High Court Advocates Association Vs. Union of India & Ors  Insc 667
(15 December 2000)
The present State of Rajasthan came into being on November 1, 1956 in
accordance with the States Reorganisation Act, 1956 (hereinafter the Act)
consisting of the territories mentioned in Section 10 thereof.
(2) of Section 49 mandates a High Court being established for the new State of Rajasthan as from the appointed day, i.e., November 1, 1956. On October 27, 1956, the President of India in exercise of the powers conferred
by sub-section (1) of Section 51 of the Act, directed Jodhpur to be the principal seat of the new
High Court for the State of Rajasthan.
Initially the Chief Justice of the State established a temporary bench of the
High Court of Rajasthan at Jaipur but eventually exercising the power conferred
by sub-section (2) of Section 51 of the Act the President, on January 31, 1977
issued an Order which reads as under:- In exercise of the powers conferred by
sub- section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of
1956), the President, after consultation with the Governor of Rajasthan and the
Chief Justice of the High Court of Rajasthan, is pleased to make the following
Order, namely :-
Short title and Commencement __ (1). This Order may be called the High Court of
Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976.
shall come into force on the 31st day of January, 1977.
Establishment of a Permanent Bench of the Rajasthan High Court at Jaipur __
There shall be established a permanent Bench of the High Court of Rajasthan at Jaipur,
and such Judges of the High Court of Rajasthan, being not less than five in
number, as the Chief Justice of that High Court may, from time to time
nominate, shall sit at Jaipur in order to exercise the jurisdiction and power
for the time being vested in that High Court in respect of cases arising in the
districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah,
Sawai Madhopur, Sikar and Tonk.
that the Chief Justice of that High Court may, in his discretion, order that
any case or class of cases arising in any such district shall be heard at Jodhpur.
Delhi. Sd/- F.A.
AHMAD December 8, 1976.
23rd December, 1976, the then Acting Chief Justice of the High Court of
Rajasthan issued the following order carving out jurisdiction between the cases
to be heard at Jodhpur principal seat and the Jaipur Bench seat :- RAJ. HIGH
COURT, JODHPUR NOTIFICATION No. 1/J.B. Dated Dec. 23, 1976.
pursuance of the High Court of Rajasthan (Establishment of a Permanent Bench at
Jaipur) Order, 1976, and in exercise of the powers under sub-sec. (2) of S.44
of the Rajasthan High Court Ordinance, 1949, read with Ss.54 and 57 of the
Sates Reorganisation Act, 1956, the Honble the x x x x Chief Justice has been
pleased to order that with effect from the 31st day of January, 1977 - (a) all
cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chitorgarh,
Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi
and Udaipur (except such case or class of cases as may by special order be
transferred to the Jaipur Bench) shall be disposed of by the Court at Jodhpur,
and (b) all cases arising in the revenue districts of Ajmer, Alwar, Bundi, Bharatpur,
Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk (except such
case or class of cases as may by special order be transferred to the Court at
Jodhpur) shall be disposed of by the Court at Jaipur.
that a Vacation Judge, whether sitting at Jodhpur or at Jaipur may hear any case irrespective of the district in which it
has arisen for the purpose of deciding any matter which in his opinion requires
A writ case shall be deemed to arise in the district where the first order
pertaining to that case was passed by a Court, Tribunal or Authority
irrespective of the district in which the appeal or revision from that order is
heard and irrespective also of the fact whether or not there has been any
modification or reversal of the order in appeal or revision.
Pal Tyagi CHIEF JUSTICE 23-12-76.
On 12th January, 1977 the learned Acting Chief Justice
issued yet another order substituting a new explanation now forming part of the
order dated December
23, 1976, which reads
as under :- In the above order for the Explanation the following maybe
substituted. - Explanation - A writ case shall be deemed to arise in the
district where the cause of action for issuing the first order pertaining to
that case passed by a Court, tribunal or authority has arisen irrespective of
the district in which the appeal or revision from that order is heard and
irrespective also of the fact whether or not there has been any modification or
reversal of the order in appeal or revision.
