Allahabad High Court
Smt.Chawali (Habc 594/2012 Now P.I.L.) vs State Of U.P.And Ors. on 16 January, 2015
Bench: Devi Prasad Singh, Amreshwar Pratap Sahi, Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED ON 27.11.2014 DELIVERED ON 16.1.2015 `IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH, LUCKNOW.
RESERVED A.F.R. Case :- MISC. BENCH No. - 9470 of 2014 Petitioner :- Smt.Chawali (Habc 594/2012 Now P.I.L.) Respondents :- State Of U.P. and others Counsel for Petitioner :- K.K.Tewari,Amrendra Kumar Singh,Anil Kumar Tripathi,Chandra Prakash Singh,Dinesh Kr. Ojha,Farhan Alam Osmany,Km. Vishwa Mohini,Rajesh Kumar Verma,Satyendra Nath Rai,Vimal Kumar,Vinod Kumar Counsel for Respondents :- G.A., Atul Verma, Dharmendra Kumar Mishra,Mohd. Ifran Siddiqui,Shishir Pradhan,Sunita Jaiswal connected with Special Appeal (D) No.32 of 2014, Writ Petition (U/s 482) No.2666 of 2013 and Writ Petition No.299(H/C) of 2014 Hon'ble Devi Prasad Singh, J Hon'ble Amreshwar Pratap Sahi, J Hon. Ajai Lamba, J (Per Devi Prasad Singh, J)
1. I have privilege to read the judgment, prepared by Justice A.P. Sahi and Justice Ajai Lamba. I am in respectful agreement with the judgment of Justice A.P. Sahi and the opinion expressed thereon with regard to all the questions framed by the Bench and finding recorded except the answer given to Issue (F) in regard to judgment pronounced in open Court on 19.9.2014 and the power of Hon'ble Chief Justice with regard to withdrawal of part-heard and tied up cases. With regard to finality of judgment, I am in respectful agreement with Brother Justice Ajai Lamba.
At the same time, I feel it proper to record my own reasoning on the issues dealing with live-in relationship which results into culmination of marriage between the parties, public interest vis-a-vis Public Interest Litigation, part-heard and tied up matters and power of Hon'ble Chief Justice with regard to withdrawal of cases.
Brother Justice A.P. Sahi has elaborately dealt with the factual matrix on record while giving answers with regard to the questions agreed by me, hence need not be elaborated in detail. Since Hon'ble Chief Justice has referred the entire case to decide on merit, hence observation may be made and finding recorded on related issues also.
(I) MARRIAGE AND LIVE-IN RELATIONSHIP
2. It is admitted at Bar that a First Information Report was lodged against Tabrez Alam on 3.7.2013 under Sections 363/366 I.P.C under Crime No.335 of 2013. The girl Shameeha Khatoon was recovered on 4.7.2013 and medically examined at Balrampur Hospital, Lucknow on 6.7.2013. According to medical report dated 10.7.2013, she was aged about 14-16 years. She was sent to Protection Home, Faizabad on 14.7.2013 by the Chief Judicial Magistrate. The Medical Board re-examined Shameeha Khatoon on 21.10.2013 assessing her age about 18 years. In pursuance to the order passed by a Division Bench of this Court, another Medical report was prepared on 17.9.2014 by a Board constituted by King George's Medical University, Lucknow giving opinion with regard to the age as about 18 years. Tabrez Alam was arrested on 17.7.2013. His bail was rejected on 25.7.2014. High Court granted bail to Tabrez Alam on 31.10.2013, in pursuance to which he was released from jail on 14.11.2013. On the same day, it is alleged that Nikah ceremony took place at the residence of Tabrez Alam. As a follow-up action, in the Voter List dated 31.1.2014 of village Vijai Nagar, name of Shameeha Khatoon was recorded as wife of Tabrez Alam at serial No.994.
Thus, from 3.7.2013 to the date of Nikah, i.e. 14.11.2013, Shameeha Khatoon and Tabrez Alam lived together (except the period when Tabbrez Alam was in jail) under the shadow of "live-in relationship". They are alleged to have become husband and wife only on 14.11.2013. Whatever crime under Penal Law Tabrez Alam has committed may be into two parts, firstly the period during which Tabrez Alam absconded along with Shameeha Khatoon and passed life under the garb of live-in relationship and secondly, subsequent to alleged Nikah ceremony having taken place on 14.11.2013. However, this aspect of the matter is to be looked into by the Investigating Agency in pursuance to the First Information Report lodged.
3. We have heard Mr. Z. Zilani, learned Addl. Advocate General, assisted by Chaudhary Shatrughan, learned Additional Chief Standing Counsel on the question of marriage and according to him under the Muslim Personal Law marriage is based on 'offer' and 'acceptance' and since both have agreed before the Court that they have married together (supra), no doubt should be raised thereon. One good sign we have noticed is that the father Maseeuddin has proposed to solemnise formal marriage in accordance with Muslim rituals which we left over to them on the basis of mutual agreement.
4. Legitimacy of pre- marriage relationship of Tabrez Alam is based on the judgment of Apex Court reported in AIR 2006 SC 2522 Lata Singh versus State of U.P and another with submission that since both of them have attained majority, they have right to live together according to their own wish. On the other hand, father Maseeuddin submits that according to his own customs, usages and traditions, marriage is to be solemnised in accordance with Muslim Personal Law and unless the marriage is solemnised as such, he has right to take care of his child.
5. The court is flooded with such cases where boys and girls from all castes, communities and religions are leaving their houses to live together claiming their constitutional right in view of the case of Lata Singh (supra) and the society is struggling to save its family culture, traditions, customs and usage having fear in mind that the girls of their family may be ill-treated or deserted by the boys or forcibly, converted to other religions or may be thrown into prostitution, oiled by money or sometime they may be sold to foreigners and deported outside country.
6. Lata Singh (supra) says, to quote :
"This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he /she likes. If the parents of the boy or girl do not approve of such inter- caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage."
7. The doubt in the mind of guardians is not based on unfounded facts. 150 lacs children are kidnapped every year in India. According to National Crime Record Bureau (2013), the total crime against women comes to 309546, out of which only 22.4% result into conviction. The National Crime Record contains the data of only reported cases. In case we add unreported cases, it may come to many fold.
8. The increase of sex related crime and desertion broadly by male during the course of live-in relationship or crime committed thereon resulting in loss of grace and dignity of life to a lady has been a matter of concern to sociologists as well as psychologists. Majority of research is based on living style in western society which depends on individualistic way of life. H.L. Kaila in his book, "Introduction to Psychology" referred the research work done with regard to certain women, involved in prostitution for variety of reason. To quote relevant portion :
"Numerous investigations agree that a great many young girls let themselves be deflowered by the first corner and thereafter find it quite natural to yield to anyone.
Dr. Bizard investigated one hundred prostitutes and obtained the following data : one had lost her virginity at the age of eleven, two at twelve, two at thirteen, six at fourteen, seven at fifteen, twenty-one at sixteen, nineteen at seventeen, seventeen at eighteen, six at neneteen; the rest after the age of twenty-one. Thus five percent had been violated before puberty. More than half said they gave themselves for love, because they wanted to; the others had yielded through ignorance. The first seducer is often young. Usually it is a fellow worker in shop or office, or a childhood companion; next in frequency come soldiers, foremen, valets, and students."(page 110 from Introduction to Psychology by H.L. Kaila).
While referring the research of Dr. Bizard, learned author(supra) further observed as under :
"These girls who have yielded passively have none the less undergone the trauma of defloration, we may be sure; it would be desirable to know what psychological influence this brutal experience has had on their futures; but it is not customary to psychoanalyze prostitutes, and they are not good at self-description, usually talking taking refuge in cliches. In certain cases the readiness to give themselves to the first corner is to be explained by the prostitution-fantasies for there are many very young girls who imitate prostitutes from resentment against their families, from horror of their dawning sexuality, or from a desire to act the grown-up. They use heavy make-up, associate with boys, act coquettishly and provocatively. Those who are still childish, non-sexual, cold, think they can play with fire in safety; one day some man takes them at their word, and they slip from dreams to acts.
When a door has once been broken open, it is hard to keep it shut, said a young prostitute of fourteen, quoted by Marro. A young girl, however, rarely decides to go on the town immediately after her defloration. Sometimes she remains attached to her first lover and goes on living with him; she takes a 'regular' job; when her first lover abandons her, she consoles herself with another. Now that she no longer belongs to one man, she feels she can give herself to all; sometimes it is her lover the first or the second - who suggests this way of earning money." (page 110 & 111)
9. Not only prostitution but sometime as a result of 'live-in relationship', a woman faces deportation outside the country or involvement in commission of crimes. It is not that every live-in relationship may result with ill-consequences. There are instances of good family life but that depends up the facts and circumstances of each case. However, Courts have no parameter to find out the intent of boys and girls who are involving themselves in live-in relationship.
