1 Lpa-1.10in wp-177.10 IN THE HIGH COURT OF BOMBAY AT GOA LETTERS PATENT APPEAL NO. 1 OF 2010 IN WRIT PETITION NO. 177 OF 2010 WITH LETTERS PATENT APPEAL NO. 19 OF 2009 LPA NO. 1 OF 2010 Mr. Edward Evan Pereira & Anr. .. Appellants Vs Mr. Goncalo Jose Agnelo & Anr. .. Respondents ­­ Shri S.Vidalet for the Appellants. ­­ LPA NO. 19 OF 2009 Shri Laxman Candolkar. .. Appellant Vs The Village Panchayat of Candolim & Anr. .. Respondents ­­ Shri V. Pangam for the Appellant. ­­ CORAM : A.S. OKA & F.M. REIS, JJ DATE ON WHICH ORDER IS RESERVED : 12TH AUGUST, 2010. DATE ON WHICH ORDER IS PRONOUNED : 30th SEPTEMBER, 2010 2 Lpa-1.10in wp-177.10 ORDER : ( PER A.S. OKA, J ) The learned Counsel for the Appellants in Letters Patent Appeal No.1 of 2010 submitted that the decision of a Division Bench of this Court in the case of Shri Sanjay Z. Rane and Others Vs. Smt. Saibai S. Dubaxi, since deceased through Lrs., ( Letters Patent Appeal No. 15 of 2000 decided on 22nd June, 2009 ) requires reconsideration. This Court held that the jurisdiction to entertain an intra­Court Appeal under Letters Patent of 1865 has not been conferred on the High Court of Bombay at Goa. 2. On 20th December, 1961, the Portuguese rule in Goa came to an end and Goa became a Union Territory on 5th March, 1963. Section 7 of the Goa Daman and Diu ( Administration ) Act, 1962 ( hereinafter referred to as “the said Act of 1962” ) provided that the jurisdiction of the High Court at Bombay shall extend to the Union territory Goa, Daman and Diu from such date as the Central Government may specify by a notification. It is not in dispute that no such notification was issued and the power under Section 7 was never exercised. 3. Then came the Goa, Daman and Diu (Judicial Commissioner’s Court ) Regulations, 1963 which was brought into force on 16th December, 1963. Under the said Regulation, the Court of Judicial Commissioner was established. Under Section 8 of the said Regulations of 3 Lpa-1.10in wp-177.10 1963, the Court of Judicial Commissioner was declared to be the highest Civil and Criminal Court of Appeal and Revision in Goa, Daman and Diu. Significantly, Section 7 of the said Act of 1962 was also deleted on 16th December, 1963. The Goa, Daman and Diu Judicial Commissioner’s Court ( Declaration as High Court ) Act, 1964 (hereinafter referred to as “the said Act of 1964” ) was brought into force. Section 3 of the said Act of 1964 reads thus:­ “3. Declaration of Goa, Daman and Diu Judicial Commissioner’s Court as High Court for certain purposes. ­­ The Court of Judicial Commissioner for the Union territory of Goa, Daman and Diu ( hereinafter referred to as the Judicial Commissioner’s Court ) is hereby declared to be a High Court for the purposes of articles 132, 133 and 134.” 4. With effect from 30th October, 1982, the High Court of Bombay ( Extension of Jurisdiction to Goa, Daman and Diu ) Act, 1981 (hereinafter referred to as “the said Act of 1981”) came into force. From the said date, a permanent Bench of the Bombay High Court was established at Panaji. Sections 3, 4 and 9 of the said Act of 1981 read thus:­ “3. Extension of jurisdiction of Bombay High Court to Goa, Daman and Diu. ­­ (1) On and from the appointed day, the jurisdiction of the High Court at Bombay shall extend to the Union territory of Goa, Daman and Diu. (2) On and from the appointed day, the Court of the Judicial Commissioner shall cease to function and is hereby abolished: Provided that nothing in this sub­section shall prejudice or affect the continued operations of any 4 Lpa-1.10in wp-177.10 notice served, injunction issued, direction given or proceedings taken before the appointed day by the Court of Judicial Commissioner, abolished by this sub­ section, under the powers then conferred upon that Court.” “4. Jurisdiction of Bombay High Court.­­ On and from the appointed day, the High Court at Bombay shall have, in respect of the territories included in the Union territory of Goa, Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of the said territories by the Court of the Judicial Commissioner.” “9. Establishment of a permanent bench of Bombay High Court, Panaji.