A.P.H.C.CASE LAW - ADVOCATEMMMOHAN: May 2015

Sunday, May 17, 2015

No Judicial Officer expected to shut his mouth in Bench

No Judicial Officer is expected to sit with mouth shut in open court - No Transfer Petition Maintainable on that ground alone - Trail Judge - opined that Or.38, rule 5 C.P.C. is a proper petition rather than Or.39, rule 1 and 2 C.P.C. - adjourned the case several times as the respondent absent despite of allegations that the respondents are going to alienate the properties - their lordships held that expressing an opinion is not an advise to the party and further held that A Judge, who is presiding the Court, cannot be expected to be a mere silent spectator. In fact, Judges have to play an active role. They should not and need not allow the parties or advocates to argue for hours together on the same points or on an issue when it is clear that in an application or a suit or a proceeding is not maintainable. There is nothing wrong if a Judge openly says that a particular petition is not maintainable. It cannot be treated as an advise to a party. Sometimes, Judges may be seeking further information, clarification or assistance from the advocates while arguing the matters. Knowing or unknowingly, sometimes, they may even go to the extent of expressing their view about the maintainability or otherwise of a petition or a suit. If the request of the petitioner is accepted, it amounts to giving a direction to all the Presiding Officers to shut their mouth while conducting the Court proceedings and this cannot be allowed - 2015 A.P. (2013) MSKLAWREPORTS

Recall of Witnesses for Cross Examination – Old suit for Partition – Despite of giving one or two opportunities – petitioner not cooperated and conducted cross examination - Aliment of petitioner and his family members is not the sufficient cause for recalling the witnesses - as the Cross Examination can be done by his counsel by taking proper instructions from the petitioner – Trial court dismissed the same – High court confirmed the same and dismissed the revision - 2015-Telangana & A.P.-MSKLAWREPORTS

Seeking recall of PWs.1 to 3 for cross-examination on his behalf – suit for partition - PW.1 filed his affidavit in lieu of chief-examination on 06.02.2013 and thereafter, the matter was posted for cross-examination of PW.1 on 15.02.2013 and 21.02.2013 and again, it was adjourned to 01.03.2013 and 08.03.2013. - The petitioner herein, who is the 1st defendant in the suit, has failed to cross-examine PW.1. - In the meantime, PWs.2 and 3 have filed their chief affidavits and they were cross-examined by defendant No.4. - Now at this stage, recall petition of PWs.1 to 3 is filed. - Reasons furnished that the petitioner is nearly 70 year old man having certain health problems and his wife and son were challenged persons and he has to take good care of them. - All these factors cumulatively, came in the way of the petitioner herein in cross-examining PWs.1 to 3. - This explanation has not found favour of the trial Court, as no specific ailment has been set out and further, no material is produced in proof of any such disposition. - Therefore, the trial Court has rejected the interlocutory application.- Their Lordships held that It is important to notice that if one is not in a physically sound position to attend to the hearing of the case, he is supposed to instruct his counsel thoroughly so that cross-examination can be carried out by the counsel. -The presence of a party in a Court hall would only be required for securing any clarification at the last minute. Therefore, I am convinced that the petitioner herein in spite of being provided with adequate opportunities has not availed the same to cross-examine PWs.1 to 3 and hence, there is no meaning in recalling those witness at this point of time, particularly, when the suit is very old one instituted in the year 2007 and it is almost 8 years since it was instituted and it is required to be disposed of on priority basis. –

2015-Telangana & A.P. - MSKLAWREPORTS

Non-Cross Examination of witness in Partition suit – Effects - This apart, in a suit for partition, the defendants stand on the same footing as that of the plaintiff, therefore, the petitioner herein is entitled to lead such evidence as he has considered appropriate on his behalf. However, the Court would show appropriate consideration in that respect, without putting any undue burden on the petitioner herein for his failure to cross-examine PWs.1 to 3. Accordingly, this revision stands dismissed.-

