Yashoda Nandan, J. - (1.) THE following two questions have been referred to this Bench for its opinion: 1. Whether the first proviso to Cl. 14 of the U. P. High courts (Amalgamation) Order, 1948, is in conflict with the provisions of the Constitution relating to the constitution and organization of the High Courts (namely, Arts. 214, 230, 231) and the Scheme contemplated therein, and is saved by Art. 226 or Art. 372 or any other Article of the constitution after its enforcement on 26-1-1950?
(2.) WHETHER the jurisdiction and power of the Allahabad High Court, conferred on the Judges sitting at Lucknow under Clause 14 of the U. P. High Courts (Amalgamation) Order, 1948, include the jurisdiction and power under Art. 226 of the Constitution ? Since the constitutionality of an Order issued by the Governor General was in question, notice was issued to the learned Attorney General of India. Notices were also issued to the Allahabad High court Bar Association and to the Oudh Bar Association which are vitally interested in the questions referred to this Bench. 2. We have heard learned counsel for the parties as well as the counsel who represented the two Bar Associations. Before proceeding to deal with the questions referred to this Bench in the order in which they have been posed, we would like to mention that a Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal U. P. Lucknow (AIR 1972 All 200 (FB)), referred to the various provisions of the United Provinces High Courts (Amalgamation) Order 1948 as 'clauses' but the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331), preferred to describe them as 'paragraphs'. We shall also consequently refer to the various provisions of the aforesaid Order as 'paragraphs.' As far as the first question is concerned, Sri S. P. Gupta counsel for the petitioner, submitted that the first proviso to paragraph 14 of the United Provinces High Courts (Amalgamation) Order, 1948 hereinafter referred to as the Order, is consistent (sic) (inconsistent?) with Arts. 214, 226, 227 and 228 of the Constitution and also the general scheme of the constitution of the High Courts under the Constitution. It was contended that Art. 214 of the Constitution provides for the existence of a single High Court in each State and there cannot be two separate judiciaries in the same State. It was urged that the test of singularity of a High Court, as contemplated by the Constitution, in a State should be its capacity to judicially function throughout its territory from the place where it is erected. The singularity of the Chief Justice or common set of Judges or a common seal should not be the correct test to find out the constitutionally contemplated singularity. It was submitted that according to the decision of the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) on a correct interpretation of the first proviso to paragraph 14 of the Order, the Judges at Lucknow have exclusive jurisdiction in respect of cases arising in the areas in Oudh and the Judges and Division Benches sitting at Allahabad High Court have no jurisdiction to entertain cases in respect of the areas of Oudh. This, it was contended, in substance amounted to the existence of two separate judiciaries in the same State and ran counter to Arts. 214, 226, 227 and 228 of the Constitution. The contention was hotly disputed by Sri H. N. Tilhari who appeared before us on behalf of the Oudh Bar Association. Having heard learned counsel for the parties and examining the decisions cited before us, we are of the opinion that there is no force in the contentions advanced by Sri S. P. Gupta.
(3.) AS a result of paragraph 3 of the Order, as from the 26th July, 1948, the then High Court at Allahabad and the erstwhile Chief Court in Oudh stood amalgamated and a new High Court was constituted by the name of the High Court of Judicature at Allahabad. By reason of paragraph 4, the permanent Judges of the two erstwhile Courts and their additional Judges became permanent or additional Judges of the new High Court. In stead of there continuing to remain two Chief Justices, the erstwhile Chief Justice of Allahabad High Court became the Chief Justice of the new High Court. Paragraph 7 (1) provides that : "The new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts." The submission made by Sri Gupta loses sight of a clear distinction that exists between the High Court as such and the Judges who constitute it. AS held by the majority of the Judges constituting the Full Bench of this Court in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal, U. P. Lucknow (AIR 1972 All 200 (FB)) the nature and extent of the jurisdiction enjoyed by a court and the manner in which that jurisdiction will be exercised are two distinct matters. How and where the jurisdiction will be exercised by the Judges are matters governed by the practice and procedure prescribed by law and the place of sitting appointed for them. In our opinion while paragraph 7 of the Order defines the jurisdiction of the new High Court, paragraph 14 is concerned with the manner in which that jurisdiction is to be exercised. It was not disputed before us that it is open to the Chief Justice under the Rules of the Court to allocate different classes of cases to individual Judges or Division Benches of this Court. Thus the Chief Justice has the power to order that individual Judges or Division Benches of this Court will entertain cases arising out of separate districts of the State. In the event of such an order being passed, it cannot be contended that in substance the High Court had been split up merely because by reason of an order of the Chief Justice other Judges of the Court do not have jurisdiction to entertain and decide cases arising out of a district allocated to a particular Judge or Division Bench. The first proviso to paragraph 14, in our opinion, amounts to no more than a statutory allocation of cases arising out of certain district to the Judges of this Court sitting at Lucknow and is in no fashion, in conflict with Arts. 214, 226, 227 or 228 or any other provisions of the Constitution. While considering this question it must be borne in mind that it has been held by the majority Judges constituting the Full Bench in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (AIR 1972 All 200 (FB)) (supra) that if a case arising out of the specified areas in Oudh is inadvertently presented at Allahabad the Judges at Allahabad cannot summarily dismiss it only for that reason and the case should be returned for filing before the Judges at Lucknow, and where the case has been mistakenly entertained at Allahabad a direction should be made to the High Court office to transmit the papers of the case to Lucknow. This view was not dissented from by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331) (supra). If the contention is accepted that the first proviso to paragraph 14 of the order results in bringing into existence two separate High Courts in the same State, the answer of the majority of Judges constituting the Full Bench in Nirmal Dass Khaturia v. State Transport (Appellate) Tribunal (supra) to question No. 2 before that Bench could not have been upheld by the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal (supra).;