Rajasthan High Court - Jaipur
Ganga Sahai vs Suraj Prasad And Ors. on 15 July, 1986
Equivalent citations: AIR1986RAJ212, 1986(2)WLN72
Author: N.M. Kasliwal
Bench: N.M. Kasliwal
JUDGMENT Agarwal, J.
1. This reference has been made in the following circumstances :
In this Civil Second Appeal an order was passed on 17th January, 1986 for it being put up in Court for hearing on 24th February, 1986. On 24th February, 1986 it could not be listed in the Court for hearing because on that day there was no roster for Civil Second Appeals. It was listed in the Court on 26th February, 1986. On 26th February, 1986 neither the appellant nor his counsel was present and the appeal was dismissed in default by D. L. Mehta, J. The appellant thereafter moved an application for restoration (S. B. Civil Misc. Restoration Application No. 63 of 1986). The said application for restoration was allowed by D. L, Mehta, J. by his order dated 18th March, 1986 on the view that the Registry of this Court had committed a mistake in listing this case on 26th February, 1986 although on 24th February, 1986 no date was given. In this connection the learned Judge has observed as under:
"Whatever may be the position of the past but the present and the future cannot be forgotten. The cannons fired by Mr. Munshi are right and the shots which he has fired is a piercing shot. The Registry or we the Judges sitting in Full Court should notice the working of the Registry. Even on 24th February no date was given and the case was listed on 26th. It seems that there is no rule of law and the rules framed by the High Court are only for the purpose of violation and not for the purpose of compliance. It is expected that that the Registry of this Court, who are the guardians of the law, should at least respect for the law and rules framed by the Court itself If the rules are not to be followed and are only to be violated there is no necessity of Registry itself. It seems that there is an inherent weakness somewhere which shows that the Registry is neither functioning nor acting in accordance with the rules.
I hereby direct and issue a mandamus against the Registrar and the Addl. Registrar to follow the Rules and to act according to the rules. Non-compliance of this order may lead a contempt proceeding against them. This Court, in some cases, has already issued notices for the initiation of the proceedings. The Registrar and the Addl. Registrar should make out a detailed inquiry into the cases and should place the papers before me to deal it judicially on 2nd April, 1986, so that necessary judicial orders may be passed to streamline the working of the judiciary and, if necessary, to bring it to the notice of the Full Court sitting on administrative side."
By the order dated 18th March, 1986 the appeal was directed to be put up on 3rd April, 1986. In pursuance of the said order dated 18th March, 1986 the Deputy Registrar of this Court submitted a factual report along with the explanation of the concerned clerks. Office Superintendent of Civil Section and In charge cause-list section and the Addl. Registrar also submitted his report. On 3rd April, 1986 the appeal was placed before N. M. Kasliwal, J. who after hearing the learned counsel for the parties disposed of the said appeal by his judgment dated 3rd April 1986. After considering the reports submitted by the Deputy Registrar and the Additional Registrar, Kasliwal, J. passed an order dated April 11, 1986 wherein he has observed that the Registry had raised an important and moot question as to how and in what manner the directions given by Mehta, J. in his order dated 18th March, 1986, whereby a mandamus was given against the Registrar and Addl. Registrar to follow the Rules and to act according to Rules and a direction has also been given that non-compliance of the said order may lead contempt proceedings against them, can be complied with. Kasliwal, J. has expressed the view that a very important question which arises in the case is whether any direction in the nature of mandamus can be given while deciding a restoration application and that it has to be further considered whether the Court in a civil case can give any direction which has nothing to do with the merits or controversy of that case or it can given a direction only relating to the matter in issue or controversy involved between the parties in that particular civil case and that it has to be further seen whether a general direction of the kind that Registrar and Addl. Registrar should follow the Rules and to act according to the Rules, can be given or not, especially when the non-compliance of such order has been threatened by contempt proceedings against them. Kasliwal, J. was of the view that the above questions are of far-reaching consequences and raise important questions of law regarding the scope of authority of the Court passing such orders and in his opinion such matter should be decided by a larger bench. He, therefore, directed that the papers should be placed before Hon'ble the Chief Justice for constituting a larger bench for deciding the above matter at an early date. In accordance with the aforesaid directions given by Kasliwal, J. in his order dated J 1th April, 1986, the matter was placed before Hon'ble the Chief Justice who has constituted this bench to hear this reference.