2015-Telangana & A.P.-MSKLAWREPORTS

Tuesday, May 12, 2015

Or.1, rule 10 of C.P.C.- suit for specific performance - purchasers pending suit filed impleading petition - their lordships allowed the same subject to payment of costs of Rs.5,000/- to the plaintiff with a condition that they cannot be permitted to take defences which are not available to their vendors -2015 Telangana & A.P. MSKLAWREPROTS

Or.1, rule 10 of C.P.C.- suit for specific performance - purchasers pending suit filed impleading petition - their lordships allowed the same with a rider that they are permitted to take defence other than their vendors - subject to payment of costs of Rs.5,000/- to the plaintiff with a condition that
they cannot be permitted to take defences which are not available to their vendors -2015 Telangana & A.P. MSKLAWREPROTS

It is well settled in law that in case of impleadment of
parties, it is not the jurisdiction of the Court, but the judicial
discretion which has to be exercised keeping in mind all the
facts and circumstances of a particular case.
In the present
case, the application is filed by persons, who claimed to have
purchased a part of property under a registered sale deed
pending the suit.
Though they ought to have been aware of
the paper publication taken by the Plaintiff prior to the
institution of the suit and the pendency of the suit, as the
vendors were made parties to the proceedings, their legal
rights in the property would be affected by the proposed
decree, if it is passed in favour of the plaintiff.
The petitioners
did not explain the reason for filing the application belatedly
after five years.
Almost all the defendants in the suit have not
contested.
Though defendant No.9 filed a written statement,
he did not participate in the subsequent proceedings.

In the circumstances, justice would demand the
application of the petitioners be permitted subject to payment
of costs of Rs.5,000/- to the plaintiff with a condition that
they cannot be permitted to take defences which are not
available to their vendors -2015 Telangana & A.P. MSKLAWREPROTS

Therefore, by virtue of sub-section (2) of Section 68 the assets, rights and liabilities of APBCL now stand apportioned between the State of Andhra Pradesh and State of Telangana in the manner as provided in Section 53 of Act, 2014. Section 53 provides subject to the agreement the aforesaid assets and liabilities of the Corporation, shall stand apportioned on the basis of population ratio. The petitioner has not acquired nor can acquire in view of above legal position any property from APBCL nor the liability thereof. The State of Telangana has acquired these assets and properties and liability of APBCL, being the recorded assessee proportionately. Therefore, it is absurd to contend that the writ petitioner is the successor in interest of APBCL. It is absolutely separate legal entity, as rightly contended by Mr. K. Ramakrishna Reddy, the learned Advocate General appearing for the writ petitioner, that it has not started business nor any income has been derived. It does not appear from object clause of Memorandum of Association that it has acquired any rights, assets and properties of APBCL. Thus, the question of shouldering liability by the writ petitioner also does not arise. We are of the view that just because the petitioner paid tax dues on mistaken application of law, it cannot be precedent for recovery for the simple reason that illegal and wrongful action cannot be precedent, furthermore there cannot be estoppel as against provision of law. 13. Therefore, we hold that the actions taken by the Revenue against the writ petitioner are without jurisdiction and wholly illegal. 14. The alleged dues of APBCL, in relation to the assessment year 2012-13 after the appointed day, can be recovered from the successor State Governments in terms of Section 68 (2) of Act 2014, as all these dues being part of liability can be apportioned accordingly. In the event, State of Telangana does not pay the proportionate liability of the tax dues for the assessment year 2012-13 or previous thereto, if any, it would be open for the respondents to recover the same from the State of Telangana, since It is to share the proportionate liability along with assets of the erstwhile APBCL which was again a separate legal entity and an assessee. We are of the view that the writ petitioner cannot be equated with the Government in order to get Constitutional immunity from payment of taxes. 15. We, therefore, set aside and quash the orders and notices issued against the writ petitioner. However, liberty is given to the respondent officials to recover the dues from the State of Telangana, if it is not paid, and that can only be done after issuance of notice under Section 226 of the Act, 1961.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR

