Abdul Taiyab Abbas Bhai Malik And ... vs The Union Of India (Uoi) And Ors.

on 29 November, 1976

Madhya Pradesh High Court

Abdul Taiyab Abbas Bhai Malik And ... vs The Union Of India (Uoi) And Ors. on 29 November, 1976
Equivalent citations: AIR 1977 MP 176
Author: Oza
Bench: S Raina, G Oza, S Vyas, S Sharma, J Bajpai
JUDGMENT Oza, J.

1. This is a petition filed by the petitioners for a certificate under Articles 132 and 133 of the
Constitution of India.

2. Learned counsel appearing for the petitioners contended that in so far as the Notification by the
President of India constituting permanent Benches under Section 51(2) of the States Reorganisation
Act is concerned, it involves a question about the interpretation of Articles 2, 3, 4 and Entry 78, List
I, of the Seventh Schedule of the Constitution. It is also contended that as regards the decision about
the vires of Section 51(2) of the States Reorganisation Act, although the decision is unanimous, but
still it involves a substantial question of law, and the petitioners are entitled to a certificate under
Article 133 of the Constitution of India. As regards the question of locus standi of the petitioners and
the question about the jurisdiction of the Benches vis-a-vis the principal seat, it was contended that
there being difference of opinion in the judgment of this Court it itself indicates that it involves a
substantial question of law of general importance. Learned counsel placed reliance on the decisions
of their Lordships of the Supreme Court in Chunilal V. Mehta v. Century Spinning and
Manufacturing Co. Ltd., AIR 1962 SC 1314 and Ahmedabad Mfg. Calico Ptg. Co. v. Ramtahel AIR
1972 SC 1598. He also placed reliance on the decisions after the amendment of Article 133 of the
Constitution on the decisions of the Delhi High Court in Union of India v. Hafiz Mohd., AIR 1975
Delhi 77 (FB) and New Delhi Municipality v. State of A. P., AIR 1976 Delhi 1 and the decision of the
Supreme Court in State Bank of India v. N. S. Money, AIR 1976 SC 1111 where their Lordships
approved the view expressed in Union of India v. Hafiz Mohd. (supra), and contended that the
petitioners are entitled to a certificate under Articles 132 and 133 of the Constitution of India.

3. Shri Gulab Gupta, appearing for the High Court Bar Association, Jabalpur, supported the
contentions advanced by the learned counsel for the petitioners; whereas Shri Sinha, appearing for
the Union of India, and Shri G. M. Chaphekar, appearing for the High Court Bar Association,
Indore, contended that the petitioners are not entitled to a certificate. It was contended on behalf of
the contesting non-applicants that the decision of this Court is based on the principles laid down in
Nasiruddin v. S. T. A. Tribunal, AIR 1976 SC 331. Consequently, even if it is conceded that the case
involves questions of law, they could not be said to be substantial questions of law, and it also could
not be said by this Court that those questions need a decision of their Lordships of the Supreme
Court.

4. This Court, following the decisions of their Lordships of the Supreme Court in Mangal Singh v.
Union of India, AIR 1967 SC 944 and Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461, held
that the Parliament, while acting under Articles 2, 3 and 4 of the Constitution, was competent to
legislate on the subject of reorganisation of the States and, consequently, this Court ruled that
Section 51(2) of the States Reorganisation Act could not be said to be ultra vires. This Court also, in

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the alternative, held that Entry 78, List I of the Seventh Schedule of the Constitution confers
adequate authority on the Parliament to pass an enactment of the kind constituting and organising
the High Court. The questions decided in this respect are based on the decisions of their Lordships
of the Supreme Court and are questions which are well settled and, in our opinion, there is no
arguable question which could be said to be a matter deserving a certificate under Article 132 of the
Constitution pertaining to the interpretation of the Constitution.

5. In Chunilal V. Mehta v. Century Spinning and Manufacturing Co. Ltd., (AIR 1962 SC 1314)
(supra) on which reliance was placed by the learned counsel for the petitioners, their Lordships of
the Supreme Court, while considering the scope of Article 133 of the Constitution, before its
amendment, laid down:--

"The proper test for determining whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an open question in the sense that it is
not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from
difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or
the general principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the question would
not be a substantial question of law." (p. 1318).

