Anand Municipality vs Union of India and Others

Desai, C.J.

(1) 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, M. Subbarayudu and Others Vs. The State, 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 S. 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:-

The provisions of Part II shall not be deemed to have effected any change in the territories to which nay 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"".

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 if ""law"" as under:-

(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"".

Section 3 of the Act is as under:-

(1) As from the appointed day, there shall be formed a new State to be known as the State of Gujarat impressing the following territories of the

State of Bombay, namely;

(a) Banaskantha, Mehsana, Sabarkantha, Ahmedabad, Kaira, Panch-mahals, Baroda, Broach, Surat, Dangs, Amreli, Surendranagar, Rajkot,

Jamnagar, Junagadh, Bhavnagar and Kutch Districts; and

(b) the villages in Umbergoan Taluka of Thana District, the villages in Nawapur an Nandurpur 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.

(3) 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 it, 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 Sahara

Taluka of Broach District"".

Section 30 relates to the jurisdiction of the High Court of Gujarat which is as under:-

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"".

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 as to appeals to the Supreme Court. We have already set out the

provisions of C. 87. Sections 88 and 89 are as under:-

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, repeated or amended by a competent Legislature or other competent authority"".

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.

Notwithstanding that no provision or insufficient provision has been made u/s 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 or 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, tribunals or authority"".

(4) 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 go 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.

(5) 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 initialed ""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 Ss. 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 Gujarat and

thereupon those territories shall cease to turn 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, 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 cessarion 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 reorganization of the territories of the two States is not to effect any change in that position.

(6) 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.

(7) 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 stature 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

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.

(8) 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 intend

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.

(9) 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 on 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 as the corpus juries. In any case we are of the opinions that judicial precedents are within the extensive ambit of S. 87

of the Act.

(10) 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 S. 87 of the Reorganization 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 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:.

Applying that next, 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 to agreeing with that view. We way this with some hesitation. Co-ordinate jurisdiction in the ordinary connotion 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. Each Court must have jurisdiction to deal with the same subject matter and within the same territory and ordinarily

at the same time. 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 smile because this Court is in a senses 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.

(11) 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 but since we have already reached our conclusion

on a reading of the Sections of the Reorganization Act and particularly that of S. 87, we need not burden this judgment with any further discussion

of the same.

(12) 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

binding on this High Court.

(13) Answered accordingly.