STATE OF MAHARASHTRA Vs. NARAYAN SHAMRAO PURANIK

JUDGEMENT

(1.) Having given the matter our anxious consideration, we are of the opinion that Notification No. P-6303/81 dated Aug. 27, 1981 issued by the Chief Justice of the Bombay High Court in exercise of his powers under sub-s. (3) of S. 51 of the States Reorganisation Act, 1956 (Act No. XXXVII of 1956) (for short 'the Act'), with the prior approval of the Governor of Maharashtra, by which he appointed Aurangabad as a place at which the Judges and Division Courts of the Bombay High Court shall also sit w.e.f. August 27, 1981, does not suffer from any infirmity, legal or constitutional.

(2.) We are unable to agree with the view taken by the High Court that the High Court of Bombay was not the High Court for the new State of Bombay within the meaning of sub-s. (1) of S. 49 of the Act and that, therefore, the provisions of S. 51 thereof were non est. The Bombay High Court owes its principal seat at Bombay to the Presidential Order issued under sub-s. (1) of S. 51 of the Act. The expression "new State' occurring in sub-s. (1) of S. 49 of the Act is defined in S. 2 (i) to mean "a State formed under the provisions of Part II". The State of Bombay was a new State formed under S. 8 of the Act, which occurs in Part II. The Bombay Reorganisation Act, 1960 (Act No. XI of 1960) which brought about a bifurcation of the erstwhile State of Bombay into the State of Maharashtra and the newly formed State of Gujarat provides, inter alia, by sub-s. (1) of S. 28 that, as from the appointed day, there shall be a seperate High Court for the State of Gujarat and that the High Court of Bombay shall become the High Court for the State of Maharashtra. Sub-s. (2) of S. 28 of that Act provides that the principal seat of the Gujarat High Court shall be at such place as the President may, by notified order, appoint. It is significant that the Bombay Reorganisation Act, 1960 contains no similar provision with regard to the principal seat of the Bombay High Court. That being so, the continued existence of the principal seat of the Bombay High Court at Bombay is still governed by sub-s. (1) of S. 51 of the Act. This conclusion of ours is reinforced by the opening words of S. 41 which provides for the setting up of a permanent Bench of the Bombay High Court at Nagpur "without prejudice to the provisions of S. 51 of the States Reorganisation Act, 1956". That shows that while enacting S. 41 for the constitution of a permanent Bench at Nagpur, Parliament accepted the continued existence of S. 51 of the Act in relation to the Bombay High Court. When there is continued existence of sub-s. (1) of S. 51 of the Act in relation to the principal seat of the High Court for a new State, a fortiori, there is, to an equal degree, the continued existence of the provisions contained in sub-ss. (2) and (3) of S. 51 for the establishment of a permanent Bench or Benches of the High Court of a new State by the President or the appointment by the Chief Justice of the sittings of the Judges and Division Courts of the High Court at any other place or places for that State, that is, at places other than the place where the principal seat of the High Court of a new State, is located. This is also clear from the provisions of S. 69 of the Act which in terms provides that Part V which contains S. 51 shall have effect subject to any provision that may be made, on or after the appointed day with respect to the High Court of a new State, by the Legislature or any other authority having power to make such provision.

(3.) In our judgment, the High Court is in error in reaching the conclusion that the powers of the President to establish a permanent Bench or Benches of the High Court of a new State at one or morel places within the State, other than the principal seat of that High Court, under sub-s. (2) of S. 51 of the Act or those of the Chief Justice of the High Court under sub-sec. (3) thereof to direct that the Judges and Division Courts of that High Court may also sit at such other place or places in that State, can no longer be exercised due to lapse of time. The provisions of sub-ss. (2) and (3) of S. 51 of the Act are supplemental or incidental to the provisions made by Parliament under Arts. 3 and 4 of the Constitution. Art. 3 of the Constitution enables Parliament to make a law for the formation of a new State. The Act is a law under Art. 3 for reorganisation of States. Art. 4 of the Constitution provides that the law referred to in Art. 3 may contain "such supplementary, incidental and consequential provisions, as Parliament may deem necessary". We find it impossible to agree with the High Court that the Act, being transitory in nature, the exercise of the power by the President under sub-s. (2) of S. 51 of the Act after a lapse of 26 years or the appointment by the Chief Justice of the High Court of a new State for the sittings of the Judges and Division Courts of such High Court under sub-s. (3) of S. 51 would be a complete nullity. These powers continue to exist by reason of Part V of the Act, unless Parliament by law otherwise directs. The Act is a permanent piece of legislation on the statute book. S. 14 of the General Clauses Act, 1897 provides that, where, by any Central Act or Regulation, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion arises.