2. We have heard the learned Government Advocate on the questions which arise for consideration in this reference. In addition we have heard Shri R. N. Munshi, and R. M. Lodha, the learned counsel appearing for both the parties in the Civil Second Appeal and a number of Advocates who desired to address the Court on the said questions.
3. As mentioned in the order of reference passed by Kasliwal, J., the following questions are required to be considered by this Bench : --
1. Whether any direction in the nature of mandamus can be given while deciding a restoration application?
2. Whether the Court in a civil case can give any direction which has nothing to do with the merits or controversy of that case or it can give a direction only relating to the matter in issue or controversy involved between the parties in that particular civil case?
3. Whether a general direction of the kind that Registrar and Addl. Registrar should follow the Rules and to act according to Rules, can be given or not especially when non-compliance of such order has been threatened by contempt proceedings against them?
4. Although the first question is confined in its scope to giving of a direction in the nature of mandamus while deciding a restoration application, we propose to consider it in a broader aspect and examine whether a direction in the nature of mandamus can be given by a Judge of this Court while dealing with a pending Civil proceeding. For this purpose it is necessary to take note of the considerations which weigh with the Court while issuing a writ or order in the nature of mandamus. The writ of mandamus was one of the prerogative writs that were being issued by the High Court of Justice in England in the name of the Crown. Now as a result of the amendment of the Rules of Procedure by the Administration of Justice (Miscellaneous Provisions) Act, 1938, the English Courts issue orders in the nature of mandamus. Under the English law an order of mandamus is, in form a command from the High Court of Justice-directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. (Halsbury's Laws of England. Fourth Edition, Vol. I, Page 111, Para 89).
5. The conditiors precedent which are required to be fulfilled for issuing of mandamus in English Law are in the applicant must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought or alternatively that he has a substantial personal interest in its performance; (ii) the duty must be of a public nature; (iii) the legal right to enforce the performance of a duty must be in the applicant himself; (iv) the application must be made in good faith; (v) the application must be preceded by a demand for performance of the act sought to be enforced and refusal to perform it: (vi) there must be possibility of effective enforcement of the order; and (vii) there should be no other alternative specific remedy at Law which is not less convenient, beneficial and effective, available to the applicant (Halsbury's Laws of England Fourth Edn. Vol. 1 pages 131 to 137. paras 120 to 126).
6. The position in India is not very different. The power to issue a writ in the nature of mandamus has been conferred on the High Courts under Article 226(1) of the Constitution and on the Supreme Court under Article 32(2) of the Constitution. Under Article 226(1) every High Court has been conferred the power throughout the territories jn relation to which it exercises jurisdiction. to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Similarly in Article 32(2) of the Constitution the Supreme Court has been conferred the power to issue directions or orders including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The only distinction between the powers which have been conferred on the Supreme Court under Clause (2) of Article 32 and the powers conferred on the High Court under Clause (1) of Article 226 of the Constitution is that under Article 32(2) of the Constitution, the Supreme Court can issue such directions only for the enforcement of any of the rights conferred by Part III whereas under Clause (1) of Article 220 of the Constitution, the High Court can issue such directions for the enforcement of any of the rights conferred by Part III of the Constitution and also for any other purpose. While dealing with the aforesaid powers that have been conferred on the Supreme Court under Article 32 of the Constitution and on the High Court under Article 226 of the Constitution the Supreme Court in T. C. Basappa v. T. Nagappa, AIR 1954 SC 440, has observed :
"The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.'
7. The aforesaid observations have been reiterated by Gajendragadkar, C. J. in Naresh Shridhar Mirjakar v. State of Maharashtra. AIR 1967 SC 1. The Courts in India while issuing a writ or order in nature of mandamus, normally apply the same criteria which are applied by the Courts in England for issuing the orders in the nature of mandamus.
