separate ap hc

MANU/AP/0205/2015

Equivalent Citation: 2015(4)ALT82

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Public Interest Litigation No. 59 of 2015

Decided On: 01.05.2015

Appellants: T. Dhangopal Rao Vs.

Respondent: Union of India and Ors.

Hon'ble Judges/Coram: K.J. Sengupta, C.J. and Sanjay Kumar, J.

Counsels: For Appellant/Petitioner/Plaintiff: Party-in-Person, E. Manohar and G. Vidya Sagar, Senior Counsels (Amicus Curiae)

For Respondents/Defendant: B. Narayana Reddy, Assistant Solicitor General of India

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4

ORDER

Kalyan Jyoti Sengupta, C.J.

1. The above writ petition was filed originally against the Union of India, State of Telangana, State of Andhra Pradesh and Registrar (Vigilance), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad.

2. On 16.03.2015, after examining the allegations and statement and averment of the petition and relevant legal position, this Court deleted the 4th respondent Registrar (Vigilance) from the array of the parties as Registrar (Vigilance) has nothing to do with the creation of the A.P. High Court.

3. Thereafter, this Court decided to hear out the matter retaining the rest of the respondents namely 1, 2 & 3. On 23.03.2015, having found prima facie case, this Court invited affidavits from the respondent Nos. 1, 2 & 3. Having regard to the important issues involved in this matter, this Court appointed Sri E. Manohar, learned Senior Counsel and Mr. G. Vidya Sagar, Senior Advocate as Amicus Curiae in this matter.

4. After completion of filing of affidavits, few more persons came to be added as parties. As such, respondents 5 to 17 were added as party-respondents on 09.04.2015 and respondent No. 18 was added as a party-respondent on 10.04.2015.

5. The petitioner in this matter has asked for a Writ of Mandamus declaring that the third respondents failure to act in conjunction with the 2nd respondent (State of Telangana) in constitution of a separate High Court for the 2nd and 3rd respondent States under Article 214 of the Constitution of India read with Section 32 of the Andhra Pradesh Reorganization Act, 2014 (hereinafter referred to as Act, 2014) is illegal, arbitrary and void. A direction is also sought upon for the respondents 3 & 4 to immediately send their assent to the 1st respondent

Discussed

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for initiating the process of constitution of separate High Courts for 2nd & 3rd respondent States under Article 214 of the Constitution of India read with Section 32 of Act, 2014.

6. To support the aforesaid prayer in the writ affidavit, it has been alleged that in spite of the Chief Minister for the State of Telangana taking the initiative for creation of a separate High Court on bifurcation of the present High Court, the Chief Minister of the State of Andhra Pradesh has neither cooperated nor acted. It is stated that the Honble Chief Minister for the State of Telangana has expressed willingness for making arrangements for shifting of the Telangana High Court to a new premises, nothing has been done by his counterpart of the State of Andhra Pradesh nor responded to even after the initiative having been taken by the 1st respondent.

7. Counter-affidavits have been filed separately by the 1st, 2nd and 3rd respondents in this matter.

8. In the counter-affidavit of the 1st Respondent, it is stated inter alia as follows:-

For creation of the A.P. High Court, the Honble Supreme Court of India was requested by the Government of India to give its views on (i) the fixation of Judges strength for the States of Telangana and Andhra Pradesh; (ii) the possibility of bifurcation of the existing High Court into two High Courts to function separately in the same location. The Honble Chief Justice of India by a letter dated 5.9.2014 conveyed in principle the approval to the proposal that the existing strength of 49 Judges be bifurcated in the ratio of 60:40 between the two High Courts subject to adjustment to be made at appropriate stages in terms of decision taken to increase sanctioned Judge strength of the High Courts. As regards the location of the principal seat of the High Court for the State of Andhra Pradesh, the Honble Chief Justice of India has stated that this decision has to be taken by the appropriate authority. Accordingly, the Honble Chief Justice of High Court at Hyderabad has been requested by a letter dated 9.10.2014 to take necessary steps in this regard to identify the sitting Judges of the common High Court belonging to two regions and allocate them to their respective States quota accordingly. As far as the creation of separate High Court of Andhra Pradesh is concerned, both the Honble Chief Minister of Andhra Pradesh and Honble Chief Justice of High Court have been requested to initiate the process and take necessary action in the matter in consultation with each other and favour the Government of India with their views. Honble Chief Justice of High Court at Hyderabad had informed that he had requested the Honble Chief Minister of Andhra Pradesh to respond with regard to creation of separate High Court for the State of Andhra Pradesh. However, he has not received any response from the Honble Chief Minister of Andhra Pradesh. As regards the allocation of sitting Judges, the Honble Chief Justice informed that he had obtained the views of all the Honble Judges and the same are kept on record for the time being. He further stated that options of the sitting Judges will be invited to indicate their choice of High Court to function after the State of Andhra Pradesh makes the infrastructure ready for functioning of the new High Court in all respects. The selection of location for the new High Court of Andhra Pradesh and creation of necessary infrastructure is the responsibility of the State Government in consultation with the High Court concerned. The Government of India has yet to receive any information from the State Government of Andhra Pradesh on the steps taken for establishment of Andhra Pradesh High Court. Once, the State Government of A.P. and the High Court take a decision on all relevant aspects of bifurcation, and necessary infrastructure is made available, this respondent will take immediate steps to issue necessary notification under the relevant provisions of law. Government of Andhra Pradesh and Chief Justice of the High Court of Judicature at Hyderabad have not conveyed their decision regarding the setting up of a separate High Court for the State of Andhra Pradesh. Two proposals purported to have been submitted to the Governor of the State of Andhra Pradesh, have not been received on the records of the Department of Justice. Nevertheless action on this issue is to be taken by the State Government of Andhra Pradesh and Chief Justice of High


Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh before this respondent can take any further action in the matter.

9. Chief Secretary of the State of Telangana has filed a counter-affidavit in this matter. In the counter-affidavit filed, it has been stated that since the buildings pertaining to State Legislature and Executive were divided and allocated to the two successor States for the purpose of independent and separate functioning of their administration, the existing High Court building of Judicature at Hyderabad can also be divided in the event of a Presidential Order being issued for establishing a separate High Court for the State of Andhra Pradesh as required under sub-section (2) of Section 31 of Act, 2014 read with Article 214 of the Constitution of India. The Telangana State Legislature has also passed unanimous resolution on 18.03.2015 requesting the Government of India to bifurcate the existing common High Court at Hyderabad to facilitate two successor States to have separate High Courts in terms of Article 214 of the Constitution of India read with Section 31 of Act, 2014. The State of Telangana is ready and willing to provide a separate building having an area of 4.09 lakh square feet with all facilities in Gachibowli area in Hyderabad itself, to accommodate and establish a separate High Court for the State of Telangana in the event that it is proposed to accommodate Andhra Pradesh High Court in the existing building of the High Court of Judicature at Hyderabad.

10. The State of Telangana is agreeable and willing for locating two separate High Courts for the successor States in the existing High Court building by providing additional infrastructure facilities, if necessary. Consequently, High Court at Hyderabad for the State of Telangana will be located in a new building at Gachibowli, Hyderabad. The State of Telangana is willing to cooperate in any manner for providing facilities for establishment of two separate High Courts to the two successor States.

11. The 3rd respondent, namely, the State of Andhra Pradesh, filed a counter-affidavit affirmed by its Chief Secretary. In this affidavit, it is stated that the Honble Minister, Law and Justice & Communications and IT, Government of India addressed a letter on 9.10.2014 to the Honble Chief Justice of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh on the issue of creation of a separate High Court for the State of Andhra Pradesh. The Honble Chief Justice of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh has forwarded the communication dated 26.10.2014 together with the letter of the Honble Law Minister dated 9.10.2014. No response to the Chief Justices letter could be sent at the earliest and the matter was delayed as the State Government was busy with the works for identifying the capital region. Now, the State of Andhra Pradesh could identify 30,000 acres of land for its capital and in reply the Honble Chief Minister for the State of Andhra Pradesh has expressed his willingness to set up a new High Court for the State of Andhra Pradesh in the capital region. It is also stated that under sub-section (3) of Section 94 of Act, 2014, Union of India is to provide special financial support for creation of essential facilities including establishment of High Court in the new capital of the successor State of Andhra Pradesh. It was further informed to the Honble Chief Justice that the Government of Andhra Pradesh has no objection for the constitution of separate High Court as per sub-section (2) of Section 31 and sub-section (3) of Section 94 of Act, 2014 read with Article 214 of the Constitution of India.

12. The petitioner appearing-in-person submits that this Court shall direct the State of Andhra Pradesh and the respondent No. 1 to take speedy steps, so that bifurcation of this Court is effected at an early date as the State of Telangana has come forward to render all assistance including making provision for infrastructure for separate High Court for either of the State of Telangana or for the State of Andhra Pradesh.

13. We appointed two Amicus Curiae as we felt that the petitioner, being a layman, cannot assist this Court on the legal aspect of the matter.