6. After the amendment of Article 133 of the Constitution, as it now stands, viz., "(1) An appeal shall
lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court in the territory of India if the High Court certifies:

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court."

a Full Bench of the Delhi High Court had occasion to examine the scope of this article in Union of
India v. Hafiz Mohd., (AIR 1975 Delhi 77) (FB) (supra) wherein it observed :--

"The requirement for giving certificate has now become very stringent in view of the amendment of
Clause (1) of Article 133. A Division Bench of this court while dealing with the scope of this
amendment in S. C. A. 8 of 1973, decided on 30-3-1973 (Delhi), Union of India v. Jayantilal
Kuberdas Katakia has in interpreting it observed as under :--

"A certificate can be granted only if the case involves a question of law:--

(i) which is not only substantial but is also of general importance; and

(ii) the said question, in our opinion, needs to be decided by the Supreme Court. It has to be noted
that all the above requirements should be satisfied before a certificate can be granted. It means that

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it is not sufficient if the case involves a substantial queetion of law of general importance but in
addition to it the High Court should be of the opinion that such question needs to be decided by the
Supreme Court. Further, the word 'needs' suggests that there has to be a necessity for a decision by
the Supreme Court on the question, and such a necessity can be said to exist when for instance, two
views are possible regarding the question and the High Court takes one of the said views. Such a
necessity can also be said to exist when a different view has been expressed by another High Court."
(p. 79).

The same are the tests laid down in New Delhi Municipality v. State of A. P., (AIR 1976 Delhi 1)
(supra) and this matter ultimately has been considered by their Lordships of the Supreme Court in
State Bank of India v. N. S. Money, (AIR 1976 SC 1111) (supra). In this decision, their Lordships
approved the view taken in Union of India v. Hafiz Mohd. (supra) and observed as under :--

"The certificate issued by the High Court under Article 133(1) is bad on its face, according to counsel
for the respondent and the appeal consequently incompetent. We are inclined to agree that the grant
of a constitutional passport to the Supreme Court by the High Court is not a matter of easy
insouciance but anxious advertence to the dual vital requirements built into Article 133(1) by specific
amendment. Failure here stultifies the scheme of the Article and floods this Court with cases of
lesser magnitude with illegitimate entry. A substantial question of law of general importance is a
sine qua non to certify fitness for hearing by the apex court. Nay, more; the question, however
important and substantial, must be of such pervasive import and deep significance that in the High
Court's judgment it imperatively needs to be settled at the national level by the highest bench. The
crux of the matter has been correctly set out in a decision in Union of India v. Hafiz Mohd. Said, AIR
1975 Delhi 77 (FB) (at p. 79) of the Delhi High Court in words which find our approval:

"A certificate can be granted only if the case involves a question of law:--

(i) which is not only substantial but is also of general importance; and

(ii) the said question, in our opinion, needs to be decided by the Supreme Court It has to be noted
that all the above requirements should be satisfied before a certificate can be granted. It means that
it is not sufficient if the case involves a substantial question of law of general importance but in
addition to it the High Court should be of the opinion that such question needs to be decided by the
Supreme Court. Further, the word 'needs' suggests that there has to be a necessity for a decision by
the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two
views are possible regarding the question and High Court takes also one of the said views. Such a
necessity can also be said to exist when a different view has been expressed by another High Court."
In view of these pronouncements, it could not be doubted that before a certificate under Article 133
of the Constitution is granted by this Court, it must be satisfied that the case involves a substantial
question of law of general importance, and further that the said question, in the opinion of the High
Court, needs to be decided by the Supreme Court.

7. As regards the question of locus| standi of the petitioners, it is no doubt that there is a difference
of opinion amongst the Judges constituting the Bench deciding the case. But the decision of this

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Court is based on the principles laid down in Jasbhai Motibhai v. Roshan Kumar, AIR 1976 SC 578
and applying the principles laid down in this case the decision of this Court is that the petitioners
have no locus standi to file a petition. Consequently, it cannot be contended that the question
whether the petitioners have locus standi to file the present petition or not, is a substantial question
of law which needs a decision of their Lordships of the Supreme Court.

8. As regards the question of jurisdiction of the Benches vis-a-vis the principal seat, although there
is a difference of opinion, but each one of us felt that the questions involved have been decided by
their Lordships of the Supreme Court. Some of us felt that the principles laid down in the decision in
Nasiruddin's case, (AIR 1976 SC 331) (supra) would apply to the ques-

tions involved in the present case, whereas some of us found reasons to distinguish this case from
the application of the principles decided in Nasiruddin's case (supra). But the decision of this Court
ultimately is the decision, following the principles laid down in Nasiruddin's case (supra).
Consequently, it could not be held that the questions involved are substantial questions of law, and
further that they need a decision by their Lordships of the Supreme Court.

9-11. Consequently, we see no reason to

grant the certificate as prayed for. The
petition is, therefore, dismissed. In the
circumstances of the case, the parties are
directed to bear their own costs.

