RASHTRIYA CHIN! MILLS ADHIKARI PARISHAD, LUCKNOW A
v.
THE STATE OF U.P. AND OTHERS
JULY 2, 1995
B
[KULDIP SINGH AND N. VENKATACHALA, JJ.]
Constitution of btdic~Article 226(2)-Higlt Court (Amalgamation)
Order, 1948-Clause 14 proviso-Territorial jurisdiction of Lucknow
Bench-'' In respect of cases arising in such areas in Oudh ''-Meaning . C
of-Cause of action-W/1ether relevant-Civil Procedure Code 1908--Section
141 F.xplanatioit-Effect of
By a Government order dated 4.2.1956 read with Oudh Civil Courts
Act, 1879, twelve districts were brought under the jurisdiction of the Court
of the Judicial Commissioner Oudh at Lucknow. In 1925, the Chief Court D
of Oudb was established replacing the Court of the Judicial Commis·
~-
sloner. In 1948, the High Court (Amalgamation) Order, 1948 was made by
the Governor General, amalgamating the High Court in Allahabad and the
Chief Court in Oudh with effect from 26.7.1948. Clause 14 of the said High
Court (Amalgamation) Order, 1948 provided for the place or sitting of the
Judges of the High Court. The first proviso to clause 14 provided that E
unless the Governor of the United Provinces with the concurrence of the
Chief Justice otherwise directs, atleast two of the Judges of the High Court
shall sit at Lucknow in order to exerdse the jurisdiction and power of the
High Court "in respect of cases arising in such areas in Oudh" as the Chief
Justice may direct. F
The phrase "in respect of cases arising in such areas in Oudh' as
appearing in clause 14 of the Amalgamation Order of 1948 was interpreted
by this Court in the case of Nasiruddin v. STA Trib1mal, AIR (1976) SC
333 where in this Court held that jurisdiction of the Bench would depend
upon the place where the cause ofaction arose. This Court held that if the G
cause of action arose wholly within the specified Oudh areas, the Lucknow
Bench shall have exclusive jurisdiction to entertain the matter. However,
ir the cause of action arose partly within the specified Oudh areas and
partly outside the area, it would be open to the litigant to choose the Bench
of his convenience. While deciding the aforesaid case, this Court did not H
733
734 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A refer to or notice the provisions of the Code of Civil Procedure, 1908.
The petitioner, who are aggrieved by an order of the Government of
Uttar Pradesh at Lucknow to sell six sugar factories, challenged the order
of the Government by way of a writ petition before the Lucknow Bench of
Allahabad High Court. Out of the six factories sought to be sold by the
B impugned order of the Government, only one factory was located within
the Ondh area. A Division Bench of the High Court by its .iudgment and
order dated 23.9.1994 held that the Lucknow Bench had no jurisdiction to
entertain the writ petition. The Division Bench distinguished the phrase
"cause of action" from "exercise of jurisdiction revolving on the place of
c sitting" and held that "cause of action" would apply only in cases of
controversies. pertaining to the territorial jurisdiction of two different
High Courts whereas in cases where the controversy pertains to the
exercise of jurisdiction of one High Court, "exercise of jurisdiction revolv-
ing on the place of sitting" comes into play. The Division Bench further
held that the interpretation given~~o clause 14 of the Amalgamation order
D of 1948 in Nasimddi11's case had ceaSJ,d to be operative after 1.2.1977 when
the explanation to Section 141 of the Code of Civil Procedure came into
force and Sections 15 to 20 of the Code of Civil Procedure were made
inapplicable to writ jurisdiction.
E Against the judgment and order of the Division Bench, the petitioner
preferred a Special Leave Petition before this Court. In the meanwhile, the
same question of law was considered by a Full Bench of the High Court
of Allahabad and by its judgment and order dated 15.11.1994, the Full
Bench overruled the judgment and order of the Division Bench on the
ground that it was contrary to the judgment of this Court in Nasi1uddi11's
F
case. As the impugned judgment of the Division Bench had already been
overruled by the Full Bench this Court, on 2.12.1994 disposed of the
Special Leave Petition as infructuous.
