SURJUPRASAD GUMASTA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) A very interesting question arises with regard to the proper construction of S. 59 of the States Reorganisation Act, and the question arises under the following circumstances. A petition was filed by one Surjuprasad Gumashta against the State of Madhya Pradesh alleging that he had been wrong fully dismissed, and this petition was presented be fore the Nagpur High Court and the petition was admitted by that High Court. Then came the States Reorganisation Act and this petition was transferred to the Bombay High Court under sub-s. (2) of S. 59. The petition now comes before the Bombay High Court for final disposal and the question that arises is whether this High Court has jurisdiction to issue a writ against the State of Madhya Pradesh. We are only dealing with this petition to the extent that the complaint made is that the dismissal is by the State of Madhya Pradesh and that the State of Madhya Pradesh is liable to reinstate the petitioner in its service.

(2.) NOW, the scheme of S. 59 is this that the Legis lature had to deal with the situation that arose by reason of the fact that the old Nagpur High Court ceased to function, that it became the High Court of the new State of Madhya Pradesh, and part of old Madhya Pradesh integrated into the Bombay State. Therefore, the Bombay High Court had jurisdiction over part of the old Madhya Pradesh. Obviously, arrangements had to be made with regard to the orders made by the Nagpur High Court which ceased to function, and S. 59 deals with various contingencies which would arise under the new dispensation. Section 59 (1) provides:

(3.) NOW, the order admitting the petition was passed by the High Court of Nagpur. The petition was transferred to the Bombay High Court by an order of the Chief Justice under sub-s. (2) of S. 59, and therefore by reason of sub-s. (5) of S, 59 the order admitting the petition made by the High Court Court of Nagpur became an order made by the High Court of Bombay. Therefore, the legal fiction introduced by this sub-section was, to the extent that we are concerned, that any order pass ed by the High Court of Nagpur in a proceeding which is transferred to the High Court of Bombay should be deemed to be an order passed by the High Court of Bombay. Relying on this provision what has been argued - and very strenuously argued - by Mr. Bobde is that the result of this legal fiction in the case before us is that this Court has jurisdiction to issue a writ against the State of Madhya Pradesh. The submission seems to be startling because apart from the provisions of the States Reorganisation Act the position under the Constitution is perfectly clear. Under Art. 226 the jurisdiction of this Court to issue writs are confined to issuing writs on those persons and authorities which are within the territorial jurisdiction of this Court. It is not suggested, and it cannot be suggested, that under Art. 226 this Court has any jurisdiction to issue a writ against the State of Madhya Pradesh. But what is argued is that when the petition was filed, the Nagpur High Court had jurisdiction to issue a writ against the Madhya Pradesh Government as it then was. The Court having accepted the petition and having issued a notice, the jurisdiction which the Nagpur High Court initially had against the State of Madhya Pradesh continued by reason of the legal fiction introduced by S. 59 (5), and the principle that is availed of is that if a party is within jurisdiction at the inception of a proceeding he cannot take away the jurisdiction of the Court by withdrawing himself from the jurisdiction and the Court will pass an order notwithstanding the fact that he is no longer within jurisdiction at the time when the order was passed.