­­ On and from the appointed day, there shall be established permanent bench of the High Court at Bombay at Panaji and such Judges of the High Court at Bombay, being not less than two in number, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Panaji in order to exercise the jurisdiction of power for the time being vested in that High Court in respect of cases arising in the Union territory of Goa, Daman and Diu: Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in such territory shall be heard at Bombay.” 5. Goa became a State on 30th May, 1987 on coming into force of the Goa, Daman and Diu Reorganisation Act, 1987 ( hereinafter referred to as “the Reorganisation Act”). Under Section 20 thereof, a common High Court was established. The section 20 reads thus: “20. Common High Court for Maharashtra, Goa Dadra and Nagar Haveli, Daman and Diu. ­­ (1) On and from the appointed day, ­­ 5 Lpa-1.10in wp-177.10 (a) there shall be a common High Court of the State of Maharashtra and Goa, and for the Union territories of Dadra and Nagar Haveli, and Daman and Diu, to be called the High Court of Bombay ( hereinafter referred to as the common High Court). (b) the Judges of the High Court of Bombay ( hereinafter referred to as the existing High Court ), holding office immediately before that day shall, unless they have elected otherwise become, on that day, the Judges of the common High Court. (2) The expenditure in respect of the salaries and allowances of the Judges of the common High Court shall be allocated amongst the States of Maharashtra and Goa and the Union in such proportion as the President may, by order, determine. (3) On and from the appointed day, the common High Court shall have, in respect of the territories comprised in the States of Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of those territories by the High Court of Bombay.” 6. It will be necessary to consider what is held by the Division Bench in the case of Sanjay Z. Rane (supra). The Division Bench made a reference to Sections 3 and 4 of the said Act of 1981. After considering Section 3 in the light of Section 9, the Division Bench held that the meaning of the word “jurisdiction” used in Sections 3 and 4 is different. The word “jurisdiction” when it appears in Section 3 means power to take cognizance. It was further held that the scope of the power is prescribed in Section 4 of the said Act of 1981. In Paragraph 45 of the said decision, 6 Lpa-1.10in wp-177.10 the Division Bench observed thus:­ “45. xxx xxx xxx The concluding part of main section, therefore, contemplates the exercise of jurisdiction and powers by this bench of Bombay High Court and that jurisdiction and powers are for the time being vested in it by Section 4. Section 9, therefore, refers to Section 4 which uses the words jurisdiction and powers, both. The fact that the High Court was supposed to exercise jurisdiction of the Judicial Commissioner can also be gathered from the words “in respect of cases arising in the Union Territory of Goa, Daman and Diu,” at the end of substantive part of Section 9. These words, at the end of substantive part, qualify the jurisdiction and powers for the time being vested. It is apparent that it is only Section 4 which has the effect of vesting jurisdiction, powers and authority for the time being. Section 7(3) contemplates transfer of pending proceedings from the Court of the Judicial Commissioner to the Bombay High Court. Its sub­section (2) stipulates that such transferred proceedings are to be disposed off by the High Court at Bombay as if such proceedings were entertained by that High Court. Similarly, by sub­ section (3) any order made before the appointed day by the Court of Judicial Commissioner is treated for all purposes not only as an order of the Court of Judicial Commissioner, but also as an order of the High Court at Bombay. It is apparent that Section 7 contemplates proceedings pending or decided by the Judicial Commissioner and, those proceedings are, therefore, in discharge of jurisdiction available to the Judicial Commissioner as mentioned in Section 4 of the Act. This section, therefore, gives indication that Section 4 of 1981 Act is the provision which confers powers and authority upon the High Court to exercise jurisdiction in relation to the matters arising in said territories. Word “jurisdiction” when juxtaposed with words “powers and authority” in Section 4 signifies different types of jurisdictions like appellate, original, etc., and when it appears in Section 3 it only means power to take cognizance. Scope of said