As the Registry of the High Court was being asked to comply with
G the "General Directions" given by the Division Bench, the High Court filed
an interlocutory application before this Court in the already disposed of
Special Leave Petition.
Treating the interlocutory application as a Special Leave Petition
H and allowing the appeal, this Court
RASIITRIYA CHIN! MILLS ADHIKARI PARIS HAD v. STATE 735
.. I
HELD : 1.1. The Division Bench of the Court fell into patent error A
in holding that the interpretation placed by this Court on Clause 14 of the
High Court (Amalgamation) Order, 1948 had ceased to be operative after
the incorporation of the Explanation to Section 141 of the Code of Civil
Procedure. This Court in Nasiruddin '.I' case did not rely on the provisions
of the Code of Civil Procedure. In fact this Court did not even notice any
B
of the provisions of the Code of Civil procedure. The Division Bench of the
High Court took shelter behind the Explanation to Section 141 of the Code
of Civil Procedure without any justification. There is no dispute that the
Amalgamation order is a special law which must prevail over the general
law. This court interpreted the relevant expression in Clause 14 and did
not take any support from any general law. [741-C, 743-B] c
1.2. The territorial jurisdiction of a court and the "cause of action"
- are interlinked. To decide the question of territorial jurisdiction it is
necessary to find out the place where the "cause of action" arose. The
discussion by the Division Bench of the High Court by evolving the so
called theory of "exercise of jurisdiction revolving on the place of sitting" D
as compared.to the theory of"cause of action" is wholly misconceived and
has no legal basis whatsoever. [742-G, 743-B]
Nasiruddin v. STA Tribunal, AIR (1976) SC 331, relied on •
E
2. It is not disputed that in the present case the order/notification
and the advertisement were issued by the State Government at Lucknow.
Without there being an order/notification by the Government there could
be no cause of action at all. The petitioner got aggrieved only from the
order/notification which "arose" from Lucknow. The grievance of the
petitioner "arose" at Lucknow which is within the Oudh area and as such F
on the plain reading of the relevant provisions of Clause 14 of the Amal·
gamatlon Order, the Bench at Lucknow had the jurisdiction to deal with
the matter. [743-E·F]
Ram Rakh Vyas v. Union of India, AIR (1977) Raj 243, referred to.
G
3. The jurisprudence governing court-functioning in this country
makes a judgment, delivered by a judge or a Bench comprising of more
than one judges, the judgment of the court and not of the person holding
the judicial office. The Jndgment holds goods till it is set aside or its
correctness is doubted by the higher Conrt. Once the correctness of a H
736 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.
A judgment is doubted by the higher court the judgment no longer remains
the law land and is treated as non-est. Judicial propriety demands that the
judge/judges whose judgment has been rendered non-est by the higher
court should not bring their personal ego into the matter and should bow
before the law laid down by the higher court. (737-B·CJ
B CIVIL APPELLATE JURISDICTION : I.A. No. 4 of 1995.
IN
Special Leave Petition (C) No. 19%3 of 1994.
C From the Judgment and Order dated 23.9.94 of the Allahabad High
Court in W.P. No. Nil/94.
Rakesh Dwivedi, Addi. Adv. Genl. State of U.P., D.D. Thakur,
Umesh Chandra, and Satish Chandra, Arun Kathpalia, R. Ayyam Perumal,
...
D M. Iqbal Butt, Manoj Pillai, Sandeep Dixit C.P. Pal, M.S.L.O. Naithani,
.T.D. Singh, Pradesh Kumar, Amander Nath Singh and Ms. V.D. Khanna
and Ashok K. Srivastava for the State of U.P. for the appearing parties.