WRIT PETITION Nos.5606 of 2015

01-05-2015

Telangana State Beverage Corporation Limited, rep.by its Managing Director,
Prohibition & Excise Complex,M.J. Road, Nampaly, Hyderabad-500 001.Petitioner

1.Union of India, Ministry of Finance, New Delhi, represented by its
Secretary.2. Tax Revenue Recovery Officer-I, Office of Commissioner of Income
Tax-I, Room No.407, 4th Floor, Ayakar Bhavan, Basheerbagh, Hyderabad-500004.
3. The Commissioner of Income Tax, Ayakar Bhavan, Basheerbagh,
Hyderabad.Respondents

Counsel for the petitioner: Sri K. Ramakrishna Reddy,
Advocate General for State of Telangana

Counsel for the Respondent No.1: Sri B. Narayana Reddy, Assistant
Solicitor General of India

Counsel for Respondent Nos.2 & 3 : Sri J.V. Prasad
Standing Counsel for Income Tax

<Gist :

>Head Note:

?Cases Referred:

- Nil -
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR

WRIT PETITION Nos.5606 & 5616 of 2015

Date: 01.05.2015

COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
The above two writ petitions have been filed challenging the
prohibitory orders and warrant of attachment of moveable property
issued by the 2nd respondent on 28.02.2015.

2. The factual and legal grounds of challenge in the aforesaid
petitions are similar and identical.
The petitioner has been incorporated under the provisions of
Companies Act, 2013 on 30.05.2014 and carrying on business on behalf
of the State of Telangana in respect of sale of Indian Made Liquor and
Foreign Liquor (In short, IML and FL). It is claimed that the petitioner
is extended arm of the State Government as an instrumentality of the
State of Telangana. The petitioner has also been conferred a monopoly
status in respect of the said activities in the State of Telangana, as such,
the petitioner has Permanent Account Number, being AAFCTO204P,
issued by the 3rd respondent. In the course of carrying on such
business, on 27.2.2015 the aforesaid prohibitory orders and warrant of
attachment of moveable property were issued restraining the petitioner
from selling the liquor stock, which is the property of State of Telangana.
The said prohibitory orders were issued contending incorrectly that the
petitioner is the successor in business of Andhra Pradesh Beverages
Corporation Limited (APBCL) under the provisions of Andhra Pradesh
Reorganization Act, 2014 (hereinafter referred to as Act, 2014). It is
also alleged that a sum of Rs.1468,63,95,620/- was the proportionate
amount due from the petitioner for the assessment year 2012-13. The
aforesaid prohibitory orders and attachment orders were issued by the
2nd respondent under the provision of Rule 26 (1) (iii) of the second
schedule to the Income Tax Act, 1961 (hereinafter referred to as Act,
1961). It is contended that prior to the impugned prohibitory orders, the
petitioner has never received any notice of assessment for the
assessment year 2012-2013, and till date the petitioner does not receive
any copy of the assessment orders for the same assessment year. As
such, the 2nd respondent has no jurisdiction to commence tax recovery
proceedings against the petitioner, as no notice was served on the
petitioner during the assessment proceedings nor any assessment order
was served upon the petitioner. No notice of demand was served upon
the assessee under Section 156 of the Act, 1961. Since the respondents
2 and 3 have failed to serve notice of demand upon the petitioner as
required under Section 156 of Act, 1961, they have no jurisdiction to
commence the tax recovery proceedings against the assessee. Indeed,
the petitioner cannot be called as an assessee in default under Section
220 of the Act, 1961, if the petitioner has not been served with the
assessment order. The above impugned orders make a reference to the
Tax Recovery Certificate No.AABCA7385A/171/TRO-1/2014-15, dated
19.02.2015. The petitioner has not received copy of the aforesaid Tax
Recovery Certificate. In any event, the tax recovery certificate is totally
inapplicable to the petitioner as it is with reference to some other
assessee. The Permanent Account Number, as stated in the tax recovery
certificate, does not belong to the petitioner. As such, the petitioner
cannot be considered to be an assessee in default. Under Section 222
read with second Schedule of the Act, 1961, attachment of moveable
property can be done only in case of default. Consequently, attachment
proceedings are without jurisdiction. The tax recovery certificate was
drawn by the 2nd respondent and the Tax Recovery Officer has to issue
notice on the alleged defaulter under Rule 2 of the second schedule of the
Act, 1961. The said notice is required to be effected through a statutory
form ITCP No.1. In the present case, no such notice in Form ITCP No.1
has been served on the petitioner. As the respondents have failed to
comply with Rule 2 of the second schedule of Act, 1961 by serving the
form in ITCP No.1, the respondents have no jurisdiction to commence the
tax recovery proceedings by issuing the impugned prohibitory orders.
The prohibitory orders were issued without complying with the condition
in Rule 20 of the second schedule of the Act, 1961. Under Rule 20 (2),
the Tax Recovery Officer has to serve a warrant in writing specifying the
name of the defaulter and the amount to be realized. The impugned
prohibitory orders were issued without issuing warrant specifying the
name of the defaulter and the amount to be realized. As such, the
respondents have no jurisdiction to commence the tax recovery
proceedings and to issue the impugned prohibitory orders under the law.
The liquor stocks belong to the State of Telangana, and the same do not
form the property of the petitioner. The petitioner is holding the said
property only as an agent and custodian of the State of Telangana. The
orders for supply and the invoices categorically show that the property,
which is sought to be attached, belong to the State of Telangana, and not
to the petitioner herein. The petitioner is not the successor in business
of APBCL. The respondents never treated the petitioner as the successor
of APBCL for the assessment proceedings 2012-13. The respondents
also did not treat the petitioner as the successor of APBCL for the
purpose of serving assessment order. Nonetheless, the respondents
treated the petitioner as successor of APBCL only for the purpose of tax
recovery proceedings under the Scheme of Distribution of Assets and
Liabilities, the income tax liabilities have to be borne by the Government
of Andhra Pradesh and Government of Telangana respectively. The said
scheme has been approved by the then Government of Andhra Pradesh
vide G.O.Ms.No.239, Revenue (Ex.II) Department, dated 27.5.2014.
Therefore, the attachment orders are arbitrary, unlawful and ultra vires
the provisions of the Act, 1961.