10. The psychologists feel that the community notification practices are better policy to check the recidivism of sex offences. To quote :
"Community notification is a very popular social policy, largely because of the belief that sex offenders have alarmingly high recidivsm rates. In actuality, sex offense recidivism is lower than commonly believed. Studies by the U.S. Department of Justice and the Canadian governments suggest that 5% to 14% of sex offenders are re-arrested for new sex crimes within a 3- to 6-year follow-up period. Longer follow-up studies have found that after 15 years, the vast majority (about three quarters) of convicted sex offenders had not been re-arrested for a new sex crime. All these studies involved very large sample sizes ranging from about 4,700 to 29,000 subjects." (page 723-724, Encyclopedia of Psychology & Law by Brian L. Cutler, Vol. 2)
11. It is not so that female and sometime male may face sexual abuse by person only once or twice but sex offenders may keep on committing the crime unless they are apprehended by the grip of law. Recidivism means repetition. Recidivism of sex offenders has been noted by learned author (supra) in the Encyclopedia of Psychology & Law (supra) as under :
"One study found that rates of sexual re-offense for incest offenders (those who offend against family members ) ranged between 4% and 10%; rates of sexual recidivsm for child molesters with female victims ranged between 10% and 29%; rates of sexual recidivism for child molesters with male victims ranged between 13% and 40%; rates of sexual recidivism for rapists ranged between 7% and 35%' and rates of sexual recidivism for exhibitionists (those who expose themselves in public) ranged between 41% and 71%."
Numerous studies have examined recidivism rates for rapists. Rates of sexual recidivism for rapists have ranged between 11% and 28% over 5 years. Researchers have postulated that these discrepancies in recidivism rates could be attributed to the fact that there are different types of rapists (such as those who are mentally disordered vs. those on probation) and the differential length of follow-up.
It should be noted that there have been some contradictory findings regarding sex offender typologies and risk for re-offending in the racidivism literature. Many studies, including Hanson and Bussiere's meta-analysis, have found higher sexual recidivism rates for rapists conpared with child molesters, with incest offenders having the lowest rate of re-offense of all categories of sex offenders. However, one study found that over a 25-year period, child molesters had a higher rate of re-offense than rapists (52% vs. 39%). In this study, recidivism was recorded as any new re-arrest that could inflate recidivism statistics. Another factor that should be considered when examining sex offender typologies and recidivism is that there is some evidence that sex offenders may not be stable in their victim choice, and there could be crossover (e.g., a child molester with male victims, could offend against a female) in victim age and gender."
Learned author (supra) identified 14 circumstances of actuarial scale designed to predict violent, sexual recidivism among men who have committed at least one previous hands-on sexual offense. To quote :
"The Sex Offender Risk Appraisal Guide (SORAG) is a 14-item actuarial scale designed to predict violent, including hands-on, sexual recidivism among men who have committed at least one previous hands-on sexual offense.
The items on the scale are the following :
1. Lived with both biological parents until age 16
2. Elementary school maladjustment
3. History of alcohol problems
4. Never been married at time of index offense
5. Criminal history score for nonviolent offenses
6. Criminal history score for violent offenses
7. Number of convictions for previous sexual offenses
8. History of sexual offenses only against girls below 14 years of age (negatively scored)
9. Failure on prior conditional release
10. Age of index offense (negatively scored)
11. Diagnosis of any personality disordered
12. Diagnosis of schizophrenia (negatively scored)
13. Phallometric test results indicating deviant sexual interests
14. Psychopathy Checklist (Revised) score." (page 729 Encyclopedia of Psychology & Law, Vol. 2)
12. Apart from above, male or female (boys or girl) may suffer from psychological disorder like autism, schizophrenia and other alike disease with immaturity to understand their own well being. Lata Singh's case (supra) does not lay down any guideline or condition to understand the intelligence quotient or mental status or level of maturity of male or female who wants to live together.
13. In such scenario, question cropped up is whether Lata Singh (supra) requires second look by the Hon'ble Supreme Court ? What safeguard should be provided and how the 'individual right' and 'right of family', 'traditions', 'customs' and 'usage' should be balanced is a question which may require second look by the Supreme Court(supra). However, this does not fall within our domain.
14. The Court may take note of the fact that life style, social norms, tradition, customs and usage in the Indian Sub Continent are almost different than Western countries. In Western countries, the individual right is based on the development taken place under the historical background during last few hundred years of their civilization. On the other hand, in Indian Sub Continent, particularly in India, the right of family to nourish, educate, bring up and make children (boys and girls) good citizen as a member of family unit is based on thousand years of civilizational experience and the customs and traditions developed thereon.
15. Art. 13 of the Constitution of India declares customs and usage as "laws in force". For convenience, Art. 13 is reproduced as under :
"13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void, (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void (3) In this article, unless the context otherwise requires,-"
(a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
[(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.]
16. On the other hand, Articles 14 and 21 extend equal protection of law, individual right of life and liberty, read with Art. 19 which we shall deal with in the later part of present judgment. According to P Pramanatha Aiyar's The Major Law Lexicon, 4th Edition 2010, Volume 2 page 1698, custom has been defined as under :
"Custom. A custom to be valid must not be contrary to justice, equity or good sense. It must not have been declared to be foid by any competent authority nor would contravene any express provision of the law. It must also be ancient, certain and invariable. A custom may either be general or special. It may be proved or disproved in any of the following ways :
(1) By the opinion of persons likely to know of its existence or having special means of knowledge thereof.
(2) By statements of persons who are ead or whose attendance cannot be procured without unreasonable delay or expenses, provided they were made before, any controversy as to such custom arose, and were made by persons who would have been or likely to have been aware of the existence of such custom if it existed.
(3) By any transaction by which the custom in question was claimed, modified, recognised, asserted, or denied or which was inconsistent with its existence.
(4) By particular instances by which the custom was claimed, recognised, or exercised, or knowledge of its exercise was disputed, asserted or departed from.
A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm. A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin; and, fourthly, it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect."
17. Incidentally, in England, custom has been defined not as a source of law but it becomes law itself and English people are proud of their customs. Custom has been defined as under :
"Is a law not written, established by long usage, and the consent of our ancestors. No law can oblige a free people without their consent : so wherever they consent and use a certain rule or method as a law, such rule etc., gives it the power of a law, and if it is universal, then it is common law : if particular to this or that place, then it is custom. (3 Salk. 112; Tomlin). Custom is one of the most triangles of the laws of England; those laws being divided into Common Law, Statute Law, and Custom: (Page 1698, The Major Law Lexocon, 4th Edition 2010).:
18. Supreme Court of India in a case reported in AIR 1952 SC 23 Thakur Gokalchand versus Parvin Kumari held that a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions.
Again the Supreme court in (2006)13 SCC 627 Bhimashya versus Janabi held that though 'custom' has the effect of overriding law which is purely personal, it cannot prevail against a statutory law, unless it is thereby saved expressly or by necessary implication.
19. In (2008) 13 SCC 119 Salekh Chand versus Satya Gupta, their Lordships of Supreme Court held that 'custom' is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Custom cannot be extended by analogy. One custom cannot be deduced from another. It cannot be a matter of theory but must always be a matter of fact. It cannot be enlarged by parity of reasoning.
20. According to Herbert W. Horwill, the Usages of the American Constitution 22(1925), "A 'usage' is merely a customary or habitual practice; a 'convention' is a practice that is established by general tacit consent. 'Usage' denotes something that people are accustomed to do; 'convention' indicates that they are accustomed to do it because of a general agreement that is the proper thing to do (Page7027 from P.Ramanatha Aiyar's The Major Law Lexicon, 4th Edition 2010)
21. In Commr., H.R.C.E. (Admn.) v. Vedantha Sthapna Sabha, (2004) 6 SCC 497, 512, para 24, Supreme Court held that "The concept of long continuance and passage of time is inbuilt in the expression 'usage'.
22. In view of above, customs, usage have force of law subject to limitation of Fundamental Right (Part III of the Constitution) accruing to the citizens. Art. 21 confers Fundamental Rights to citizens having different facets of life like right to live quality of life, dignity of life, right of human living, right of privacy etc vide (2003)6 SCC 1 Kapila Hingorani versus State of Bihar. Right flowing from Art. 19 confers different rights which relate to association, movement, trade, profession etc.
