Gauhati High Court
WP(C)/3927/2023 on 16 October, 2023
Author: Chief Justice
Bench: Chief Justice
GAHC010137452023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) No.3927 of 2023
1. Shri Tari Hai, Resident of Gengi Village, P.O. & P.S.
Gensi, Lower Siang District, Arunachal Pradesh.
2. Shri Tapu Nyicyor, Resident of Siberite Village, P.O. &
P.S. Gensi, Lower Siang District, Arunachal Pradesh.
3. Tadak @ Jumdak Hale, Resident of Siberite Village,
P.O. & P.S. Gensi, Lower Siang District, Arunachal
Pradesh.
......Writ Petitioners
-Versus-
1. The Gauhati High Court [Principal Seat],
represented by the Registrar General, Gauhati High
Court, Guwahati, Assam.
2. The Gauhati High Court, Itanagar Permanent
Bench, represented by the Registrar, Gauhati High
Court, Itanagar Permanent Bench, Yupia.
.......Respondents
3. The Gauhati High Court Itanagar permanent
Bench Bar Association [GHCIPBBA], represented by the
President, GHCIPBBA, Yupia.
......Pro-forma-Respondent
- BEFORE -
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the Petitioners : Mr. T. Pertin, Advocate [through VC].
For the Respondent(s) : Mr. U.K. Nair, Senior Standing Counsel, Gauhati
High Court assisted by Mr. H.K. Das, Advocate.
WP(C) No.3927/2023 1|Page
: Mr. T.T. Tara, Advocate for the Gauhati High Court
Itanagar Permanent Bench Bar Association [through
VC].
Date of Hearing : 28.08.2023
Date of Judgment : 16.10.2023.
JUDGMENT & ORDER
[Sandeep Mehta, CJ]
The preceding facts relevant and essential for disposal of
this writ petition are noted hereinbelow.
2. The writ petitioners herein, filed 3(three) separate writ
petitions, i.e. (i) WP(C) No.363(AP)/2022 [Tari Hai -Vs- NHPC &
Ors.], (ii) WP(C) No.366(AP)/2022 [Tapu Nyicyor -Vs- NHPC & Ors.]
and (iii) WP(C) No.201(AP)/2023 [Tadak @ Jumdak Hale -Vs- NHPC
& Ors.], respectively, at the Itanagar Permanent Bench for
challenging the acquisition of their lands for construction of 2000
MW Lower Subansiri Hydro Power Project at Gerukamukh in
Dhemaji district, Assam.
The petitioners have raised a grievance in the aforesaid
writ petitions that the NHPC, being the executive agency, had not
deposited the compensation amount as assessed and hence, the
writ petitions aforestated came to be filed before the Itanagar
Permanent Bench. Various other writ petitions pertaining to the
same controversy came to be filed at the Itanagar Bench in the
intervening period.
In the meantime, a writ petition, being WP(C)
No.5402/2020 came to be filed in relation to the same acquisition
proceedings at the Principal Seat, Guwahati under the title of NHPC
-Vs- The State of Arunachal Pradesh & Ors. One Shri Appu Raj
WP(C) No.3927/2023 2|Page
Gogoi, Advocate moved an application seeking transfer of the
aforesaid writ petition [WP(C) No.5402/2020] to the Itanagar
Permanent Bench on the ground that some other matters relating
to the same issue were pending at the Itanagar Permanent Bench.
3. The Chief Justice of Gauhati High Court (High Court of
Assam, Nagaland, Mizoram and Arunachal Pradesh), rejected the
prayer for transfer of the said writ petition to Itanagar Permanent
Bench and at the same time, passed an order dated 09.03.2022
exercising administrative powers conferred by virtue of proviso to
Clause 2 of the Notification No.K. 11018/6/95.U.S.I. dated
18.07.2000 in the following terms:-
"Not required and similar matters be transferred to Principal
Bench".
Later on, based on the said order, other similar writ
petitions filed at the Itanagar Permanent Bench also came to be
transferred to the Principal Seat at Guwahati vide order dated
30.11.2022.
4. Learned counsel Mr. T. Pertin filed an application dated
13.03.2023 requesting transfer back of 26 writ petitions pertaining
to the land acquisition for the 2000 MW Lower Subansiri Hydro
Power Project at Gerukamukh in Dhemaji district, Assam to the
Itanagar Permanent Bench. The said prayer of Mr. T. Partin,
learned counsel was rejected by the administrative order dated
31.03.2023.
5. The administrative order dated 09.03.2022 passed by the
Chief Justice, Gauhati High Court directing transfer of the two writ
petitions, i.e. WP(C) No.206 (AP)/ 2021 and WP(C)
WP(C) No.3927/2023 3|Page
No.208(AP)/2021, and the subsequent transfer of other analogous
writ petitions, is subjected to challenge in this writ petition.
6. Mr. U.K. Nair, learned senior counsel, assisted by Mr. H.K.
Das, learned counsel appearing for the respondent Gauhati High
Court submitted that they are not desirous of filing any affidavit in
this matter and that the matter may be heard as such.
7. Mr. T. Pertin, learned counsel representing the petitioners
addressed the Court through VC and advanced extensive oral
submissions in order to emphasize that the orders directing transfer
of the writ petitions filed by the petitioners and other similar writ
petitions from Itanagar Permanent Bench to the Principal Seat at
Guwahati, are without jurisdiction and unsustainable in the eyes of
law.
8. Mr. Pertin firstly raised a preliminary objection that the
Chief Justice is required to recuse from hearing of the instant writ
petition by referring to the Latin maxim nemo judex in causa sua,
which means that one should not be Judge in his own cause.
9. Without prejudice to the above submission/ objection, Mr.
Pertin referred to the Notification No.K. 11018/6/95.U.S.I. dated
18.07.2000 and so also to the Order No.41, dated 26.10.2005 and
urged that in view of the fact that the said order is still in force, the
Chief Justice, acting as the Master of Roster cannot pass
administrative orders transferring cases from Itanagar Permanent
Bench to the Principal Seat at Guwahati.
The Notification dated 18.07.2000 and the Order No.41
dated 26.10.2005 are reproduced hereinbelow for the sake of
ready reference:
WP(C) No.3927/2023 4|Page
"GAUHATI HIGH COURT (ESTABLISHMENT OF A PERMANENT BENCH AT
ARUNACHAL PRADESH ORDER, 2000
Notification No.K.11018/6/95.US.I dated 18.7. 2000
In exercise of the powers conferred by sub-section(2) of
Section 24 of the State of Arunachal Pradesh Act, 1986 (69 of
1986), read with Sub-Section (2) of Section 31 of the North-
Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), the
President, after consultation with the Chief Justice of the Gauhati
High Court and the Governor of Arunachal Pradesh, is pleased to
make the following Order, namely:
1. Short title and commencement.-(1) This Order may be called
the Gauhati High Court (Establishment of a Permanent Bench at
Itanagar) Order, 2000.
(2). It shall come into force on the 12th day of August, 2000.
2. Establishment of a permanent Bench of the Gauhati High
Court at Itanagar- There shall be established a permanent
Bench of the Gauhati High Court at Itanagar and such Judges of
the Gauhati High Court, being not less than one in number, as
the Chief Justice of that High Court may, from time to time
nominate, shall sit at Itanagar in order to exercise the jurisdiction
and powers for the time being vested in the Gauhati High Court
in respect of cases arising in the State of Arunachal Pradesh.
Provided that the Chief Justice of that High Court may, in
his discretion, order that any case or class of cases arising in
the State of Arunachal Pradesh shall be heard at Guwahati."
(Emphasis supplied)
"The GAUHATI HIGH COURT AT GUWAHATI
ORDER OF THE HON'BLE CHIEF JUSTICE (ACTING)
ORDER NO.41
Date: 26.10.2005
In supersession of all the earlier orders issued in this behalf, it
is hereby ordered that all the cases pertaining to the permanent
Benches of Gauhati High Court, namely Kohima (Nagaland),
Shilling (Meghalaya), Imphal (Manipur), Agartala (Tripura), Aizawl
(Mizoram) and Itanagar (Arunachal Pradesh), whether filed at
earlier point of time or to be filed in future at the Principal Seat for
absence of appropriate Bench at the Outlying Benches, shall
stand transferred to the respective Benches of the High Court
immediately after completion of motion and/or admission."
He further urged that the administrative order dated
09.03.2022, whereby the writ petitions, WP(C) No.206(AP)/2021
and WP(C) No.208(AP)/2021 came to be transferred to Principal
WP(C) No.3927/2023 5|Page
Seat at Guwahati, was passed in gross violation of principles of
natural justice as the writ petitioners therein were not heard before
transferring their writ petitions from Itanagar Permanent Bench to
the Principal Seat and also because the order does not set out any
reasons and hence, the administrative decision, having been
rendered without assigning reasons, is unsustainable in the eyes of
law.
10. In support of his contentions, Mr. Pertin placed reliance
on Hon'ble the Supreme Court judgment in the case of State of
Punjab -Vs- Bandeep Singh & Ors., reported in (2016) 1 SCC 724
and urged that every decision of executive or administrative nature
must be a composite and self-sustaining one, in that it should
contain all the reasons which prevailed while taking the decision to
arrive at the conclusion. Mr. Pertin also relied upon the Division
Bench judgment of this High Court (the then Shillong Bench) in the
case of Hindustan Paper Corporation Ltd. & Anr. -Vs- Synergy
Composites Pvt. Ltd., reported in 2005 (3) GLT 1, wherein
paragraph 2 of the Notification dated 18.07.2000 was interpreted.
He also relied upon the judgment of the Hon'ble Supreme Court in
the Case of Rajasthan High Court Advocates Association -Vs-
Union of India, reported in (2001) 2 SCC 294 and urged that the
Principal Seat at Guwahati cannot extend its jurisdiction to matters
wherein, no part of cause of action has taken place in the State of
Assam.
As per Mr. Pertin, in view of the interpretation given to the
Notification dated 18.07.2000 by the Division Bench of this Court in
Hindustan Paper Corporation Ltd. (supra), a different view is not
permissible and that this Court is bound by the ratio of the said
WP(C) No.3927/2023 6|Page
decision and should feel persuaded to set aside the administrative
order dated 09.03.2022 and the consequential order directing
transfer of the contentious writ petitions from Itanagar Permanent
Bench to the Principal Seat at Guwahati.