3. In the counter-affidavit filed by the 2nd respondent, it has
been stated to justify the aforesaid order that the petitioner is the
successor in business of APBCL as per Section 53 read with Section 68
of the Act 2014, in respect of the territories falling in the State of
Telangana. As a result of reorganization of the State, as per State
Government G.O.Ms.No.187, Revenue (Ex.II) Department, dated
16.5.2014, a new Corporation was incorporated in the name and style of
M/s. Telangana State Beverages Corporation Limited (TSBCL), having its
registered office at 2nd Floor, Prohibition & Excise Complex, 9 & 10
Eastern Block, MJ Road, Nampally, Hyderabad. As per G.O.Ms.No.239,
dated 27.5.2014 and G.O.Ms.No.254, dated 31.5.2015, the Government
had appropriated the existing moveable assets between both the
Corporations of APBCL and TSBCL. The assets and liabilities have been
shared based on the population ratio which was arrived at 58.32 : 41.68.
For the Assessment year 2011-12 as per the directions of this Court in
Writ Petition No.22430 of 2014 the petitioner has a share of liability
amounting to Rs.83,36,00,000/- on 6.11.2014 which is 41.68% of the
total amount paid by both the Corporations aggregating to Rs.200 crores.
The income tax demand was raised for the assessment year 2012-13 i.e.,
financial year 2011-12 during which time TSBCL does not exist. The
petitioner is estopped from denying the liability of income tax demand as
it had already accepted by paying its share of demand pertaining to
assessment year 2011-12. The assessing officer has passed the
assessment order for the assessment year 2012-13 for which the relevant
accounting period is from 1st April, 2011 to 31st March, 2012. The
assessing officer has brought to tax the income that was received by the
assessee, APBCL, from its business operations during the period relevant
for the assessment year 2012-13, during which the petitioner herein is a
non-existent. Subsequent to the accounting period relevant for the
assessment year 2012-13, part of the assets and liabilities of the
assessee, APBCL, stood transferred to the petitioner herein under
Act 6 of 2014. Technically, no notice of demand was served on the
petitioner under Section 156 of the Act, 1961 as the assessment order
was passed for the assessment year 2012-13 during the accounting
period relevant for the assessment year, when the petitioner herein was
not in existence. The petitioner was incorporated only during the
financial year 2014-15. It is contended that the petitioner must take
liability including tax along with assets, indeed it has taken for the
assessment year 2011-12. Accordingly, the tax liability of the petitioner
works out to Rs.1225,19,94,125/- relating to the assessment year
2012-13 and 2013-14. Since the assessee Corporation has not
discharged its tax liability, recovery proceedings were initiated by the
Tax Recovery Officer by issuing ITCP Nos.2 & 5 under Rules 20 &
26 (1) (iii) of the second schedule to the Act, 1961. As per the provision
of Section 170 (3) of the Act, 1961, the assessing officer has recorded its
finding vide letter dated 18.2.2015 wherein it was stated that IML/FL
sale proceeds, including the margins, are directly being credited into the
treasury account of the State Government as per G.O.Ms.No.614,
Revenue [Ex.II (2)] Department, dated 6.5.2005. A clear finding was
recorded by the assessing officer that the income tax dues pertaining to
the share of TSBCL, successor in business, has to be recovered from it by
the Tax Recovery Officer, on being referred to him. Hence, there is no
requirement of serving a demand notice or assessment order on TSBCL.
After reference is made to the Tax Recovery Officer by the assessing
officer, then the proceedings of the Tax Recovery Officer can be initiated
by him even though he has not served a demand notice or assessment
order on the petitioner. Therefore, the proceedings and the jurisdiction
of the Tax Recovery Officer are valid. Notice under Rule 2 of the second
schedule to the Income Tax Act has been issued to the assessee. Even
though the tax recovery certificate was drawn in the name of the
predecessor, APBCL, the petitioner being the successor in business to
APBCL in respect of the territorial jurisdiction of the State of Telangana,
the liability pertaining to its share has to be paid by the petitioner as it
has already received the assets from APBCL. Hence, there is no
violation of provision of Section 222 or Rule 2 or Rule 20 of the second
schedule of the Act, 1961. It will appear from the specimen orders for
supply and invoices, all the transactions are monitored by the Managing
Director, TSBCL, and only the name of the Government was mentioned
therein. The depots are also in the name of TSBCL and the stock is
delivered and sold at the depots. The petitioner cannot invoke Article
289 (1) of the Constitution of India as it is not the extended arm of the
State Government and it has a special legal entity. The petitioner itself
agreed that as per the Scheme of Distribution of Assets and Liabilities,
including those of income tax, the same was approved by
G.O.Ms.No.239, dated 27.5.2014.