14. Mr. E. Manohar, Senior Advocate and one of the Amicus Curiae, while placing Sections 3, 4, 5, 10 & sub-section (3) of Section 94 of Act, 2014, contends that it is the intention of the Parliament that the Raj Bhawan, High Court, Government Secretariat, Legislative Assembly, Legislative Council and such other essential infrastructure have to be at a place located in the


successor State of Andhra Pradesh, and the Central Government has statutory obligation to provide financial support for creation of the essential facilities in the new capital vide sub-section (3) of Section 94 of Act, 2014. Section 30 of Act, 2014 mentions that on and from 2nd June, 2014 the High Court of Judicature at Hyderabad shall be the common High Court for the State of Telangana and the State of Andhra Pradesh, till a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution of India read with Section 31 of Act, 2014.

15. He would say, while referring to Sections 31 & 30 of Act 2014, that it is evident that the High Court of Andhra Pradesh shall be located in the territory of the State of Andhra Pradesh as mentioned in Section 4 of Act, 2014. Inasmuch as Hyderabad is within the territory of the State of Telangana, the question of establishing the principal seat of the High Court of Andhra Pradesh at Hyderabad shall not arise. It was never the intention of the Legislature as could be found in the Act, 2014 to have two separate High Courts for two States located in Hyderabad. Merely because, Hyderabad is allowed to serve as the common capital for the State of Telangana and the State of Andhra Pradesh for such period not exceeding ten years, it cannot be presumed that the High Court for the State of Andhra Pradesh can be located in Hyderabad. Article 214 of the Constitution of India also does not contemplate such a situation.

16. He further contends that Chapter-V of the Constitution of India relates to the High Courts in the States. A common High Court for the States of Telangana and Andhra Pradesh has been established under Article 231 of the Constitution of India.

17. A conjoint reading of the provisions of the Constitution of India and the provisions of the Act, 2014, it would clearly establish that this High Court would be a common High Court till a High Court is established in the new capital of the State of Andhra Pradesh comprising the territories as specified in Section 4 of Act, 2014.

18. According to him, there cannot be two High Courts for the State of Telangana and the State of Andhra Pradesh in Hyderabad under law. Hence, the question of establishing two separate High Courts for the two States at Hyderabad does not arise, as such any attempt by the Telangana State or the Central Government in this direction would be illegal and ultra vires the provisions of Sections 30 & 31 of Act, 2014. As the seat of High Court for the State of Telangana is already determined by Section 31 of Act 2014, any attempt on the part of the Government of Telangana to locate the High Court at any other place would also be illegal and ultra vires. He further contends that the resolution of the Telangana State Assembly, dated 18.03.2015, and letter, dated 19.03.2015, written by the Union Minister of Law and Justice, Government of India, in this regard are without any legal sanctity.

19. Mr. G. Vidya Sagar, another learned Amicus Curiae, while referring to the provisions of Section 5, 30 & 31 of Act, 2014 and Article 214 of the Constitution of India, submits that the Act, 2014 does prescribe a common High Court for two States for the time being. He accepts the legal position that there shall be separate High Court for the State of Andhra Pradesh and on its formation the High Court of Judicature at Hyderabad shall be the High Court for the State of Telangana. He contends that on a conjoint reading of Article 214 and Article 366(14) of the Constitution of India, the Constitution does not prohibit for creation of High Court outside the territory of the State. Hence, it is possible to have a High Court for the State of A.P. in Hyderabad. The President, under Section 31(2) of Act 2014, is empowered to specify the principal seat of the High Court for the State of Andhra Pradesh. While referring to Andhra State Act 30 of 1953, he traces the history of the formation of the Andhra High Court under Section 28 w.e.f. 5.7.1954 at Guntur. Section 65 of the States Reorganisation Act 37 of 1956 specifying that the High Court of the State of Andhra shall be known as High Court of Andhra Pradesh and its jurisdiction was extended to the territories, which are transferred to the State of Andhra from the existing State of Hyderabad. The principal seat of the High Court was also specified to be located at Hyderabad, whereas the Act, 2014, left it to the President of India to locate the principal seat of the High Court for the State of Andhra Pradesh.

20. The learned Assistant Solicitor General of India appearing for the 1st respondent, while referring to Section 31(2) of Act 2014, submits that the power to constitute the High Court for


the State of Andhra Pradesh lies with the President of India. It is in the context of setting up new High Court for the State of Andhra Pradesh, fixation of Judges strength or allocation of Judges to the two States; that the Government of India requested the Chief Justice of India, the Chief Justice of High Court and the Chief Minister of Andhra Pradesh to provide their views and initiate necessary steps. In any matter concerning the Judiciary, the Government of India can always take up the matter with the Head of the Judiciary, which is the Chief Justice of India or the Chief Justice of the concerned High Court and seek their advice. He contends that the Judges of the High Court are appointed by the President of India after due consultation with the Chief Justice of the concerned High Court and the Chief Justice of India. When a new High Court is established for a State, the Judges belonging to the existing High Court are allocated to the new High Court in the initial stage. This has been the case when the new Jharkhand High Court was established and more recently when the High Courts of Manipur, Meghalaya and Tripura were established. In the process of such distribution or allocation of Judges, both the Chief Justice of India and the Chief Justice of the concerned High Court have to be involved. Also, the Judges strength for the High Court has to be fixed. Such fixation has to be made by the Government of India in consultation with the Chief Justice of India. The practice of writing a letter or consultation with the Chief Justice of India on matters relating to setting up of a new High Court, fixation of Judges strength for High Courts, etc., is not a new thing. It has been there in the past and will continue. It is important that the Government of Andhra Pradesh, Government of Telangana and the High Court of Judicature at Hyderabad build a consensus on all issues and decide the matter.