11. Mr. Pertin referred to Sub-Section (2) of Section 24 of the
State of Arunachal Pradesh Act, 1986 (hereinafter referred to as
"Act of 1986") read with Sub-Section (2) of Section 31 of the
North-Eastern Areas (Re-organisation) Act, 1971 (hereinafter
referred to as "Act of 1971") and contended that the Itanagar
Permanent Bench was established vide Notification No.K.11018/
6/95.U.S.I., dated 18.07.2000. The decision to establish the
Itanagar Permanent Bench was taken with consultation and
concurrence of the Chief Justice of the Gauhati High Court. Hence,
the Chief Justice is a part and parcel of the decision so arrived at.
He further urged that the Act of 1986 is an Act passed by the
Parliament of India to provide for the establishment of Arunachal
Pradesh, a State within the meaning of Articles 1, 2 and 3 of the
Constitution of India. Hence, the State of Arunachal Pradesh is an
independent and a separate State with all powers and authority
bestowed upon a State under the Constitution of India and the
laws framed thereunder. He referred to Article 214 of the
Constitution of India and urged that the Constitution mandates that
each State shall have a High Court. Article 231 of the Constitution
was referred to with a submission that a common High Court can
be established for two or more States.
12. Mr. Pertin strenuously argued that the Itanagar
Permanent Bench in nature, character, power and functions, is a
separate High Court for the State of Arunachal Pradesh and hence,
WP(C) No.3927/2023 7|Page
all matters with cause of action having arisen in the State of
Arunachal Pradesh, are required to be heard at Itanagar Permanent
Bench. By directing transfer of the writ petitions of the petitioners
from Itanagar Permanent Bench to the Principal Seat at Guwahati
and that too without assigning reasons, the dignity of the Bench
has been lowered. He urged that by this transfer, a general
perception may be created casting doubts regarding the
competence and manner of functioning of the Judges at the
Itanagar Permanent Bench.
13. As per Mr. Pertin, any order passed in exercise of power
and authority under the Act of 1986 has to be read homogeneously
with the letter and spirit of Articles 1, 2 and 3 of the Constitution of
India and thus, the State of Arunachal Pradesh as well as the
Itanagar Permanent Bench of the Gauhati High Court have to be
treated as independent and separate entities under the Constitution
of India.
His further contention was that the Notification dated
18.07.2000 bifurcates the territorial jurisdiction of the Gauhati High
Court and defines the territorial jurisdiction to be exercised by the
Itanagar Permanent Bench through paragraph 2 thereof.
Mr. Pertin urged that the discretionary power conferred by
virtue of the proviso, cannot be construed as authorizing the Chief
Justice to negate the intent and purpose of paragraph 2 of the
Notification. The proviso is meant to facilitate removal of difficulties
in implementation of the primary purpose of the Notification dated
18.07.2000 rather than to negate it.
14. Referring to the order dated 09.03.2022, whereby the writ
petitions filed by the petitioners and other similar petitions filed at
WP(C) No.3927/2023 8|Page
the Itanagar Permanent Bench have been transferred to the
Principal Seat, Mr. Pertin urged that the Principal Seat at Guwahati,
cannot exercise dominance over the Outlying Benches at Nagaland,
Mizoram and Arunachal Pradesh. Each Bench has its own distinct
identity and separate Registry to look after the daily activities
independently. Daily cause-lists, etc. to conduct the business in
these Benches, are published under the authority of the Chief
Justice.
15. As per Mr. Pertin, the concept of the Chief Justice as the
Master of Roster has to be confined to each Bench and under this
principle, the Chief Justice has to exercise the powers
independently and separately for the particular Bench. While acting
as the Master of Roster for the Itanagar Permanent Bench, the role
of the Chief Justice is limited to the said Bench and cannot overlap
or transgress upon the similar role qua the Principal Seat at
Guwahati or the Benches at Mizoram or Nagaland.
16. Mr. Pertin contended that the Chief Justice of the Gauhati
High Court, by exercising power under the proviso to paragraph 2
of the Notification dated 18.07.2000, cannot create a new forum or
transfer or redefine the jurisdiction of the Principal Seat or the
Benches unless the same is required to be done for removal of the
difficulties in implementation of paragraph 2 of the Notification
dated 18.07.2000.
17. Another fervent contention raised by Mr. Pertin was that
as the "Itanagar Permanent Bench" is functioning at Itanagar,
Arunachal Pradesh, the Principal Seat at Guwahati (which Mr.
Pertin surprisingly referred to as "the Assam Bench" without any
WP(C) No.3927/2023 9|Page
basis) has no jurisdiction to deal with the matters/cases arising
within the State of Arunachal Pradesh.
18. Mr. Pertin submitted that the impugned transfer order
tantamounts to interfering in the jurisdiction of the Itanagar
Permanent Bench and bestowing jurisdiction to another Bench of
the Gauahati High Court and also tantamounts to defining the
cause of action beyond the jurisdiction which is in gross violation of
the Notification dated 18.07.2000 and the Act of 1986 passed by
the Parliament. He contended that the Chief Justice cannot
indirectly take away the jurisdiction to be exercised by the
"Itanagar Permanent Bench" to the "Assam Bench". The litigant
has the exclusive right to approach the Court where the cause of
action arose and the forum cannot be shifted without the
knowledge and consent of the litigant and to his disadvantage. The
right of the litigant to have the case heard by the Bench having
jurisdiction cannot be obliterated by exercising discretionary power
conferred upon the Chief Justice. He urged that no part of cause of
action in the transferred writ petitions arose within the State of
Assam. Neither the State of Assam nor its officials are arrayed as
party respondents in the writ petitions. The petitioners do not
desire that their cases should be heard at Guwahati and they were
not taken into confidence before transferring their cases from one
High Court to another. The entire process of transfer was
undertaken in a surreptitious manner behind the back of the
petitioners and that the impugned order was issued in gross
violation of principle of natural justice. No litigant sought transfer of
cases from Itanagar Permanent Bench to the Principal Seat at
Guwahati. Such random and arbitrary exercise of the discretionary
WP(C) No.3927/2023 10 | P a g e
power by the Chief Justice would dilute the jurisdiction of the
Itanagar Permanent Bench and also casts a shadow on the
competence and integrity of the Presiding Judges at the Itanagar
Permanent Bench.
On these grounds, Mr. Pertin implored the Court to accept
the writ petition and recall/set aside the impugned order(s) and
restore the transferred writ petitions to the Itanagar Permanent
Bench.
19. Mr. T.T. Tara, learned Advocate cum President of the
Gauhati High Court Itanagar Permanent Bench Bar Association, on
principles, supported the submissions advanced by Mr. Pertin.
However, he did not approve the submission advanced by Mr.
Pertin, wherein the aspersion of bias was levelled while making the
submission that the Chief Justice, having passed the order of
transfer of the writ petitions on administrative side, should not hear
the present writ petition and recuse from the matter.
Mr. Tara fairly submitted that it is expected that the Chief
Justice, while exercising the powers under Proviso 2, would act
prudently and with a considered thought on the advantages/
disadvantages of the litigants and no case would be transferred
causing prejudice to the litigants.
Mr. T.T. Tara also placed reliance on the judgment of the
Hon'ble Supreme Court in the case of Bandeep Singh (supra) to
buttress the contention that the decision of an administrative or
executive nature must be a composite and self sustaining one, in
that, it should contain all the reasons which prevailed on the official
taking decision to arrive at its conclusion. It was further laid down
in the said judgment that any authority cannot be permitted to
WP(C) No.3927/2023 11 | P a g e
travel beyond the stand adopted and expressed by it in the
impugned action.
20. Per contra, Mr. U.K. Nair, learned senior Advocate
assisting the Court as counsel for the Gauhati High Court,
vehemently and fervently opposed the submissions of Mr. Pertin.
He contended that by way of this writ petition, the petitioners are
trying to create a confusion in between the cause of
action/jurisdiction and the power of Chief Justice to transfer
matter/matters from any of the Outlying Benches to the Principal
Seat.
Mr. Nair referred to Section 18 of the Act of 1986 and
pointed out that the statutory provision postulates that there shall
be a common High Court for the States of Assam, Nagaland,
Mizoram and Arunachal Pradesh to be called the Gauhati High
Court.
Section 18 of the Act of 1986 reads as below:
"18. Common High Court for Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram and Arunachal Pradesh.--(1) On and
from the appointed day,--
(a) there shall be a common High Court for the States of
Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and
Arunachal Pradesh to be called the Gauhati High Court (the High
Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh) (hereinafter referred to as the
common High Court);
(b) the Judges of the High Court of Assam, Nagaland,
Meghalaya, Manipur, Tripura and Mizoram holding office
immediately before that day shall, unless they have elected
otherwise, become on that day the Judges of the common High
Court.
(2) The expenditure in respect of the salaries and allowances of
the Judges of the common High Court shall be allocated amongst
the States of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura in such proportion as the
President may, by order, determine."
WP(C) No.3927/2023 12 | P a g e
Mr. Nair also referred to Section 24 of the Act of 1986
which reads as below:
"24. Principal seat and other places of sitting of the common
High Court.--(1) The principal seat of the common High Court shall
be at the same place at which the principal seat of the High Court
of Assam, Nagaland, Meghalaya, Manipur, Tripura and Mizoram
is located immediately before the appointed day.
(2) The President may, by notified order, provide for the
establishment of a permanent bench or benches of the common
High Court at one or more places within the territories to which the
jurisdiction of the High Court extends, other than the principal seat
of the High Court, and for any matters connected therewith:
Provided that before issuing any order under this sub-
section, the President shall consult the Chief Justice of the
common High Court and the Governor of the State in which the
bench or benches is or are proposed to be established.
(3) Notwithstanding anything contained in sub-section (1) or
sub- section (2), the Judges and division courts of the common
High Court may also sit at such other place or places in the States
of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and
Arunachal Pradesh as the Chief Justice may, with the approval of
the Governor of the State concerned, appoint."
Referring to Sub-Section (3) of Section 24 of the Act of
1986, Mr. Nair urged that the statutory provisions make it clear that
the Judges and Division Courts of the common High Court can sit
and hold Court at any other place or places in the State of Assam,
Nagaland, Mizoram and Arunachal as the Chief Justice may, with
the approval of the Governor of the State concerned, appoint.
