Anand Municipality v. Union Of India And Others Opponents.

Desai, C.J:— The question of considerable importance and consequence that has to be decided by this Full Bench relates to the binding nature of the precedents of the Bombay High Court on this High Court. The question is whether the Gujarat High Court is bound by the decisions of the Bombay High Court delivered before 1-5-1960. The petition which gave rise to it came up for consideration before my brother Miabhoy and myself when in the course of the arguments at the bar the learned Advocate General relied on a decision of the High Court of Bombay. Learned counsel on the other side argued that this Court was not bound by a decision of the High Court of Bombay. Our attention was drawn to a decision of the Andhra High Court, Subbarayudu v. State (S) AIR 1955 Andhra 87 decided by a Full Bench of that High Court, It was there held that the binding nature of the precedents of one Court on another depended upon the fact whether such Courts are Courts of co-ordinate jurisdiction; and the Andhra High Court and the Madras High Court prior to 5-7-1954, it was held were Courts of co-ordinate jurisdiction. We found some difficulty in agreeing with some of the reasons which found favour with the learned judges who decided that case. We were, however, inclined to take the view though on a different ground, that the decisions of the High Court of Bombay should be binding on this Court provided they were given before 1-5-1960. Having regard to the importance of the question we felt the necessity of having it fully argued; and it was directed that the matter should be heard by a Full Bench of this Court.

2. The learned Advocate General has argued before us that the effect of Section 87 read with some other sections of the Bombay Reorganisation Act, 1960, is to make those decisions binding on this Court. He has principally relied on S. 87 of that Act which is as under:—

“87. The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day”.

3. Considerable stress is laid on the words “any law in force immediately before the appointed day” and it is urged that the first part of the section lays down the rule that the law in force in the State of Bombay immediately before the appointed day continues to be the law to be applied in the territories which now form the State of Gujarat. The next step of the argument is that a decision of the High Court of Bombay on any matter is part of the law within the connotation of the expression “law in force” and it is said that the expression “law in force” should be interpreted not in a rigid but in a comprehensive manner and the comprehensive meaning it is said would include decisions of the High Court of Bombay on any point of law, whether of construction of an enactment or otherwise. In support of the argument reliance is also placed on the scheme of the Act and a number of sections of the Act. It is not necessary to examine all those Sections and we shall be referring only to some of them. Section 2(d) gives the definition of “law” as under:—

“2. (d) “law” includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the State of Bombay”.

4. Section 3 of the Act is as under:—

“3. (1) As from the appointed day, there shall be formed a new State to be known as the State of Gujarat comprising the following territories of the State of Bombay, namely:

(a) Banaskantha, Mehsana, Sabarkantha, Ahmedabad, Kaira, Panchmahals, Baroda, Broach, Surat, Dangs, Amreli, Surendranagar, Rajkot, Jamnagar, Junagadh, Bhavnagar and Kutch Districts; and

(b) the villages in Umbergaon Taluka of Thana District, the villages in Nawapur and Nandurbar Talukas of West Khandesh District and the villages in Akkalkuwa and Taloda Talukas of West Khandesh District, respectively specified in Parts I, II and III of the First Schedule;

and thereupon the said territories shall cease to form part of the State of Bombay, and the residuary State of Bombay shall be known as the State of Maharashtra.

(2) The villages in Umbergaon Taluka specified in Part I of the First Schedule shall form a separate taluka of the same name and be included in Surat District, and the remaining villages in the said taluka shall be included in, and form part of, Dahnu Taluka of Thana District; and the villages specified in Parts II and III of the First Schedule shall respectively be included in, and form part of, Songadh Taluka of Surat District and Sagbara Taluka of Broach District”.

5. Section 30 relates to the jurisdiction of the High Court of Gujarat which is as under:—

“30. The High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Bombay”.

6. The expression “law in force” appears in Ss. 32, 34, 35 and 36. Those sections deal respectively with practice and procedure in the High Court of Gujarat; with form of writs and other processes; with powers of judges of the High Court of Gujarat; and with procedure as to appeals to the Supreme Court. We have already set out the provisions of C. 87. Sections 88 and 89 are as under:—

“88. For the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat of any law made before the appointed day, the appropriate Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority”.

7. Explanation:— In this section, the expression “appropriate Government” means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law, the State Government.

“89. Notwithstanding that no provision or insufficient provision has been made under section 88 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Maharashtra or Gujarat, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority”.