The Judgment of the Court was delivered by
E KULDIP SINGH, J. This interlocutory application has been filed by
the High Court of Judicature at Allahabad through its Registrar in the
Special leave petition arising from the judgment and order dated Septem·
ber 23, 1994 of High Court of Allahabad (Lucknow Bench) in U.P.
Rashtriya Chini Mill Adhikari Parishad v. State of U.P. and others, (Writ
Petition No. 35951 of 1994. The special leave petition was disposed of by
F this Court on December 2, 1994 with the following order:
"In view of the Full Bench judgment of the Allahabad High Court
this special leave petition has become infructuous. The special
leave petition is disposed of as such."
G The judgment in Chini Mill's case is by the Bench consisting of B.M.
Lall and S.R. Singh, JJ. The question of law decided by the Bench in Chini
Mill's case was later on reconsidered by a Full Bench of the High Court
which came to the conclusion that the judgment of the Division Bench in
Chini Mill's case was contrary to the law laid down by this Court in
H Nasi1uddb1 v. STA Tn'bunal, AIR (1976) SC 331 and as such was not
RASH1RIYACHINI MILLSADHIKARI PARISHAD '·STATE [KULDIP SINGH. J.J 737
correctly decided. It was in this background - Chi11i Mill's case having been A
overruled by the Full Bench of the same court - that this Court did not go
into the merits of the special leave petition and disposed of the same as
having become infructuous.
The jurisprudence governing court-functioning in this country makes
a judgment, delivered by a judge or a Bench comprising of more than one B
judges, the judgment of the court and not of the person holding the judicial
office. The judgment holds good till it is set aside or its correctness is
doubted by the High Court. Once the correctness of a judgment is doubted
by the higher court the judgment and longer remains the law of the land
and is treated as non-est. Judicial propriety demands that the Judge(judges C
whose judgment has been rendered non-est by the higher court should not
bring their personal ego into the matter and should bow before the law laid
down by the higher court. The facts and circumstances highlighted in this
application given the impression that the Registry of the High Court is in
a state of helplessness and there is a functional - crisis on the issue of D
interpretation of Clause 14 of the High Court (Amalgamation) Order,
1948. The registry is being asked to comply with the "General Directions"
given by the Bench in Chi11i Mills' case despite the fact that the said case
has been overruled by the Full Bench of the same court. We, therefore,
grant permission to the High Court to file special leave petition in this
Court against the judgment of the Division Bench in Chini Mill's. We treat E
this interlocutory application as special leave petition and we grant special
leave in the matter.
The question before the Lucknow Bench of the High Court was
whether the Bench at Lucknow or the High Court at Allahabad had the
territorial jurisdiction to entertain the writ petition under Article 226 of the F
Constitution of India. The answer to the said question further depended
on the interpretation of the expression "in respect of case arising in such
areas in Oudh" occurring in first proviso to to Article 14 of the High Court
(Amalgamation) Order, 1948 (hereinafter called Amalgamation Order).
G
The High Court came to the conclusion that in the facts of the Chi11i
Mill's case the Lucknow Bench had no jurisdiction to entertain the writ
petition. According to the Division Bench of the High Court the writ
petition could only be filed in the High (;:ourt at Allahabad.
Historically, the territories with 12 districts of Lucknow, Faizabad; H
738 SUPREME COURT REPORTS (1995] SUPP. l S.C.R.
A Sultanpur, Rai Bareli, Pratap Garh, Barabanki, Gonda, Baharaich, Sitapur,
Kheri, Hardoi, and Unnao were brought under the then British crown
within the jurisdiction of the Court of the Judicial Commissioner Oudh at
Lucknow. This was done under the Government Order dated February 4,
1856 read with the Oudh Civil Courts Act, 1879. In 1925 Oudh Courts Act
was passed by the Uttar Pradesh Legislature. The Chief Court of Oudh
B
with one Chief .Justice and four puisne judges was established replacing the
Judicial Commissioner's Court. In 1937 by the Government of India
(Adaptation of Indian Laws) Order, 1937, it was provided that the Chief
Court of Oudh shall consist of Chief Justice and such other judges as may
be appointed under the Government of India Act, 1935. It was in this
C background that the Governor General made the Amalgamation Order.