23. In AIR 1951 SC 128 Keshavan Madhava Menon versus State of Bombay, their Lordships of Hon'ble Supreme Court by majority (Bench of seven Hon'ble Judges) ruled that Art. 13(1) is prospective in its operation. Hon'ble Justice Das in his leading judgment further ruled that Art. 13(1) has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
However, Justice Mehr Chand Mahajan while reiterating the aforesaid proposition further added that rule of justice, equity and good conscience apply even if a provision becomes void, to quote :
"It is also unnecessary to examine the country the further argument of the elarned Attorney-General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by Section 6 of the General Clauses Act, 1868, and that though in express terms that statute may not be applicable to the construction of Article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by reason of their being repugnant to the Constitution."
In [1962] Supp. 3 S.C.R. 724 Bhau Ram versus B. Baijnath Singh, Hon'ble Supreme Court considered Art. 13(3) with regard to importance of customs and usage.
24. In AIR 1965 SC 314 Sant Ram and others versus Labh singh and others, a Constitution Bench of Hon'ble Supreme Court considered the words "custom and usage" as provided in Art. 13 in the following words, to quote :
"There are two compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such ways that none of the things mentioned in the first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the State and custom or usage is not made by the State. If the first definition governs only clause (2) then the words "custom or usage", would apply neither to clause (1) nor to clause (2) and this could hardly have been intended. It is obvious that both the definitions control them meaning of the first clause of the Article. The argument cannot, therefore, be accepted. If follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the Constitution and the determination of this Court in Bhau Ram's case".
25. In (1996)5 SCC 125 Madhu Kishwar and others versus State of Bihar and others, a three Judge Bench of Hon'ble Supreme Court has reiterated the aforesaid proposition of law but with different words. While reiterating the Fundamental Right of citizens with regard to justice to individual as one of the highest interest of democratic State, their Lordships held that the judiciary cannot protect the interests of common man unless it redefines the protections of the Constitution and the common law and it should adapt itself to the needs of the changing society and be flexible and adaptable. It has been held that the intent of Articles 38, 39, 46 and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the Preamble of the Constitution. They constitute the core foundation for economic empowerment and social justice to women for stability of political democracy. Their Lordships held as under :
"Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is a foundation on which the potential of the society stands. In Sheikriyammada Nalla Koya v. administrator, Union Territory of Laccadives, Minicoy and Amindivi Islands K.K. Mathew, J., as he then was, held that customs which are immoral are opposed to public policy, can neither be recognised nor be enforced. Its angulation and perspectives were stated by the learned Judge thus :
It is admitted that the custom must not be unreasonable or opposed to public policy. But the question is unreasonable to whom? Is a custom which appears unreasonable to the Judge be adjudged so or should he be guided by the prevailing public opinion of the community in the place where the custom prevails? It has been said that the Judge should not consult his own standards or predilections but those of the dominant opinion at the given moment, and that in arriving at the decision, the Judge should consider the social consequences of the custom especially in the light of the factual evidence available as to its probable consequences. A judge may not set himself in opposition to a custom which is fully accepted by the community.
But I think, that the Judge should not follow merely the mass opinion when it is clearly in error, but on the contrary he should direct it, not by laying down his own personal and isolated conceptions but by resting upon the opinion of the healthy elements of the population, whose guardians of an ancient tradition, which has proved itself, and which serves to inspire not only those of a conservative spirit but also those who desire in a loyal and disinterested spirit to make radical alterations to the organisations of existing society. Thus, the judge is not bound to heed even to the clearly held opinion of the greater majority of the community if he is satisfied that opinion is abhorrent to right thinking people. In other words, the judge would consult not his personal inclinations but the sense and needs and the mores of the community in a spirit of impartiality."
26. Customs, usage and traditions developed in pursuance to thousand years of experience of mankind in a particular society have got its own importance. It should be normally not interfered unless it is against the Constitutional mandate or statutory provisions. A great American author Benjamin N. Cardozo while considering logic, history and custom of a given society in his famous treatise, "The Nature of the Judicial Process", observed as under :
"The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. "Ethical considerations can no more be excluded from the administration of justice which is the end and purpose of all civil laws than one can exclude the vital air from his room and live. Logic and history and custom have their place. We will shape the law to conform to them when we may; but only within bounds. The end which the law serves will dominate them all. There is an old legend that on one occasion God prayed, and his prayer was "Be it my will that my justice be ruled by me mercy." That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order." (page 66) Roscoe Pound, a great Jurist of his time in his book, "an Introduction to the Philosophy of Law" has reiterated the aforesaid proposition and further held that there are two requirements to determine the philosophical thinking about law. According to Roscoe Pound (supra), to quote :
"On the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual willfulness and assure a firm and stable social order. On the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security and of making continual new compromise because of continual changes in society have called ever for readjustment at least of the details of the social order. They have called continually for overhauling of legal precepts and for refitting them to unexpected situations. And this has led men to seek principles of legal development by which to escape from authoritative rules which they feared or did not know how to reject but could no longer apply to advantage. These principles of change and growth, however, might easily prove inimical to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order."
Learned author cited an exhortation addressed by Demosthenes to an Athenian jury as to why men obey the law. To quote :
"Men ought to obey the law, he said, for four reasons : because laws were prescribed by God, because they were a tradition taught by wise men who knew the good old customs, because they were deductions from an eternal and immutable moral code, and because they were agreements of men with each other binding them because of a moral duty to keep their promises."
27. The report coming from different walks of life seems to show that there is diversion towards live-in relationship by a substantial section of men and women ignoring importance of the institution of marriage necessary for orderly society. This tendency seems to have increased after Lata Singh's case (supra).
28. Marriage and sonship constitute some of the unique chapters in the litera legis of ancient Hindu Law. As early as the time of Rig-Veda marriage had assumed the sacred character of sacrament, and sanction of religion had heightened the character and importance of the institution of marriage.
29. The Rig-Veda pronounces some impressive texts:
After completing the seventh step (Saptpadi) the bridegroom said: "with seven steps we have become friends (sakha). May I attain to friendship with thee: May I not be separated from thy friendship." Satpatha Brahamna speaks of the wife as the half of one's self-Ardho ha va esha atmano.
30. The basal thought was that marriage was a prime necessity for that alone could enable a person to discharge properly his religious and secular obligations. The earliest records shows that rules of inheritance depended on the rules of marriage and it was obligatory on the father to give the daughter in marriage, as gifts are given. The Smiritis deals with the subject of marriage with meticulous care and make fascinating study. Apastamba has stated that from time of marriage the husband and wife were united in religious ceremonies and likewise in rewards of acts of spiritual merit.
31. Marriage is necessarily the basis of social organization/ order and foundation of some important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu Law marriage is treated as a "sanskara" or a sacrament. It is the last of ten sacraments, enjoyed by the Hindu religion for regeneration of men and obligatory in case of every Hindu who does not desire to adopt the life of sanyasi. From the very commencement of Rig-Vedic age, marriage was a well established institution, and the Aryan ideal of marriage was very high. Monogamy was the rule and the approved rule, though polygamy existed to some extent. In Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized.
32. The high value placed on marriage is shown by the long and striking hymn of Rig-Veda, X, 85; "Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father -in -law's household. May all the Gods unite the hearts of us two into one". The wife on her marriage was at once given an honoured position in the house. She was mistress in her husband's home and where she was the wife of the eldest son of the family, she exercised authority over her husband's brothers and his unmarried sisters. She was associated in all the religious offerings and rituals with her husband. As the old writers put it," a woman is half her husband and completes him". Manu in impressive verses, exhorted men to honour and respect woman. Woman must be honoured and adorned by their fathers, brothers, husbands, and brothers- in-law who desire their own welfare. Where women are honoured, there gods are pleased; but where they are not honoured, no sacred rite yield rewards." The husband receives wife from gods, he must always support her while she is faithful". "Let mutual fidelity continue until death. This may be considered as the summary of the highest law for husband and wife."
33. According to Hinduism, marriage between two souls is a very sacred affair that stretches beyond one lifetime and may continue to at least seven lives. The relationship between the two does not necessarily have to begin only when they have attained birth as human beings. The gender of the two partners also does not have to the same in all the births. As the stories in purans confirm, two individual souls may come together any time during their existence upon earth, even when they assume a lower life from, such as that of any animal or bird, and carry forward their relationship further into higher life forms such as that of human beings. Once married, a couple is expected to uphold their family names by remaining faithful and truthful to each other and by enacting their respective roles as laid out in the Hindu law books.
34. According to beliefs of Hinduism, marriage is a sacred institution devised by gods for the welfare of human beings. Its primary purpose is procreation and continuation of life upon earth. Sexual union is intended solely for this purpose and should be used as such.
35. Its secondary purpose is upholding of the social order and the Hindu dharma, while its ultimate aim is spiritual union with the inmost self, which is possible when a couple perform their obligatory duties and earn the grace of god through their good karma. A man and woman are believed to come together as husband and wife primarily for spiritual reasons rather than sexual or material, although they may not be mentally aware of the fact. Once married, the couple is expected to carry out their respective traditional duties as house holders and upholders of family traditions and work of the material and spiritual welfare of each other the members of their family and also society.