4. The learned Advocate General appearing for the writ
petitioner in both the writ petitions, while placing the above fact, submits
that the writ petitioner is a separate legal entity and it came into being
after the relevant assessment years, for which the alleged recovery
proceedings initiated against the petitioner. Admittedly it is neither an
assessee nor a garnishee, for which this action can be taken. Even the
writ petitioner cannot be assessed to tax as it is a part and parcel of the
State of Telangana. The composition of the petitioner would clearly
show that it is absolutely an organ of the Government. So, it
enjoys Constitutional immunity under Article 289 (1) of the Constitution
of India.

5. According to him, the recovery has to be made in
compliance with Sections 220 & 222 of the Act, 1961. It would appear
from the aforesaid two Sections that there must be an assessment order
against the assessee, followed by the notice of demand under Section 156
of Act, 1961, in case of failure of complying with the same the recovery
proceedings can be started. Admittedly no assessment order has been
passed against the petitioner nor the petitioner is a deemed assessee in
default. The order of attachment or restraint order is also not in
consonance with Section 222 read with Rule 26 (1) (ii) of the second
schedule of the Act, 1961. The writ petitioner is not a transferee or the
successor in interest of APBCL under the provisions of Act, 2014.
Nothing has been succeeded by this petitioner as far as the assets and
liabilities of the erstwhile APBCL is concerned.

