Can the principal seat of Andhra Pradesh high court be shifted...?
Recently a statement has been made in the Andhra Pradesh State Assembly that there would be three capitals in three different regions i.e.,
(1) Legislative capital at Amaravati,
(2) Executive capital at Visakhapatnam and
(3) Judicial capital at Kurnool.
There is a proposal of shifting the principal seat of High Court of Andhra Pradesh from Amaravati to Kurnool and treat the same as the judicial capital.
The first two decisions can be taken by the executive. In order to take third decision, it is necessary to examine the legal aspects.
The State of Andhra was formed under Sec 3 (1) of the Andhra State Act, 1953. The districts comprising Srikakulam, Visakhapatnam, East Godavari, West Godavari, Krishna, Guntur, Nellore, Kurnool, Kadapa and Chittoor and Alur, Adoni and Rayadurg Taluqs of Bellary district in the State of Madras were ceased to form a part of State of Madras and were formed into a separate
State known as State of Andhra.
Advocate, High Court’s of AP & TS
chittarvu_raghu@yahoo.com
Sec 28 of the Andhra State Act, 1953 had contemplated a separate High Court for the State of Andhra from the 1st day of January 1956 referred as High Court of Andhra.
The State Reorganisation Act, 1956 was enacted by Parliament to provide for the Reorganisation of States of India. Under Sec 3 of the State Reorganisation Act, 1956, the State of Andhra Pradesh was formed by adding certain districts to the State of Andhra from erstwhile Hyderabad. Sec 50 of the Reorganisation Act, 1956 abolished certain courts.
The High Court at Hyderabad which was established in 1872 was abolished and High Court of Andhra Pradesh was established under Sec 65 of the State Reorganisation Act, 1956. Sec 51(1) of the State Reorganisation Act, 1956 specifies that the principal seat of the High Court for the new State shall be at such place as the President may, by notified order, appoint.
The principal seat of High Court of Andhra Pradesh was notified at Hyderabad. Till now once the principal seat has been notified under the provisions of reorganisation Act and the same was not shifted.
However, certain division benches were established by virtue of the power conferred under the Acts.
The AP Reorganisation Act, 2014 came into force with effect from 02.06.2014. Sec 30(1) of the Act states that, on and from the appointed day, the High Court of Judicature at Hyderabad shall be common High Court for the State of Telangana and for the State of Andhra Pradesh till a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution r/w Sec 31 of the Act.
Sec 31(1) of the Act contemplates that there shall be separate court for the State of Andhra Pradesh which shall be called High Court of Andhra Pradesh. Sub Section 2 contemplates that the principal seat of the High Court shall be at such place as the President may, by notified order, appoint.
Sub Section 3 contemplates that 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.
The aforesaid provisions show that once a principal seat of High Court of Andhra Pradesh is notified, the Chief Justice may appoint Division of Court at any other place with the approval of the Governor of Andhra Pradesh.
A writ petition was filed by T Dangopal Rao before the then Common High Court praying for initiating process for the constitution of separate High Courts for the States of Telangana and Andhra Pradesh under Article 214 of Constitution r/w Sec 32 of the AP Reorganisation Act, 2014.
The divisional bench of the then Common High Court had examined the provisions of the Reorganisation Act, 1956 and the AP Reorganisation Act, 2014.
The divisional bench had disposed of the writ petition directing 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 Chief Justice of Andhra Pradesh High Court and requested the Chief Justice to take a decision in consultation with the Chief Minister of Andhra Pradesh regarding the choice of location of the High court.
The matter was carried to the Supreme Court. The Supreme Court was pleased to record that the judges of the High Court, who would become judges of Andhra Pradesh, are satisfied with the facilities in the said building in as much as full court of High Court has approved the proposal after inspection committee of judges submitted a report in the said behalf.
The Supreme Court had expected that a notification to be issued by 1st January, 2019 so that two High Courts function separately.
Pursuant to the said order of the Supreme Court a notification was issued dated 26.12.2018 notifying that the High Court of Andhra Pradesh is constituted with effect from 1st January, 2019 with the principal seat of such High Court at Amaravathi in the State of Andhra Pradesh. A reading of this notification shows that the same is issued under Sec 31(2) of the AP Reorganisation Act, 2014.
In the light of a notification issued under Sec 31(2) of AP Reorganisation Act, 2014, constituting High Court of Andhra Pradesh with the principal seat at Amaravati, the principal seat cannot be shifted unless the said notification is cancelled and a new seat is re-notified under Sec 31(2) of the Act. But a reading of Sec 31 shows that such a power is not contemplated.
The only power that is contemplated is to establish divisional benches at other places but cannot shift the principal seat of the High Court.
It’s a peculiar situation wherein a common High Court was initially established under Sec 30(1)(a) of the Act and the common court was bifurcated under Sec 31(1) of the Act and on such bifurcation the notification of the principal seat of High Court of Andhra Pradesh under Sub Section 2 was notified by the President of India. Though the power to cancel is not contemplated under the Act, since the Act continues to be in force, it may be argued that the President may have power to renotify the same.
The Supreme Court in State of Maharashtra versus Narayan Sham Rao Puranik and others held that the Act is a permanent piece of legislation on the statute book and the power can be exercised when the occasion arises. But the question is whether the notification issued by the President under Sec 31(2) of the Act can be renotified or the statute continues in operation only for other aspects such as the establishment of divisional benches.
Whether the President has such a power or not is a legal debatable issue. The other major hurdle is with regard to the approval of the report submitted by the inspection committee of judges by the full court of the then common High Court with regard to the satisfaction and therefore it would be a difficult task for the government to pursue the shifting of principal seat from Amaravati to Kurnool though it is a wise political decision.