21. He also submits that taking the information from the Finance Ministry that a substantial amount has been released by the Central Government to the State of Andhra Pradesh during the financial year 2014-15 under the sub-head Other Additional Central Assistance, a sum of Rs. 386623.66 lakhs. Thus, according to him, there are no lapses on the part of the 1st respondent.

22. The learned Advocate General for the State of Telangana submits that the State of Telangana is very keen to have the separate High Court for both the States as early as possible. Having found inaction on the part of the 1st respondent and the third respondent, the matter was discussed in the Telangana State Assembly and it was resolved thereat unanimously that immediate steps should be taken for creation of separate High Court for the two States. In fact, as a matter of fact, the Honble Chief Minister has written a letter to the Union Law Minister proposing to provide a new building for the High Court either for the State of Telangana or for the State of Andhra Pradesh. Therefore, a large building, which is having a large land area, has been identified to house the High Court in the city of Hyderabad at a wonderful site at Gachibowli. State of Telangana is prepared to provide all facilities and amenities. The respondent Nos. 1 & 3, notwithstanding this offer, did nothing.

23. The learned Advocate General for the State of Andhra Pradesh, while placing Sections 30, 31 & 94(3) of Act, 2014 and Article 214 of the Constitution of India, submits that his Government is keen to have its separate High Court at the capital region for the State of Andhra Pradesh. He further submits that, within the terms of the provision of Section 94(3) of the Act, 2014, the Central Government is to provide financial support for creating infrastructure of the High Court and such fund has not been released adequately. This eagerness has been expressed by responding to the letter of the Honble Chief Justice of this High Court, dated 26.10.2014.

24. The learned counsel for the respondent Nos. 5 to 16 submits that a reading of the Act 2014, it will appear that there is no provision incorporated as to how to establish a new High Court in the new State. Moreover, the idea or proposal mooted by the State of Telangana to shift the High Court of Telangana to another place is absolutely misplaced under the provisions of Act, 2014. It is the High Court of Andhra Pradesh which has to be established within the territory of Andhra and it cannot be done as a temporary measure, and it has to be done upon providing permanent infrastructure, otherwise it is not possible. However, he contends that since Act, 2014 has not provided for the temporary arrangement of the separate High Court, the provisions of the States Reorganisation Act, 1956 can be looked into. While referring to Section 51 of this 1956 Act, he submits that it is possible to have a temporary bench of this common


High Court in any place within the territory of present State of Andhra Pradesh. Andhra Pradesh was created under the Act of 1956, nonetheless the relevant provisions of the States Reorganisation Act, 1956 are still applicable notwithstanding commencement of Act, 2014. In connection with this submission, he has placed reliance upon a judgment of the Supreme Court in the case of Federation of Bar Assns. v. Union of India.

25. The learned counsel for the 18th respondent submitted that the Government of India did not take any final decision in the matter and no notification is issued so far constituting a separate High Court as far as the State of Andhra Pradesh is concerned. That being the factual position, debate regarding the location of the principal seat of High Court of Andhra Pradesh is only academic and speculative. The Court does not debate and decide on the academic or speculative issues. As and when notification is issued constituting separate High Court for the State of Andhra Pradesh with its principal seat, if any person is aggrieved and approaches this Honble Court, the same can be examined, but at this stage no decision from this Honble Court is called for on the probable location of the principal seat of High Court of Andhra Pradesh. This Honble Court cannot pre-empt the Central Government from exercising its power on the issue in terms of the provisions of law. As per the mandate of Article 214 of the Constitution of India and the provisions of the Act 2014, constitution of separate High Courts for both the States is imperative, the Government of India cannot remain idle. The power given to the Government of India in this is coupled with duty to take firm action in the matter and fulfill the democratic aspirations of the people of both the States and the need of the hour is the constitution of a separate High Court for the State of Andhra Pradesh without any delay.

26. After considering the submission and contention of the learned counsel appeared before us and examining the affidavits filed by the respective parties, the following issues have arisen for our answer and decision.

(i) Going by the provisions of Act, 2014 as it is, and Constitutional provision, whether shifting of High Court for the State of Andhra Pradesh is possible from the present place to any other place within the city of Hyderabad or not?

