You are on page 1of 12

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
Discussed

Mentioned

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

2015-08-06 (Page 1 of 12 )

www.manupatra.com

National Law University Jodhpur

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

2015-08-06 (Page 2 of 12 )

www.manupatra.com

National Law University Jodhpur

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 subsection (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 subsection (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

2015-08-06 (Page 3 of 12 )

www.manupatra.com

National Law University Jodhpur

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 subsection (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

2015-08-06 (Page 4 of 12 )

www.manupatra.com

National Law University Jodhpur

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

2015-08-06 (Page 5 of 12 )

www.manupatra.com

National Law University Jodhpur

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;

2015-08-06 (Page 6 of 12 )

www.manupatra.com

National Law University Jodhpur

(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
[MANU/PR/0111/1936 : AIR 1936 PC 253]}.

D]

and

Nazir

Ahmad

v.

King

Emperor

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

2015-08-06 (Page 7 of 12 )

www.manupatra.com

National Law University Jodhpur

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

2015-08-06 (Page 8 of 12 )

www.manupatra.com

National Law University Jodhpur

(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

2015-08-06 (Page 9 of 12 )

www.manupatra.com

National Law University Jodhpur

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.

2015-08-06 (Page 10 of 12 )

www.manupatra.com

National Law University Jodhpur

(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 nonobservance, came very near to the doctrine of desuetude,
that if a statute had been in existence for any considerable

2015-08-06 (Page 11 of 12 )

www.manupatra.com

National Law University Jodhpur

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 subsection (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.
Manupatra Information Solutions Pvt. Ltd.

2015-08-06 (Page 12 of 12 )

www.manupatra.com

National Law University Jodhpur