He urged that Sub-Section (2) of Section 24 makes it clear
that a permanent Bench can only be established for exercising
jurisdiction within the territories other than the Principal Seat of the
High Court to which the jurisdiction of the High Court extends.
Thus, as per Mr. Nair, notwithstanding the establishment of a
Permanent Bench, the jurisdiction of the Principal Seat of the High
Court over all the areas within its territory continues to subsist.
WP(C) No.3927/2023 13 | P a g e
Mr. Nair submitted that this provision was not considered
by the Division Bench of this Court in the case of Hindustan Paper
Corp. Ltd. (supra). Hence, ratio of the judgment in Hindustan
Paper Corp. Ltd. (supra) is of no help to the petitioners in their
endeavour to question the legality and validity of the impugned
decision to transfer the writ petitions from Itanagar Permanent
Bench to the Principal Seat.
Mr. Nair urged that the decisions in Rajasthan High Court
Advocates Association (supra) and Hindustan Paper Corp. Ltd.
(supra) relied upon by learned counsel for the petitioners, deal with
the concept of cause of action/jurisdiction and do not touch upon
the powers of the Chief Justice to transfer a case/cases from the
Outlying Benches to the Principal Seat and hence, the challenge
laid by the petitioners to the order of transfer, is misconceived.
Mr. Nair also referred to Sections 28 and 31 of the North-
Eastern Areas (Re-organisation) Act, 1971, which are reproduced
herein below for the sake of ready reference and urged that the
very opening words of Section 28 (1)(b) of the Act postulate that
there shall be a common High Court for Assam, Nagaland,
Meghalaya, Manipur and Tripura. He referred to the proviso to
28(1)(c) (inserted by Act 26 of 2012), which contemplates that a
common High Court for the States of Assam, Arunachal Pradesh,
Mizoram and Nagaland and shall cease to have its jurisdiction,
powers and authority for the States of Meghalaya, Manipur and
Tripura.
Section 28 of the Act of 1971 reads as below:
"28. Common High Court for Assam, Nagaland, Meghalaya,
Manipur and Tripura.--(1) On and from the appointed day,--
(a) the High Court of Assam and Nagaland shall cease to
function and is hereby abolished;
WP(C) No.3927/2023 14 | P a g e
(b) there shall be a common High Court for the States of
Assam, Nagaland, Meghalaya, Manipur and Tripura to be
called the Gauhati High Court (the High Court of Assam,
Nagaland, Meghalaya, Manipur and Tripura);
(c) the Judges of the High Court of Assam and Nagaland
holding office immediately before that day shall, unless they
have elected otherwise, become on that day the Judges of the
common High Court:
[Provided that on and from the commencement of the North-
Eastern Areas (Reorganisation) and Other Related Laws
(Amendment) Act, 2012, the common High Court shall be the
High Court for the States of Assam, Arunachal Pradesh,
Mizoram and Nagaland and shall cease to have its
jurisdiction, powers and authority for the States of Meghalaya,
Manipur and Tripura.]
(2) Nothing in clause (a) of sub-section (1) shall prejudice or
affect the continued operation of any notice served, injunction
issued, direction given or proceedings taken before the appointed
day by the High Court of Assam and Nagaland under the powers
then conferred upon that Court."
Section 31 of the Act of 1971 reads as below:
"31. Principal seat and other places of sitting of the common
High Court.--(1) The principal seat of the common High Court shall
be at the same place at which the principal seat of the High Court
of Assam and Nagaland is located immediately before the
appointed day.
(2) The President may by notified order provide for the
establishment of a permanent bench or benches of the common
High Court at one or more places within the territories to which the
jurisdiction of the High Court extends, other than the principal seat
of the High Court, and for any matters connected therewith:
Provided that before issuing any order under this sub-section, the
President shall consult the Chief Justice of the common High Court
and the Governor of the State in which the bench or benches is or
are proposed to be established.
(3) Notwithstanding anything contained in sub-section (1) or
sub-section (2), the Judges and division courts of the common High
Court may also sit at such other place or places in the State of
[Assam, Arunachal Pradesh, Mizoram or Nagaland] as the Chief
Justice may, with the approval of the Governor of the State
concerned, appoint."
As per Mr. Nair, as the law talks of a common High Court,
the contention that the Benches have a separate and exclusive
WP(C) No.3927/2023 15 | P a g e
existence to exercise jurisdiction within the territories without any
supervisory control of the Chief Justice, is absolutely flawed. He
thus implored the Court to dismiss the writ petitions.
21. We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the material
placed on record and the order dated 09.03.2022, whereby the writ
petitions were transferred from the Itanagar Permanent Bench to
the Principal Seat at Guwahati.
22. First and foremost, we would proceed to consider the
submission advanced by Mr. Pertin, learned counsel for the
petitioners that one of us i.e. the Chief Justice should recuse from
hearing the matter because the writ petition lays challenge to the
administrative decision of the Chief Justice in transferring the
contentious writ petitions from Itanagar to Guwahati.
We feel that the said submission of Mr. Pertin is flawed
and fallacious. We may point out that the High Court of a State
established under Article 214 of the Constitution of India is a Court
of Record as per Article 215 of the Constitution of India. The High
Court of a State exercises power of superintendence over all courts
and Tribunals throughout the territory where it exercises
jurisdiction. Appointments of officers in District Judiciary and
administrative decisions pertaining to the services of officers of the
District Judiciary are taken by the High Court, i.e. the Full Court
comprising of the Chief Justice and all other Judges. If the
contention advanced by Mr. Pertin were to be accepted, the Chief
Justice would not be competent to hear any petition involving the
service dispute of a Judicial Officer wherein the High Court is
impleaded as a party respondent because the administrative
WP(C) No.3927/2023 16 | P a g e
decision is taken by the High Court. For that matter, no Judge of
the High Court would be considered competent to hear petitions
arising from service matters of Judicial Officers because it is the
Full Court which takes the decisions in relation to services of
Judicial Officers. If the Latin maxim nemo judex in causa sua were
to be applied, service matters of Judicial Officers may not be heard
in the same High Court.
23. Our view is fortified by the observations made by Hon'ble
the Supreme Court in the Constitution Bench judgment rendered in
the case of Indore Development Authority -Vs- Manohar Lal,
reported in AIR 2019 Supreme 5482. In the said case, some of the
contesting parties sought recusal of one of Members constituting
the Constitution Bench from hearing the matter on the ground that
His Lordship had already decided the issue which was under
consideration of the Full Bench in earlier judgment.
Dealing with the said submission, the Constitution Bench
of the Hon'ble Supreme Court laid down extensive principles
dealing with a plea for recusal which fortify our view that the
prayer for recusal by the Chief Justice made by the petitioner's
counsel is on the face of it misconceived and untenable. Relevant
paragraphs of the above judgment are reproduced hereinbelow for
the sake of ready reference:-
"27. There may not be even one Judge in this Court who has not
taken a view one way or the other concerning Section 24 of the Act
of 2013, either in this Court or in the High Court. If the submission
is accepted, no Judge will have the power to decide such a matter
on the judicial side. We have to deal with the cases every day in
which similar or somewhat different questions are involved
concerning the same provision. For having taken a view once, if
recusal is to be made, it would be very difficult to get a Judge to
hear and decide a question of law. We have to correct the decision,
apply the law, independently interpret the provisions as per the
fact situation of the case which may not be germane in the earlier
WP(C) No.3927/2023 17 | P a g e
matter. A judgment is not a halting place, it is stepping stone. It is
not like a holy book which cannot be amended or corrected. It may
also work to the advantage of all concerned if a Judge having
decided the matter either way is also a member of the larger bench.
A Judge who had rendered any decision in a smaller combination
is not disqualified from being part of a larger Bench when a
reference is made to the larger bench. Rather, it is a consistent
practice prevailing in various High Courts as well as of this Court to
include the same Judge/Judges in larger Benches. Shri Mohan
Parasaran, learned senior counsel has referred to Rule 8 of Delhi
High Court Rules contained in Chapter 3; Part C which reads as
under:
'8. Judge or Judges who refer a case shall ordinarily sit
on the bench which considers the reference - The Judges or a
Bench by whom any question or case is referred shall
ordinarily be members of the Division Bench or Full Bench, as
the case may be appointed to consider such question or case.'
The rule provides that a Judge who referred a case has to sit
on the larger Bench to consider the reference. In the present case
also, the reference has been made by me and my recusal has been
sought. Thus, based on the consistent practice, we find that no
ground for recusal is made out.
28. Recusal has been prayed for on the ground of legal
predisposition. Where recusal is sought on the ground, various
questions arise for consideration. Firstly, legal predisposition is the
outcome of a judicial process of interpretation, and the entire
judicial system exists for refining the same. There is absolutely
nothing wrong in holding a particular view in a previous judgment
for or against a view canvassed by a litigant. No litigant can
choose, who should be on the Bench. He cannot say that a Judge
who might have decided a case on a particular issue, which may
go against his interest subsequently or is part of a larger Bench
should not hear his case. Furthermore, if a party or his Counsel can
at length argue on the question of recusal of the Judge before him,
he can also successfully question the correctness of a judgment
rendered by him. A litigant has got the right to make arguments
which suit his cause before a Judge/Judges having taken a
contrary view earlier. Moreover, if it is open to one litigant to seek
recusal and recusal is permitted, then the right has to be given to
the opposite party to seek recusal of a Judge who may have
decided a case against his interest. In case it is permitted to either
side, that would end judicial independence. Then parties will be
choosing Benches to their liking. In that case, the Judges holding a
view can be termed to be disqualified. In case the submission of
recusal is accepted, the Judges having either side view, cannot
hear the matter and have to recuse from hearing. In that case to
find neutral Judges would be difficult to find and that would be
subvert to the very concept of independent judicial system. If
litigants are given the right to seek recusal of a judge on the ground
that in a smaller Bench, a view has been taken by the Judge, the
WP(C) No.3927/2023 18 | P a g e
correctness of which has to be decided by the larger Bench, which
includes the same Judge, then on a parity of reasoning recusal
might be sought on the ground of the judge having taken a view
one way or the other even in a different case in which similar
issues are involved if the judge has decided similar issues earlier,
in the same Court or in a different Court. This would open the flood
gates of forum shopping. Recusal upon an imagined apprehension
of legal predisposition would, in reality amount to acceding to the
request that a Judge having a particular view and leanings in
favour of the view which suits a particular litigant, should man the
Bench. It would not only be allowing Bench hunting but would also
be against the judicial discipline and will erode the confidence of
the common man for which the judicial system survives.