S.S. Sharma, J.

I agree with Hon. Oza, J.

Raina, J.

I regret my inability to agree with my learned brother, Oza, J. that this application s

12. By this application under Articles 132(1) and 133(1) of the Constitution of India t

13. The applicants are advocates practising in the High Court of Madhya Pra-desh at Jabalpur. They
had filed a petition under Articles 226 and 227 of the Constitution praying that the orders of the
President of India, dated 28-11-1968, establishing permanent Benches at Gwalior and Indore be
quashed and the Hon'ble the Chief Justice be directed to recall the orders, dated 5-2-1976, and the
Registrar of the High Court be restrained from transferring any cases, which are pending at
Jabalpur, to Gwalior or Indore. The Hon'ble the Chief Justice was pleased to constitute a Full Bench

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of five Judges to hear the said petition on a reference by the Division Bench before which it was
originally placed. There was a difference of opinion among the Judges constituting the Bench and
the petition was dismissed in accordance with the majority view.

14. In the said petition a number of important questions of law were raised by the petitioners which
are referred to in paragraph 10 of my judgment.

15. One of the questions was whether Sub-sections (2) and (3) of Section 51 of the States
Reorganisation Act, 1956 (hereinafter referred to as 'the Act') are ultra vires on the ground that the
subject-matter thereof falls within the exclusive legislative competence of the State Legislature and
not of the Parliament. It involved the interpretation of Entry 78 in List I of Schedule VII of the
Constitution vis-a-vis Entry No. 3 in the State List. A question about the interpretation of Articles 3
and 4 of the Constitution also arose in this connection. The Full Bench unanimously held that the
provisions of Sub-sections (2) and (3) of Section 51 of the Act are intra vires repelling the arguments
of the petitioners. It has been urged that although there is a decision of the Supreme Court, viz.,
Mangal Singh v. Union of India, AIR 1967 SC 944 on the question of interpretation of Articles 3 and
4 of the Constitution, there is no authoritative decision of the Supreme Court on the question of
interpretation of the expression "constitution and organisation of the High Courts" in Entry No. 78
of List I and, therefore, a certificate of fitness for appeal to the Supreme Court should be granted
under Clause (1) of Article 132 of the Constitution, There can be no doubt that the question
regarding interpretation of the expression "constitution and organisation of the High Courts" in
Entry No. 78 of List I is a substantial question of law as to the interpretation of the Constitution,
particularly because there is no decision of the Supreme Court directly on the point. The decision of
the Supreme Court in State of Bombay v. Narotlamdas, AIR 1951 SC 69 dealt with a somewhat
similar question under the Government of India Act, 1935; but, since the wording of the
corresponding Entries under the Government of India Act was different, the decision is of limited
value.

16. Apart from this, an important question of law of general importance, which needs to be decided
by the Supreme Court, is the meaning of the words "principal seat" in Sub-section (1) of Section 51
of the Act. The question in this connection is whether the Higih Court of Madhya Pradesh at its
principal seat is competent to entertain all cases arising within the territories of Madhya Pradesh.
including those which arise within the districts assigned to the permanent Benches at Gwaliar and
Indore. No decision of the Supreme Court on this question has been brought to my notice. In
Nasiruddin v. S. T. A. Tribunal, AIR 1976 SC 331 their Lordships were not required to consider this
question because there was no provision corresponding to Sub-section (1) of Section 51 of the Act in
the United Provinces Higih Courts (Amalgamation) Order, 1948 (hereinafter referred to as the
'Amalgamation Order'), and it was not laid down therein that the principal seat of the High Court
can be located at any particular place.

17. The other important questions of law of general importance, which need to be decided by the
Supreme Court, are-

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(i) Whether the President, in exercise of his powers under Sub-section (2) of Section 51 of the Act,
was competent to carve out an exclusive jurisdiction for the permanent Benches at Gwalior and
Indore so as to curtail the jurisdiction of the High Court at its principal seat ?

(ii) Whether the orders of the President constituting permanent Benches at Gwalior and Indore vide
Annexs. 1 and 2 to the Return of the Registrar are to be construed as carving out an exclusive
jurisdiction for the said Benches in respect of cases arising within the districts assigned to them so
as to exclude the jurisdiction of the High Court to entertain such cases at Jabalpur, its principal seat,
unless they are directed by the Chief Justice to be heard at Jabalpur in exercise of his powers under
the proviso to the Presidential Orders (Annexs. 1 and 2 to the Return of the Registrar) ? In my view,
the aforesaid questions are not concluded by the decision of the Supreme Court in Nasiruddin's case
(AIR 1976 SC 331) because the Lucknow Bench was constituted not under the Act, but under the
Amalgamation Order and, therefore, their Lordships had no occasion to examine these questions in
the light of the provisions of the Act. In paragraph 118 of my judgment in the main petition I have
indicated the grounds on which the decision of their Lordships in Nasiruddin's case is
distinguishable.