power in prescribed in Section 4 of 1981 Act. Section 3, therefore, though 7 Lpa-1.10in wp-177.10 uses the word “jurisdiction”, only extends territorial jurisdiction of Bombay High Court to Union territories of Goa, Daman and Diu. It is, therefore, clear that the sweep of word “jurisdiction” and its meaning as used in Section 3 and Section 4 is different. Section 13 of 1981 Act enables the Central Government to make appropriate provisions not inconsistent with 1981 Act for the purposes of removal of difficulties. The Removal of Difficulties Order, 1982, vide its clause (2) provides for adaptation of rules and forms used by the Court of Judicial Commissioner immediately before the appointed day with suitable modification for proceedings before the Bench of High Court at Bombay established under Section 9 of 1981 Act. Sub­clause (2) states that in the absence of any provision in the said rules on any particular matter, the Bombay High Court Appellate Side Rules, 1960 shall apply to proceedings before the bench. Bombay High Court Appellate Side Rules, 1960 is a procedural law which does not confer any new jurisdiction and, in any case, letters patent jurisdiction on Bombay High Court. This Section 13, read with the Removal of Difficulties Order, 1982, therefore, cannot be stretched to mean that the jurisdiction conferred upon the Bombay High Court by Letters Patent of 1865, as amended, has also been extended to Union territory of Goa, Daman and Diu. If the argument of learned Advocate Kakodkar are accepted, the entire Section 4 is rendered superfluous and such an interpretation and exercise is not permissible in law. We may mention here that Section 20(4) of 1987 Act also uses the words referable to Section 4 of 1981 Act.” (emphasis added) 7. It must be stated that the same view has been taken by another Division Bench by a judgment and order dated 9th September, 2009 in Letters Patent Appeal No.14 of 2009. 8. As pointed out earlier, the power under Section 7 of the said Act of 1962 was never exercised and therefore, in exercise of powers under 8 Lpa-1.10in wp-177.10 the said Act of 1962, the jurisdiction of this Court was never extended to Union territory of Goa, Daman and Diu. In fact, by the said Act of 1964, Section 7 of the said Act of 1962 was repealed. The Goa, Daman and Diu ( Judicial Commissioner’s Court) Regulations, 1963 came into force on 16th December, 1963 which established Court of Judicial Commissioner. Under Section 8 of the said Regulations of 1963, the Court of Judicial Commissioner was declared to be highest Civil and Criminal Court of Appeal and Revision in Goa, Daman and Diu. Thus, when the said Act of 1964 came into force, the Court of Judicial Commissioner was already established which was the highest Civil and Criminal Court of Appeal and Revision in the Union territory. The effect of Section 3 of the said Act of 1964 is that the Judicial Commissioner’s Court was declared to be a High Court for the purposes of Articles 132, 133 and 134 of the Constitution of India. Thus, even after the coming into force of the said Act of 1964, till said Act of 1981 came into force, the Judicial Commissioner was exercising powers conferred by the said Regulations of 1963 as the highest Civil and Criminal Court of Appeal and Revision in the Union territory. 9. In the light of this existing position on the date on which the said Act of 1981 came into force, the provisions of Sections 3 and 4 of the said Act of 1981 will have to be considered. Under Section 9 of the said Act of 1981, with effect from 30th October, 1982, a permanent bench of the High Court at Bombay was established at Panaji. Section 4 of the said Act of 1981 provided that references in any law in force in the Union territory 9 Lpa-1.10in wp-177.10 to the Court of Judicial Commissioner shall be construed in relation to that territory as reference to the High Court at Bombay. Under Sub­section (1) of Section 3 of the said Act of 1981, the jurisdiction of the High Court of Bombay was extended to Union territory of Goa, Daman and Diu. The jurisdiction vested in the High Court of Bombay as on that date was also the jurisdiction vested by virtue of Letters Patent of 1965. Sub­section (2) of Section 3 has the effect of abolition of the Court of Judicial Commissioner with effect from 30th October, 1982 and in that context, Section 4 of