6. Mr. J.V. Prasad, the learned Counsel for the Revenue, on the
other hand, justifies the action, and contends that it would appear from
the provision of Act, 2014, this writ petitioner is the successor in interest
of APBCL, as such by virtue of Section 226 (3) (iii) read with Section
170 (3) of the Act, 1961, the proportionate share of the liabilities can be
recovered from the writ petitioner. It would appear from the records that
the petitioner is the successor in interest as far as the assets and
properties and businesses are concerned. Therefore, notices issued and
order of attachment made are perfectly justified under the law.

7. After hearing the learned counsel for the parties and
considering the statements and averments made in the pleadings and
perusing the necessary documents, the only question that arises in these
two cases is whether any recovery proceedings can be initiated against
the writ petitioner for the alleged income tax dues as claimed by
the Revenue.

8. From the records, it is an undisputed position that the
petitioner came into being as a company and as such it is separate legal
entity, on being incorporated on 30th May, 2014. Tax dues in relation to
which recovery is sought to be made concern with financial year 2011-12
and assessment year 2012-13. At that time the petitioner was not in
existence. Admittedly the petitioner is not an assessee nor a deemed
assessee or a default assessee. No assessment order was passed against
it nor any notice of demand was issued.

9. Going by the legal provision as mentioned in Section 156 of
Act, 1961, the recovery proceedings cannot be initiated against the
petitioner. Therefore, apparently, notices are absolutely illegal and
invalid as the same are issued without following the provision of Section
156 of Act, 1961. Section 156 of Act, 1961 is set out hereunder:
156. Notice of demand:- When any tax, interest, penalty, fine
or any other sum is payable in consequence of any order passed
under this Act, the Assessing Officer shall serve upon the
assessee a notice of demand in the prescribed form specifying
the sum so payable:

Provided that where any sum is determined to be payable
by the assessee or by the deductor under sub-section (1) of
section 143 or sub-section (1) of section 200A, the intimation
under those sub-sections shall be deemed to be a notice of
demand for the purposes of this section.

10. Now, looking at the provision of clause (ii) of sub-section (3)
of Section 226 of the Act, 1961, as urged by Mr. Prasad, whether we can
conclude the writ petitioner as a person holding any money for or on
account of the assessee, so much so the tax can be recovered from It, in
respect of the dues of APBCL is concerned. We think, on the facts
narrated above, the answer is in negative for the reason stated
hereunder.

11. By virtue of Section 68 read with Section 53 of Act, 2014,
successor States of Andhra Pradesh and Telangana have acquired the
assets and took over the liability in respect of the Companies and
Corporations specified in the ninth schedule of Act, 2014. The APBCL is
one of the Corporations as mentioned in ninth schedule being Item
No.25. Sections 53 & 68 of Act, 2014 provide as follows:
53. Assets and liabilities of State undertakings:- (1) The assets and
liabilities
relating to any commercial or industrial undertaking of the existing State of
Andhra Pradesh, where such undertaking or part thereof is exclusively located
in,
or its operations are confined to, a local area, shall pass to the State in
which that
area is included on the appointed day, irrespective of the location of its
headquarters:

Provided that where the operation of such undertaking becomes inter-
State by virtue of the provisions of Part II, the assets and liabilities of

(a) the operational units of the undertaking shall be apportioned
between the two successor States on location basis; and

(b) the headquarters of such undertaking shall be apportioned
between the two successor States on the basis of population
ratio.

(2) Upon apportionment of the assets and liabilities, such assets and
liabilities shall be transferred in physical form on mutual agreement or by
making
payment or adjustment through any other mode as may be agreed to by the
successor States.