36. The institution of marriage is also well recognised way of life in Christians and held to be a necessity for an orderly society. In marriage ceremony, the bride and groom conform that they want to marry each other and after the opportunity is given publicly for anyone present to prevent the marriage if there is a legal reason, the couple join hands and make promises. Ordinarily, marriage takes place in Church.
In a church service there are readings from the Bible which explain the nature and significance of marriage. The couple make promises to stay together 'for better, for worse; for richer, for poorer; in sickness and in health; to love and to cherish until death do us part'. It is a commitment for life, and not just for the times which are easy. Prayers are said for the newlyweds, which recognises both the joys and difficulties ahead, and ask God's blessing on the couple.
Thus, the purpose of marriage seems to create an orderly society in civilizational inputs for generations to come
37. Marriage in Muslims also developed from the very inception of the religion and has been continuing for more than 1400 years of its history to regulate the social order. Islamic marriage is based on procreation and its matrimonial rules revolve around its axis. It provides exclusive attachment of the wife and husband, rules of divorce and iddah, legitimacy and parentage, custody of children and their upbringing, inheritance and other related matters. According to Islamic Law, marriage is the only legal and honourable way of satisfying sexual desire, and the husband and wife by their union ensure the survival of mankind. The word "Zawj" has been used in holy Quran which means a pair or a mate. The general purpose of marriage is that the sexes can provide company to one another, procreate legitimate children and live in peace and tranquility to the commandments of Allah. Marriage serves as a mean to emotional and sexual gratification. Islam proclaims that when a man marries he shall fulfill half of his religion, so let him fear Allah regarding the remaining half. Thus, marriage is necessary for an organised society as well as social order. It is meant to avoid evil deeds and purging one's soul of sins.
38. Hon'ble Supreme Court rightly had declined to grant benefit over the property to a lady having live-in relationship in a case reported in [2008(4) SCC 520] Tulsa versus Durghatiya. However, Hon'ble Supreme Court granted share in the property of parents to the child born from live-in relationship vide (2010)11 SCC 483 Bharatha Matha and another versus R. Vijaya Renganathan and others.
39. In 1992 Supp(2) SCC 304 S.P.S. Balasubramanyam versus Suruttayan alias Andali Padayachi and others, Hon'ble Supreme Court held that man and woman continuously living together under the same roof and cohabiting for a number of years would raise presumption of living as husband and wife. Non-mentioning the name of the wife in the will and compromise deed under which share in the family properties devolved on her husband not relevant to destroy the presumption and cannot be held against legitimacy of the children of the spouse. Such children being legitimate is entitled to share in the properties devolving on their father by virtue of settlement thereof made by the father in their favour.
40. In (2000)2 SCC 431 Rameshwari Devi versus State of Bihar and others, Hon'ble Supreme Court held that the children born out of second marriage are legitimate though the marriage itself is void. Minor children from second marriage shall be entitled to family pension but not the second widow during survival of first wife/widow.
41. In (2006)9 SCC 612 Neelamma and others versus Sarojamma and others, Hon'ble Supreme Court held that illegitimate child cannot acquire or claim as of right any share in Joint Hindu family property but such child is entitled to share in self-acquired property of parents.
42. But there may be a situation where male and female, both may not have any property but the birth of a child has taken place on account of live-in relationship, then who shall take care of such boy or girl, borne from such relationship ? Result will be increase of foeticide. In such cases, the child will have no property to inherit and there shall be no one to provide shelter to grow up in a given society. This other side of coin has not been taken into account by any known judgment of courts.
43. Live-in relationship is an exception to an orderly society. Law must be in tune with civilization and orderly society. Even animals follow some rules to discipline their community keeping in view their ability and understanding.
Restrictions imposed by law, customs or traditions, unless they suffer from some unholiness or immorality, are necessary for an orderly society. Ultimate object of law is social welfare, public interest as well as orderly society.
44. Thus, Fundamental rights securing individual right of the citizens should be looked into under Indian perspective where, in case a 'grandpa' is sitting on a cot outside the house, no child will like to go outside without giving an information where he or she is going and for what purpose. The elder citizen has got right to ask question. Similarly, unsocial elements will not dare enter into premises of a boy or girl on account of elderly people who are guardians of their respective houses. Their advice, unless suffers from immorality or against statutory mandate, carries weight till a person resides with family.
45. In case we believe the newspaper's report, there appears to be no room for doubt that kidnapping and crime against women in different forms is rapidly increasing. In such situation, giving a go-bye to the rights of guardian of the family to keep the protective umbrella over the children or unemployed youth may result with disastrous consequences, more so when the law and order in majority of the States is not up to mark.
46. There is one other reason. India is a developing country and still suffering from rampant corruption and financial crunch. Unlike European countries or United States of America, it is not possible for the government to provide financial aid, shelter and protection to the new born babies, girls or boys of tender age or unemployed member of a family. In such a situation, any law laid down or step taken by the judiciary or by the Government to remove the family shelter/protection may be visited with ill consequences.
47. Needless to say that pornographic sites on Internet being opened to all and other related material are making young minds sensitive to sexual desire from tender age. In such situation, decision may be ill-founded while choosing a friend for the purpose of marriage or live-in relationship or for alike reasons. Incorrect decisions may result to throw the girls for prostitution or indulge into flesh trade with ill-consequences. Accordingly, Lata Singh (supra) may not be applicable to the minors and the primacy may be given to the wishes of guardians and family unit. Even for grown up children, boys or girls while applying Lata Singh(supra), courts have to ascertain the mental maturity of the boys and girls as well as mitigating facts and circumstances and opinion of the police and intelligence to ascertain whether relationship has been developed with certain allurement or for oblique motive ? The antecedents of boys and girls should be verified from appropriate agency. In case the material on record establishes that the relationship has been developed with oblique motive and girls or boys are likely to suffer from ill-consequence, then wishes of the family and guardians may be taken into consideration, and the courts' approach should be cautious.
It is necessary to secure and protect the boys and girls of tender age from mal relationship or oblique purposes to safeguard their dignity and quality of life which is part and partial of Art. 21 of the Constitution.
(II) PUBLIC INTEREST AND PUBLIC INTEREST LITIGATION
48. Art. 226 confers wide power to the High Court to deal with any subject under writ jurisdiction to secure public interest. Constitutional framers have consciously used the words "for any other purpose" while conferring power to issue writs.
Though extraordinary power conferred under writ jurisdiction should be exercised sparingly, cautiously and under exceptional situation but it does not mean that the courts should be mute spectator to the commission and omission of the Government impairing public interest. That is why it is well settled that the power conferred to the High Court under Art. 226 of the Constitution of India is wider than that of the Supreme Court and is not confined to Fundamental Right but extend to all cases where breach of a right is alleged or brought to the notice of the court vide (1952) SCR 28 State of Orissa versus Madan Gopal Rungta, AIR 1962 SC 1044 Calcutta Gas Company (Proprietary) Limited versus State of West Bengal, 2013(99) ALR 76 Banglore Development Authority versus M/s. Vijaya Leasing Limited, (1999)2 SCC 60 Mewa Singh versus Shiromani Gurudwara Prabandhak Committee and AIR 1966 SC 81 Dwarika Nath versus Income Tax Officer.
Power conferred to court under Art. 32 or 226 of the Constitution of India is both protective and remedial vide 1990(1) SC S.M.D. Kiran Pasha versus Govt.of Andhra Pradesh.
49. Subject to above, question cropped up that while dealing with private individual dispute whether the court could have travelled beyond it to secure public interest ? The Division Bench converted the private litigation into PIL. Question cropped up whether every public interest should be dealt with under the guise of Public Interest Litigation or courts have got power to secure public interest while deciding private dispute ? Needless to say that a Public Interest Litigation is a matter where the litigant approaches this Court fulfilling required conditions to secure public interest, or the court itself suo moto registers a petition under Rules of the Court to deal with public interest. Apart from these two situations, the third one is that while deciding a private dispute, the court deals with public interest and passes some order or issue some direction to secure public interest.
50. Whenever the Court itself takes suo moto action and register a case under the guise of PIL, then conditions laid down by Hon'ble Supreme Court with regard to PIL in the case reported in (2010)3 SCC 402 State of Uttaranchal versus Balwant Singh Chaufal and others do not seem to be applicable. The conditions govern the filing of a petition by the litigants and not the court itself where suo moto action is taken. Similarly, in a given case, in case the court exercises its power to secure public interest on its own with the related matter before it, then there appears to be no hurdle in the way of the Court to decide the private dispute as well as deal with public interest while exercising jurisdiction conferred by Article 226 of the Constitution.