(ii) Similarly, whether the High Court for the State of Telangana can be shifted from present location to elsewhere in Hyderabad itself?

(iii) Whether the State of Telangana has any role for constitution of separate High Court for the State of Andhra Pradesh or not?

(iv) Who are the authorities to take initiative for constitution of separate High Court for the State of Andhra Pradesh and make it functional?

27. In the writ application as well as in the affidavit of the State of Telangana, it has been emphasized about bifurcation of the present High Court within the same premises and so also submitted by one of the learned Amicus Curiae Mr. G. Vidya Sagar and learned Advocate General for the State of Telangana. We think the concept of bifurcation of the present High Court within the same premises is absolutely misplaced if not absurd in the context of the provisions of Act, 2014, on reading of Sections 30 & 31 of the Act, 2014. Therefore, we set out the same as follows:

30. High Court of Judicature at Hyderabad to be common High Court till establishment of High Court of Andhra Pradesh:-

(1) On and from the appointed day,-

(a) the High Court of Judicature at Hyderabad shall be the common High Court for the State of Telangana and the State of Andhra Pradesh till a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution read with Section 31 of this Act;


(b) the Judges of the High Court at Hyderabad for the existing State of Andhra Pradesh holding office immediately before the appointed day shall become on that day the Judges of the common High Court.

(2) The expenditure in respect of salaries and allowances of the Judges of the common High Court shall be allocated amongst the States of Andhra Pradesh and Telangana on the basis of population ratio.

31. High Court of Andhra Pradesh:- (1) Subject to the provisions of Section 30, there shall be a separate High Court for the State of Andhra Pradesh (hereinafter referred to as the High Court of Andhra Pradesh) and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana (hereinafter referred to as the High Court at Hyderabad).

(2) The principal seat of the High Court of Andhra Pradesh shall be at such place as the President may, by notified order, appoint.

(3) Notwithstanding anything contained in sub-section (2), the Judges and division courts of the High Court of Andhra Pradesh may sit at such other place or places in the State of Andhra Pradesh other than its principal seat as the Chief Justice may, with the approval of the Governor of Andhra Pradesh, appoint.

28. On a close reading of the aforesaid two Sections, there is no manner of doubt that there is no scope for bifurcation of the present High Court as sought to be made, rather it is a common High Court for both the States so long as a separate High Court for the State of Andhra Pradesh is not constituted under sub-section (1) of Sections 30 & 31 of the Act, 2014 read with Article 214 of the Constitution of India.

29. It is very clear from above legal provision, as rightly argued by Mr. E. Manohar, Senior Advocate, that the moment separate High Court for the State of Andhra Pradesh is constituted, the present High Court will function for the State of Telangana alone. We fail to understand how does it come in the mind of any reasonable person looking at present legal position that High Court for the State of Telangana can be shifted to some other place in Hyderabad. Such effort is in conflict with provision of sub-section (1) of Section 31 of the Act, 2014. Therefore, the place offered by the State of Telangana for shifting this High Court to some other place going by the aforesaid provision is totally absurd and devoid of any merit as long as the aforesaid provisions of Sections 30 & 31 of Act, 2014 remain in Statute book. Neither the State Legislature of Telangana nor the State of Telangana can call upon either the High Court or for that matter Central Government to act contrary to the aforesaid provisions. It is argued to support above effort that there is no bar in the Act, 2014, we think this plea does not deserve merit, as legal principle is firmly settled to the effect that when a law requires a thing is to be done in a particular manner it has to be done in that manner alone, or not at all.

{See Tayor vs. Taylor [1875) 1 Ch D] and Nazir Ahmad v. King Emperor [MANU/PR/0111/1936 : AIR 1936 PC 253]}.

30. In our view, on constitution of the High Court for the State of Andhra Pradesh, this High Court will stand automatically bifurcated. We think, therefore, that shifting of High Court for Telangana from present location to any other place in Hyderabad is not possible.

31. Now, the question is, where High Court of Andhra Pradesh is to be constituted. As rightly urged by Mr. E. Manohar, Senior Advocate, that a reading of Sections 3, 4 & 5 of Act, 2014 conjointly, it would appear that Hyderabad is the territory of the State of Telangana as it would be found clearly in Section 3. We therefore set out Sections 3 & 4 of the Act, 2014 hereunder for better understanding:

3. Formation of Telangana State:- On and from the appointed day, there shall be


formed a new State to be known as the State of Telangana comprising the following territories of the existing State of Andhra Pradesh, namely:-

Adilabad, Karimnagar, Medak, Nizamabad, Warangal, Rangareddi, Nalgonda, Mahabubnagar, Khammam (but excluding the revenue villages in the Mandals specified in G.O.Ms. No. 111, Irrigation & CAD (LA IV R & R-I) Department, dated the 27th June, 2005 and the revenue villages of Bhurgampadu, Seetharamanagaram and Kondreka in Bhurgampadu Mandal) and Hyderabad districts,

and thereupon the said territories shall cease to form part of the existing State of Andhra Pradesh.