29. The question that comes to the mind is whether one of us
should recuse in order to prevent the embarrassment caused to a
Judge by a member of the Bar, by seeking his recusal. Recusal
would be the easiest way to solve it. On the other hand, a larger
question arises. If request for recusal on the ground of legal pre-
disposition in the form of a judgment is acceded to, that would
destroy the very edifice of an independent judicial system.
30. The entire judicial system is based on sound constitutional
principles. The roster making power is bestowed on the Chief
Justice of India so that litigants are not able to choose the Judges
before whom they have to argue a matter, and he is a
constitutional functionary who has been enjoined with this task at
the highest pedestal to exercise the power of roster making. He is
the repository of faith. Once he has exercised his power, it is not for
the Judges to choose. As per their oath, they have to discharge
their duties without fear and favour and in a dispassionate manner
without any ill will, bias towards litigants, or a cause. The question
which arises is whether merely delivering a judgment of which
correctness is to be examined, would disqualifying a Judge from
being part of the larger Bench. The answer to the question has to
be in the negative as there is a consistent practice of this Court
which has evolved that the Judges who have rendered a decision
earlier in smaller combination, have also formed part of the larger
Bench, and there are umpteen occasions as mentioned above when
Judges have overruled their own view. In LITEKY (supra), the
United States Supreme Court has held that rather it may be
advantageous to have them on a Bench hearing the matter as
judgments are rendered after hearing the arguments of learned
counsel for the parties. There is always a scope to further develop
the law and to correct the errors, and this can better be done by
having Judges on the Bench, who have earlier rendered judgments
with respect to the subject matter to which of the parties the view
taken suits is not relevant.
31. If requests for recusal are acceded to for the asking, litigants
will be unscrupulously taking over the roster making powers of the
Chief Justice and that would tantamount to interference with the
judicial system, by the mighty to have a particular Bench by
WP(C) No.3927/2023 19 | P a g e
employing several means and putting all kinds of pressures from
all angles all around. It is the test of the ability of the judicial
system to withstand such onslaught made from every nook and
corner. Any recusal in the circumstances is ruled out, such prayer
strengthens the stern determination not to succumb to any such
pressure and not to recuse on the ground on which recusal sought
because for any reason, such a prayer is permitted, even once, it
would tantamount to cowardice and give room to big and mighty to
destroy the very judicial system. Moreover, recusal in such
unjustified circumstances, would become the norm.
32. It was vehemently urged by learned senior counsel on behalf
of the respondents that they may feel embarrassed in arguing a
proposition of law which has been dealt with in the Indore
Development Authority elaborately. We find that given that
arguments on recusal, spilling for over a day, could be made
vociferously, in a belligerent fashion and with utmost ability, the
submission that the learned counsel would feel diffident in arguing
a proposition of law on merits, is difficult to accept. We feel that
there is no dearth of talent in this Court to argue a matter most
effectively even against the tide. The lawyers have compelled this
Court time and again to change its views and to refine the law.
This Court is known for not a particular view but for refining the
law and that has been done with the help, ability and legal
ingenuity of the lawyers to convince this Court with aplomb to
correct its view. That is how the process goes on as the entire
system exists for the people of this country. Under the guise of that,
a reasonable man should not have even an iota of doubt as to the
impartiality of the Tribunal. If recusal is made, it would tantamount
to giving room to unscrupulous litigant to have a Judge of their
choice who can share the views which are to be canvassed by
them. No such right can be given to any person under the aforesaid
guise; there is no cause for any apprehension. There is no room to
entertain the same. The plea cannot be termed anything other than
Bench hunting, if it is said that until and unless the one which
suits a litigant is found the matters are not to be argued.
33. It also passes comprehension whether in a Constitution
Bench, consisting of five Judges, prayer for recusal of a Judge who
has taken a particular view earlier, is justified? The Bench consists
of five Judges. Each Judge may have his own view. They would
not succumb to a view held by one of the judges. They may also
have their own view in the matter. Are they also to be disqualified?
In case the petitioner's prayer is to be allowed, then they may want
a Bench of 5:0 in their favour or 4 in favour and 1 against or 3 in
favour and 2 against. That is not how the system can survive. The
very idea of seeking recusal is inconceivable and wholly
unjustified, and the prayer cannot be acceded to.
34. The decision in Supreme Court Advocates on Record
Association & Anr. v. Union of India (recusal matter), (2016) 5 SCC
808, has been referred to. Recusal of Justice Khehar (as His
Lordship then was) was sought from the Constitution Bench. The
WP(C) No.3927/2023 20 | P a g e
principles have been summarised by this Court. The first principle
which this Court has discussed is the impartiality of a Judge. It
has been observed by Justice Chelameswar that the first principle
is that the Judge should be impartial. Merely having a legal opinion
has no connection with impartiality. It may be within the purview of
the legal correctness of the opinion. The second test is Latin maxim
nemo judex in re sua i.e., no man shall be a Judge in his own
cause. A judgment rendered by a Judge is not in his own cause.
Grant Hammond, a former Judge of the Court of Appeal of New
Zealand has in his book 'Judicial Recusal', which has been
referred to, observed that English Common Law on recusal was
both simple and highly constrained; a Judge could only be
disqualified for a direct pecuniary interest or consanguinity,
affinity, friendship or enmity with a party or because he was or
had been a party's advocate. The Court has discussed the matter
thus:
'12. Grant Hammond, a former Judge of the Court of
Appeal of New Zealand and an academician, in his book titled
Judicial Recusal traced out principles on the law of recusal as
developed in England in the following words:
'The central feature of the early English common law on
recusal was both simple and highly constrained: a Judge
could only be disqualified for a direct pecuniary interest. What
would today be termed 'bias', which is easily the most
controversial ground for disqualification, was entirely rejected
as a ground for recusal of Judges, although it was not
completely dismissed in relation to jurors.
This was in marked contrast to the relatively sophisticated
canon law, which provided for recusal if a Judge was suspected of
partiality because of consanguinity, affinity, friendship or enmity
with a party, or because of his subordinate status towards a party
or because he was or had been a party's advocate.'
************
25. From the above decisions, in our opinion, the following
principles emerge:
25.1. If a Judge has a financial interest in the outcome of a case,
he is automatically disqualified from hearing the case.
25.2. In cases where the interest of the Judge in the case is other
than financial, then the disqualification is not automatic but an
enquiry is required whether the existence of such an interest
disqualifies the Judge tested in the light of either on the principle of
"real danger" or "reasonable apprehension" of bias.
25.3. The Pinochet case added a new category i.e. that the Judge is
automatically disqualified from hearing a case where the Judge is
interested in a cause which is being promoted by one of the parties
to the case.
WP(C) No.3927/2023 21 | P a g e
26. It is nobody's case that, in the case at hand, Justice Khehar
had any pecuniary interest or any other interest falling under the
second of the abovementioned categories. By the very nature of the
case, no such interest can arise at all.
27. The question is whether the principle of law laid down in
Pinochet case is attracted. In other words, whether Justice Khehar
can be said to be sharing any interest which one of the parties is
promoting. All the parties to these proceedings claim to be
promoting the cause of ensuring the existence of an impartial and
independent judiciary. The only difference of opinion between the
parties is regarding the process by which such a result is to be
achieved. Therefore, it cannot be said that Justice Khehar shares
any interest which any one of the parties to the proceeding is
seeking to promote.
28. The implication of Shri Nariman's submission is that Justice
Khehar would be predetermined to hold the impugned legislation to
be invalid. We fail to understand the stand of the petitioners. If
such apprehension of the petitioners comes true, the beneficiaries
would be the petitioners only. The grievance,
29. The learned Attorney General appearing for the Union of India
made an emphatic statement that the Union of India has no
objection for Justice Khehar hearing the matter as a Presiding
Judge of the Bench.
30. No precedent has been brought to our notice, where courts
ruled at the instance of the beneficiary of bias on the part of the
adjudicator, that a judgment or an administrative decision is either
voidable or void on the ground of bias. On the other hand, it is a
wellestablished principle of law that an objection based on bias of
the adjudicator can be waived. Courts generally did not entertain
such objection raised belatedly by the aggrieved party:
'The right to object to a disqualified adjudicator may be
waived, and this may be so even where the disqualification is
statutory. The court normally insists that the objection shall be
taken as soon as the party prejudiced knows the facts which
entitle him to object. If, after he or his advisors know of the
disqualification, they let the proceedings continue without protest,
they are held to have waived their objection and the determination
cannot be challenged.'
In our opinion, the implication of the above principle is that only a
party who has suffered or is likely to suffer an adverse
adjudication because of the possibility of bias on the part of the
adjudicator can raise the objection.
31. The significant power as described by Shri Nariman does not
inhere only to the members of the Collegium, but inheres in every
Judge of this Court who might be called upon to express his opinion
regarding the proposals of various appointments of the High Court
Judges, Chief Justices or Judges of this Court, while the members
WP(C) No.3927/2023 22 | P a g e
of the Collegium are required to exercise such "significant power"
with respect to each and every appointment of the abovementioned
categories, the other Judges of this Court are required to exercise
such "significant power", at least with respect to the appointments
to or from the High Court with which they were earlier associated
with either as Judges or Chief Justices. The argument of Shri
Nariman, if accepted would render all the Judges of this Court
disqualified from hearing the present controversy. A result not
legally permitted by the "doctrine of necessity".
Justice J.S. Khehar, in his opinion, has observed thus:
"57. The reason that was pointed out against me, for
seeking my recusal was, that I was a part of the 1 + 4 Collegium.
But that should have been a disqualification for Anil R. Dave, J. as
well. When he commenced hearing of the matters, and till 742015,
he suffered the same alleged disqualification. Yet, the objection
raised against me, was not raised against him. When confronted,
Mr Fali S. Nariman vociferously contested, that he had not sought
the recusal of Anil R. Dave, J. He supported his assertion with
proof. One wonders, why did he not seek the recusal of Anil R.
