Andhra HC (Pre-Telangana)
14.02.2013 vs Dr. Javvaji Koti Nagaiah
Bench: G. Rohini, C.Praveen Kumar
THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
WRIT PETITION No.2824 OF 2013
14.02.2013
Dr. Javvaji Koti Nagaiah
1. The Hon'ble the Chief Justice, High Court of Andhra Pradesh, Hyderabad, and
two others.
Counsel for the Petitioner: Sri Potti Venkata Ramana Rao
Counsel for respondents: Sri P. Venugopal, Standing counsel for AP High Court
(GIST:
(HEAD NOTE:
? Cases cited:
1 2004 (8) Supreme 596
2 2000 (1) SCALE 458 = (2000) 2 SCC 391
3 AIR (ALL) 1959 421
4 (1998) 1 SCC 1
5 (2010) 10 SCC 320
6 AIR 1989 SC 1433
7 JT 2004 (9) SC 569
8 (1995) 3 SCC 757
ORDER:(Per G. Rohini, J) The writ petitioner is the petitioner No.1 in Contempt Case No.17 of 2012 pending before a learned Single Judge of this Court. On 20.01.2013 the petitioner addressed a letter to the Hon'ble Chief Justice of A.P., High Court requesting to direct the Registrar to post the said contempt case before any other judge or before a Division Bench for the reasons stated therein. Alleging that his representation has not been considered, the present writ petition is filed arraying the Hon'ble Chief Justice as the respondent No.1 with the following prayer:
"... ... ...this Hon'ble Court may be pleased to issue any order or direction or writ more particularly a writ in the nature of Mandamus to direct the respondent No.1 to dispose the representation dated 20.01.2013 of the petitioner under Article 225 of the Constitution of India read with Section 223 of the Government of India Act, 1935 and Section 108 of the Government of India Act, 1915, in the interest of administration of justice and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case"
We have heard Sri Potti Venkata Ramana Rao, the learned counsel for the writ petitioner and Sri P. Venu Gopal, the learned Standing Counsel for the High Court.
The facts as pleaded in the affidavit filed in support of the writ petition are as under:
The petitioner herein along with his wife filed W.P.No.29778 of 2011 seeking a direction to the Commissioner, Tenali Municipality to take action for removal of the alleged unauthorized constructions made by one Y. Veeraiah. Pending the said writ petition, by order dated 15.11.2011, a learned Single Judge of this Court directed the respondents therein not to make any further construction. Alleging that in spite of the said interim order dated 15.11.2011 the respondent was proceeding with the construction, the petitioner herein and his wife filed C.C.No.17 of 2012 with a prayer to punish the respondent therein under the Contempt of Courts Act. Having regard to the allegations made, the learned Single Judge by order 17.10.2012 called for a status report from the Municipal Commissioner, Tenali Municipality after physically verifying the constructions made by the 1st respondent therein. In pursuance thereof, the Commissioner filed his report dated 17.11.2012 stating that the contemnor/1st respondent therein did not make any construction after the order of this Court dated 15.11.2011. The petitioners filed their objections to the said report. That apart, they filed C.A.No.1119 of 2012 to prosecute the Municipal Commissioner and In-charge Town Planning Officer for filing a false report. They also filed C.A.No.1224 of 2012 to direct C.B.I. to submit a report after enquiry with regard to the alleged false counter-affidavit filed by the contemnor and the officials of Tenali Municipality. They also filed C.C.No.4 of 2013 to prosecute the contemnor for filing a false affidavit and the officials of Tenali Municipality for criminal contempt of Court under Section 2 (e) of the Contempt of Courts Act, 1971. It is stated that when C.C.No.17 of 2012 came up for hearing before the learned Single Judge, the counsel for the petitioners insisted for orders in C.A.No.1224 of 2012 which was filed with a prayer to direct enquiry by C.B.I. or at least to appoint an advocate commissioner to inspect the building and file a report in C.C.No.17 of 2012. Alleging that the learned Single Judge declined to pass any such order and merely adjourned the contempt case to 28.1.2013 and that in the background of the above events they believe that justice might not be done to them, the petitioner by letter dated 20.01.2013 requested the Hon'ble the Chief Justice to post C.C.No.17 of 2012 before any other learned judge. According to the petitioner the matter involves criminal contempt of court and therefore it was requested that in the alternative the matter may be posted before a Division Bench. The grievance of the petitioner is that his representation dated 20.01.2013 has not been considered. Hence he seeks a Mandamus to direct the respondents to consider and dispose of his representation dated 20.01.2013.
As noticed above, the Hon'ble Chief Justice is arrayed as respondent No.1 to the writ petition. According to the writ petitioner, the Chief Justice of High Court alone is empowered under Article 225 of the Constitution of India read with Section 223 of the Government of India Act, 1915 to consider his request for posting the matter before any other learned Judge and since his representation with the above request has not been considered, the Chief Justice is the necessary party to the writ petition and a Mandamus needs to be issued as prayed for. In support of the said submission, the learned counsel for the writ petitioner relied upon BAL THACKREY v. HARISH PIMPALKHUTE AND ANR.1, R. RATHINAM v. STATE BY DSP2 and STATE v. DEVI DAYAL3.