4. State of Andhra Pradesh and territorial divisions thereof:- On and from the appointed day, the State of Andhra Pradesh shall comprise the territories of the existing State of Andhra Pradesh other than those specified in Section 3.

32. Though Section 5 of Act, 2014 enables the Hyderabad city to serve as the common capital for both the States, nevertheless Hyderabad city cannot be said to be the territory of residuary Andhra Pradesh as it has no proprietary interest and it is a mere user of this city for its capital for temporary period of ten years. If one reads the aforesaid Sections 30, 31 with Section 40 and sub-sections (3) & (4) of Section 94 of Act, 2014, it would be clear that the Legislature intended the High Court of Andhra Pradesh shall be located within the territorial area of Andhra Pradesh. Conveniently, we set out Sections 40 & 94 of Act, 2014 also:

40. Transfer of proceedings from Hyderabad High Court to Andhra Pradesh High Court. Right to appear or to act in proceedings transferred to Andhra Pradesh High Court:- (1) Except as hereinafter provided, the High Court at Hyderabad shall, as from the date referred to in sub-section (1) of Section 30, have no jurisdiction in respect of the State of Andhra Pradesh.

(2) Such proceedings pending in the High Court at Hyderabad immediately before the date referred to in sub-section (1) of Section 30 as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances, to be proceedings which ought to be heard and decided by the High Court of Andhra Pradesh shall, as soon as may be after such certification, be transferred to the High Court of Andhra Pradesh.

(3) Notwithstanding anything contained in sub-sections (1) and (2) of this Section or in Section 33, but save as hereinafter provided, the High Court at Hyderabad shall have, and the High court of Andhra Pradesh shall not have, jurisdiction to entertain, hear or dispose of appeals, applications for leave to the Supreme Court, applications for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court at Hyderabad before the date referred to in sub-section (1) of Section 30:

Provided that if after any such proceedings have been entertained by the High Court at Hyderabad, it appears to be the Chief Justice of that High Court that they ought to be transferred to the High Court of Andhra Pradesh, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly.

(4) Any order made by the High Court at Hyderabad

(a) before the date referred to in sub-section (1) of Section 30, in any proceedings transferred to the High Court of Andhra Pradesh by virtue of sub-section (2), or


(b) in any proceedings with respect to which the High Court at Hyderabad retains jurisdiction by virtue of sub-section (3), shall for all purposes have effect, not only as an order of the High Court at Hyderabad, but also as an order made by the High Court of Andhra Pradesh.

94. Fiscal measures including tax incentives:- (1) The Central Government shall take appropriate fiscal measures, including offer of tax incentives, to the successor States, to promote industrialization and economic growth in both the States.

(2) The Central Government shall support the programmes for the development of backward areas in the successor States, including expansion of physical and social infrastructure.

(3) The Central Government shall provide special financial support for the creation of essential facilities in the new capital of the successor State of Andhra Pradesh including the Raj Bhawan, High Court, Government Secretariat, Legislative Assembly, Legislative Council, and such other essential infrastructure.

(4) The Central Government shall facilitate the creation of a new capital for the successor State of Andhra Pradesh, if considered necessary, by de-notifying degraded forest land.

33. Sub-section (3) of Section 94 of Act, 2014 clearly mentions for creation of essential facilities like constitution of High Court in the new capital of the successor State of Andhra Pradesh.

34. The constitution of High Court in any part of the State of Telangana for the State of Andhra Pradesh, including Hyderabad, would be an action not permitted by law. According to us, going by the provisions of Act, 2014, there is no contemplation nor the Legislature has any intention to create Andhra Pradesh High Court temporarily at any place other than the existing one at Hyderabad. Constitution framers did not intend to allow to create High Court of the State exclusively outside its territory, unlike for Union Territory under Article 230 of the Constitution of India. Had it been so, such permissible provision would have been made expressly.

35. Therefore, willingness of the State of Telangana to offer a new site for creation of Andhra Pradesh High Court within Hyderabad city, if required, is of no effect under law and legally unacceptable too, as it does not find support from the provision of law at all. It is an equally misplaced contention that present High Court building, like Secretariat, etc., can be bifurcated into two establishments of two separate High Courts, for if it is done it would be the establishing of High Court of Andhra Pradesh in the same building and site, which would be belonging to High Court of Telangana also, consequently it would be violative of provision of sub-section (1) of Section 31 of Act, 2014.