Pal Tyagi CHIEF JUSTICE 12-1-77.
validity of the Presidential Order dated December 8, 1976 as also of the abovesaid
orders of the Acting Chief Justice was put in issue on very many grounds but
the same was turned down by a Division Bench of the High Court of 1977
Rajasthan 243). Briefly it may be stated that the grounds on which challenge
was laid to the order of the Acting Chief Justice were : (1) Unless the High
Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976
comes into force, the Acting Chief Justice could not have passed any order
under its authority; (2) The Acting Chief Justice could not have passed any
order for the transfer of pending cases or the cases instituted at the main
seat at Jodhpur upto 31-1-1977 under the authority of the Presidential Order,
inasmuch as the Presidential Order is clearly prospective in operation; (3)
Under the proviso to the Presidential Order, cases falling within the
jurisdiction of the Jaipur Bench could be withdrawn to the main seat at Jodhpur
and not vice versa; (4) The Acting Chief Justice cannot decide, in his
administrative capacity, the fact of jurisdiction for the purpose of allocation
of cases to the Jaipur Bench on the basis of cause of action.
perusal of the decision of the Division Bench in Ram Rakhs case (supra) goes to
show that in para 7, having set out the four grounds of challenge to the
validity of the order issued by the Acting Chief Justice, the Division Bench
has observed "these contentions cannot, in our opinion, prevail. However,
a perusal of para 29 of the report goes to show that contentions numbers 2 and
3 were taken up by the Division Bench for consideration as two principal
grounds while the contention no.4 with which we are concerned here(in view of
the submissions made at the Bar) was not dealt with and disposed of by the
appears that the Division Bench (vide para 37 of the report) formed an opinion
that the appellant before it was an advocate practising at Jodhpur and nothing
was brought to the notice of the Division Bench to show if he was a person
present writ petition filed before the High Court very many grounds of
challenge were raised and also argued but we would be dealing with only one
inasmuch as the learned counsel for the parties conceded at the Bar that this
was the only issue surviving for consideration and which deserves to be dealt
by this court.
submitted before the High Court of Rajasthan that the explanation inserted in
the order of the Acting Chief Justice dated December 23, 1976 by the subsequent order dated January 12, 1977 was ultra vires the powers of the Chief Justice. The States
Reorganisation Act, the Presidential Order and no other provision of law authorises
the Chief Justice to define where a cause of action in a writ case would be
deemed to have arisen so as to determine where it would be filed. The High
Court in its impugned order has upheld the plea so raised and directed the
explanation abovesaid to be struck down. Feeling aggrieved, the Rajasthan High
Court Advocates Association, Jodhpur has
filed this appeal by special leave.
order of the Chief Justice, whereto is appended the impugned explanation,
refers to the Presidential Order, sub-section (2) of Section 44 of the
Rajasthan High Court Ordinance, 1949 and Sections 54 and 57 of the States Reorganisation
Act, 1956 as the sources of power exercised in issuing the notification. We
will deal with each one of the three.
Presidential Order having established a permanent bench of the High Court of
Rajasthan at Jaipur and having appointed the minimum number of judges as would
sit at Jaipur proceeded to declare that the permanent bench seat at Jaipur
shall exercise the jurisdiction and power for the time being vested in the High
Court in respect of cases arising in the districts, 11 in number, as mentioned
therein. A discretionary jurisdiction is also conferred on the Chief Justice of
the High Court to order that any case or class of cases arising in any district
forming part of territorial jurisdiction of the permanent bench at Jaipur shall
be heard at Jodhpur (principal seat). The Presidential
Order is clear. The jurisidiction allocated to the permanent bench at Jaipur is
by reference to territory covered by the 11 specified districts. The proviso
appended to para 2 of the Presidential Order speaks of any case or class of
cases but therefrom too a power in the Chief Justice to define cause of action
cannot be spelled out.
nature and extent of power conferred on the President by Section 51 of the Act
came up for the Narayan Shamrao Puranik & Ors., AIR 1983 SC 46. It was
clear upon the terms of S.51 of the Act that undoubtedly the President has the
power under sub-section (1) to appoint the principal seat of the High Court for
a new State. Likewise, the power of the President under sub-section (2)
thereof, after consultation with the Governor of a new State and the Chief
Justice of the High Court for that State, pertains to the establishment of a
permanent Bench or Benches of that High Court of a new State at one or more
places within the State other than the place where the principal seat of the
High Court is located and for any matters connected therewith clearly confer
power on the President to define the territorial jurisdiction of the permanent
Bench in relation to the principal seat as also for the conferment of exclusive
jurisdiction to such permanent Bench to hear cases arising in districts falling
within its jurisdiction. The creation of a permanent Bench under sub-section
(2) of Section 51 of the Act must therefore bring about a territorial
bifurcation of the High Court.
by us] The establishment of a permanent Bench at Jaipur and defining its
territorial jurisdiction brought out a bifurcation of State of Rajasthan into two for the purpose of
division of territorial jurisdiction of the High Court between the principal
seat and the permanent Bench seat.