8. Lately there has been an expansion in the concept of locus standi of the person who may approach the Court to seek a writ of mandamus or any other appropriate writ, direction or order under Articles 32 and 226 of the Constitution. The said matter has been considered at length by Bhagwati, J. (as he then wast in Section P. Gupta v. Union of India, 1981 Supp SCC 87 : (AIR 1982 SC 149). decided by Special Bench of seven Hon'ble Judges of the Supreme Court. The learned Judge has taken note that the traditional rule in regard to locus standi is that judicial remedy is available only to a person who has suffered a legal infirmity by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The learned Judge has, however, observed that a few exceptions to this rule have been evolved by the Courts, over the years. According to the learned Judge one such exception is that rate payer of a local authority is accorded standing to challenge an illegal action of the local authority. Another exception referred to by the learned Judge is that where the person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. The cases falling in this category are also described as public interest litigation. Gupta, Fazal Ah, Desai and Pathak, JJ. have expressed their concurrence with the decision of Bhagwati. J. on the question of locus standi. Tulzapurkar and Venkataramiah, JJ. have also made observations to the effect that there has been enlargement of the concept of locus standi in the matter of invoking the jurisdiction of the Courts under Articles 226 and 32 of the Constitution. It may be mentioned that there has been similar enlargement in the concept of locus standi in English Law and in this connection reference may be made to the decision of House of Lords in Rex v. Inland Revenue Commrs., 1982 AC 617.
9. The other conditions for issuing a mandamus which are required to be satisfied by the English Courts are however, applied by the Courts in India while exercising their jurisdiction under Articles 226 and 32 of the Constitution.
10. In the matter of procedure for exercise of the jurisdiction vested in this Court under Article 226 of the Constitution, it may be observed that this Court has framed Rules of the High Court of Judicature for Rajasthan, 1952 (hereinafter referred to as 'the Rules') in exercise of the powers conferred by Section 46 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as 'the Ordinance') read with Article 225 of the Constitution. Rules 363 to 374 contained in Chapter XXI Part IV of the Rules relate to writs in the nature of Habeas Corpus. Rules 375 to 385 contained in Chapter XXII in Part IV relate to direction, order or writ under Article 226 of the Constitution other than a writ in the nature of Habeas Corpus. In Rule 375 provision is made for the application for a direction under Article 226 of the Constitution other than a writ in the nature of Habeas Corpus to be presented to the Registrar who shall direct that the application be laid before a Division Bench or a Judge sitting alone as the case may be, according to the provisions of Rule 55 for orders. The said rule also requires that such an application must be accompanied by an affidavit verifying the facts relied upon. Rules relating to directions, orders or writs other than a writ in the nature of Habeas Corpus differ from Rules relating to a writ in the nature of Habeas Corpus to the extent that an application for a writ of Habeas Corpus can also a accepted by post and in case the person restrained is unable owing to restraint to make the affidavit, the application can be accompanied by an affidavit made by some other person stating the reason why the person restrained is unable to make the affidavit himself. In this context it may also be mentioned that under Subsection (2) of Section 44 of the Ordinance, it is provided that the Chief Justice shall be responsible for distribution and conduct of the business of the High Court and shall determine which Judge in each case will sit alone and which Judge of the Court will constitute a bench. Sub-section (3) of Section 44 provides that the administrative control of the High Court shall vest in the Chief Justice who may experience in such manner and after such consultation with the other Judges as he may think fit or may delegate such of his functions as he may deem fit to any other Judges of the High Court. In Rule 54 of the Rules it is provided that the Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with the direction. The said rule has been considered by a Full Bench of this Court in Niranjan v. State of Rajasthan, 1974 WLN 222 : (AIR 1974 Raj 171) wherein it has been observed as under : --
"It is therefore the responsibility of the Chief Justice to constitute the Division Courts or Benches. The Judges are required to sit alone or in the Division Benches and, in either case, do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction. This power to allot the work to the Judges cannot be taken away, in face of the clear provision of Rule 54, merely because a date of hearing has been fixed in a case by a particular Bench."
11. It is thus evident that the Rules postulate that in order that this Court may issue a direction, order or writ under Article 226 of the Constitution other than a writ in the nature of Habeas Corpus it is necessary that an application, accompanied by an affidavit verifying the facts relied upon should be duly presented and the said application has to be placed before the Judge who is dealing with such petitions under the order passed by the Chief Justice under Rule 54 and that Judge only can issue such a writ, direction or order.