the said Act of 1981 will have to be considered. On 30th October, 1982, three important changes were simultaneously brought about by the said Act of 1981. The Court of Judicial Commissioner was abolished, a permanent bench of the High Court of Bombay at Panaji was established and the jurisdiction of the High Court of Bombay was extended to Union territory of Goa, Daman and Diu. It must be noted that till 30th October, 1982, the Court of Judicial Commissioner was exercising powers of highest Civil and Criminal Court of Appeal and Revision in Goa, Daman and Diu. The effect of the Act of 1964 was only to declare the highest Court of Judicial Commissioner in the Union territory as the High Court for the limited purposes of Articles132, 133 and 134 of the Constitution of India. As by virtue of Sub­section (2) of Section 3 of the said Act of 1981, the Court of Judicial Commissioner was abolished, prima facie, it appears to us that Section 4 was enacted by way of a clarification which reiterated that the jurisdiction vested in the Court of Judicial Commissioner as the highest Civil and Criminal Court of Appeal and Revision shall be exercised 10 Lpa-1.10in wp-177.10 by the High Court at Bombay in respect of territories included in the Union territory of Goa, Daman and Diu. Under section 3(1), the jurisdiction of High Court at Bombay was extended to the union territory which included jurisdiction under Letters of Patent. The legal effect of Section 4 of the said Act of 1981 is that it was clarified that the powers of the Court of Judicial Commissioner as the highest Court of territory will be exercised by the High Court at Bombay. The legal effect of section 4 was not of curtailing the powers of the permanent bench at Panaji and confining it to the powers of the Court of the Judicial Commissioner. The effect of the said section is that it was clarified that the powers of the existing highest Court will be also exercised by High Court in relation to area of the Union territory. Prima facie it appears to us that any other interpretation will render sub­section 1 of Section 3 redundant which extends the jurisdiction of the High Court of Bombay to the Union territory. As far as the said Act of 1987 is concerned, the effect of Section 20 is that from the appointed day, the permanent bench at Panaji ceased to exist and a common High Court for the States of Maharashtra and Goa and for the union territories of Dadra & Nagar Haveli and Daman and Diu to be called as the High Court of Bombay was established. Sub­section (3) of Section 20 of the said Act of 1987 clarifies that the common High Court shall have in respect of territories comprised in the two States and the union territories, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day are exercisable in respect of those territories by the existing High Court. Thus, the common High Court continued to 11 Lpa-1.10in wp-177.10 exercise the power which was exercisable by the permanent bench of the existing High Court in relation to the territories falling within the Union territory of Goa, Daman and Diu. Thus, the issue whether the powers under Letters Patent can be exercised by the common High Court depends on interpretation of Sections 3 and 4 of the said Act of 1981 which determine the jurisdiction of the permanent bench at Panaji. 10. It appears that the attention of the division bench was not drawn to an important decision of the Apex Court in the case of Dadh Nathu Rajah v. Angha Nathu Jamal [ (1969) 3 SCC 813]. The appellant before the Apex Court commenced an action on May 3, 1951 an action in the Court of the Assistant Judge, Morvi, in the former Part “B” State of Saurashtra for a decree for Rs 9,387/5 against one L. Angha Nathu Jamal and Respondents 2 and 3 in this appeal. The trial court decreed the suit on October 17, 1955. An appeal was filed against the decree in the High Court of Saurashtra at Rajkot. On November 1, 1956, the High Court of Saurashtra was abolished and the proceedings pending in that Court stood transferred to the High Court of Bombay. On February 21,1958, Vyas, J., of the High Court of Bombay allowed the appeal. Against that order an ap­ peal under Clause 15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas, J., certifying that the case was fit for appeal to a Division Bench of the High Court. On May 1, 1960 under the Bombay Reorganisation Act, 1960, the appeal stood transferred to the High Court of Gujarat. The High Court of Gujarat held 12 Lpa-1.10in wp-177.10 that the appeal was incompetent in the absence of an order under Section 22­A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench. With certificate granted by the High Court of Gujarat an appeal was preferred before the Apex Court. 