The said order came into force on July 19, 1948.
Clause 3 of the Amalgamation Order provided that as from the
appointed day, namely, July 26, 1948, the High Court in Allahabad and the
D Chief Court in Oudh would be amalgamated and would constitute one
High Court by the name of the High Court of Judicature at Allahabad. The
judges of the existing High Courts, namely, the Allahabad High Court and
the Oudh Chief Court became Judges of the new High Court. The Chief
Justice of the existing High Court became the Chief Justice of the new High
Court. Clause 14 of the Amalgamation order is as under :
E
"The new High Court and the judges and diversion courts thereof,
shall sit at Allahabad or at such other places in the United
Provinces as the Chief Justice may with the approval of the Gover-
nor of the United Provinces, appoint :
F
Provided that unless the Governor of the United Provinces with
the concurrence of the Chief Justice otherwise directs such judges
of the new High Court, not less than two in number, as the Chief
Courts may from time to time nominate, shall sit at Lucknow in
order to exercise in respect of cases arising in such areas in Oudh,
G as the Chief Justice may direct, the jurisdiction and power for the
time being vested in the new High Court :
Provided further that the Chief .Justice may in his discretion
order that any case or class of cases arising in the said areas shall
H be heard at Allahabad."
RAS!fIRIYACHINI MlllSADHIKARI PARISHAD '-STATE [KULDIPSINGH, J.J 739
It would be useful to mention at this stage that the precise question A
which was before B.M. Lall and S.R. Singh, JJ. In Chini Mill's case was
also pending consideration in S.A. 86 of 1994 before a Bench of the
AllahabadHigh Court consisting of S.R. Sharma and Shobha Dixit, JJ. The
Bench by its order dated September 5, 1994 referred the question to a Full
Bench of three judges. It is thus obvious that on September 23, 1994 when
B.M. Lall and S.R. Singh, JJ. delivered the judgment in Chini Mill's case B
the matter was pending consideration before a Full Bench of the High
Court. Needless to say that the appropriate course for the Division Bench
would have been to await the decision of the Full Bench which finally
delivered its judgment on November 15, 1994 over-ruling the Division
Bench in Chini Mill's case. C
Before the High Court a notification/Order issued by the Uttar
Pradesh Government at Lucknow, whereunder it was decided to sell six
sugar factories, was challenged by way of a writ petition. One of the sugar
mills was situated within the Oudh area whereas the remaining five mills
were situated outside the Oudh area. The contention raised before the D
Lucknow Bench was that the sale in terms of the notification, if finilised,.
would be given effect at the plaees where the mills are situated and since
five out of the six mills were situated outside Oudh area the Lucknow
Bench had no jurisdiction to take cognizance, entertain and decide the writ
petition in respect of the five mills in terms of clause 14 of the Amalgama-
tion Order. The Division Bench of the High Court accepted the contention. E
B.M. Lall, J. who primarily spoke for the Bench interpreted the relevant
expression in clause 14 of the Amalgamation Order in the following words:
"Thus in this context if entire provision of Clause 14 is read
together, the true intent ingrained in the expression appears to be
that the Judges shall sit at Lucknow in order to exercise power F
and jurisdiction vested in the High Court in respect of cases
'pertaining to' Oudh area alone and; not pertaining to the area
outside the Oudh area. By no stretch of imagination, it can be
assumed that the Judges while sitting at Lucknow can exercise
power and jurisdiction in respect of any area outside the Oudh G
area."
The learned Judge supported the conclusions reached by the Bench
on the following reasoning : ·
"The theory of 'cause of action' originates from the Code of Civil H
740 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.