12. The question which has been referred to us in the present case relates to the observance of the Rule of this Court by the Registrar and Addl. Registrar and the issue of a direction in the nature of mandamus by Mehta, J. against the Registrar and Addl. Registrar to follow the Rules and to act according to the Rules, It cannot be disputed that the Rules of this Court impose a public duty on all the officers of the Registry, including Registrar and Addl. Registrar to act in accordance with the Rule. The question is whether a learned Judge dealing with a pending civil matter, would be justified in issuing a general direction in the nature of mandamus to the Registrar and the Addl. Registrar to follow the Rules and to act according to the Rules. In our opinion such a course is not permissible both on account of limitations that exist in substantive law regulating the exercise of the jurisdiction to issue a writ or order in the nature of mandamus and the procedural provisions contained in the Rules. In this connection it may be observed that one of the conditions precedent for issuance of a writ or order in the nature of mandamus is that no other legal remedy should be available to the party seeking an order in the nature of mandamus. In a pending civil proceeding the learned Judge dealing with the said proceeding has ample power to deal with a situation arising on account of breach or non-observanes of the Rules by the Registry of this Court. The party who has been prejudiced by such breach or non-observance of the Rules can bring this fact to the notice of the learned Judge dealing with the matter and he can pass an appropriate order remedying the wrong because, as observed by the Supreme Court in Kumaranand v. Brij Mohan, AIR 1965 SC 628, "it is a trite saying (hat the act of the Court does no injury to any suitor." There is therefore, no need for a party to a pending proceeding to invoke the jurisdiction under Article 226 of the Constitution for issuing a direction in the nature of mandamus.
13. Moreover, there is a procedural difficulty in the matter of issuing a writ of mandamus in a pending proceeding because a proceeding for issuance of a writ of mandamus is an independent proceeding which can be initiated by moving an application in accordance with Rule 375 of the Rules and the said application mast be accompanied by an affidavit verifying the facts relied upon. Another procedural difficulty in the matter of issuance of a writ or direction in the nature of mandamus by a learned Judge in a pending proceeding is that under Rule 54 of the Rules the Chief Justice has the power to allot particular type of case to a particular Judge or Judges and in exercise of the said power, the Chief Justice may allot petitions for issuance of writ under Article 226 to particular Judge or Judges. In that event the learned Judge dealing with the pending civil matter by issuing a direction in the nature of mandamus in that matter would be exercising a jurisdiction which has not been allotted to him by the Chief Justice under Rule 54 of the Rule. In our opinion, therefore, for a proper and harmonious functioning of the Court in accordance with the Rules, it is necessary that a Judge should refrain from exercising jurisdiction in respect of matters not allotted to him by the Chief Justice under Rule 54 of the Rules and exercise of jurisdiction by a Judge under Article 226 in a pending civil matter may result in disregard of the provisions of Rule 54 of the Rules.
14. The learned Government Advocate and Shri R.N. Munshi have submitted that the rules of this Court only regulate the procedure and the said rules cannot stand in the way of a learned Judge issuing a direction in the nature of mandamus if it is considered necessary in the interest of justice because the rules of procedure are only intended to aid to the administration of justice. In support of the aforesaid submissions, the learned counsel have invited our attention to the decisions of the Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : (AIR 1984 SC 802) and State of West Bengal v. Sampat Lal, (1985) 1 SCC 317 : (AIR 1985 SC 195) relating to public interest litigation. It is true that in relation to public interest litigation, the Supreme Court has observed that the technical rules of procedure will not stand in the way of the Court giving appropriate relief. In this connection, we may refer to the following observations of Bhagwati, J. (as he then was) in S. P. Gupta v. Union of India, (AIR 1982 SC 149) (supra) : --
"Where the weaker sections of the community are concerned, such as undertrial prisoners languishing in jails without a trial, inmates or the Protective Home in Agra, or Harijan workers engaged in road construction in the district of Aimer, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public-spirited individual exposing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public-minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process, the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has violated but who by reason of their poverty or socially or economically disadbvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the case of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal-aid organisation which can take care of such cases."