36. We are of the view that the creation of High Court for the State of Andhra Pradesh has to be a permanent measure, and not an ad hoc one and it will obviously take some time to create a separate High Court for the State of Andhra Pradesh. Visualising this time factor provision of the common High Court has been made to enable the State of Andhra Pradesh to provide suitable infrastructure. According to us, for creation of the High Court, steps have to be taken as it has been substantially and correctly argued by the learned counsel for the Central Government, by the State of Andhra Pradesh for providing infrastructure in consultation with the Chief Justice of this High Court. After the infrastructure for creation of High Court in all respects are made ready, intimation thereof shall be given to the Central Government. The Central Government, who, in its turn, will obviously approach the Honble Chief Justice of India for recommendation for appointment of the Judges of the High Court for the State of Andhra Pradesh either by fresh appointment or by way of transfer. Obviously, the strength of the newly constituted Andhra Pradesh High Court would be as per the decision taken by the Central Government as has been communicated to the Chief Justice of this High Court. Thereafter, the Honble Chief Justice of India, in accordance with the legal provision, will take steps for


recommending those judges to be appointed for the Andhra Pradesh High Court. Hence, the step of the Honble Chief Justice of India will be the last but one, after everything infrastructure wise is made ready. After receipt of recommendation and information of the completion of the infrastructure, the Central Government will obviously take steps for notification to be done by His Excellency the President of India under Article 214 of the Constitution of India.

37. In the context of above discussion, it is important to find that the Honble Chief Minister of Andhra Pradesh has addressed a letter to the Chief Justice of the present common High Court indicating that the capital region would be the location of the future permanent High Court for the State of Andhra Pradesh. It is also informed by the Honble Chief Minister of Andhra Pradesh to the Honble Chief Justice of this High Court that steps have been taken for acquiring the land for developing the capital region, including creation of High Court. It further appears from the affidavit of the State of Andhra Pradesh that they do not have sufficient funds right now to take steps for creation of High Court within such time as the petitioner and State of Telangana want.

38. It appears from the affidavit and also the letter of the Honble Chief Justice annexed to the same that this State Government is depending on the release of funds by the Central Government as required under Section 94(3) of Act, 2014. It is statutory obligation of the Central Government to provide financial support. We notice from the counter-affidavit of the Union of India that the present allocation of funds is not sufficient in proportion to the need.

39. Therefore, we hold that the State of Telangana has no role to play for creation of the High Court for the State of Andhra Pradesh.

40. We fail to understand how the Honble Union Minister for Law and Justice could entertain the request of the State of Telangana for shifting of the Telangana High Court from the present place to some other place i.e., Gachibowli at Hyderabad. We hold that this is completely impermissible step going by the present legal provision, section 31 of Act, 2014, quoted above. Of course, if it is the intention of the Central Government to shift Telangana High Court from the present place, then it is for the Government to take suitable legal measures in that direction, until then the shifting of Telangana High Court from the present place is beyond any question and is legally impossible.

41. However, having read the affidavits and documents, we find anxiety for early separation of this High Court as reflected in the affidavit filed by the State of Telangana and the Union Minister for Law and Justice. We also feel that some immediate arrangement is required, so that the present High Court can function separately in effect keeping its commonness within the four corners of law. With regard to this, the learned counsel for the respondents 5 to 18 renders considerable assistance to us.

42. Formation of Andhra High Court could be traced from Section 28 of Act 30 of 1953 and it was established at Guntur with effect from 5th July, 1954. Historically the present High Court was constituted by and under the provision of Section 65 of the States Reorganisation Act 37 of 1956 abolishing the then High Court at Hyderabad that was established in 1872, specifying that the High Court of the State of Andhra shall be known as High Court of Andhra Pradesh and its jurisdiction is extended to the territories, which are transferred to the State of Andhra from the existing State of Hyderabad. We have checked up Act, 2014 and we find it nowhere poses inconsistency with the provisions of the States Reorganisation Act, 1956, as by this Act the present Andhra Pradesh was formed w.e.f. 1.11.1956 and the present High Court has been functioning w.e.f. 5.11.1956. Act, 1956 also provides for constitution of temporary bench of the present High Court, as undivided Andhra Pradesh was one of the organized States within the meaning of 1956 Act. The Act, 2014, even after bifurcation, has not made any contrary and inconsistency provision with that of Section 51 of 1956 Act. We, therefore, set out Section 51 of 1956 Act.

51. Principal seat and other places of sitting of High Courts for new States:- (1) The principal seat of the High Court for a new State shall be at such place as the President may, by notified order, appoint.


(2) The President may, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order, provide for the establishment of a permanent Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Judges and Division Courts of the High Court for a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.