A Procedure which is of general character and is, therefore, a general
law. In the present case, the theory of 'exercise of jurisdiction
revolving on the place of sitting' originates from the amalgamation
Order 1948 which is of special character and is therefore in the
shape of special law. It applies to a limited contingency i.e. where
the case falls within the territorial jurisdiction of one High Court
B
and the Judges sit at two places in order to exercise jurisdiction
of the High Court.
Thus where the controversy pertains to the territorial jurisdic-
tion of two different High Court, certainly the theory of 'cause of
c action' in the shape of sub-clause (2) of Article 226 of the Con-
stitution of India comes into play with full force but where the
controversy pertains to the exercise of jurisdiction of one High
Court as is in the present case, the theory of 'exercise of jurisdiction
revolving on the place of sitting' comes into play.
D Both the theories have got different fields to operate but at the
appropriate occasion, the theory having characterstic of Special
law will have overriding effect in preference to theory having
characterstic of general law, is the well settled position of law.....
as far as the theory of cause of action attracting jurisdiction of
E Lucknow Bench even in the cases pertaining to those districts
which are situated outside the Oudh area is concerned,
Nasimddin's case (supra) is of no avail to the petitioners in view
of the change in law with effect from 1.2.1977 (adding Explanation
to Section 141 C.P.C.) and in view of the dictum laid down by the
Apex court in the recent pronouncements in Oil and Natural Gas
F Commission's case (supra) and Navodaya Vidayalaya Samiti's case
(supra)."
The Division Bench of the High Court declined to follow the inter-
pretation given to the very same expression by this Court in Nasimddin's
G case on the following reasoning :
"As stated above, with the commencement of Explanation added
to Section 141 C.P.C. With effect from 1.2.1977, since the applica-
tion of the provisions of C.P.C. including Sections 15 to 20 C.P.C.
have been excluded in the writ proceedings hence assuming partly
H cause of action arose at Lucknow by virtue of revisional or appel-
'' RASJITRIYA CHIN! MILLS ADHIKARI PARISHAD '· STATE (KULD!P SINGH, J.J 741
!ant forums being located at Lucknow, such case will not be A
deemed to have arisen in Oudh area rather will be deemed to have
arisen in the districts where the lis originated. Thus the submissions
made by Sri Umesh Chandra in this regard have no legs to stand
after LZ-1977 and the aid taken by Sri Chandra from Nasiniddin's
case (supra) is otiose and is of no avail to the petitioners!'
B
We are of the view that the Division Bench of the High Court fell
into patent error in holding that the interpretation placed by this Court on
Clause 14 of the Amalgamation Order had ceased to be operative after the
Incorporation of the explanation to Section 141 of the Code of Civil
Procedure. This Court in Nasiniddin's case did not rely on the provisions C
of the Code of Civil procedure. In fact this Court did not even notice any
of the provisions of the Code of Civil Procei:lure. The Division Bench of
the High Court took shelter behind the Explanation to Section 141 of the
' Code of Civil Procedure without any jurisdiction. It created an argument
when none existed. We have no hesitation in holding that the reasoning of D
the High Court in not following the law laid down by this Court in
Nasi1TUdin's case was wholly perverse.
This Court in Nasiniddin's case speaking through A.N, Ray, dealt
with the relevant expression used in Clause 14 of the Amalgamation Order
in the following words : # E
"The me~ing of the expression 11 in respect of cases arising in such
areas Oudh" in the first proviso to paragraph 14 of the Order was
answ~red by the High Court that with regard to applications under
Article 226 the same will be "a case arising within the areas in F
Oudh" only if the right of the petitioner in such an application
arose first at a place within an area in Oudh. The implication
according to the High Court is that if the right of the petitioner
arose first at any place outside any area in Oudh and if the
subsequent orders either in the revisional or appellate stage were G
passed by an authority within an area in Oudh than in such cases.-
the Lucknow Bench would not have any jurisdiction, The factor
which weighed heavily with the High Court is that in most cases
where an appeal or revision would lie to the State Government,
the impugned order would be made at Lucknow and on that view
practically all writ petitions would arise at Lucknow. H
742 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A The conclusion as well as the reasoning of the High Court is
incorr~ct; It is unsound because the expressio.Il ''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 than Lucknow would have jurisdiction though the
B
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
c specified Oudh areas, the Lucknow Bench will have jurisdiction.