68. Provisions for various companies and corporations:- (1) The companies
and corporations specified in the Ninth Schedule constituted for the existing
State
of Andhra Pradesh shall, on and from the appointed day, continue to function in
those areas in respect of which they were functioning immediately before that
day, subject to the provisions of this section.

(2) The assets, rights and liabilities of the companies and corporations
referred to in sub-section (1) shall be apportioned between the successor States
in
the manner provided in section 53.

12. Therefore, by virtue of sub-section (2) of Section 68 the
assets, rights and liabilities of APBCL now stand apportioned between
the State of Andhra Pradesh and State of Telangana in the manner as
provided in Section 53 of Act, 2014. Section 53 provides subject to the
agreement the aforesaid assets and liabilities of the Corporation, shall
stand apportioned on the basis of population ratio. The petitioner has
not acquired nor can acquire in view of above legal position any property
from APBCL nor the liability thereof. The State of Telangana has
acquired these assets and properties and liability of APBCL, being the
recorded assessee proportionately. Therefore, it is absurd to contend
that the writ petitioner is the successor in interest of APBCL. It is
absolutely separate legal entity, as rightly contended by Mr. K.
Ramakrishna Reddy, the learned Advocate General appearing for the writ
petitioner, that it has not started business nor any income has been
derived. It does not appear from object clause of Memorandum of
Association that it has acquired any rights, assets and properties of
APBCL. Thus, the question of shouldering liability by the writ petitioner
also does not arise. We are of the view that just because the petitioner
paid tax dues on mistaken application of law, it cannot be precedent for
recovery for the simple reason that illegal and wrongful action cannot be
precedent, furthermore there cannot be estoppel as against provision
of law.

13. Therefore, we hold that the actions taken by the Revenue
against the writ petitioner are without jurisdiction and wholly illegal.

14. The alleged dues of APBCL, in relation to the assessment
year 2012-13 after the appointed day, can be recovered from the
successor State Governments in terms of Section 68 (2) of Act 2014, as
all these dues being part of liability can be apportioned accordingly. In
the event, State of Telangana does not pay the proportionate liability of
the tax dues for the assessment year 2012-13 or previous thereto, if any,
it would be open for the respondents to recover the same from the State
of Telangana, since It is to share the proportionate liability along with
assets of the erstwhile APBCL which was again a separate legal entity
and an assessee. We are of the view that the writ petitioner cannot be
equated with the Government in order to get Constitutional immunity
from payment of taxes.

15. We, therefore, set aside and quash the orders and notices
issued against the writ petitioner. However, liberty is given to the
respondent officials to recover the dues from the State of Telangana,
if it is not paid, and that can only be done after issuance of notice under
Section 226 of the Act, 1961.
16. Thus, both the Writ Petitions are allowed. There will be no
order as to costs.
Consequently, pending miscellaneous petitions, if any, shall also
stand closed.___________________________
Kalyan Jyoti Sengupta, CJ
__________________
Sanjay Kumar, J
Dt. 01.05.2015

Whether the amendment petition ousting jurisdiction can be considered ? - yes - 2015 A.P.(1993) MSKLAWREPORTS

Order 6, Rule 17 C.P.C. runs as follows:-

17. "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."

It is necessary to notice the provisions of Order 7, Rule 10 C.P.C. at this juncture.

The same is extracted hereunder:-

10. (1) (Subject to the provisions of the Rule 10A, the plaint shall) at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted."

A combined reading of both the provisions make it abundantly clear to one's mind that Order 6, Rule 17 C.P.C. makes it obligatory on the Court to consider an application for amendment in any pending suit. On a consideration of the said application, if it exceeds the jurisdiction of the said Court, it has to invoke the provisions of Rule 10 to Order 7 C.P.C. which gain makes it obligatory on the Court to return the plaint for being presented to a proper Court.