11. In Paragraphs 2, 3, 5 and 6 of the said decision, the Apex Court observed thus :­ “2. The Rulers of Indian States in Kathiawar agreed “to unite and integrate” their territories in one State to be styled the United State of Saurashtra with a com­ mon executive, legislaure and judiciary. By Ordinance 1 of 1948 the administration of the covenanting States was taken over by the Rajpramukh. The Rajpramukh issued in exercise of power reserved to him by Article 9 clause (3) of the Covenant, Ordinance 2 of 1948 set­ ting up with effect from February 29, 1948, a High Court of Judicature for the State of Saurashtra. The expression “High Court” was defined in Section 3(c) as meaning “the High Court established and constituted by this Ordinance and functioning as the High Court of the Saurashtra State”. By Section 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dis­ pose of such appeals, revision and other cases, civil or criminal, as it may be empowered to do under the Or­ dinance or any enactment in force in the State. By Section 22 the High Court was also to be a Court of reference with power to hear, revise and determine all cases referred to it. By Ordinance 5 of 1950, Section 22­A was added: it was provided thereby: “(1) Except as otherwise provided by any enact­ ment for the time being in force, an appeal from any original decree, or from any order against which an appeal is permitted by any law for the time being in force, or from any order under Article 226 of the Constitution of India, made by a Single Judge of the High Court, shall lie to a Bench consisting of two other Judges of the High Court. 13 Lpa-1.10in wp-177.10 (2) An appeal shall lie from a judgment of one Judge of the High Court in respect of a decree or order made in exercise of Appellate Juris­ diction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree of order certifies that the case is a fit one for appeal.” Under the Constitution of India, the ter­ ritory of the United State of Saurashtra was formed into a Part “B” state of Saurashtra. By the States Reorganisation Act, 1956 the territory of the State of Saurashtra merged into the State of Bombay. 3. By Section 49 of the States Reorganization Act, 1956, the High Court exercising immediately before the appointed day, it was enacted that jurisdiction in relation to the existing State of Bombay shall, as from the appointed day, be deemed to be the High Court for the new State of Bombay. By Section 50(1) as from the appointed day, the High Courts of all the existing Part B States (with certain exceptions not material) were to cease to function and were abolished. By Section 52 it was provided: “The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as, under the law in force im­ mediately before the appointed day, is exercis­ able in respect of that part of the said territories by any High Court or Judicial Commissioner’s Court for an existing State.” 5. The High Court of Gujarat held that the appeal filed by the respondents in the High Court of Saurash­ tra against the judgment of the Assistant Judge, was and continued to remain subject to the provisions of Section 22­A of Saurashtra Ordinance 2 of 1948 and an appeal could lie against the decision of Vyas, J., only if he certified that the case was fit for appeal to a Division Bench. By Clause 15 of the letters patent, a judgment in an appeal from a civil suit by a Single Judge of the High Court of Bombay is subject to appeal to a Divi­ sion Bench except when the order is made in exercise of the revisional jurisdiction of the Court or in second appeal, or in exercise of criminal jurisdiction, or in ex­ 14 Lpa-1.10in wp-177.10 ercise of power of superintendence under Section 107 of the Government of India­Act, 1935 (Article 227 of the Constitution). Vyas, J., decided the appeal sit­ ting as a Judge of the High Court of Bombay. 6. There was clearly an inconsistency between Section 22­A of the Saurashtra Ordinance 2 of 1948, and clause 15 of the Letters Patent