51. This question has been dealt with by a Division Bench of this Court in a case reported in 2011(7) ADJ 1169 Devendra Pratap Singh and others versus Union of India while dealing with NRHM matter. The judgment was delivered by one of us (Justice Devi Prasad Singh) on behalf of the Bench after considering pronouncements of Hon'ble Supreme Court whereby their Lordships held that while dealing with private dispute, the courts may secure public interest without converting the petition into Public Interest Litigation. SLP filed against the judgment has been dismissed by Hon'ble Supreme Court. Relevant portion from the judgment of Devendra Pratap Singh (supra) is reproduced as under :
"25- It shall be appropriate to deal with the argument advanced by the learned counsel for the State with regard to private dispute vis-a-vis public interest litigation. Submission is that since the public interest is involved, the writ petition shall be deemed to be Public Interest Litigation. The argument advanced by the learned State counsel seems to be misconceived.
Public interest is a new branch of law and it has acquired a significant degree of importance in the jurisprudence practised by higher judiciary in India. The strict meaning given to aggrieved party to English and American Court to get its jurisdiction has been considerably liberalized by the Hon'ble Supreme Court to secure public interest. The Discretionary meaning of word litigation is as under:-
26- In Blacks Law Dictionary the word 'Litigation' has been described as under:-
"Litigation:- The process of carrying on a lawsuit 2. A lawsuit itself litigate, vb.--litigatory, litigational, adj.
Complex litigation. Litigation involving several parties who are separately represented, and usu. Involving multifarious factual and legal issues.
"What exactly is 'complex litigation? The problem is that no one really knows-or, more accurately perhaps, various definitions do not agree. Complex civil litigation has an 'I know-it-when-I see-it' quality. Nearly everyone agrees that matters like the massive asbestos litigation, the AT & T antitrust suit, or the remedial phase of a school desegregation case are complex. But trying to find a common thread that both describes these cases and distinguishes them from the run of the mill car crash is difficult." Jay Tidmarsh & Roger H. Transgrud, Complex Litigation"
27- The Word and Phrases Permanent Edition 25 A contains definitions of 'Litigation'. Some of them as as under:-
"D. Mass. 1934. Proceeding in which referee set aside preferential mortgage securing claim filed more than six months after adjudication and allowed claim as unsecured claim held "litigation" so as to permit proving claim in bankruptcy, notwithstanding that trustee did not institute proceeding to set aside mortgage and creditor did not contend for its validity, since referee determined validity of mortgage which was good until adjudicated viodable (Bankr. Act 57n, 11 U.S.C.A. 93 (n). In re Leominster Steam Laundry Co., 7 F. Supp. 849- Bankr. 2897.1.
W.D. Wis. 1966. Proceeding by motor carrier before Wisconsin Public Service Commission did not constitute "litigation" within meaning of provision of Interstate Commerce Act that in case of any person who on October 15, 1962 was in operation solely within single state as common carrier by motor vehicle in interstate commerce, and who was also lawfully engaged in such operations in interstate or foreign commerce under certificate exemption provisions, or who would have been so lawfully engaged in such operations but for pendency of "litigation" to determine validity of intrastate operations to extend such "litigation" is resolved in favor of such person, Commission shall issue certificate of registration authorizing continuance of transportation in interstate and foreign commerce if application and proof of operations are submitted. Interstate Commerce Act, 206 (a) (1,7 and (A), 49 U.S.C.A. 306 (a) (1, 7 and A)- Valley Exp., Inc. vs. U.S. 264 F. Supp. 1006 Commerce 85.29 (2)"
Ga. App. 1914. The term "litigation" as employed in section 5189 of the Civil Code 1895, Civ. Code 1910, 5776, in reference to admissions of defendants if fi. fa. is not confined merely to the determination of a possible issue which may arise after levy , between the plaintiff in fi. fa. And some possible claimant, but includes also the previous suit in which the fi. fa. Had its origin. A "levy" is nothing more than the special procedure or step in the suit by which the judgment may be made effective-Smith vs. Johnson, 80 S.E. 1051, 13 Ga App. 837.
Tex. App. Corpus Christi 1994. To determine applicability of privilege for expert reports obtained in anticipation of litigation "litigation" is strictly interpreted to mean institution of lawsuit in courts and does not include other aspects of claims negotiation and settlement outside context of filing of lawsuit. Vernon's Ann. Texas Rules Civ. Proc. Rule 166 b, subd. 3, par. b. Henry P. Robers Investments, Inc. vs. Kelton, 881 S.W. 2 d 952- Pretrial Proc 379.
28- What are the public interest factors require to be considered by the Court, has been defined as under:-
"N.D. lowa 2005. Under doctrine of forum non conveniens, if there is adequate alternative forum, court must balance number of factors in order to determine whether they outweigh deference ordinarily attended to plaintiff's choice of forum, the "public interest factors" are relative case of access to sources of proof, availability of compulsory process for attendance of unwilling, and cost of obtaining attendance of willing, witnesses possibility of view of premises, if view would be appropriate to action, and all other practical problems that make trial of case easy, expeditious and inexpensive, and "public interest factors" are administrative difficulties flowing from court congestion, forum's interest in having localized controversies decided at home, interest in having trial of diversity case in forum that is at home with law that must govern action, avoidance of unnecessary problems in conflicts of laws or application of foreign law, and unfairness of burdening citizens in unrelated forum with jury duty.--Pro Edge, L.P. vs. Gue, 374 F. Supp. 2D 711, motion denied 377 F. Supp. 2d 694, modified 411 F. Supp. 2d 1080- Fed Cts 45.
S.D.N.Y 1999. "Public Interest Factors" to be considered in determining whether to dismiss a case on forum non conveniens grounds, include (1) the interest in avoiding administrative difficulties arising from court congestion, (2) the interest in avoiding the unfair imposition of jury duty on citizens of an unrelated forum, (3) the local interest in having localized controversies decided at home, (4) the interest in having a diversity case tried in a forum that is at home with the law governing the case, the interest in avoiding unnecessary problems with the conflict of law, or the application of foreign laws, (5) the interest in cases which touch the affairs of many persons in insuring that those individuals will have access to the trial. In re Air Crash Off Long Island, N.Y. on July, 1996, 65 F. Supp. 2d 207 Fed Cts 45"
29- The "Public Interest Litigant" has been defined as given in Word and Phrases Vol. 35 is reproduced as under:-
"Alaska 2005:- For purpose of attorney fee award, a party is a 'public interest litigant' if (1) the case was designed to effectuate strong public policies, (2) numerous people would benefit if the litigant succeeded, (3) only a private party could be expected to bring the suit, and (4) the litigant lacked sufficient economic incentive to bring suit-Halloran vs. State, Div. Of Elections, 115 P. 3d 547 Costs 194.42.
Alaska 1995:- Party is "public interest litigant" not subject to award of attorney fees, if case is designed to effectuate strong public policies; if numerous people will receive benefits from lawsuit if plaintiff succeeds; if only private party can be expected to bring lawsuit; and if purported public interest litigant would have sufficient economic incentive to file suit even if action involved only narrow issues lacking general importance-Carr-Gottstein Properties vs. State, 899 P. 2d 136-Costs 194.42.
Alaska 1984:- Homeowners association, which appealed from decision of zoning board of examiners and appeals finding that use of private airstrip did not violate zoning laws, was a "public interest litigant" where appeal was designed to vindicate strong public policy in effectuating zoning ordinances, numerous people in area would have benefitted had it succeeded, only a private party could have been expected to bring appeal, and association emphasized health and safety to virtual exclusion of economic concerns, and thus, opposing parties were not entitled to attorney fees. Rules Civ. Proc. Rule 52 (a) Rules App. Proc., Rule 508 (e)-Oceanview Homeowners Ass'n, Inc. vs. Quadrant Const. And Engineering 680 P. 2d 793-Zoning 729.
The expression 'public interest litigation' has not been defined either in the Constitution or in the General Clauses Act or in any other statute. It is evolved by the Court broadly in the case reported in AIR 1982 SC 149 S. P. Gupta vs. Union of India.
30- In Stroud's Law Disctionary 4th Edition Vol. 4, Public Interest is defined as under:-
"Public interest- A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.
In Black's Law Dictionary, public interest has been defined as under:-
"Public interest- Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or so the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...."
The Supreme Court in the case reported in AIR 1993 SC 892 Janata Dal vs. H.S. Chowdhary defined the Public Interest Litigation as under:-
"Lexically the expression 'PIL' means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have a pecuniary interest or some interest by which their legal rights or liabilities are affected."
Aforesaid definition has been reiterated by the Hon'ble Supreme Court in the case reported in (2004) 3 SCC 349 Ashok Kumar Pandey vs. State of West Bengal, AIR 2004 SC 1923 B. Singh vs. Union of India and AIR 2002 SC 350 Balco Employees' Union vs. Union of India.