15. In Bandhua Mukti Morcha v. Union of India and others (supra), the question was as to whether the Supreme Court had the power to appoint Commissioners for the purpose of ascertaining the facts relating to the conditions in which the workers employed in certain stone quarries were working and whether such an order could be made under the provisions of Order XLVI of the Supreme Court Rules. The Supreme Court unanimously held that it was permissible to make the order for appointment of the Commissioners and the report of the Commissioner could be taken into consideration by the Court. In this context Bhagwati, J. (as he then was) has reiterated his observations in S. P. Gupta v. Union of India (supra) that : --
".....where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter, because it would not be right or fair to expect a person acting pro bono publico to incur expenses out of his own pocket for going to a lawyer and preparing a regular writ petition for being filed in Court for enforcement of the fundamental right of the poor and deprived sections of the community and in such a case, a letter addressed by him can legitimately be regarded as an 'appropriate' proceeding.
16. Pathak J. while agreeing that the provisions of Order XLVI of the Supreme Court Rules, did not stand in the way of the Court appointing Commissioner has expressed his reservations against the practice that has grown in the public of invoking the jurisdiction of the Supreme Court by a simple letter complaining of a legal injury to the author or to some other person or group of persons and the Court treating such a letter as a petition under Article 32 and entertaining the proceeding without anything more. The learned Judge has stressed on the importance of pleadings in a litigation and has observed :
"While this Court has readily acted upon letters and telegrams in the past, there is need to insist now on an appropriate verification of the petitioner or other communication before acting on it. As I have observed earlier, there may be exceptional circumstances which may justify a waiver of the rule. For example, when the habeas corpus jurisdiction of the Court is invoked. For in all cases of illegal detention there is no doubt that the Court must act with speed and readiness. Or when the authorship of the communication is so impeccable and unquestionable that the authority of its contents may reasonably be accepted prima facie until rebutted. It will always be a matter for the Court to decide, on what petition will it require verification and when will it waive the rule."
17. The learned Judge has also deprecated the practice of communications being addressed to a particular Judge only and has observed :
"I think the time has come to state clearly that all communications and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. No such communication or petition can properly be addressed to a particular Judge. When the jurisdiction of the Court is invoked, it is the jurisdiction of the entire Court. Which Judge or Judges will hear the case is exclusively a matter concerning the internal regulation of the business of the Court, interference with which by a litigant or member of the public constitutes the grossest impropriety. It is well established that when a division of the Court hears and decides cases it is in law regarded as hearing and a decision by the Court itself. The judgment pronounced and the decree or order made are acts of the Court, and accordingly they are respected, obeyed and enforced throughout the land. It is only right and proper that this should be known clearly to the lay public. Communications and petitions addressed to a particular Judge are improper and violate the institutional personality of the Court. They also embarrass the Judge to whom they are personally addressed. The fundamental conception of the Court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning.
18. A.N. Sen, J. has observed as under :--
"The Court, if satisfied on the materials placed in the form of a letter or other communication addressed to this Court, may take notice of the same in appropriate cases. Experience shows that in many cases it may not be possible for the party concerned to file a regular writ petition in conformity with procedure laid down in the rules of this Court. It further appears that this Court for quite some years now has in many cases proceeded to act on the basis of the letters addressed to it. A long standing practice of the Court in the matter of procedure also acquires sanctity. It may also be pointed out that in various cases the Court has refused to take any notice of letters or other kind of communications addressed to Court and in many cases also the Court on being moved by a letter as directed a formal writ petition to be filed before it has decided to proceed further in the matter. It is, however, eminently desirable, in my opinion, that normally the procedure prescribed in the rules of this Court should be followed while entertaining a petition under Article 32 of the Constitution, though in exceptional cases and particularly in matter of general public interest, this Court may, taking into consideration the peculiar facts and circumstances of the case, proceed to exercise its jurisdiction under Article 32 of the Constitution for enforcement of fundamental rights treating the letter or the communication in any other form as an appropriate proceeding under Article 32 of the Constitution. It is, however, eminently desirable that any party who addresses a letter or any other communication to this Court seeking intervention of this Court on the basis of the said letter and communication should address this letter or communication to this Court and not to any individual Judge by name. Such communication should be addressed to the Chief Justice of the Court and his companion Justices. A private communication by a party to any learned Judge over any matter is not proper and may create embarrassment for the Court and the Judge concerned."
