SAGGAR GAGU DHULA Vs. SANGAR ABHARAM VELA
HIGH COURT OF GUJARAT
SAGGAR GAGU DHULA
SAGAR ABHRAM VELA
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A.S.SARELA, N.M.MIABHOY -
(1.) This is a Letters Patent Appeal from a decision of Bhagwati J. recorded in Second Appeal No. 13 of 1964 by which the learned Judge dismissed summarily that Second Appeal. The learned Advocate for respondent No. 1 raises a preliminary point and that is that the Letters Patent Appeal does not lie under the circumstances of this case. In order to decide this preliminary point it is not neces- sary to state the facts relating to the merits of the case. It will be enough only to mention a few facts which have a bearing on the preli- minary point. The Letters Patent Appeal arises from out of Civil Suit No. 37 of 196) which was instituted by plaintiffs Nos. 1 and 2 respon- dents Nos. 1 and 2 herein in the Court of the learned Civil Judge (Junior Division ) Mandvi Kutch. The learned Judge passed a preliminary decree for partition that suit. Appellants defendants Nos. 1 and 2 preferred Civil Appeal No. 159 of 1962 in the Court of the learned District Judge Kutch at Bhuj. The Appeal was dismissed. Appellants preferred a second appeal bearing Second Appeal No. 13 of 1964 from that decision of the learned Assistant Judge and as already mentioned that appeal was summarily dismissed by Bhagwati J. There- after appellants applied for leave from that learned Judge to prefer a Letters Patent Appeal. The leave was granted by the learned Judge on 9 March 1962. From the aforesaid facts it is quite clear that the original suit from which this Second Appeal arises was instituted in the Kutch area Now the question as to whether a Latters Patent Appeal from the Kutch area does or does not lie has to be decided with refer- ence to the decision of this Court reported in Rajkunverba widow of Jadeja Pratapsinhji Khanji v. Randhirsinhji Kalyansinhji and others v. Gujarat Law Reporter 907. The legislative history governing the jurisdic- tion of this High Court in relation to a suit arising from the Kutch area was considered in that case with reference to the Kutch Province (Courts) Order 1948 and the Judicial Commissioners Courts (Declaration as High Courts) Act 1950 (Act XV of 1950). As a result of a considera- tion of these two enactments this Court came to the following conclusion in regard to the jurisdiction of the former Judicial Commissioners Court:-
The effect of these provisions was that the Judicial Commissioners Court at Kutch retained all the jurisdiction and powers which it possessed before the coming into force of the Constitution. In addition to this it got the powers of issuing writs under Article 226 and powers of superintendence over the subordinate Courts under Article 227 of the Constitution. A right of appeal was also conferred from the decisions of the Judicial Commissioners to the Supreme Court under Articles 132 133 and 134 of the Constitution In sec. 4 of the Commissioners Courts Act it was provided that an appeal shall lie to the Supreme Court under the provisions of Article 133 from any judgment decree or final order of a Judicial Commissioners Court notwithstanding that such judgment decree or final order was that of a single judge. By sec. 5 of the said Act it was provided that Subject to any rules made under Article 145 or any other law as to the time within which appeals to the Supreme Court are to be entered an appeal shall lie to that Court from a judgment decree or final order of Judicial Commissioners Court under the provisions of Article 132 or Article 133 or from a judgment final order or sentence of such Court under the provisions of Article 134 whether such judgment decree final order or sentence as the case may be was passed or made before or after the commencement of this Act. After stating that this was the jurisdiction of the Judicial Commissioners Court which it enjoyed after the passing of the Constitution this Court referred to an event which took place on 1st November 1956 as a result of which the Kutch territory became part of a new State known as the new Bombay State. With effect from 1st November 1956 the Kutch State ceased to be a C State and the aforesaid merger took place under sec. 8 of the States Reorganisation Act 1956 ( hereafter called the States Reorganisation Act ). By sec. 50 of that Act the Court of the Judicial Commissioner for Kutch amongst others came to be aboli- shed and the High Court of Bombay under sec. 49 became the High Court for the new State of Bombay. This Court pointed out in the aforesaid decision that the effect of the aforesaid provisions of the States Reorganisation Act 1956 was that the High Court for the new State of Bombay acquired jurisdiction over the Kutch area The suit from which the Second Appeal arises was instituted sometime in March 1960 At that point of time Kutch area was under the jurisdiction of the High Court of Bombay. But after the formation of the Gujarat State under sec. 3 of the Bombay Reorganisation Act 1960 the Kutch area became a part of the Gujarat State and the present High Court of Gujarat was established for that State under sec. 28 of that Act. Under sec. 30 of the Bombay Reorganisation Act 1960 it was enacted that 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 autho- rity 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. Therefore under the Bombay Reorganisation Act 1960 the jurisdiction which the High Court of Gujarat possesses is the same jurisdiction which the High Court of Bombay for the new State of Bombay had under the States Reorganisation Act 1956 Now what the jurisdiction of the Bombay High Court was in regard to the Kutch area was considered in the above case with reference to sec. 52 of the States Reorganisation Act 1956 That question was first considered by this High Court in the case of Amritlal Gokaldas Mehta and others v. The State of Bombay and others reported in V Gujarat Law Reporter 769 Basing its decision on Amritlals case this is the conclusion which this High Court reached in regard to the jurisdiction which the High Court of Gujarat possesses in regard to a case coming from the Kutch area:-