8. It has been argued on the other hand by Mr. Patel learned Advocate for the petitioner that the effect of S. 3 is to bring into existence altogether a new State and there is nothing in any of the provisions of the Reorganisation Act which can be interpreted to mean that the entire law in force in the territories formerly constituting the State of Bombay including decisions of the Bombay High Court is to continue to apply to the territories now constituting the State of Gujarat. As to S. 87 the argument is that it deals simply with territorial extent and nothing else. It is said that S. 88 only empowers the two States to adopt and modify the statutes made before the appointed day and there is nothing in S. 88 or 89 even to suggest that decisions of the High Court of Bombay should have the force of binding laws in the territories now constituting the State of Gujarat.

9. Section 87 of the Reorganisation Act, in our opinion, deals not merely with territorial extent of the new State but with territorial extent therein of laws in force immediately before the appointed day. It may be divided into two parts. The first part relates to the extent and application of laws in force immediately before the appointed day. The second part does not reach all the laws in force immediately before the appointed day but only such laws as contained any references to the territories and their territorial extent. Now the initial words of S. 87 refer to the provisions of Part II. Part II is intituled “Reorganisation of Bombay State” and contains three Sections. Section 3 which is the first section in that part has already been set out by us. Section 4 relates to amendment of the First Schedule to the Constitution and S. 5 relates to certain saving powers of the State Government. For all practical purposes it is S. 3 in Part II which is the material Section. It will conduce to clarity and simplicity when ascertaining the meaning and effect of S. 87, if we read S. 87 immediately after S. 3. But before we do so, we shall be referring to Sections 3, 28 and 30 of the Act. Stripped of details S. 3 lays down that as from the appointed day, the enumerated territories which hitherto are in the State of Bombay shall form a new State known as the State of Gujarat and thereupon those territories shall cease to form part of the State of Bombay. Then in S. 28 the Legislature has enacted the constitution of a separate High Court for the State of Gujarat Having created a new State and a new High Court, the Act proceeds in S. 30 to lay down that the jurisdiction, powers and authority of the newly constituted High Court shall, in respect of the territories included in the State of Gujarat, be the same as those exercised by the High Court of Bombay under the law in force immediately before the appointed day in the whole State of Bombay. Reference in this Section to “law in force” is significant. It is made on the assumption that the law in force is to continue to apply to the territories forming the new State. But S. 30 relates only to the jurisdiction of the new High Court in respect of those territories and, therefore, when Part IX of the Act of the Legislature Proceeds to enact “Legal and Miscellaneous Provisions”, it lays down a rule relating to the extent and application in those territories of “the law in force immediately before the appointed day”. There is to be no change in the territorial extent and application of that law. The Legislature evidently felt that there might be scope for the contention that those territories having ceased to be part of the State of Bombay and having formed a new State, the law previously in force in those territories had ceased to apply in the territories of the new State. The initial words of S. 87 in terms express and explicit rule that the provisions of Part II, which we may for the present purpose read as the provisions of S. 3, shall not be deemed to have effected any change in those territories. The argument of Mr. Patel here is that the emphasis is on territories and not on the law in force. We are unable to accede to that argument. The emphasis is both on the territories and the law in force in those territories immediately before the appointed day and also on the extent and application of that law. The position will become still more clear if we now turn to read S. 3 with S. 87. Section 3, as we have already pointed out, enacts that the territories there mentioned cease to be part of the State of Bombay and form a new State to be known as the State of Gujarat and S. 87 enacts that this formation of a new State and the cessation of the territories from the State of Bombay is not to effect “any change in the territories to which any law in force immediately before the appointed day extends or applies”. The meaning of this first part of S. 87, in our judgment, must necessarily be that the territorial extent of those laws which were in force in all the territories of the State of Bombay immediately before the appointed day is to continue and the reorganisation of the territories of the two States is not to effect any change in that position.

10. On our Part we see no particular difficulty in interpreting the first part of S. 87. It may be that the intention of the legislature that the laws in force immediately before the appointed day in the State of Bombay are to continue to be in force in the territories which now form part of the State of Gujarat might have been expressed in a more satisfactory manner, if not in a more elegant manner. Even assuming that there is some ambiguity or uncertainty about the words used by the legislature in the first part of S. 87, we do not find any reason for acceding to the argument urged by Mr. Patel. Those words need not produce any ambiguous result or result, in any manifest absurdity or uncertainty. But such would be the result if we accede to Mr. Patel's argument.