Dave, J.? There is no doubt about the fact, that I have been a
member of the 1 + 4 Collegium, and it is likely that I would also
shortly become a Member of NJAC, if the present challenge raised
by the petitioners was not to succeed. I would therefore remain a
part of the selection procedure, irrespective of the process which
prevails. That however is the position with reference to four of us
(on the instant five Judge Bench). Besides me, my colleagues on
the Bench -- J. Chelameswar, Madan B. Lokur and Kurian Joseph,
JJ. would in due course be a part of the Collegium (if the writ
petitioners before this Court were to succeed), or alternatively,
would be a part of NJAC (if the writ petitioners were to fail). In such
eventuality, the averment of conflict of interest, ought to have been
raised not only against me, but also against my three colleagues.
But, that was not the manner in which the issue has been
canvassed. In my considered view, the prayer for my recusal is not
well founded. If I were to accede to the prayer for my recusal, I
would be initiating a wrong practice, and laying down a wrong
precedent. A Judge may recuse at his own, from a case entrusted
to him by the Chief Justice. That would be a matter of his own
choosing. But recusal at the asking of a litigating party, unless
justified, must never to be acceded to. For that would give the
impression, of the Judge had been scared out of the case, just by
the force of the objection. A Judge before he assumes his office,
takes an oath to discharge his duties without fear or favour. He
would breach his oath of office, if he accepts a prayer for recusal,
unless justified. It is my duty to discharge my responsibility with
absolute earnestness and sincerity. It is my duty to abide by my
oath of office to uphold the Constitution and the laws. My decision
to continue to be a part of the Bench, flows from the oath which I
took, at the time of my elevation to this Court.
(emphasis supplied)
WP(C) No.3927/2023 23 | P a g e
Justice Lokur, in his opinion, has observed:
"60. In my respectful opinion, when an application is made
for the recusal of a Judge from hearing a case, the application is
made to the Judge concerned and not to the Bench as a whole.
Therefore, my learned brother Justice Khehar is absolutely correct
in stating that the decision is entirely his, and I respect his
decision.
65. The issue of recusal from hearing a case is not as simple as it
appears. The questions thrown up are quite significant and since it
appears that such applications are gaining frequency, it is time that
some procedural and substantive rules are framed in this regard. If
appropriate rules are framed, then, in a given case, it would avoid
embarrassment to other Judges on the Bench."
It has been held that decision to recuse is that of the Judge
concerned, and unjustified pressure should never be allowed.
35. Shri Tushar Mehta, learned Solicitor General, has relied upon
the decision in Subrata Roy Sahara v. Union of India & Ors., (2014)
8 SCC 470. Recusal of the Bench was sought by way of filing a
petition. The embarrassment which is caused by such a prayer,
concept of correction of a mistake, if any, recognition of mistake
and its rectification have also been considered. This Court has
observed:
'7. Now the embarrassment part. Having gone through
the pleadings of the writ petition we were satisfied that
nothing expressed therein could be assumed as would
humiliate or discomfort us by putting us to shame. To modify
an earlier order passed by us for a mistake we may have
committed, which is apparent on the face of the record, is a
jurisdiction we regularly exercise under Article 137 of the
Constitution of India. Added to that, it is open to a party to
file a curative petition as held by this Court in Rupa Ashok
Hurra v. Ashok Hurra, (2002) 4 SCC 388.'
These jurisdictions are regularly exercised by us, when made out,
without any embarrassment. Correction of a wrong order would
never put anyone to shame. Recognition of a mistake, and its
rectification, would certainly not put us to shame. In our considered
view, embarrassment would arise when the order assailed is
actuated by personal and/or extraneous considerations, and the
pleadings record such an accusation. No such allegation was made
in the present writ petition. And therefore, we were fully satisfied
that the feeling entertained by the petitioner, that we would not
pass an appropriate order, if the order impugned dated 432014
was found to be partly or fully unjustified, was totally misplaced."
36. In Subrata Roy Sahara (supra) this Court has also referred to
the decision of Mr. R.K. Anand's case (supra) in which it has been
observed that the path of recusal is very often a convenient and a
soft option as a Judge has no vested interest in doing a particular
matter. It is the Constitution of India which enjoins a Judge to duly
WP(C) No.3927/2023 24 | P a g e
and faithfully and to the best of his ability, knowledge, and
judgment, perform the duties of his office without fear or favour.
Affronts, jibes, and consciously planned snubs should not deter us
from discharging our onerous responsibility. This Court has
observed:
'10. We have recorded the above narration, lest we
are accused of not correctly depicting the submissions as
they were canvassed before us. In our understanding, the
oath of our office required us to go ahead with the hearing.
And not to be overawed by such submissions. In our view,
not hearing the matter, would constitute an act in breach of
our oath of office, which mandates us to perform the duties
of our office, to the best of our ability, without fear or favour,
affection or ill will.
11. This is certainly not the first time when solicitation
for recusal has been sought by the learned counsel. Such a
recorded peremptory prayer was made by Mr R.K. Anand, an
eminent Senior Advocate, before the High Court of Delhi
seeking the recusal of Mr Justice Manmohan Sarin from
hearing his personal case. Mr Justice Manmohan Sarin while
declining the request made by Mr R.K. Anand, observed as
under:
'The path of recusal is very often a convenient
and a soft option. This is especially so since a Judge
really has no vested interest in doing a particular
matter. However, the oath of office taken under Article
219 of the Constitution of India enjoins the Judge to
duly and faithfully and to the best of his knowledge
and judgment, perform the duties of office without fear
or favour, affection or ill will while upholding the
Constitution and the laws. In a case, where unfounded
and motivated allegations of bias are sought to be
made with a view of forum hunting/Bench preference
or browbeating the Court, then, succumbing to such a
pressure would tantamount to not fulfilling the oath of
office.'
The above determination of the High Court of Delhi was
assailed before this Court in R.K. Anand v. Delhi High Court, (2009)
8 SCC 106. The determination of the High Court whereby Mr
Justice Manmohan Sarin declined to withdraw from the hearing of
the case came to be upheld, with the following observations: (SCC
p. 192, para 263)
"263. The above passage, in our view, correctly sums
up what should be the court's response in the face of a
request for recusal made with the intent to intimidate the
court or to get better of an 'inconvenient' Judge or to
obfuscate the issues or to cause obstruction and delay the
proceedings or in any other way frustrate or obstruct the
course of justice."
(emphasis supplied)
WP(C) No.3927/2023 25 | P a g e
In fact, the observations of the High Court of Delhi and those
of this Court reflected exactly how it felt, when the learned counsel
addressed the Court at the commencement of the hearing. If it was
the learned counsel's posturing antics, aimed at benchhunting or
benchhopping (or should we say, benchavoiding), we would not
allow that. Affronts, jibes and carefully and consciously planned
snubs could not deter us from discharging our onerous
responsibility. We could at any time during the course of hearing
walk out and make way for another Bench to decide the matter, if
ever we felt that that would be the righteous course to follow.
Whether or not it would be better for another Bench to hear this
case will emerge from the conclusions, we will draw, in the course
of the present determination.
131. We shall now deal with the substance, and the
import, of the judgments relied upon. It is not the case of the
petitioner that we have any connection with either the two
Companies under reference, or any other company/firm
which constitutes the Sahara Group. We may state, that
neither of us has even a single share with the two
Companies concerned or with any other company/firm
comprising of the Sahara Group. In order to remove all
ambiguity in the matter we would further state, that neither
of us, nor any of our dependent family members, own even a
single share in any company whatsoever. Neither of us has
been assisted in this case, for its determination on merits by
any law clerk, intern or staff member, while hearing, dealing
with or deciding the controversy. Nor has any assertion in
this behalf been made against us by the petitioner or his
learned counsel. Accordingly, the factual position, which was
the basis of the decisions relied upon by the learned counsel,
is not available in the facts and circumstances of this case.
In the above view of the matter, it is but natural to conclude,
that none of the judgments relied upon by the learned Senior
Counsel for the petitioner, on the subject of bias, are
applicable to the facts and circumstances of this case. We
are satisfied that none of the disguised aspersions cast by
the learned Senior Counsel, would be sufficient to justify the
invocation of the maxim, that justice must not actually be
done, but must also appear to be done. As already noticed
above, even though our combination as a Bench, did not exist
at the time, when the present petition was filed, a Special
Bench, with the present composition, was constituted by the
Hon'ble the Chief Justice, as a matter of his conscious
determination. No litigant can be permitted to dissuade us in
discharging the onerous responsibility assigned to us by the
Hon'ble the Chief Justice.
135. Dr. Rajeev Dhavan, learned Senior Counsel also
accused us of having a predisposition in respect of the
controversy. This predisposition, according to him, appeared
to be on the basis of a strong commitment towards the "other
WP(C) No.3927/2023 26 | P a g e
side". This assertion was repeated several times during the
hearing. But, which is the other side? In terms of our order
dated 3182012 the only gainer on the other side is the
Government of India. The eighth direction of our order dated
3182012, reads as under: (SCC p. 172, para 326)
'326.8. SEBI (WTM) if, after the verification of
the details furnished, is unable to find out the
whereabouts of all or any of the subscribers, then the
amount collected from such subscribers will be
appropriated to the Government of India'
(emphasis supplied)
If the "other side", is the Government of India, there is
certainly no substance in the aspersion cast by the learned
counsel. Just the above aspect of the matter is sufficient to burst
the bubble of all the carefully crafted insinuations, systematically
offloaded, by the learned counsel for effect and impact.
137. The observations recorded in the above judgment
in Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384,
are fully applicable to the mannerism and demeanour of the
petitioner Mr Subrata Roy Sahara and some of the learned
Senior Counsel. We would have declined to recuse from the
matter, even if the "other side", had been a private party.
For, our oath of office requires us to discharge our
obligations, without fear or favour. We therefore also
commend to all courts, to similarly repulse all baseless and
unfounded insinuations, unless of course, they should not be
hearing a particular matter, for reasons of their direct or
indirect involvement. The benchmark, that justice must not
only be done but should also appear to be done, has to be
preserved at all costs."