For the reasons which we have given in the judgment just delivered in the Saura- shtra group of appeals we have come to the conclusion that the correct interpreta- tion of sec. 52 is that the law as obtaining in each of the areas which merged with the old Bombay State remained in tact and was preserved so far as the law relating to jurisdiction of the High Court of Bombay for the new State was concerned in its application to those areas For the reasons given therein we must hold that the law governing the jurisdiction of the High Court of Bombay and now the High Court of Gujarat in relation to the Kutch area is the same as the law prevailing in relation to the Commissioners Court before the commencement of the Reorganisa- tion Act of 1956 In view of the fact that there was no provision for any further appeal from the judgment of the Court of the Judicial Commissioner to that very Court but that only appeal lay to the Supreme Court in certain cases under the law prevailing before the Reorganisation Act of 1956 came into force we must hold that no further appeal lies from the judgment of the learned Judge delivered in First Appeal No. 8 of 1958 on 27th of August 1958 Although the case of Rajkunverba was an appeal from a decision recorded in a first appeal and although the present appeal is an appeal from a second appeal it is not disputed by the learned counsel for the appellants that under the law as existing in Kutch relating to the jurisdiction of the Commissioners Court a second appeal did not lie. Therefore Mr. Sheth the learned counsel for the appellants does not dispute the propo- sition that having regard to the aforsaid case the present Letters Patent Appeal would be incompetent. But Mr. Sheth tries to get over this difficulty by contending that the provision contained in sec. 52 of the States Reorganisation Act 1956 is violative of Article 14 of the Constitu- tion of India and therefore void. Mr. Sheth contends that if that provision is void then in that case under the provision contained in sec. 49 of the States Reorganisation Act 1956 the High Court of Bombay then existing for the State of Bombay was to be deemed to be the High Court for the new State of Bombay and it would have the same jurisdic- tion over the Kutch area which that High Court possessed in regard to the Bombay area and the present Letters Patent Appeal would be competent. These are the submissions which Mr. Sheth makes for repelling the preliminary point raised by Mr. Mankad.
(2.) Therefore the first question which arises for decision is whether the provision contained in sec. 52 of the States Reorganisation Act 1956 infringe the fundamental right guaranteed under Article 14 of the Constitution. In support of his argument Mr. Sheth first drew our attention to the judgment of Fazl Ali J. in The State of Bombay and another v. F. N. Balsara A. I. R. 1951 Supreme Court 318 at page 326 where the learned Judge summarizes the principles underlying Article 14 as laid down by Their Lordships of the Supreme Court in Chiranjit Lal v. The Union of India 1950 S. C. R. 869.The learned Judge has therein set down seven propositions. Out of these Mr. Sheth relied upon two propositions bearing Nos. 2 and 7 and contended that those two particular propositions had been violated by the Legislature in enacting sec. 52 of the States Reorganisation Act 1956 Those two propositions have been put in the following words by Fazl Ali J. after mentioning in the first proposition that the presumption is always in favour of the Constitution- ality of an enactment:
2 The presumption may be rebutted in certain cases by showing that on the face of the statute there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.
7 While reasonable classification is permissible such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis.
(3.) Now the first point which requires to be mentioned before we discuss the aforesaid points raised by Mr. Sheth is that as a result of the application of sec. 52 of the States Reorganisation Act 1956 the laws relating to the jurisdiction of the High Court as prevailing in the State of Gujarat now would be different in certain respects. For that particular purpose the State of Gujarat may be divided into three regions the Kutch region the Saurashtra region and the former Bombay State region. There is no dispute whatsoever that the law relating to the jurisdiction of this High Court in regard to these three regions is not uniform. Mr. Sheth mentioned to us that under sec. 8 of the Kutch Province (Courts) Order 1948 the Judicial Commissioners Court had only civil and criminal appellate jurisdiction and that it did not have any other kind of jurisdiction whatsoever. Therefore according to the interpretation of sec. 52 which has found favour with this Court in Rajkunverbas case the High Court of Gujarat would have only civil and criminal appellate jurisdiction in regard to the Kutch area. Mr. Sheth pointed out to us that on the other hand the jurisdiction which this High Court would have in regard to the Bombay region would be far wider and more extensive. According to the same interpretation this High Court would have not only civil and appellate jurisdiction in regard to civil and criminal cases arising in the Bombay region but would have jurisdiction in regard to infants lunatics admirality matters testate and intestate matters and matrimonial jurisdiction. We do not propose to decide in the present case about the merits of this contention of Mr. Sheth. We will assume that there is this particular difference between the jurisdictions of this High Court in regard to the Bombay and Kutch areas. But there is no doubt that according to the interpretation of sec. 52 in Rajkunverbas case there is a vital difference between the jurisdiction of this Court in regard to the Bombay area the Saurashtra area and the Kutch area in regard to the right of a litigant to prefer a Letters Patent Appeal. A litigant from the Bombay area has that right but a litigant from the Saurashtra area does not possess that right. Though this is so a Saurashtra litigant has got a right to prefer a further appeal from a decision of a single Judge of this High Court in a Second Appeal under sec. 22A of the Saurashtra High Court of Judicature Ordinance of 1948 and as already pointed out a litigant from the Kutch area has not such a right at all. Therefore there is no doubt whatsoever that in regard to the right to prefer further appeal from a decision-of a single Judge of this High Court recorded in a Second Appeal the litigants in the Kutch area have a differential treatment from the litigants in the Saurashtra and the Bombay areas. Having regard to this differential treatment the question arises for consideration as to whether sec. 52 of the States Reorganisation Act 1956 is violative of Article 14 of the Constitution of India.;
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