11. It is familiar law that everything being equal in other respects that interpretation should be accepted by the Court as constituting the legislative intent which operates justly and reasonably so long as it accords with accepted standards of interpretation. It would be erroneous in any such case to disregard these standards and lean heavily on the principle of literal construction. Where two meanings are possible it is always open to the Court to prefer that meaning which is consonant with the scheme and object of the statute and is supported by the inherent fitness of the matter. To accede to the argument of Mr. Patel would result in creating a situation which would be unreasonable, absurd and mischievous. It would open the doors of this Court for raising over again of all disputed questions and matters relating to which doubt and difference had been set at rest. The object of the relevant provisions is manifest. It was to preserve continuity and certainty in the application of existing law. That was the legislative purpose and it can be gathered from the Act read as a whole. Moreover there is, in our opinion, sufficient intrinsic evidence to suggest that unless the Legislature of the State of Gujarat acting within its competence alters or changes any rule of substantive or procedural law by legislation, the law hitherto in force in the territories now constituting the State of Gujarat should continue to be applied in those territories as if there had been no reorganisation of the States.

12. But we need not further pursue this subject. For reasons already given we are of the opinion that the relevant sections tend to reveal the intent of the law-maker that the law in force immediately before the appointed day in the territories which now form the State of Gujarat is to continue to be in force in those territories until altered by the Legislature.

13. It is next necessary to consider in turn whether decisions of the Bombay High Court are to be regarded as ‘law in force’ in the territories which constituted the State of Bombay. On this point Mr. Patel had little to say. We on our part find no difficulty in giving a comprehensive connotation to the expression “any law in force immediately before the appointed day”. The words should not in our judgment, receive any technical meaning but should be understood in a sense which gives them a fair measure of amplitude. The crucial words so read must lead to the conclusion that decisions of the High Court of Bombay given before the appointed day are binding on this Court. It may be that some of those decisions may later on be overruled by that High Court. In any such case it would be open to this Court to decide and state for itself the law on the subject. No such position has arisen in the case before us and we need not linger longer cm that aspect of the matter. One way of dealing with any such situation would be for a Full Bench of this High Court to consider the question and decide the matter for itself. Nor need we discuss the importance of judicial precedents and their place in the corpus juris. In any case we are of the opinion that judicial precedents are within the extensive ambit of S. 87 of the Act.

14. We turn to the second argument pressed for our acceptance by the learned Advocate General. It is said that this High Court is in a real sense an offspring of the pre-reorganisation High Court of Bombay. We contemplate the pedigree with filial sentiment and gratitude. Then it is said that we are a Court of co-ordinating jurisdiction, with the High Court of Bombay as regards citation of decisions of the High Court of Bombay prior to the appointed day and it is in support of this proposition that the Advocate General has relied on the Full Bench decision of the High Court of Andhra of which we have made mention. We should have examined the argument here in some detail and also referred to the views expressed by the learned Judges who decided the Full Bench case, but it will not be necessary to do so in view of the conclusion already reached by us on the construction and meaning of Section 87 of the Reorganisation Act. The learned Chief Justice of the Andhra High Court as he then was has in his judgment in that case expressed the opinion at page 91 of the report that it would not be inappropriate to call a successor Court a Court of co-ordinate jurisdiction, with its predecessor if there jurisdictions at the point of time they exercised it are similar to or co-extensive with each other. The learned Chief Justice has applied the test which is as follows:—

“Whether the two Courts are of equal rank and status or of equal authority and exercised similar jurisdiction”.

15. Applying that test, his Lordship reached the conclusion that the two courts, the High Court of Andhra and the High Court of Madras were Courts of co-ordinate jurisdiction and, therefore, the decisions of the Madras High Court at the relevant time were binding on the Andhra High Court. We find considerable difficulty in agreeing with that view. We say this with some hesitation Co-ordinate jurisdiction in the ordinary connotation of that expression is that which is exercised by different Courts of equal rank and status over the same subject matter and within the same territory and ordinarily at the same time.

16. Each Court must have jurisdiction to deal with the same subject matter. We do not intend to suggest that for all purposes co-ordinate jurisdiction is to be equated with concurrent jurisdiction or simultaneous jurisdiction but we are unable to see our way to the conclusion that simply because this Court is in a sense a successor to the High Court of Bombay in respect of the territories which now form part of the State of Gujarat, it is a Court of co-ordinate jurisdiction with that predecessor.

17. It is lastly argued by the learned Advocate General that decisions of the Bombay High Court prior to the appointed date are binding on this Court because the systems of law in the new States of Maharashtra and Gujarat are derived from the parent State of Bombay of which each formed a part. That decisions of the predecessor Court or the parent Court in any such situation should be accepted with all the respect due to them is not in doubt or dispute. The question is whether the decisions of that Court are binding as precedent. We should have pursued the matter but since we have already reached our conclusion on a reading of the Sections of the Reorganisation Act and particularly that of S. 87, we need not burden this judgment with any further discussion of the same.

18. For reasons already given it is the opinion of this Court that decisions of the High Court of Bombay given prior to the appointed day are bind ing on this High Court.

ID/K.S.B

19. Answered accordingly.