18. It is no doubt true that the majority view is different on these questions; but for the grant of a
certificate all that we have to consider is whether the conditions laid down in Sub-clauses (a) and (b)
of Clause (1) of Article 133 of the Constitution are fulfilled. The said clauses are reproduced below:

"(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court."

19. There can be no doubt that the aforesaid questions are substantial questions of law of general
importance in which the litigants as well as lawyers of the entire State are interested. In fact the
litigants and lawyers of other States too may be interested in the aforesaid questions, where similar
Benches have been constituted under the Act. I, therefore, hold that the condition laid down in
Sub-clause (a) of Clause (1) of Article 133 of the Constitution is fulfilled in this case.

20. The next point for consideration is whether the aforesaid questions need to be decided by the
Supreme Court. It is quite apparent that these questions have not been so far decided by the
Supreme Court because the question of jurisdiction of the Benches at Gwalior and Indore vis-a-vis
the jurisdiction of the High Court of Madhya pradesh at its principal seat never came up for
consideration before their Lordships of the Supreme Court. According to the majority view the
question could be answered on the basis of the decision of the Supreme Court in Nasiruddin's case,
(AIR 1976 SC 331); but that is different matter. In any case, as held by their Lordships of the
Supreme Court in State Bank of India v. Shri N. S. Money, AIR 1976 SC 1111 the necessity for a
decision by the Supreme Court on a substantial question of law can be said to exist when two views
are possible regarding it or there is a difference of opinion between the High Courts. The very fact
that the decision of this Court is not unanimous on these questions, shows that two views are
possible regarding these questions and since these questions have never been so far considered by

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the Supreme Court, they need to be decided by the said Court. I, therefore, hold that both the
conditions laid down in Sub-clauses (a) and (b) of Clause (1) of Article 133 of the Constitution are
satisfied in this case and, therefore, the applicants are entitled to a certificate.

21. According to the majority view, the petitioners had no locus standi to present the petition. I have
discussed this question in paragraphs 29 to 37 of my judgment in the petition and, after adverting to
the decisions of the Supreme Court in Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044;
Venkateshwar Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; S. Sinha v. Messrs S. Lal,
AIR 1973 SC 2720 and Jasbhai Motibhai v. Roshan Kumar, AIR 1976 SC 578, held that on the
principles laid down therein the petitioners were entitled to present the petition. The applicants,
therefore, cannot be denied the certificate of fitness for appeal to the Supreme Court on this ground.

22. To sum up, apart from other important questions raised in this petition, the question of
jurisdiction of High Court of Madhya Pradesh at its principal seat vis-a-vis the jurisdiction of the
Benches, at Gwalior and Indore is, in my view, a substantial question of law of general importance
which needs to be decided by the Supreme Court for the guidance of lawyers, litigants and Judges. I
am, therefore, of the view that this application should be allowed and the case should be certified as
a fit one for appeal to the Supreme Court.

Bajpai, J.

23. I had the advantage of reading the opinions of both the learned brothers Oza J. and Raina J.
dissenting with each other on the question of grant of certificate of fitness of the case for appeal to
the Supreme Court.

24. The main petition, out of which this application for a certificate of fitness arises, was initially
entertained by a Division Bench of this Court. The Division Bench was of the view that, looking to
the Importance of the question involved, the matter should be finally heard by a larger Bench.
Accordingly, a Bench of five Judges was constituted and the matter was heard for about 2 weeks at
length on various questions urged from both the sides.

25. On going through the orders passed by my learned brothers Oza J. and Raina J. while deciding
the main petition, it is obvious that there had been a conflict of opinions on the question of
jurisdiction of the Judges of this Court sitting at Jabalpur, i. e. the principal seat as notified in
accordance with the provisions of Sub-section (1) of Section 51 of the States Reorganisation Act,
(hereinafter referred to as 'the Act') to entertain and hear cases arising in any part of the State,
irrespective of allotment of certain districts to the respective Benches established in accordance with
the provisions of Sub-section (2) of Section 51 of the said Act at Indore and Gwalior.

