SAGGAR GAGU DHULA Vs. SANGAR ABHARAM VELA

JUDGEMENT

(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:-

(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:

(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.