37. In R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106,
it was observed:
264. We are constrained to pause here for a moment
and to express grave concern over the fact that lately such
tendencies and practices are on the increase. We have come
across instances where one would simply throw a stone on a
Judge (who is quite defenceless in such matters!) and later
on cite the gratuitous attack as a ground to ask the Judge to
recuse himself from hearing a case in which he would be
appearing. Such conduct is bound to cause deep hurt to the
Judge concerned but what is of far greater importance is that
it defies the very fundamentals of administration of justice. A
motivated application for recusal, therefore, needs to be dealt
with sternly and should be viewed ordinarily as interference
in the due course of justice leading to penal consequences."
38. In Kamini Jaiswal v. Union of India & Anr., (2018) 1 SCC 156,
this Court has dealt with the matter of recusal thus:
WP(C) No.3927/2023 27 | P a g e
"24. There is no conflict of interest in such a matter. In
case a Judge is hearing a matter and if he comes to know
that any party is unscrupulously trying to influence the
decisionmaking or indulging in malpractices, it is incumbent
upon the Judge to take cognizance of such a matter under
the Contempt of Courts Act and to deal with and punish such
person in accordance with law as that is not the conflict of
interest but the purpose for which the entire system exists.
Such things cannot be ignored and recusal of a Judge cannot
be asked on the ground of conflict of interest, it would be the
saddest day for the judicial system of this country to ignore
such aspects on the unfounded allegations and materials. It
was highly improper for the petitioner to allege conflict of
interest in the petition filed that the Hon'ble Chief Justice of
India should not hear on judicial side or allocate the matter
on the administrative side. It appears that in order to achieve
this end the particular request has been made by filing
successive petitions day after the other and prayer was
made to avoid the Hon'ble Chief Justice of India to exercise
the power for allocation of cases which was clearly an
attempt at forum hunting and has to be deprecated in the
strongest possible words. Making such scandalous remarks
also tantamount to interfering with administration of justice,
an advocate cannot escape the responsibility on the ground
that he drafted the same in his/her personal capacity as laid
down in Shamsher Singh Bedi v. High Court of Punjab &
Haryana, (1996) 7 SCC 99. In Charan Lal Sahu v. Union of
India, (1988) 3 SCC 255, this Court has observed that in a
petition filed under Article 32 in the form of PIL attempt of
mudslinging against the advocates, Supreme Court and also
against the other constitutional institutions indulged in by an
advocate in a careless manner, meaningless and as
contradictory pleadings, clumsy allegations, contempt was
ordered to be drawn. The Registry was directed not to
entertain any PIL petition of the petitioner in future.
27. This Court considered various categories of forum shopping in
Union of India v. Cipla Ltd., (2009) 8 SCC 106. Even making
allegations of a per se conflict of interest require the matter could
be transferred to another Bench, has also been held to be another
form of forum hunting. This Court has considered various decisions
thus: (SCC pp. 31820, paras 146155)
"146. The learned Solicitor General submitted that
Cipla was guilty of forum shopping inasmuch as it had filed
petitions in the Bombay High Court, the Karnataka High
Court and also an affidavit in the Delhi High Court as a
member of the Bulk Drug Manufacturers Association and had
eventually approached the Allahabad High Court for relief
resulting in the impugned judgment and order dated 332004.
It was submitted that since Cipla had approached several
WP(C) No.3927/2023 28 | P a g e
constitutional courts for relief, the proceedings initiated in the
Allahabad High Court clearly amount to forum shopping.
147. We are not at all in agreement with the learned Solicitor
General. Forum shopping takes several hues and shades and
Cipla's petitions do not fall under any category of forum shopping.
148. A classic example of forum shopping is when a litigant
approaches one Court for relief but does not get the desired relief
and then approaches another Court for the same relief. This
occurred in Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC 525.
The respondent mother of a young child had filed a petition for a
writ of habeas corpus in the Rajasthan High Court and apparently
did not get the required relief from that Court. She then filed a
petition in the Delhi High Court also for a writ of habeas corpus
and obtained the necessary relief. Notwithstanding this, this Court
did not interfere with the order passed by the Delhi High Court for
the reason that this Court ascertained the views of the child and
found that she did not want to even talk to her adoptive parents
and therefore the custody of the child granted by the Delhi High
Court to the respondent mother was not interfered with. The
decision of this Court is on its own facts, even though it is a classic
case of forum shopping.
149. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15
SCC 790, this Court noted that jurisdiction in a court is not
attracted by the operation or creation of fortuitous circumstances.
In that case, circumstances were created by one of the parties to
the dispute to confer jurisdiction on a particular High Court. This
was frowned upon by this Court by observing that to allow the
assumption of jurisdiction in created circumstances would only
result in encouraging forum shopping.
150. Another case of creating circumstances for the purposes
of forum shopping was World Tanker Carrier Corpn. v. SNP
Shipping Services (P) Ltd., (1998) 5 SCC 310, wherein it was
observed that the respondentplaintiff had made a deliberate
attempt to bring the cause of action, namely, a collision between
two vessels on the high seas within the jurisdiction of the Bombay
High Court. Bringing one of the vessels to Bombay in order to
confer jurisdiction on the Bombay High Court had the character of
forum shopping rather than anything else.
151. Another form of forum shopping is taking advantage of
a view held by a particular High Court in contrast to a different
view held by another High Court. In Ambica Industries v. CCE,
(2007) 6 SCC 769, the assessee was from Lucknow. It challenged
an order passed by the Customs, Excise and Service Tax Appellate
Tribunal ("CESTAT") located in Delhi before the Delhi High Court.
CESTAT had jurisdiction over the State of Uttar Pradesh, NCT of
Delhi and the State of Maharashtra. The Delhi High Court did not
entertain the proceedings initiated by the assessee for want of
territorial jurisdiction. Dismissing the assessee's appeal this Court
gave the example of an assessee affected by an assessment order
WP(C) No.3927/2023 29 | P a g e
in Bombay invoking the jurisdiction of the Delhi High Court to take
advantage of the law laid down by the Delhi High Court or an
assessee affected by an order of assessment made at Bombay
invoking the jurisdiction of the Allahabad High Court to take
advantage of the law laid down by it and consequently evade the
law laid down by the Bombay High Court. It was said that this
could not be allowed and circumstances such as this would lead to
some sort of judicial anarchy.
152. Yet another form of forum shopping was noticed in
Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501,
wherein it was held that successive bail applications filed by a
litigant ought to be heard by the same learned Judge, otherwise an
unscrupulous litigant would go on filing bail applications before
different Judges until a favourable order is obtained. Unless this
practice was nipped in the bud, it would encourage unscrupulous
litigants and encourage them to entertain the idea that they can
indulge in forum shopping, which has no sanction in law and
certainly no sanctity.
153. Another category of forum shopping is approaching
different courts for the same relief by making a minor change in the
prayer clause of the petition. In Udyami Evam Khadi Gramodyog
Welfare Sanstha v. State of U.P., (2008) 1 SCC 560, it was noticed
by this Court that four writ applications were filed by a litigant and
although the prayers were apparently different, the core issue in
each petition centred round the recovery of the amount advanced
by the bank. Similarly, substituting some petitioners for others with
a view to confer jurisdiction on a particular court would also
amount to forum shopping by that group of petitioners.
154. Finally and more recently, in Supreme Court Advocates
on Record Assn. v. Union of India (Recusal Matter), (2016) 5 SCC
808, Khehar, J. noticed yet another form of forum shopping where
a litigant makes allegations of a perceived conflict of interest
against a Judge requiring the Judge to recuse from the proceedings
so that the matter could be transferred to another Judge.
155. The decisions referred to clearly lay down the principle
that the Court is required to adopt a functional test visàvis the
litigation and the litigant. What has to be seen is whether there is
any functional similarity in the proceedings between one court and
another or whether there is some sort of subterfuge on the part of a
litigant. It is this functional test that will determine whether a
litigant is indulging in forum shopping or not."
39. In Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280,
this Court has considered derogatory remarks and efforts to
destroy the system. The relevant portions are extracted hereunder:
"12. This Court in M.B. Sanghi v. High Court of Punjab
and Haryana, (1991) 3 SCC 600, while examining a similar
case observed: (SCC p. 602, para 2)
WP(C) No.3927/2023 30 | P a g e
"2. ... The foundation of [judicial] system which is
based on the independence and impartiality of those who
man it will be shaken if disparaging and derogatory remarks
are made against the presiding judicial officers with
impunity. It is high time that we realise that the much
cherished judicial independence has to be protected not only
from the executive or the legislature but also from those who
are an integral part of the system. An independent judiciary
is of vital importance to any free society."
13. In Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125, while
dealing with the issue, this Court observed as under: (SCC p. 127,
para 3)
"3. ... The strains and mortification of litigation cannot
be allowed to lead litigants to tarnish, terrorise and destroy
the system of administration of justice by vilification of
Judges. It is not that Judges need be protected; Judges may
well take care of themselves. It is the right and interest of the
public in the due administration of justice that has to be
protected."
14. In Jennison v. Baker, (1972) 2 QB 52, All ER p. 1006d, it was
observed: (QB p. 66 H)
"... 'The law should not be seen to sit by limply, while those
who defy it go free, and those who seek its protection lose hope.'"
40. The decision in All India Institute of Medical Sciences v. Prof.
Kaushal K. Verma, (2015) 220 DLT 446 (W.P. [C] No.4103/2014),
rendered by one of us, Ravindra Bhat, J., has also been referred,
thus:
"25. Before ending this unusually prolix order, which
can run into the danger of selfvindication, the Court observes
that requests for recusal are to be based on reasonable
apprehensions; they cannot be speculative or fanciful
suppositions. An observation that needs to be emphasized is
that recusals generally, and especially those fuelled by
unjustified demands can be burdensome on the judges who
are eventually called upon to decide the cause. Whenever
made, the concerned court or judge so charged is bound to
take it seriously, as it undermines what is the bedrock of
justice deliveryimpartiality. To borrow the words of Beverely
Mclachlin (Chief Justice of Canada) ("Judging in a Democratic
State") :
"...judges are not living Oracles. They are human
beings, trained in the law, who struggle to understand the
situations before them and to resolve them in accordance
with the law and their consciences. And judges must learn to
live with being wrong. As human beings, judges learn early
in their career to deal with criticism. Every new judge dons
the judicial robes resolved never to make a mistake. And
WP(C) No.3927/2023 31 | P a g e
every new judge fails. Decisions must sometimes be made
without the opportunity for full reflection. The law may not be
entirely clear. The truth may be elusive. In the result, even
the best judges inevitably are found to have erred. The errors
are publicly identified by appellate judges and laid plain for
all to see. The fact that appellate judges themselves have
been known to err may provide only limited consolation."