There can be no dispute that the administrative control of the High Court vests in the Chief Justice of the High Court and it is his prerogative to distribute business of the High Court both judicial and administrative. As held in STATE OF RAJASTHAN v. PRAKASH CHAND4, R. RATHINAM v. STATE BY DSP (2 supra) and STATE OF U.P. v. NEERAJ CHAUBEY5 the Chief Justice is the master of the roster and he alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted.
However the question that requires consideration is whether the matter involves enforcement of any legal/fundamental right or statutory obligation to entitle the petitioner to seek a Writ of Mandamus.
As per Rule 12 of the Contempt of Court Rules 1980 made by the High Court of Andhra Pradesh in exercise of the powers conferred under Section 23 of the Contempt of Courts Act, every case for civil contempt of the High Court shall be posted before the judge or judges in respect of whose judgment, decree, direction, writ or other process the contempt is alleged. The Chief Justice may direct to post the contempt case before some other judge only where the judge concerned is not available. For ready reference, Rule 12 is reproduced hereunder:
"12. Every case for Civil Contempt of the High Court shall be posted before, the Judge or Judges in respect of whose judgment, decree, direction, order, writ or other process the contempt is alleged or before whom the undertaking was given in respect of which wilful breach was committed or before some other judge or judges as the Chief Justice may direct in case the judge or judges concerned is or not available, for preliminary hearing and for orders as to issue of notice to the contemner or contemners as the case may be, if there is a 'prima facie case and for further hearing before them after notice, if issued. Upon such preliminary hearing, the judge or judges if satisfied that no prima facie has been made out for issue of notice, may dismiss the petition."
Admittedly C.C.No.17 of 2012 filed by the petitioner is pending before the learned single judge in respect of whose order the contempt is alleged. The said contempt case is still pending. It is no doubt true that the learned single judge, while calling for a report from the Commissioner, Tenali Municipality, observed that either the petitioner or the respondents made false statements before this Court and that fact has to be ascertained. However, the learned Judge has not yet recorded any finding or passed any order as such on the said issue and the matter is yet to be heard. Apparently the letter dated 20.01.2013 was addressed to the Chief Justice in view of the observations made by the learned Judge during hearing while declining to direct enquiry by C.B.I. against the respondents therein. Addressing such letter at that stage to the Chief Justice for posting the matter before some other Judge itself is contemptuous. In the facts and circumstances noticed above, it appears to us that the allegation that justice may not be done to the petitioners before the Hon'ble Judge hearing C.C.No.17 of 2012 is motivated and was made only to see that the matter is withdrawn from the Bench of the learned Judge. Time and again the Supreme Court deprecated the practice of writing letters while the matter is pending { See STATE OF MAHARASHTRA v. RAVI PRAKASH BABULALSING PARMAR (2007) 1 SCC 80 }. The Supreme Court has also strongly deprecated the tendency of litigants making requests to the Benches perceived by them to be not favourable to recuse from hearing a case { See R.K. ANAND v. DELHI HIGH COURT (2009) 8 SCC 106 }.
In this context, it is also appropriate to refer to the following observations made by the Supreme Court in GUJARAT ELECTRICITY BOARD AND ANOTHER v. ATMARAM SUNGOMAL POSHANI6:
"... ... No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench can legitimately be claimed merely because the Judges express opinion on the merits of the case on the conclusion of hearing."
In the instant case, C.C.No.17 of 2012 is yet to be heard and therefore the petitioner is bound to pursue the proceedings till they reach the logical conclusion before the learned Single Judge. It is apparent from the tenor of the affidavit filed in support of the writ petition as well as the letter dated 20.01.2013 addressed to the Hon'ble Chief Justice that the petitioner is seeking transfer of the contempt case to another Judge on an apprehension that the learned Judge before whom the contempt case is pending has entertained a suspicion that the petitioners had filed false affidavit in the contempt case. Neither the petitioner has a legal right to seek transfer of his case to another Judge on such ground nor the Chief Justice is under any legal or constitutional obligation to consider such request. Therefore the petitioner is not entitled to any relief by way of Mandamus.
Relying upon DR. MANJU VARMA v. STATE OF U.P. & ORS.7, the learned counsel further contended that the pendency of the contempt case cannot be a ground for declining to consider the representation of the petitioner in exercise of the powers of the Chief Justice on the administrative side.
The above submission is without any substance in view of the settled principles of law that a Writ of Mandamus can be issued only when the applicant has shown that he has a legal right to the performance of a legal duty by the party against whom the Mandamus is sought.
As already expressed above, no case is made out to show that the petitioner has any such legal or statutory right for transfer of the contempt case to another learned Judge and therefore merely because the petitioner made a representation, no Mandamus can be issued as sought by him.
The learned counsel for the petitioner has also contended that filing of false affidavits in judicial proceedings amounts to committing criminal contempt of the Court and therefore C.C.No.17 of 2012 requires to be heard by a Division Bench. In support of his submission, the learned counsel relied upon DHANANJAY SHARMA v. STATE OF HARYANA8. The said contention according to us is wholly misconceived since the learned Judge has not expressed any opinion with regard to filing of false affidavits by either party.
For the aforesaid reasons, the Writ Petition is devoid of any merit and the same is accordingly dismissed. No costs.
Consequently the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_____________ G.ROHINI, J _______________________ C.PRAVEEN KUMAR, J Date: 14.02.2013