31- In a recent judgment reported in (2010) 3 SCC 402 State of Uttranchal vs. Balwant Singh Chaufal and others, Hon'ble Supreme Court after considering the ambit and scope of PIL and tracing out its history in the country, had summarized the ambit and scope of PIL in concluding para 181 of the judgment, which is re-produced as under:-
"Para 181:- We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgment. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL (5) The Courts should fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by the busybodies for extraneous and ulterior motives must be encourage by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
A plain reading of aforesaid mandate of Hon'ble Supreme Court shows that to consider the case under the gist of 'public interest' various conditions should be fulfilled out of which condition no. 7 provides that the Court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. The condition laid down and the observation made by the Hon'ble Supreme Court distinguishing the PIL from other cases so that a case could be treated as PIL ordinarily only in case, the case is entertained by the Court to secure public interest and not to deal with private interest. The Courts are not debarred to look into the public interest while dealing with the private interest matter. Merely because public interest is considered while deciding private interest, it shall not change the nature of the case. Things would have been different in case the Court itself feels that the public interest dominates the private respondent and the matter should be referred to PIL bench.
32- In the case of Guruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others reported in (2003) 7 SCC 546, the Hon'ble Supreme Court observed as follows:
However, in an appropriate case, although the petitioner might have moved a court in his private interest and for Redressal of personal grievances, the court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil Vs. Dr. mahest Madhav Gosavi).
33-- This view was further reiterated by the Hon'ble Supreme Court in (2005) 5 SCC 298, Ashok Lanka and another vs. Rishi Dixit and others, relevant paragraph 42 of which is being quoted below:
"Furthermore it is well settled that even in a case where a petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice (see Guruyayoo Devaswom Managing Committee v. C.K. Rajan, SCC para 50 and Prahlad Singh versus Col. Sukhdev Singh (1987) 1 SCC 727)."
The same view (supra) was again reiterated by Hon'ble Supreme Court in AIR 2003 SC 4531, General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. versus Satrughna Nishad.
34- Again similar matter cropped up for consideration before this Court in 2006 (4) A.D.J. 106 (All.) (Full Bench), Suo Moto Action Taken by the Court Versus I.C.I.CI. Bank Ltd. Allahabad and others. The Division Bench of this Court dealing with the habeas corpus petition framed certain issues of public importance involved in the case and referred the matter to Hon. The Chief Justice to register as P.I.L. to be decided by the appropriate court. The Chief Justice, Allahabad High Court constituted a Full Bench considering the case of Ashok Lanka and another (Supra). The Full Bench opined that in a matter the Court, while exercising power conferred under Article 226 of the Constitution of India with regard to private dispute, has got ample power to take suo-moto decision with regard to public interest and it shall not change the nature of the writ petition.
The expression "Public Interest Litigation" means a legal action initiated in a Court for enforcement of public interest. It is on this principle, Hon'ble Supreme Court interfered in the matter of appointment of judges commonly called as Additional Judges cases, that case is reported in AIR 1982 SC 149 S.P.Gupta vs. Union of India. The Court ruled that if because of illegal State action, the independence of judiciary is impaired, the lawyers would certainly be interested in challenging the constitutionality or legality of such action. The Hon'ble Supreme Court observed as under:-
Whenever there is public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such wrong or public injury (page 190).
heir lordships further proceeded to observe as under:-
"We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such duty and observance of such constitutional or legal provision."
While reiterating the necessity of PIL in India, Hon'ble Supreme Court observed as under:-
"If public duties are to be enforced and social collective "diffused" rights and interests are to be protected, we have to utilize the initiative and zeal of public minded persons and organizations by allowing them to move the Court and act for a general or group interest, even though, they may not be directly injured in their own rights."
35- Learned Chief Standing Counsel has relied upon the judgment reported in [2010 (8) ADJ 631 (FB)] Smt. Maya Dixit and others vs. State of U.P. and others and (2010) 10 Supreme Court Cases 320 State of Uttar Pradesh and others vs. Neeraj Chaubey and others.
In the case of Maya Dixit, the dispute relates to pending matter where the division bench has framed the issue with regard to hazard and damage caused because of irregular and unsystematic mining. Hon'ble Single Judge (Justice Rakesh Sharma) passed an interim order staying the consequential order passed by the State Government in pursuance to interim order in a pending writ petition and referred the matter to larger bench. The issue was decided in the case of Maya Dixit (supra) and the full bench had rejected the reference and referred the matter back to the Division Bench with the observation that in case the dominant purpose of writ petition and nature of case is converted into public interest litigation, then keeping in view the roaster assigned by the Chief Justice, the matter may be referred to PIL bench. The full bench reiterated the right of Hon'ble Chief Justice. As a matter of fact, no finding has been recorded by the full bench with regard to cases where public interest cropped up while adjudicating the private dispute and whether in every case such petition should be referred to PIL Bench. The full bench has not considered the various pronouncements of Hon'ble Supreme Court including the case of Guruvayoor Devaswom Managing Committee and another (supra). Accordingly, broadly the issue before the full bench was the primacy of Hon'ble Chief Justice in regulating the roaster and accordingly allocation of work and compliance thereof by the judges discharging their obligations. Accordingly, the full bench judgment does not seem to be applicable in the facts and circumstances of the case.
36- In the case of Neeraj Chaubey (supra) also broadly the issue was with regard to primacy of Hon'ble Chief Justice to provide roaster being the master of roaster. The Hon'ble Supreme Court observed that in case application is filed and the bench comes to the conclusion that it involves some issue relating to public interest, the Court may in its discretion direct the Registry to place it before the Bench which has got jurisdiction to entertain PIL in accordance to rule and roaster. Thus, at the face of record it is for the court to decide whether the nature of writ petition has been changed to public interest litigation and the matters may be relegated to PIL bench. Hon'ble Supreme Court had not held that while deciding the private interest public interest cannot be looked into.
37- The law laid down by the Hon'ble Supreme Court in the case of Guruvayoor Devaswom Managing Committee and another and Ashok Lanka (supra) and earlier full bench of this Court in the case of I.C.I.CI. Bank Ltd. Allahabad and others and Ashok Lanka (supra) has not been considered.
In view of discussion made here-in-above, there appears to be no good ground to treat the present writ petition as PIL as it relates to the continuance of service under the NRHM Scheme. While deciding the issue, the Court is not precluded to look into the public interest for the end of justice. Learned Chief Standing Counsel could not take into account earlier judgments of Hon'ble Supreme Court and other full bench while advancing the argument. Apart from above, the judgment of Guruvayoor Devaswom Managing Committee and another (supra) has been decided by a Bench consisting of Hon'ble Three Judges of Supreme Court which has been followed in the case of Ashok Lanka (supra) by the Hon'ble Supreme Court. Accordingly, submission of learned Chief Standing Counsel does not seem to be sustainable and the nature of writ petition is not substantially changed and the dominant purpose is to maintain the petitioners' continuity in service and the Court is not precluded to look into public interest.
The judgment relied upon by the learned Chief Standing Counsel i.e. the case of Neeraj Chaubey (supra) has been delivered in a Bench of of Hon'ble two judges, hence keeping in view the principle of stare decisis, larger bench judgment shall have binding effect, though as observed (supra) the case of Neeraj Chaubey (supra) also does not extend any help as the Hon'ble Supreme Court had left it for the Bench to exercise option to convert the writ petition into public interest litigation and then direct the Registry to place it before the Bench dealing with PIL matters."
52. In one other case reported in (2008)12 SCC 541 Indian Bank versus Godhara Nagrik Cooperative Credit Society Limited and another, Hon'ble Supreme Court has reiterated the aforesaid proposition of law and observed as under :
"40. We would accept the proposition of law as propounded by this Court in Guruvayoor Devaswom Managing Committee versus C.K. Rajan. In that case, it was, inter alia, observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation."
53. Power conferred on the Constitutional Courts to deal with public interest even while dealing with private dispute is based on power conferred to writ courts by Common Law of England, followed by different pronouncements of Hon'ble Supreme Court while dealing with power flowing from Art. 226 or Art. 32 of the Constitution of India.
54. In a case reported in (2012)1 SCC 10 Jaspal Singh versus State of Punjab, their Lordships of Supreme Court have reiterated the old phrase that extraordinary situations demand extraordinary remedy. This includes Constitutional right of Constitutional court to secure public interest while dealing with private dispute. In Jaspal Singh's case (supra), Hon'ble Supreme Court reiterated that the Courts cannot be a silent spectator where sprinkling facts warrant interference in order to serve the interest of justice. Constitutional framers had consciously added the word, "for any other purpose" while conferring power to writ Court under Art. 226 of the Constitution of India.