A controversy, whether in such circumstances, the Court should return the plaint along with the application for amendment, or consider the application for amendment and then only return the plaint if it exceeds the jurisdiction of that Court in view of allowing the amendment, was set at naught by a Division Bench of this Court in C. Janardhan Rao v. C. Ratnamala, 1986 (2) APLJ 203 which overruled the decisions reported in Padmanabha Talkies v. Gowthami Pictures, 1971 (1) APLJ 375 and Kaka v. Kanhayya Lala, 1980 (1) An.W.R. 341 and by authoritatively laying down the dicta that the jurisdiction of the Court in which the plaint was originally filed, is not taken away or ousted to consider an amendment to the plaint which eventually ousts the jurisdiction of that Court.

If on a consideration of the application for amendment, the jurisdiction of the Court is lost, the proper course is to invoke the provisions of Order 7, Rule 10 C.P.C. and return the plaint for presentation before a proper Court. For this view, the words "at any stage of the suit", occurring in Rule 10 to Order 7 C.P.C. lend ample support.

The Court is not denuded of is jurisdiction to entertain an application for amendment in a duly constituted suit, merely because the consequences of the decision of the application in a particular way oust the jurisdiction of the Court subsequently.

Therefore, the fact that jurisdiction of the Court would be ousted is no ground to refuse an amendment of the plaint. In view of the binding authority of the Division Bench in C. Janardhan Rao v. C. Ratnamala, 1986 (2) APLJ 203, I have no hesitation in holding that the Court would not lose jurisdiction to consider the application for amendment. If on a consideration of the application for amendment, if the Court loses its jurisdiction, the proper course is to return the plaint under Order 7, Rule 10 C.P.C.- 2015 A.P.(1993) MSKLAWREPORT

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 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.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR

PUBLIC INTEREST LITIGATION No.59 OF 2015

01-05-2015

T.Dhangopal Rao ---Petitioner

1.Union of India, through its Secretary, Ministry of Law and Justice, Shastri
Bhawan, New Delhi, and others. Respondents

Counsel for the petitioner: Party-in-Person (T.Dhangopal Rao)
Sri E. Manohar, Senior Counsel
(Amicus Curiae)
Sri G. Vidya Sagar, Senior Counsel
(Amicus Curiae)

Counsel for the Respondent No.1: Sri B. Narayana Reddy, Assistant
Solicitor General of India

Counsel for the Respondent No.2 : Sri K. Ramakrishna Reddy,
Advocate General for State of Telangana

Counsel for the Respondent No.3 : Sri P. Venugopal,
Advocate General for State of A.P.
Counsel for Respondent Nos.5 to 16: Sri M.V. Raja Ram
Counsel for the Respondent No.17: Sri T. Amarnath Goud
Counsel for the Respondent No.18: Sri Gandra Mohan Rao

<Gist :

>Head Note:

?Cases Referred:

(2000) 6 SCC 715
2 (1982) 3 SCC 519

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR

PUBLIC INTEREST LITIGATION No.59 OF 2015

Dated: 01-05-2015

ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)

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 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 fulfil 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 [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 denotifying
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.
_______________________
Kalyan Jyoti Sengupta, CJ
_______________
Sanjay Kumar, J
Dt. 01.05.2015

Monday, May 11, 2015

When the party of the suit attested the Will Deed and when not disputed his signature as attestatror - and when only disputes the bequeathing of property - the question of proof of will does not arise -2015 A.P.(2006) MSKLAWREPORTS.

another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant.

The learned Counsel for the appellant submitted that though there was some discrepancy in describing the paper used for the Will, the contents have been effectively proved by examining all the attestors and son of the scribe. The said Will was executed out of love and affection towards the second defendant by the mother of the plaintiff as the second defendant's father gave them shelter and brought them up by providing food and clothing for a considerable period and another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant. There is also supporting material to show that the second defendant is enjoying the property since more than 20 years by the date of filing of the suit and the exhibits marked on his behalf would also reflect that he was in possession and enjoyment of the property. Had there not been any Will executed by the mother of the plaintiff, the plaintiff would have been in possession of the property as a natural heir or she would have taken, such steps immediately after the death of her mother to recover the possession of the property or to protect the property being the legal heir of the mother.

-2015 A.P.(2006) MSKLAWREPORTS

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