c.a.
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 cl.ause 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 1Q7 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, Jagmmath
Gaabaji 0.flrba!e V• Qtlabrao llaghobaji Bobde, SH!rlvmdn Barua
v. Bare lrlahna De & Ors. A, I, R. 1953 Cal. 636, Shrinivaaa
Reddfar and Ors. v. lrlahnasw8111. lleddiar and Ors., A.l.R, 1955
Mad. 72, In re V. Tl.rupulisw11111 Naida, 1.L.R. 1955 Mad. 1083,
s.c. A.l.R, 1955 Mad. 287, J. and K. Co-operative Bank v.
si--1-din- Bacha, A,l,R. 1970 J & K 190, and Ishwar Singh
v. lla!I Piari and Anr, A,l,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 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 Ori
ginal Side and the other for the Appellate Side. We need not
UMAJI KESHAO MESHRAM v. RADHIKABAI [MAOON, J,] 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 Art.icle 226 other than an
application for a writ of habeas corpus is to be filed on the B
Original Side if the matter in dispute is or has arisen sub
stantially 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 C
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 D
arisen substantially outside Greater Bombay, is to be heard
and disposed of by a Di vision 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. E
Applicadons under Rule 1 shall be heard and dis
posed 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 : G
"18. Single Judge's polft!EB to finally clispose of
applications under Article 226 or 227. -
Notwithstanding anything contained in Rules 1, 4
and 17 of this Chapter, applications Under Article H
836
x
226 or Article 227 of the Constitution (or appli
cations 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
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 Matriioonial
Court, which are to be heard and disposed of by a Single
Judge.
The non obstante clause in Rule 18, namely, "Notwith
standing 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 l 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 appli
cation 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
Di vision Bench" and were the reasoning of the Full Bench
correct, it would mean that so far as the High Court is
-
UMA.Jl KE SHAO MESHRAM v, RADHIKABAI [MADON, J. ] 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, B
a matter is heard and disposed of by a Si'lgle 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 C
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 Harl Vislnm Kamath v. D
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 ~·etitions are filed against orders o) 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 dis- E
posed 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 F
party and in order not to deprive him of the valuable right of
appeal the Court ought to treat the applicatipn 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 G
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 Aida! Singh. and others v. Karan Singh
and others A.I.R, 1957 All. 414 F.B. and by the Punjab High
Court in Raj Kisban .Jain v. 'l.Ulsi Dass A.I.R. 1959 Punj. 291
aild Barham Dutt and others v. Peoples' Co-operative H
Transport Society Ltd., Nar Delhi and others A. I. R. 1961 Punj.
24. and we are in agreement with it.
For the reasons aforesaid it tlllSt be held that the Full
Bench caae of Sbankar llaroba Salunke • Ors. v. Gy1111Chanc!
~bhad111nd Iothari • Ors. was wrongly decided except for the
conclusion reached by the Full Bench th{lt 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 here
by overruled to the extent mentioned above and the view taken
by the Special Bench •in State of Maharashtra v. Xusua
ai&mdutt BharE Upadhya is approved.
Before concluding the judgment on this part of the case
it may be mentioned that in Shah Bal .. tat ~i v. Jayaben D.
Kania • Am:. 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 preli
minary hearing·"
The third member of che Bench, A.N. Sen, J., who delivered a.
G 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
Jlabnl•t lhillji'• caae and did not fall to be decided in it. In
-
i
UMAJI KE SHAO MESllRAM v, RADHIKABAI [MAOON, J. ] 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 obser- B
vation 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 Cc-urts 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 regulat-
ing their own procedure and the procedure of the civil courts
subject to their superintendence and they can by such rules C
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 D
provided in the Code in regard to suits is to be follO!ied, 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 F
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, G
whenever new High Courts were set up the relevant statute made
provisions in that l;!ehalf, 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 con.f ers a right of intra-court K
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 Appel
lants 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.
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