26. According to my learned brother Raina J., cases arising in the districts allotted to the respective
Benches are normally to be entertained and heard at the respective places, i. e. Indore and Gwalior,
and if instituted at those places, they can be heard at the principal seat also if so directed by the
Hon. Chief Justice, but the Judges sitting at the principal seat can always entertain and hear cases
arising in any district within the State. But according to learned brother Oza J., the Judges sitting at

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Jabalpur cannot entertain and hear cases arising in the districts allotted to the respective Benches at
Indore and Gwalior by the Presidential Order issued under Sub-section (2) of Section 51 of the Act
in spite of the fact that Jabalpur has been notified as the principal seat of the High Court of Madhya
Pradesh under Sub-section (1) of Section 51 of the said Act. According to Raina J., the question of
jurisdiction of the Judges sitting at the principal seat, as notified under Section 51(1) of the said Act,
vis-a-vis of the Benches established under Sub-section (2) of Section 51 of the said Act was not
involved in the case of Nasiruddin v. S. T. A. Tribunal, AIR 1976 SC 331. However, according to
brother Oza J. the aforesaid decision, though not a decision direct on the question of jurisdiction of
the Judges sitting at the principal seat of the High Court, notified under Section 51(1) of the said Act,
could be applied on principles.

27. According to the view taken by me in my order in the main petition, there is no question of
inherent lack of jurisdiction with the Judges sitting at the principal seat for entertaining cases
arising within the State. According to the view I had taken, it is the same jurisdiction of the High
Court extending to the entire State which is being exercised by the Judges sitting both at the
principal seat and also at the respective Benches. The aforesaid allocation of certain districts to the
respective Benches amounted to prescribing the manner of exercise of jurisdiction. In my opinion,
once the manner has been prescribed for exercising the jurisdiction, the same is to be exercised in
the said manner and not otherwise.

28. However, for the purposes of deciding the present application, for grant of a certificate of fitness
of the case for appeal to the Supreme Court, it is not very much material as to what view each one of
us has taken while deciding the main petition. The question in the present petition is whether there
is a substantial question of law of general importance involved and whether in the opinion of this
Court, the same needs to be decided by the Supreme Court.

29. It was not seriously in dispute that the question involved is a substantial question of law.
However, it was contended by the non-applicants that as observed by Hon. Oza J. the decision of the
Supreme Court in Nasiruddin's case, (AIR 1976 SC 331) (supra) can be applied on principles to the
facts of the present case also in spite of the fact that in the said case, the question of jurisdiction of
the Judges sitting at the principal seat of the High Court, as notified under Sub-section (1) of Section
51 of the States Reorganisation Act was not involved. According to the non-applicants, despite
absence of any provision declaring the seat of the High Court at Allahabad as the principal seat, the
provisions of the U. P. High Court (Amalgamation) Order and those of the States Reorganisation Act
can be treated as pan materia and, therefore, the question involved in the present case cannot be
said to be one which needs to be decided by the Supreme Court. On behalf of the applicants, it was
urged that as observed by Hon. Raina J. in his order in the main petition, the aforesaid difference is
a material one and, therefore, tha provisions of U. P. High Court (Amalgamation) Order and those of
the States Reorganisation Act cannot be said to be pari materia and as such the question involved is
one which needs to be decided by the Supreme Court.

30. It is apparent that there had been a conflict of opinion on the point and different reasons have
been given. In my opinion, therefore, the question involved needs to be decided by the Supreme
Court and the same being a substantial question of law and of general importance, the case deserves

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to be certified as a fit one for appeal to the Supreme Court.

Vyas, J.

31. I have read the orders prepared by my learned brothers Raina, Oza and Bajpai, JJ. I regret my
inability to agree with the view taken by Raina and Baipai, JJ, I agree with the order proposed by
Oza J. I would, however, like to add only a few words of my own.

32. The decision of this Court on the main petition is that the principal contention raised by the
petitioners with regard to the jurisdiction of the Benches in accordance with the Presidential Order
is concluded by the decision of the Supreme Court in Nasiruddin v. Section T. A. Tribunal, AIR 1976
SC 331. Once the decision of the Court is that the question of law raised by a party is concluded by a
decision of the Supreme Court, then it cannot be said to be such a question of general importance
which needs to be decided by the Supreme Court, and for which a certificate under Article 133 of the
Constitution should be given bv this Court. The mere fact, that some questions of law with regard to
the constitutional validity of the Presidential Order were raised does not justify grant of the
certificate.

33. Accordingly, while agreeing with the view taken by Oza, J., I am of the opinion that the
petitioners are not entitled to the certificate, as prayed for by them. The application made by the
petitioners for the grant of the certificate, therefore, deserves to be dismissed.

BY COURT

34. In accordance with the majority view, the application is hereby dismissed. We make no order as
to costs in the circumstances of the case.

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