Chief Justice of the State cannot, thereafter, artificially or indirectly take
away the jurisdiction belonging to one and confer it on the other. Conferring a
discretion on the Chief Justice to order any case or class of cases arising in
any district within the territorial jurisdiction of permanent Bench at Jaipur
shall be heard at Jodhpur cannot spell out a power to define where the cause of
action shall be deemed to have arisen in a writ case.
44 of Rajasthan High Court Ordinance 1949 provides as under: 44. Distribution
of business and administrative control __ (1) The High Court may, by its own
rules, provide as it thinks fit for the exercise by one or more Judges, or by
Division Courts constituted by two or more Judges of the High Court, of its
original and appellate jurisdiction.
The Chief Justice shall be responsible for the distribution and conduct of the
business of the High Court, and shall determine which Judge in each case will
sit alone and which Judges of the Court will constitute a Bench.
The administrative control of the High Court shall vest in the Chief Justice
who may exercise it in such manner and after such consultation with the other
Judges as he may think fit or may delegate such of his functions as he deems
fit to any other Judges of the High Court.
(2) abovesaid has to be read along with sub-section (1). It entrusts the Chief
Justice with responsibility for distribution and conduct of the business of the
High Court and to determine which Judge shall sit singly and which in a Bench.
The responsibility entrusted carries with it, as a necessary concomitant, the
power needed in the Chief Justice to effectively fulfil the responsibility. The
provision is what is popularly called, a power to frame a roster. This
provision too does not vest the Chief Justice with power to enact an
explanation as is in question. Roster is framed generally by identifying
particular subject matter or nature of cases which will be listed for hearing
before different Benches consistently with the rules of business of the Court.
Thereafter listing of cases is to be done by the Registrar in a routine. Power
to frame a roster vests the Chief Justice with an administrative control over
the distribution of judicial work of the Court. It has nothing to do with how a
Judge would then judicially function in dealing with a case listed before him
as per roster. A writ case when listed before a Judge for hearing as per roster
may be heard or refused to be heard by him depending on his opinion formed on
the judicial side on the question whether the cause of action in that case
arises within the territorial jurisdiction of the bench seat or not. Whether or
not a case arises in a district lying within the jurisdiction of bench seat __
is a question to be decided judicially, in case to case, and not by an
administrative order of the Chief Justice made generally.
54 of the Act speaks of practice and procedure in the High Court. Section 57
speaks of powers of the Chief Justice, Single Judges and Division Courts of the
High Court and provides that the laws in force immediately before the appointed
day relating to such powers and with respect to matters ancillary to the
exercise of those powers shall, with the necessary modifications, apply in
relation to the High Court for a new State. None of the two provisions can
spell out any legislative power having been conferred on the Chief Justice to
define cause of action.
expression similar to the one in respect of cases arising in the districts of
as used in para 2 of the Presidential Order came up for the consideration of a
Transport Appellate Tribunal - AIR 1976 SC 331. It was in the context of
division of territorial jurisdiction between Allahabad and Lucknow benches in Uttar Pradesh. This
Court held :- . . . . . . the expression cause of action in an application
under Article 226 would be as the expression is understood and if the cause of
action arose because of the appellate order or the revisional order which came
to be passed at Lucknow then Lucknow would have jurisdiction though the original order was
passed at a place outside the areas in Oudh.