If one may add, the greater the experience of the judge, the
more acutely she or he is aware of her or his fallibility and the
pitfalls of acting on impulse or prejudice. The journey, which begins
with certainty, later leads to a path of many grey areas. Given that
language itself is an imperfect medium, words are but vessels
giving shape to ideas and that no human being is perfect, no judge
can claim to be perfect in communicating ideas. The emphasis on a
phrase here or an expression there, bereft of anything more, would
not ipso facto disclose a predilection, or predisposition to decide in
a particular manner."
There is a concurring opinion thus:
"1. I have seen the draft of the order, prepared by my
brother S. Ravindra Bhat, J., on the request of recusal by the
Division Bench headed by him. I fully concur with the conclusions
reached by him and the reasoning leading thereto. I would only
add that the request for recusal by the Bench ignores the fact that
it comprises of two Judges each of whom have an independent
mind to apply. The presence of another Judge with equal say
strengthens the rigor of the judicial scrutiny and cannot be
undermined."
41. Mr. Shyam Diwan, learned senior counsel has referred to the
foreign Rules stating "what is at stake is the confidence which the
courts in a democratic society must inspire in the public.
Accordingly, any judge in respect of whom there is a legitimate
reason to fear a lack of impartiality must withdraw". In support of
his submission, he has referred to Section 47 of Title 28, Judiciary
and Judicial Procedure, 1948 of United States of America; and Rule
24(5)(b) of Rules of Court of the European Union, stating that there
is a statutory bar on any judge presiding over cases where
judgments delivered by him are to be adjudicated upon in appeal.
42. The decisions and rules relating to the appeal against Chamber
Judge are not at all relevant. There is no appeal within the
Supreme Court. It has a totally different structure, and has its own
corrective mechanism, need not be gainsaid. There is no room for
reasonable apprehension to be entertained by the clientele of the
respondent's counsel. There is no question of recusal on pre-
disposition as to the legal issue or as to the relief to be granted,
such an apprehension also is baseless. The ultimate test is that it
is for the Judge to decide and to find out whether he will be able to
deliver impartial justice to a cause with integrity with whatever
intellectual capacity at his command and he is not prejudiced by
any fact or law and is able to take an independent view. The
WP(C) No.3927/2023 32 | P a g e
answer would lie in examining whether without having any bias or
without any pressure or not even irked by such a prayer for
recusal, can he decide the case impartially. In case the answer is
that he will be able to deliver justice to the cause, he cannot and
must not recuse from any case as the duty assigned by the
Constitution has to be performed as per the oath and there lies the
larger public interest. He cannot shake the faith that the common
man reposes in the judiciary as it is the last hope for them.
43. Having surveyed the precedents cited at the Bar, and having
considered the arguments, it is my considered view that a judge
rendering a judgment on a question of law would not be a bar to
her or his participation if in a larger Bench if that view is referred
for reconsideration. The previous judgment cannot constitute bias,
or a predisposition nor can it seem to be such, so as to raise a
reasonable apprehension of bias. Nor can expressions through a
judgment (based on the outcome of arguments in an adversarial
process) be a "subject matter" bias on the merits of a norm or legal
principle, or provisions. The previous decisions and practice of this
court have clearly shown that there can be and is no bar as the
respondents' senior counsel argue. Accepting the plea of recusal
would sound a death knell to the independent system of justice
delivery where litigants would dictate participation of judges of
their liking in particular cases or causes.
44. Recusal is not to be forced by any litigant to choose a Bench. It
is for the Judge to decide to recuse. The embarrassment of hearing
the lengthy arguments for recusal should not be a compelling
reason to recuse. The law laid down in various decisions has
compelled me not to recuse from the case and to perform the duty
irrespective of the consequences, as nothing should come in the
way of dispensation of justice or discharge of duty as a Judge and
judicial decisionmaking. There is no room for prejudice or bias.
Justice has to be pure, untainted, uninfluenced by any factor, and
even decision for recusal cannot be influenced by outside forces.
However, if I recuse, it will be a dereliction of duty, injustice to the
system, and to other Judges who are or to adorn the Benches in
the future. I have taken an informed decision after considering the
nittygritty of the points at issue, and very importantly, my
conscience. In my opinion, I would be committing a grave blunder
by recusal in the circumstances, on the grounds prayed for, and
posterity will not forgive me down the line for setting a bad
precedent. It is only for the interest of the judiciary (which is
supreme) and the system (which is nulli secundus) that has
compelled me not to recuse.
ORDER
1. We have gone through the draft opinion circulated by Arun Mishra J. An application for recusal is dealt with- and has been dealt with, in this case, by the concerned member of the Bench whose participation is sought to be objected to.
WP(C) No.3927/2023 33 | P a g e
2. The approach to be adopted by other members of the Bench to this sensitive issue- in such cases, is best summarized in the view of Justice Madan B. Lokur Supreme Court Advocates-on-Record- Association and Ors. vs. Union of India 2016 (5) 808 where it was stated as follows:
"In my respectful opinion, when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision.
539. In a detailed order pronounced in Court on its own motion v. State and Ors. reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America 325 US 897 (1945), wherein it was held that a complaint as to the qualification of a justice of the Supreme Court to take part in the decision of a cause cannot properly be addressed to the Court as a whole and it is the responsibility of each justice to determine for himself the propriety of withdrawing from a case.
540. This view was adverted to by Justice Rehnquist in Hanrahan v. Hampton 446 US 1301 (1980) in the following words:
'Plaintiffs-Respondents and their counsel in these cases have moved that I be recused from the proceedings in this case for the reasons stated in their 14- page motion and their five appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state-Defendant Petitioners in the action. Since generally the Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corporation v. Mine Workers 325 U.S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall treat the motion as addressed to me individually. I have considered the motion, the Appendices, the response of the state Defendants, 28 U.S.C. 455 (1976 ed. And Supp. II), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly denied.'
541. The issue of recusal may be looked at slightly differently apart from the legal nuance. What would happen if, in a Bench of five judges, an application is moved for the recusal of Judge A and after hearing the application Judge A decides to recuse from the case but the other four judges disagree and express the opinion that there is no justifiable reason for Judge A to recuse from the hearing? Can Judge A be compelled to hear the case even though he/she is desirous of recusing from the hearing? It is to get over such a difficult situation that the application for recusal is actually to an individual judge and not the Bench as a whole WP(C) No.3927/2023 34 | P a g e
542. As far as the view expressed by Justice Kurian Joseph that reasons should be given while deciding an application for recusal, I would prefer not to join that decision. In the first place, giving or not giving reasons was not an issue before us. That reasons are presently being given is a different matter altogether. Secondly, the giving of reasons is fraught with some difficulties. For example, it is possible that in a given case, a learned judge of the High Court accepts an application for his/her recusal from a case and one of the parties challenges that order in this Court. Upon hearing the parties, this Court comes to the conclusion that the reasons given by the learned judge were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hear the case even though he/she genuinely believes that he/she should not hear the case."
3. In view of the above, we are of the opinion that the view of Mishra, J, to reject the application for recusal, is not a matter that can be commented upon by us.
4. With respect to the observations by Mishra, J in his opinion, regarding the legal principles applicable, we are of the considered view that there is no legal impediment or bar to his participation to hearing the reference on the merits in the present Bench.
5. We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.
6. For those and other reasons mentioned in the order of Mishra, J, we concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can - and very often has- participated in the later, larger bench to which such previous decision is referred for reconsideration.
7. For the above reasons, and having regard to the reasons contained in Mishra, J's order, outlining the rejection of the request for his recusal, we are of the considered opinion that this Bench should proceed to hear and decide the reference made to it, on its merits."
24. In the case of Om Prakash Srivastava -Vs- Union of India, reported in (2006) 6 SCC 207, Hon'ble the Supreme Court has observed as follows:
"8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise WP(C) No.3927/2023 35 | P a g e power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.[See ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711]"
In the case of State of Goa -Vs- Summit Online Trade Solutions Private Limited & Ors., reported in (2023) 7 SCC 791, Hon'ble the Supreme Court has observed as follows:
"15. This is a case where clause (2) of Article 226 has been invoked by the High Court to clothe it with the jurisdiction to entertain and try the writ petitions. The Constitutional mandate of clause (2) is that the "cause of action", referred to therein, must at least arise in part within the territories in relation to which the high court exercises jurisdiction when writ powers conferred by clause (1) are proposed to be exercised, notwithstanding that the seat of the Government or authority or the residence of the person is not within those territories.
16. The expression "cause of action' has not been defined in the Constitution. However, the classic definition of "cause of action"
given by Lord Brett in Cooke vs. Gill, [(1873) 8 CP 107] that "cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court", has been accepted by this Court in a couple of decisions. It is axiomatic that without a cause, there cannot be any action. However, in the context of a writ petition, what would constitute such "cause of action" is the material facts which are imperative for the writ petitioner to plead and prove to obtain relief as claimed.
17. Determination of the question as to whether the facts pleaded constitute a part of the cause of action, sufficient to attract clause (2) of Article 226 of the Constitution, would necessarily involve an exercise by the high court to ascertain that the facts, as pleaded, constitute a material, essential or integral part of the cause of action. In so determining, it is the substance of the matter that is relevant. It, therefore, follows that the party invoking the writ jurisdiction has to disclose that the integral facts pleaded in support of the cause of action do constitute a cause empowering the high court to decide the dispute and that, at least, a part of the cause of action to move the high court arose within its jurisdiction. Such pleaded facts must have a nexus with the subject matter of challenge based on which the prayer can be granted. Those facts which are not relevant or germane for grant of the prayer would not give rise to a cause of action conferring jurisdiction on the court. These are the guiding tests."
WP(C) No.3927/2023 36 | P a g e
25. Keeping in view the ratio of the above precedent, wherein numerous earlier judgments of the Hon'ble Supreme Court and so also of the U.S. Supreme Court were considered, are of the view that the aspersions cast by Mr. Pertin that the Chief Justice, while hearing a matter, wherein challenge is laid to an administrative decision of transferring a writ petition from the Outlying Bench to the Principal Seat, acts as a Judge in his own cause, is misconceived and hence, the said objection based on the Latin maxim nemo judex in causa sua, does not merit acceptance.