19. In State of West Bengal v. Sampat Lal, (AIR 1985 SC 195) (supra), the Supreme Court has considered the question about the maintainability of the writ petition on the basis of letters sent to the Court and while holding that when such information is laid before the Court, care and caution should be adopted to ensure that the process of the Court is not abused or misused, R. N. Misra, J., speaking for the Court, has observed as under : --
"The Court should be prima facie satisfied that the information laid before the Court is of such a nature that it calls for examination and this prima facie satisfaction may be derived from the credentials of the informant, namely, what is the character or standing of the informant or from the nature of the information given by him, namely, whether it is vague and indefinite or contains specific allegations as a result of survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the communication addressed to the Court or to a Judge of the Court on behalf of the Court. Where the Court is so satisfied prima facie, the Court may not insist on the filing of an affidavit and may proceed to investigate into the allegations with a view to meting out justice to the persons on whose behalf the communication is addressed. This would be so particularly where to insist upon an affidavit at the initial stage may lead to perpetration of injustice or may give fise to a situation where from a practical point of view the doors of justice would be ciosed to the poor and the disadvantaged. We may, however, point out that where the Court is not so prima facie satisfied, the Court may before issuing notice to the opposite party, ask the lawyer appointed amicus curiae to contact the informant and file an affidavit or a regular writ petition. These are the different procedures which have been adopted by this Court while dealing with communications complaining of violation of the rights of the deprived and. vulnerable sections of the community,"
20. The aforesaid decisions of the Supreme Court show that it may be permissible to depart from the rules of procedure while dealing with cases relating to public interest litigation which involve the interests of a large number of persons who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief and in such cases the Court may proceed to exercise jurisdiction on the basis of letters without insisting on a formal petition. But at the same time the Court has struck a note of warning that care and caution should be adopted to ensure that the process of the Court is not abused or misused. Pathak, J. and A.N. Sen J. in their judgments in Bhandhua Mukti Morcha v. Union of India, (AIR 1984 SC 802) (supra) have disapproved the letters and communications being addressed to an individual Judge by name and have observed that such communications should be addressed to the Chief Justice of the Court and his companion Judges collectively. In the light of the aforesaid observations we will like to observe that in case a learned Judge receives a communication making complaint about any grievance and seeking redress by way of relief by issuance of an appropriate writ, order or direction under Article 226 of the Constitution, the learned Judge may forward the same to the Registrar or Addl. Registrar with direction to immediately place it before the Judge who is dealing with petitions under Article 226 of the Constitution and the learned Judge who is dealing with such petitions, may after examining the said communication, pass appropriate orders on the same. Such a course would also be in consonance with Rule 54 of the Rules which empowers the Chief Justice to allot the work amongst various Judges of the Court.
21. As pointed out earlier the observations of the Supreme Court in the decisions referred to above have been made in the context of public interest litigation and the same can have no hearing in a case of civil proceeding between two Imgents. We are, therefore, of the opinion that the considerations which justify departure from the rules of procedure in respect of public interest litigation, would not be applicable to proceedings between two private individuals relating to an individual grievance. The departure from the rules of procedure in such a proceeding would, therefore, not be permissible and in case a party to such a proceeding is desirous that an order or direction in the nature of mandamus may be issued to a third person, he should move the required application for that purpose in accordance with the Rules and the learned Judge dealing with the pending civil proceeding, would not be justified in issuing a writ or direction in the nature of mandamus in such a pending proceeding.
22. The aforesaid discussion leads to the conclusion that a direction in the nature of mandamus cannot be given by a learned Judge of this Court while dealing with a pending civil proceeding and the first question must be answered in the negative in accordance with this conclusion.