43. According to us, the present High Court at Hyderabad constituted under the 1956 Act, which is now common one for both the States, can be allowed to function with Bench or Benches, as mentioned in sub-section (3) of Section 51, at any place or places in the territory of State of Andhra Pradesh, as may be found suitable by the Honble Chief Justice with the approval of the Governor, provided of course adequate infrastructure for constituting temporary bench is provided. According to us, repelling the contention that above section 51 is inapplicable, pending constitution of permanent High Court for Andhra Pradesh, measure provided under sub-section (3) of Section 51 may be resorted to.

44. In the case of State of Maharashtra v. Narayan Shamrao Puranik and others, the Supreme Court held in paragraph-15 of the report as follows:-

15. It is a matter of common knowledge that Parliament considered it necessary to reorganise the existing States in India and to provide for it and other matters connected therewith and with that end in view, the States Reorganisation Act, 1956 was enacted. As a result of reorganisation, boundaries of various States changed. Some of the States merged into other States in its entirety, while some States got split and certain parts thereof merged into one State and other parts into another. These provisions were bound to give rise, and did give rise, to various complex problems. These problems are bound to arise from time to time. The Act is a permanent piece of legislation on the statute-book. Section 14 of the General Clauses Act, 1897 provides that, where, by any Central Act or Regulation, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion arises. The Section embodies a uniform rule of construction. That the power may be exercised from time to time when occasion arises unless a contrary intention appears is therefore well settled. A statute can be abrogated only by express or implied repeal. It cannot fall into desuetude or become inoperative through obsolescence or by lapse of time. In R. v. London County Council [LR (1931) 2 JV 215 (CA)], Scrutton, L.J. put the matter thus:

The doctrine that, because a certain number of people do not like an Act and because a good many people disobey it, the Act is therefore obsolescent and no one need pay any attention to it, is a very dangerous proposition to hold in any constitutional country. So long as an Act is on the statute-book, the way to get rid of it is to repeal or alter it in Parliament, not for subordinate bodies, who are bound to obey the law, to take upon themselves to disobey an Act of Parliament.

As to the theory of desuetude, Allen in his Law in the Making, 5th Edn., p. 454 observes:

Age cannot wither an Act of Parliament, and at no time, so far as I am aware, has it ever been admitted in our jurisprudence that a statute might become inoperative through obsolescence. The learned author mentions that there was at one time a theory which, in the name of non-observance, came very near to the doctrine of desuetude, that if a statute had been in existence for any considerable


period without ever being put into operation, it may be of little or no effect. The rule concerning desuetude has always met with such general disfavour that it seems hardly profitable to discuss it further. It cannot be said that sub-section (2) or (3) of Section 51 of the Act can be regarded as obsolescent. The opening words of Section 41 of the Bombay Reorganisation Act, 1960 manifest a clear legislative intention to preserve the continued existence of the provisions contained in Section 51 of the Act. It was as recent as December 8, 1976 that the President issued a notification under sub-section (2) of Section 51 of the Act for the establishment of a permanent Bench of the Rajasthan High Court at Jaipur. The High Court is therefore not right in observing that the provisions of Section 51 of the Act were not intended to be operative indefinitely and they were meant to be exercised either immediately or within a reasonable time, or that the powers of the President or the Chief Justice thereunder can no longer be exercised in relation to the High Court of Bombay.

45. Under those circumstances, we dispose of this matter with the following directions:

(i) The 3rd respondent is directed to identify and locate the site where the permanent High Court of the State of Andhra Pradesh would be constituted in the territory of Andhra Pradesh and to apprise the Honble Chief Justice of this High Court of the same, and, who, is requested to take a decision in consultation with the Chief Minister of Andhra Pradesh regarding choice of location of the permanent High Court.

(ii) The Honble Chief Minister and the Honble Chief Justice are requested to take a decision in consultation with each other to finalise on the question of constitution of High Court Building, Administrative Building, Residences of the Honble Judges and that of Officers of the Court and staff quarters as early as possible preferably within six (6) months from the date of receipt of the copy of the order.

(iii) The 3rd respondent is directed to take a decision on the question of allocation of funds and thereafter release if allocation is made to incur the expenses for creation of the permanent High Court as early as possible, preferably within a period of three (3) months from the date of communication of this order.

(iv) The Honble Chief Justice of this High Court is requested to examine the feasibility of arranging temporary Benches for sitting of the Honble Judges of High Court under sub-section (3) of Section 51 of the States Reorganisation Act, 1956, pending constitution of permanent High Court, in consultation with the Chief Minister of State of Andhra Pradesh who is to render all help providing necessary infrastructure for sitting of the Honble Judges as a temporary measure, as above. We request the Honble Chief Justice to take a decision within a period of two months from the date of this order.

Consequently, pending miscellaneous petitions, if any, shall also stand closed.

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