It may be that the original order was in favour of the person applying for a
writ. In such case an adverse appellate order might be the cause of action. The
expression cause of action is well-known. If the cause of action arises wholly
or in part at a place within the specified Oudh
areas, the Lucknow Bench will have jurisdiction. If the cause of action arises
wholly within the specified Oudh areas, it
is indisputable that the Lucknow Bench would have exclusive jurisdiction in
such a matter. If the cause of action arises in part within the specified areas
in Oudh it would be open to the litigant
who is the dominus litis to have his forum conveniens. The litigant has the
right to go to a Court where part of his cause of action arises. In such cases,
it is incorrect to say that the litigant chooses any particular Court. The
choice is by reason of the jurisdiction of the Court being attracted by part of
cause of action arising within the jurisdiction of the Court. Similarly, if the
cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to
institute proceedings either at Allahabad or Lucknow. The Court will find out in each
case whether the jurisdiction of the Court is rightly attracted by the alleged
cause of action.
expression cause of action with regard to a civil matter means that it should
be left to the litigant to institute cases at Lucknow Bench or at Allahabad
Bench according to the cause of action arising wholly or in part within either
of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction.
Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the
specified Oudh areas and part of the cause of action
arises outside the specified areas, it will be open to the litigant to frame
the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad.
under Article 226 will similarly lie either at Lucknow now or at Allahabad as
the applicant will allege that the whole of cause of action or part of the
cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place
outside the specified Oudh areas.
by us] The abovesaid view of the law has been reiterated by this Court recently
in U.P. Rashtriya Chini Mill Adhikari The expression cause of action has
acquired a judicially settled meaning. In the restricted sense cause of action
means the circumstances forming the infraction of the right or the immediate
occasion for the action. In the wider sense it means the necessary conditions
for the maintenance of the suit, including not only the infraction of the
right, but the infraction coupled with the right itself. Compendiously the
expression means every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment of the
Court. Every fact which is necessary to be proved, as distinguished from every
piece of evidence which is necessary to prove each fact, comprises in cause of
action. It has to be left to be determined in each individual case as to where
the cause of action arises. The Chief Justice of the High court has not been
conferred with the legislative competence to define cause of action or to
declare where it would be deemed to have arisen so as to lay down artificial or
deeming test for determining territorial jurisdiction over an individual case
or class of cases. The permanent bench at Jaipur has been established by the
Presidential Order issued under sub-section (2) of Section 51 of the Act. The
territorial jurisdiction of the permanent bench at Jaipur is to be exercised in
respect of the cases arising in the specified districts. Whether the case
arises from one of the specified districts or not so as to determine the
jurisdictional competence to hear by reference to territory bifurcated between
the principal seat and the bench seat, shall be an issue to be decided in an
individual case by the judge or judges hearing the matter if a question may
arise in that regard. The impugned explanation appended to the Order of the
Chief Justice dated 23rd December, 1976 runs counter to the Presidential Order
and in a sense it is an inroad into the jurisdiction of the judges hearing a
particular case or cases, pre-empting a decision to be given in the facts of
individual case whether it can be said to have arisen in the territory of a
particular district. The High Court is right in taking the view which it has
submitted at the end by the learned counsel for the appellant that the Division
Bench of the High Court in its impugned order has observed that the permanent
bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out
of the 11 specified districts and the High Court at Jodhpur shall not have
jurisdiction to hear those cases which fall within the territorial jurisdiction
of Jaipur Bench. He submitted that the use of word exclusive pre-fixed to
jurisdiction is uncalled for. We find no substance in this contention as well.
The purpose of the Presidential Order is to carve out and define territorial
jurisdiction between the principal seat at Jodhpur and the permanent bench seat at Jaipur. The cases are to be heard
accordingly unless the Chief Justice may exercise in his discretion the power
vested in him by the proviso to para 2 of the Presidential order. Clauses (1)
and (2) of Article 226 of the Constitution provide how territorial jurisdiction
shall be exercised by any High Court. Although the said clauses do not deal
with principal seat or permanent bench of any High Court but in our opinion,
there is no reason why the principle underlying thereunder cannot be applied to
the functioning of the bifurcated territorial jurisdiction between the
principal seat and permanent bench seat of any High Court. In case of a dispute
arising whether an individual case or cases should be filed and heard at
Jodhpur or Jaipur, the same has to be found out by applying the test __ from
which district the case arises, that is, in which district the cause of action
can be said to have arisen and then exercising the jurisdiction under Article
226 of the Constitution.
For the foregoing reasons we do not find any fault with
the findings arrived at by the High Court. The appeal is dismissed. No order as
to the costs.