26. Now, we proceed to take up the issues on merits.
27. As regards the fervent contention of Mr. Pertin that the decision to transfer the writ petitions filed before the Itanagar Permanent Bench to the Principal Seat tantamounts to lowering the dignity of the Itanagar Permanent Bench and also casts a shadow on the competence and integrity of the Judges holding Court at Itanagar Permanent Bench, we feel that the said submission is also unacceptable and untenable on the face of the record.
The transfer of a particular file/case from Itanagar Permanent Bench to the Principal Seat can never be construed to imply that the said decision taken by the Chief Justice on administrative side, is a measure of casting aspersion on the competence/integrity of the Judges at the Itanagar Permanent Bench.
For record, it may be stated here that uptil now, after establishment of the Itanagar Permanent Bench, in the year 2000, a total of about 87 files have been transferred from Itanagar Permanent Bench to Principal Seat at Guwahati. On many a occasion, the Chief Justice is required to transfer the files/cases on WP(C) No.3927/2023 37 | P a g e the ground that appropriate Division Bench cannot be constituted at Itanagar so as to hear the appeals arising from the order passed by learned Single Judge sitting at Itanagar Permanent Bench. Would such a decision mean that the jurisdiction of the Itanagar Permanent Bench is being usurped or that the decision casts a shadow on the competence or integrity of the Presiding Judges at the Itanagar Permanent Bench? The answer is a firm no and we are afraid that the said projection of Mr. Pertin is absolutely flawed and has no legs to stand.
28. Sub-Section (3) of Section 24 of the Act of 1986 makes it clear that the Judges and Division Courts of the Common High Court, i.e. the Gauhati High Court, may also sit at such other place or places in the States of Assam, Nagaland, Mizoram and Arunachal Pradesh as the Chief Justice may, with the approval of the Governor of the State concerned, appoint. Hence, there is no concept of exclusivity of the Judge/Judges of Gauhati High Court so as to associate them with any particular permanent Bench or otherwise. Each Judge of the Gauhati High Court is for all practical purposes, a Judge of the Principal Seat at Guwahati and the three Outlying Benches. The Chief Justice of the Gauhati High Court is empowered by the Constitution of India to assign a roster to any of the Hon'ble Judges, including himself to hear the cases at the Principal Seat at Guwahati or at any of the Benches.
Thus, merely because a particular file/case or a few files/cases have been directed to be transferred by the Chief Justice from Itanagar Permanent Bench exercising administrative powers conferred by virtue of proviso to Clause 2 of the Notification dated 18.07.2000 to the Principal Seat at Guwahati, the said WP(C) No.3927/2023 38 | P a g e decision can, in no manner, be construed as questioning or casting a doubt on the competence or integrity of the Judges holding Court in Itanagar.
As a matter of fact, stationing of Judges, either at Principal Seat or at the Outlying Benches, is made purely for the purpose of drawing salary from the State concerned and not for any other purpose whatsoever. The place of sitting of the Judge/Judges is decided by the Chief Justice while assigning the roster to hear the cases.
Hence, the above submission made by Mr. Pertin is devoid of merit.
29. The next submission of Mr. Pertin, based on order No.41/2005 dated 26.10.2005, which is reproduced (supra) was that under this Order the jurisdiction of the Benches has been defined and hence, the cases arising from the jurisdiction of a particular Bench can only be filed and heard before the concerned Bench. We feel that the said submission is also without any merit.
The language of the order No.41/2005 provides that "all the cases pertaining to the Permanent Benches of Gauhati High Court, whether filed at earlier point of time or at the future at Principal Seat for absence of to be filed in future at the Principal Seat for absence of appropriate Bench at the Outlying Benches, shall stand transferred to the respective Benches of the High Court immediately after completion of motion and/or admission".
Hence, the Order dated 26.10.2005 also affirms the authority of the Chief Justice to direct that cases arising from the Permanent/Outlying Benches can, for want of appropriate Bench, WP(C) No.3927/2023 39 | P a g e be filed at the Principal Seat and would be liable to be transferred after completion of motion/admission hearing.
30. Now, we proceed to consider the submission advanced by Mr. Pertin based on the ratio on the judgments in the cases of Rajasthan High Court Advocates Association (supra) and Hindustan Paper Corp. Ltd. (supra). The judgment in Hindustan Paper Corp. Ltd. (supra) simply relies upon the law laid down by Hon'ble Supreme Court in the case of Rajasthan High Court Advocates Association (supra).
In the case of Rajasthan High Court Advocates Association (supra), the issue which was presented before the Hon'ble the Supreme Court was as to whether the cases arising anywhere in the State of Rajasthan could be filed and heard before the Principal Seat of Rajasthan High Court at Jodhpur. Primarily, the dispute in the said case related to the jurisdiction of the Principal Seat of the Rajasthan High Court at Jodhpur to hear the cases and/or to define jurisdiction of the Permanent Bench at Jaipur.
Clearly thus, the controversy, which was adjudicated by Hon'ble the Supreme Court in the said judgment pertained to defining the territorial jurisdiction/ cause of action and not regarding the power of the Chief Justice to transfer a particular case/cases by exercising administrative powers. Rather, Hon'ble the Supreme Court at paragraph 18 of the judgment in Rajasthan High Court Advocates Association (supra) clearly provided that the cases are to be filed and heard as per the defined territorial jurisdiction, unless the Chief Justice may direct otherwise under the discretionary power vested by the proviso to Para 2 of the WP(C) No.3927/2023 40 | P a g e Presidential Order. Paragraph 18 of the aforesaid judgment reads as under:-
"18. It was submitted at the end by the learned counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent bench at Jaipur shall have "exclusive jurisdiction" to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word "exclusive" pre-fixed to "jurisdiction" is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent bench seat at Jaipur. The cases are to be heard accordingly unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test __ from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution."
31. Hence, the ratio of the said judgment and the observations highlighted (supra), make it clear that the discretion conferred upon the Chief Justice by proviso to para 2 of the Presidential Order prevailing in Rajasthan, which is pari materia to Presidential Order dated 18.07.2000, gives absolute discretion to the Chief Justice to direct that any case or class of cases arising in any district within the dominion of the Permanent Bench at Jaipur may be transferred and heard at the Principal Seat of the Rajasthan High Court at Jodhpur.
32. In view of the ratio of the Supreme Court judgment in the case of Rajasthan High Court Advocates Association (supra), it is WP(C) No.3927/2023 41 | P a g e clear that the challenge laid by the petitioners to the discretionary administrative power of the Chief Justice in transferring a case/cases from the Outlying Bench to the Principal Seat, cannot be tested on the touchstone of territorial jurisdiction or cause of action. The discretion so conferred upon the Chief Justice does not tantamount to determining or altering the territorial jurisdiction or deciding the cause of action of the particular case/cases.
In the case of Hindustan Paper Corporation Limited (supra), the dispute primarily adjudicated, was regarding the jurisdiction and the place where the cause of action had arisen. In the said case, the learned Single Judge overruled the objection raised by the Corporation regarding the maintainability of the writ petition on the ground that the Shillong Bench of the Gauhati High Court had no territorial jurisdiction to entertain the writ petition. The said judgment does not specifically deal with the power of the Chief Justice under the Proviso to Clause 2 of the Notification dated 18.07.20200 and hence, the ratio thereof does not come to the rescue of the petitioners.
33. The submission of Mr. Pertin that the administrative order, whereby the writ petitions (supra) have been transferred from Itanagar Permanent Bench to the Principal Seat, is without reasons and also does not hold water.
It may be stated here that the writ petitions WP(C) No.206(AP)/2021 and WP(C) No.208(AP)/2021 came to be transferred vide administrative order dated 09.03.2022 passed by the then Chief Justice in connection with WP(C) No.5402/2020 which had been preferred before the Principal Seat. The respondent No.2 in the aforesaid writ petitions was the General WP(C) No.3927/2023 42 | P a g e Manager, NHPC, Gerekamukh, District Dhemaji, having its Office in Assam and hence, the said writ petition was fit to be entertained in the Principal Seat of the Gauhati High Court. The order, whereby the two writ petitions (supra) and all similar petitions were directed to be transferred to Guwahati, was evidently passed so as to ensure uniformity in decision.
The petitioner in WP(C) No.5402/2020 chose the forum by filing the same at the Principal Seat of the High Court at Guwahati. Since the respondent No.2 in WP(C) No.206(AP)/2021 and WP(C) No.208(AP)/2021 has its office in Assam, without any doubt, the writ petitions aforestated were even fit to be filed and entertained at the Principal Seat.
34. As a consequence, we do not find any infirmity in the administrative decision of the Chief Justice of Gauhati High Court in directing transfer of WP(C) No.206(AP)/2021 and WP(C) No.208(AP)/2021 and other similar writ petitions from the Itanagar Permanent Bench for analogous hearing with WP(C) No.5402/2020 before the Principal Seat at Guwahati.
That apart, it needs to be highlighted that with the advent of technology and the well established practice being followed by the Gauhati High Court at its Principal Seat and the Outlying Benches in Arunachal Pradesh, Mizoram and Nagaland to allow hybrid hearings, the learned counsel representing the parties cannot feign any difficulty in addressing the Bench at Guwahati from Itanagar. Rather, it is manifest that Mr. T. Pertin, learned counsel representing the petitioners has effectively and to his heart's content and without any glitch addressed the Division Bench at Principal Seat by virtual hearing process. Thus, the WP(C) No.3927/2023 43 | P a g e counsel engaged by the petitioners and the respondents in the transferred writ petitions can very well advance their arguments from Itanagar by adopting the virtual hearing mode without any hitch, hindrance or reservation. In a recent direction issued by Hon'ble the Supreme Court, all High Courts have been directed to provide a virtual hearing link in the daily cause list. Thus, the counsel desirous to address the Court virtually can take recourse of the said facility thereby, alleviating the projected difficulties of travelling and additional expenditure.
35. As a result of the above discussion, we do not find any substance in the submissions of the petitioners' counsel.
Hence, the writ petition fails and is dismissed as being devoid of merit.
JUDGE CHIEF JUSTICE
Comparing Assistant
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