If the cause of action a6ses 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
D 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
E 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 Luck-
now. The Court will find out in each case whether the jurisdiction
of the Court is rightly attracted by the alleged cause of action."
F
While reaching the above conclusion this Court kept in view the plain
language of Clause 14 of the Amalgamation Order. No provision of the
Code of Civil Procedure ·was noticed, referred to or taken into considera-
G tion directly or indirectly. the territorial jurisdiction of a Court and the
"cause of action" are interlinked. To decide the question of territorial
jurisdiction it is necessary to find out the place where the "cause of action"
arose. We, with r~spec!, reiterate that the law laid down by a Four- Judge
Bench of \his cdb'rt in NasinuMin 's case holds goods even today despite
H the incorporation of a Explanation to Section 141 to the Code of Civil
RASlf!RIYA CHIN! MILLSADHIKARI PARISHADv. STATE [KULDIP SINGH. l.J 743
Procedure. .A.
There is no dispute that the Amalgamation Order is a special law
which must prevail over the general law. This Court interpreted the
relevant expression in Clause 14 and did not take any support from any
general law. The discussion by the Division Bench of the High Court by
B
evolving the so called theory of "exercise of jurisdiction revolving on the
place of sitting" as compared to the theory of "cause of action" is wholly
misconceived and has no legal basis whatsoever. This part of the High
Court judgment is mentioned to be rejected.
Mr. Satish Chandra, learned senior advocate appearing for the ap- c
pellant has contended that even on the reasoning of the Division Bench
Judgment itself the conclusions reached by the Bench are erroneous. We
see force in the contention. The Division Bench of the High Court relying
upon the judgment of the Rajasthan High Court Ram Rakh vyas v. Union
of India, AIR (1977) Rajasthan 243 (the judgment delivered by AP. Sen, D
J. as the learned Judge then was), came to the conclusion that the words
"arising in" in the context, mean "pertaining to the districts of or !!arising
1
from". It is not disputed that in the present case the order/notification and
the advertisement were issued by the State Government at Lucknow.
Without there being an order/notification by the Government there could E
be no cause of action at all. The Petitioner got aggrieved only from the
order/notification which "arose" from lucknow. The grievance of the
petitioner "arose" at Lucknow which is within the Oudh area and as such
on the plain reading of the relevant provisions of Clause 14 of the Amal-
gamation Order, the Bench at Lucknow had the jurisdiction to deal with
F
the matter.
We have been informed that review pelltlon 136/94 against the
impugned judgment is also pending before the High Court. Apart from the
'
an application to withdraw writ petition No. 35951 of 1994 is also pending
before the High Court. We are informed that the withdrawal application G
was initially allowed by a Bench at Lucknow and later on the arguments
were heard in the said application once again at Allahabad by the Bench
consisting of B.M. Lall and S.R. Singh, JJ. and the judgment is reserved.
We have further been informed that writ petition No. 4158 of 1994 Satish
Mishra v. Registrw· High Court arising out of the same proceedings - is also H
744 SUPREME COURT REPORTS [1995) SUPP.1 S.C.R.
A pending before the High Court. Since we are setting aside the impugned
judgment delivered by B.M. Lal and S.R. Singh, JJ. in Chini Mill's case in
toto, all these proceedings which are pending before the High Court would
be rendered infructuous.
We allow the appeal, set aside the judgment of the High Court dated
B September 23, 1994 in writ petition No. 35951 of 1994. The writ Petition
before the High Court shall stand dismissed. No costs.
B.K.M. Appeal allowed.