55. We reiterate the aforesaid proposition of law and hold that the Single Judge or the Division Bench or a Larger Bench of this Court has got the right to deal with public interest and secure the public interest without converting the petition into PIL. However, it shall depend on the facts and circumstances of each case.
56. But there is one rider. Stretch given to a petition of private dispute to secure public interest must be within the jurisdiction conferred by Hon'ble Chief Justice in terms of the roster. Since the jurisdiction relating to detention by State (in the present case), based on the order passed by the Chief Judicial Magistrate sending the detenue to Protective Home, has been conferred by Hon'ble Chief Justice to the Division Bench, power could not have been exercised by the learned Single Judge. However, learned Single Judge could have passed order to secure public interest with regard to private detention.
57. Kindness, magnanimity and the zeal to serve the detenues setting free to enjoy the life and liberty by learned Single Judge, undoubtedly is appreciable but such enthusiasm or interference should not have been made beyond the jurisdiction conferred by Hon'ble Chief Justice.
58. However, it is not so that there is no way out to the learned Single Judge to exercise power. Single Judge could have referred the matter to the Division Bench, seized with habeas corpus where detention is under State custody and the Division Bench could have exercised power in accordance with law.
59. Judges being constitutional functionaries are supposed to abide by the constitutional morality, i.e. within the jurisdictional parameter. While emphasising relevance of abiding by constitutional morality, Hon'ble Supreme Court in a recent judgment, reported in (2014)9 SCC 1 Manoj Narula versus Union of India observed as under :
"75. The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality. In this context, the following passage would be apt to be reproduced: -
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.[53]"
76. Regard being had to the aforesaid concept, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of constitutional values would include reverence for the constitutional structure. It is always profitable to remember the famous line of Laurence H. Tribe that a Constitution is "written in blood, rather than ink".
Subject to above, effort made by learned Single Judge to secure public interest by releasing the persons languishing in Protective Home seems to be within power conferred by Art. 226 but having travelled beyond the jurisdictional parameter conferred by Hon'ble Chief Justice while providing the roster does not seem to be sustainable.
PART-HEARD/TIED UP CASES
60. Ordinarily, a Bench may have part heard or tied up cases for two reasons viz firstly the Bench concerned has heard the case in terms of roster and posted it for further hearing and secondly, a petition or case has been nominated by Chief Justice or under delegated power by Senior Judge to a particular Bench or a Judge. According to century old practice of Allahabad High Court, part heard matters remain part-heard even after change of roster and Bench concerned decides the same to its logical end even after change of roster.
61. However, in recent past, some of the Hon'ble Chief Justices for the reason best known to their Lordships passed order with regard to release of all such cases with the change of roster. Interestingly, recent practice is not in its continuity. Some of the Chief Justices have preferred to continue with the century old practice of Allahabad High Court with regard to part-heard cases but others opted to release all such cases, like in the present one, with the change of regular roster.
62. It shall be appropriate to reproduce some of the orders passed by Hon'ble Chief Justices of Allahabad High Court :
"(i) ORDER All part-heard and tied-up matters of the Division Bench, of which one of the members has been transferred permanently/ retired and is no longer available at the place of sitting, shall be treated as released under the proviso to Rule 7 Chapter VI of the Rules of the Court, 1952.
Such matters shall be listed before the Division Bench, of which the other Hon'ble Judge hearing such matter is one of the members.
Sd/ (Justice Hemant Laxman Gokhle) Chief Justice 9.4.2007" (ii) "ORDER
All part heard and tied up cases of the Hon'ble Judges, who have been transferred permanently or till further order/retired and are no longer available at the place of sitting, shall be treated as released under the proviso to Rule 7 of Chapter VI of the Rules of the Court, 1952 and may be listed for disposal before the appropriate Benches.
Sd/ (Justice Hemant Laxman Gokhle) Chief Justice 5.7.2007" (iii) ORDER
In case it is mentioned in a judicial order that the case be listed before any particular Hon'ble Judge, the case be listed before that Hon'ble Judge whose name is mentioned in that judicial order and no nomination will be required by The Chief Justice.
Sd/ (Justice C.K. Prasad) Chief Justice 25.3.2009"
(iv) On 20.1.2011, Mr. Rajiv Sharma, Joint Registrar (Listing) of this Court at Allahabad has submitted a proposal to regulate the listing of the cases. The then Chief Justice Ferdino Inacio Rebello had approved the proposal as 'A', 'B' 'C' and directed to implement at Allahabad and Lucknow from 1.2.2011. The proposal along with office note dated 20.1.2011 as well as the order dated 20.1.2011 passed by the then Chief Justice is reproduced as under :
Hon'ble the Chief Justice My Lord, It is most humbly submitted that Hon'ble the Chief Justice was pleased to pass the following order dated 05.12.2007 :
"The application for restoration where the case has been dismissed in default will not be treated as Tied Up with the Bench which dismissed the case in default and shall be listed before the regular Bench having the jurisdiction."
The photocopy of the above order of Hon'ble The Chief Justice dated 05.12.2007 is flagged at 'A'.
Thereafter, Hon'ble The Chief Justice was pleased to pass order dated 23.03.2009 directing that the cases dismissed in default were to be treated as Tied Up cases with the Hon'ble Judges or bench which dismissed the case in default and were to be placed before the same Bench. The photocopy of the order of Hon'ble the Chief Justice dated 23.03.2009 is flagged at 'B'.
Further, in special Appeal No.578 of 2010, Rajesh Chandra Gupta and others Vs. State of U.P and another, Hon'ble Court comprising Hon'ble Mt. Justice V.M. Sahai and Hon'ble Mr. Justice Raj Mani Chauhan held that Rules of the Court and order of Hon'ble the Chief Justice dated 23.3.2009 mandates that matters which have been dismissed in default are to be treated as tied up with Hon'ble Judges or bench which dismissed the case in default and were to be placed before the same bench which had dismissed the case.
However, in Civil Misc. Writ Petition No.34170 of 2010 Smt. Maya Dixit and others vs. The State of U.P and others, Hon'ble Full Bench of the Allahabad High Court vide judgment dated 13.09.2010 in para 12 has held as follows :
"we make it clear that Rule 12 of Chapter V confers the power of substantive review and not procedural reveiw as the power of procedural review is inherent in every court or tribunal, whereas substantive review has to be conferred (see Gindiays Bank Limited versus The Central government Industrial Tribunal and others AIR 1981 SC 606)."
Hon'ble full Bench of the Allahabad High Court in para 15 of its judgment has further held as follows :
"The judgment in Rajesh Chandra Gupta(supra), did not reflect the correct law, which has been properly stated in Awadh Naresh Sharma (supra) and Sanjay Mohan (supra). Apart from that, what the learned Bench in Rajesh Chandra Gupta(supra) was considering, was the dismissal of a restoration application for non-prosecution, in other words, procedural review. That was, therefore, not a case of substantive review........................"
It is most humbly submitted that at present the order of Hon'ble The Chief Justice dated 23.03.2009 is being followed whereby Hon'ble The Chief Justice was pleased to direct that the cases dismissed in default were to be treated as Tied Up cases with the Hon'ble Judges or bench which dismissed the case in default and were to be placed before the same Hon'ble bench.
Hon'ble Mr. Justice Yatindra Singh has been pleased to direct me that the following suggestions may be placed before Hon'ble The Chief Justice for his kind consideration as follows :
(A) The restoration application in the case, which has been dismissed in default by the Division Bench, may be listed before Hon'ble The Senior Judge of the Bench which dismissed the case in default when sitting in Division Bench, irrespective of the jurisdiction which subsequently may have been assigned to the Hon'ble Judge.
(B) In case, Hon'ble the Senior Judge of the Bench which dismissed the case in default has been transferred permanently or till further order/retired and is no longer available at the place of sitting, then application for restoration may be listed before the second Hon'ble Judge of the Hon'ble Bench which dismissed the case in default, when sitting in Division Bench, irrespective of the jurisdiction which subsequently may have been assigned to the Hon'ble Judge.
(C) In case, neither of the Hon'ble Judge which dismissed the case in default are available on account of being transferred permanently or till further order/retired and no longer available at the place of sitting, the application for restoration may be listed before the regular Bench having jurisdiction to hear the matter.
The entire matter is most humbly placed before His Lordship for kind information and necessary orders.
Submitted with regards.
(Rajiv Sharma) Joint Registrar(Listing) 20.01.2011 "Yes to A, B, C to be informed at Allahabad & Lucknow from 1.2.2011" sd/ Justice F.I Rebello 20.1.11"
63. From the order dated 20.1.2011, passed by the then Chief Justice, it is evident that the old practice was restored by His Lordship providing that in the event of availability of either of the Judge of part-heard cases, the petition shall be listed before a Bench of which such Hon'ble Judge is a Member. However, in the event of non-availability of Judge, even the part-heard matter shall be listed before the Regular Bench. This was done in tune with century old practice of Allahabad High Court as well as Hon'ble Supreme Court.