23. Coming to the second question relating to the nature of the direction that can be given in a civil case, it may be stated that it is settled rule of practice that the Court while dealing with a particular case must confine itself to the matters in issue in that case and should refrain from making observations in respect of matters not directly in issue. This is more so in the case of higher Courts because the observations of the higher Courts, even though obiter, are binding on the subordinate Courts. For the same reason it must be held that the Court while giving a direction in a pending civil case must confine itself to giving a direction relating to matter in issue or controversy involved between the parties in that particular civil case and it should not give a direction which has nothing to do with the merits or controversy of that case. To hold otherwise would hamper the smooth and harmonious functioning of the judicial process because a direction which has nothing to do with the merits or controversy of the case in which the direction is given may prejudicially affect the rights and interests of third parties who were not before the Court and who were not heard before such direction was given.
24, As regards the third question relating to the general direction given to the Registrar and Additional Registrar, we may observe that it is open to a learned Judge, while dealing with a matter, to give suitable directions to the Registrar, Additional Registrar and other officers of the Court with regard to observance of a particular rule or rules in relation to the said matter and in case the said directions are not complied with the learned judge may take appropriate action against the person committing default by passing appropriate order. We are, however, of the opinion that it would not be a permissible exercise of power by a learned Judge to issue a general direction to the Registrar or Additional Registrar to follow the Rules and to act according to the Rules with the further direction that non-compliance of this order may lead to contempt proceedings against them. In our view no practical purpose can be said to be achieved by issuing a direction regarding observance of the Rules because even in the absence of such a direction the Registrar and the Additional Registrar will have to follow the Rules and act in accordance with the Rules because the Rules are law and the Registrar and the Additional Registrar are bound by them. The only effect of the said direction which is coupled with the direction that non-compliance of the order may lead to contempt proceedings against them would be that the learned Judge issuing such a direction would be assuming administrative control over the Registrar and Additional Registrar in the matter of discharge of their duties to be exercised by threat of their being punished for contempt of Court in the event of their being remiss in the discharge of their duties. This in our view, is not permissible because under Sub-section 13 of Section 44 of the Ordinance, the administrative control of the High Court, which would include the Registrar, the Additional Registrar and other officers and staff employed in the High Court vests in the Chief Justice who has been empowered to exercise this control in such manner and after such consultation with other Judges as he may think fit and giving of such a direction would impinge on the said administrative control vested in the Chief Justice. If a learned Judge during the course of a pending matter finds that a particular officer or officers of the High Court are not performing their duties properly, he may bring it to the notice of the Chief Justice for taking appropriate action against the said officer or officers.
25. While we are on this case, we may also observe that in the present case, Mehta J. before passing the order dated 18th March, 1986 and in issuing a mandamus against the Registrar and Addl. Registrar to follow the Rules and to act according to the Rules and directing that non-compliance of the order may lead to contempt proceeding against them did not afford an opportunity to the Registrar and Addl. Registrar to offer an explanation with regard to the incidents of breach or non-compliance of Rules and he passed the said order without affording such an opportunity. If the learned Judge had asked for an explanation from the Registry, he would have been informed that in the case in hand the date 24th February, 1986 was not fixed by the Court, but was fixed by the office and that the case could not be listed for hearing on 24th February. 198o because no roster for Civil Second Appeals was available on that date and it was listed immediately when the said roster was available. The learned Judge has also failed to note that in Rule 75 of the Rules, it is provided that the case in which a date has been fixed for hearing shall so far as possible be placed in the Day's list immediately after miscellaneous and part-heard cases. The use of the expression 'so far as possible' in the said rule postulates that in certain circumstances the case may not be listed on the date fixed for hearing. It can. therefore, be said that this was not a case which called for strictures against the Registry of this Court.
26. For the reasons aforesaid, the questions referred for consideration before this Bench are answered as under : --
1. A direction in the nature of mandamus cannot be given while deciding the restoration application.
2. The Court in a civil case cannot give a direction in the nature of mandamus which has nothing to do with the merits or controversy of that case and a direction can be given only relating to the matter in issue or controversy involved between the parties in that particular civil case.
3. The general direction of the kind that Registrar and Additional Registrar should follow the Rules and to act according to the Rules could not be given especially when non-compliance of such order has been threatened by contempt proceedings against them.
27. There will be no order as to costs. Order accordingly.