64. On 16.12.2013, Hon'ble Chief Justice Dr. D.Y. Chandrachud has passed order with regard to part-heard and tied up matter. For convenience, the order dated 16.12.2013 is reproduced as under :
" ORDER No pending case, civil or criminal, shall be treated as part heard or tied up in a Court after the commencement of a new roster. All pending cases shall be listed before the appropriate Bench dealing with such matters in accordance with the fresh roster, unless so ordered by the Chief Justice in a specific case hereafter.
CHIEF JUSTICE 16.12.2013 Justice(Dr.) D.Y. Chandrachud
65. A perusal of the aforesaid order reveals that all part-heard and tied up matters shall stand released automatically after change of roster. The order is comprehensive and inclusive of all cases whether part-heard or tied up because of nomination. Registry has been implementing the decision of Hon'ble Chief Justice since no judgment is available of Hon'ble Supreme Court or this Court with regard to mode and manner of the jurisdiction exercised by Chief Justice for the release of part-heard/tied up matter. Thus, the part-heard or nominated cases have been released without applying mind to individual cases. Uncertainty in law creates chaos in the society and disturbs the functioning of the Court and creates doubt in the mind of litigants as well as the Bar.
66. There is no room for doubt that the Chief Justice is the master of the roster and assignment of work is his sole prerogative. But in case the petition is heard partly by a Bench during the course of regular roster or on account of nomination by Chief Justice, then whether such cases should also be deemed to be released with the change of roster in view of the order passed by the Chief Justice without applying mind to individual cases is a question which requires adjudication, that too without questioning the right of the Chief Justice to withdraw any case from any Bench at any stage, in case necessity so arises.
66. In AIR 1961 SC 293 State of Madhya Pradesh and another versus Baldeo Pradad, a Constitution Bench of Supreme Court held that where the statute or provision extends unfettered discretion, it constitutes serious infirmity in its scheme (Para 8). Their Lordships further held that the statute has to make express provision so that the authorities should satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. To quote relevant portion :
"Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Art. 19(5). The result of this infirmity is that it has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda. In other words, the restrictions which it allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Art. 19(1)(d) and (e) must in the circumstances be held to be unreasonable. That is the view taken by the High court and we see no reason to differ from it."
67. The case of Baldeo Prasad (supra) has been followed by the Supreme Court in the case reported in AIR 2014 SC 563 Suresh Kumar Koushal and another versus NAZ Foundation and others. Their Lordships of Supreme Court held as under :
"47. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases."
68. Chief Justice being master of roster has the right to provide roster to the Judges of the Court to deal with particular subject while sitting in Bench, or Singly. Power of Chief Justice to regulate the work of puisne Judges seems to be well established on judicial side right from AIR 1959 (Alld) 421 State versus Devi Dayal, followed by catena of judgments of Hon'ble Supreme Court reported in AIR 1962 SC 876 Pramatha Nath Taluqdar versus Saroj Ranjan Sarkar, (1998)1 SCC 1 State of Rajasthan versus Prakash Chand, (2006) 8 SCC 294 Jasbir Singh versus State of Punjab, 2010(10) SCC 320 State of U.P. Versus Neeraj Chaubey, (2011)14 SCC 770 State of Punjab versus Devendra Pal Singh Bhullar, (2013)2 SCC 398 Kishore Samrite versus State of U.P., 1996 AWC 644(FB) Sanjay Kumar Srivastava versus Acting Chief Justice, 2010(83) ALR 664(FB) Smt. Maya Dixit versus State.
69. Apart from deciding roster to regulate the functioning of the High Court, Hon'ble Chief Justice has got ample power to withdraw any case from a particular Bench and refer it to another Bench having jurisdiction for the purpose in accordance with rules of the court. Thus, power to provide roster to regulate the functioning of the Court followed by power to withdraw cases vests in the Chief Justice of respective High Courts. Power to decide roster falls within the power of general superintendence conferred to Chief Justice under Art. 225 of the Constitution of India. Power to withdraw a case/petition or nominate a petition or case to a particular Judge is a power exercised by Chief Justice under special facts and circumstances of each case.
70. High Court's power to hear specified class of cases is derived from the allocation of business by the Chief Justice. A case not covered by such allocation cannot be heard by a Judge sitting singly or in Division Bench. The power of the Chief Justice to allocate business is (a) not only derived from section 108(2), Government of India Act, 1915 (which still subsists by virtue of section 223, Government of India Act, 1935 and article 225 of the Constitution) but (b) is also inherent in the Chief Justice; Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 and State of U.P. Versus Devi Dayal, AIR 1959 All 421(423); Sohan Lal Baid versus State of West Bengal, AIR 1990 Cal 168.
HIGH COURT RULES Thus, the Chief Justice under Art. 225 of the Constitution of India can permit to frame the rules of business to administer the functioning of the High Court. However, neither Art. 225 nor the High Court Rules deals with the manner and procedure with regard to exercise of power by Chief Justice for withdrawal or release of part-heard or tied up cases.
71. The High Court Rules do provide for listing of part-heard and tied up cases. For convenience, Chapter V Rule 14 of the High Court Rules is reproduced as under :
"14. Tied up cases.-(1) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench.
(2) When a criminal revision has been admitted on the question of severity of sentence only, it shall ordinarily be heard by the Bench admitting it."
A plain reading of the Rules of the Court reveals that the part-heard and tied up cases should normally be listed before the same Bench. In such situation, it appears that the part-heard and tied up cases should be listed before the same Bench unless after considering the record of individual case in special circumstances, the Chief Justice withdraws the same, followed by nomination to other Bench. Rules of the Court are binding and no decision or order may be passed in violation of the Rules of the court. It appears that the Registry has not invited attention of Hon'ble the Chief Justice to the High Court Rules (supra).
72. Hon'ble Supreme Court in a case reported in (2013)10 SCC 574 Monnet Ispat and Energy Limited versus Jan Chetna and others held that the High Court Rules have got mandatory force and are binding. Hon'ble Supreme Court held as under :
"12. Chapter 3 Part A of the Delhi High Court Rules contains rules relating to the practice of the High Court in the hearing of causes and other matters. Part B contains rules relating to the jurisdiction of a Single Judge and of Benches of the Court. The relevant clauses of Rule 1 of Part B read as under:
"Part B JURISDICTION of A SINGLE JUDGE AND of BENCHES of THE COURT
1. Cases ordinarily to be heard by a single Judge-Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone:
(i) to (xvii) xxx xxx xxx (xviii) (a) Application or petition Under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of Mandamus, prohibition, quo-warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other purpose, except:
(i) Petitions where vires of Acts or statutory rules, Regulations, or bye-laws are challenged.
(ii) Petitions where personal liberty is involved.
(iii) Petitions pertaining to all Revenue/tax matters including entertainment taxes, except Municipal Tax.
(iv) Petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; and
(v) Petitions pertaining to Public Interest litigation.
(vi) Petitions pertaining to the award to Tenders.
(vii) Petitions relating to Co-operative Societies.
(viii) Petitions being service matters of Armed Forces of the Union.
(ix) Petitions arising out of Land Acquisition.
(x) Petitions concerning orders passed by the High Court on the administrative side.
Provided that as regards pending cases, the learned single Judge may hear the part-heard matters.
Explanation: The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in Clause (i) to (x) of Sub-rule (xviii)(a) above shall however be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench.
Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads as under:
4. All cases to be disposed of by a Bench of two Judges save as provided by law or by these rules-Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges.
13. A bare reading of the above reproduced provisions makes it clear that the petition filed by Respondent No. 1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, Respondent No. 1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the Appellant to the maintainability of the petition filed by Respondent No. 1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.
14. We are not suggesting that Respondent No. 1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost."
73. High Court Rules (supra) provide that ordinarily, part-heard and tied-up cases should be listed before the same Bench for disposal. The word, "ordinarily" does not mean solely. It means regularly and habitually, and not casually.
74. In a case reported in [2014(1) ADJ 168 (DB)] Madhyamik Vidhyalaya Prabhandhan Samiti vs. State of U.P and others, a Division Bench of this Court, presided by Hon'ble the Chief Justice Dr. Dhananjaya Yeshwant Chandrachud and Justice Sanjay Misra, relating to exercise of discretion by District Inspector of Schools in allotment of centres interpreted the word, "ordinarily" as under :
"4................The expression 'ordinarily' means that the ordinary consequence can be disregarded for cogent and valid reasons. This does not amount to the conferment of an arbitrary or unguided power. In a given case, if the power is exercised arbitrarily, it would be open to an aggrieved institution to move the Court."
75. Hon'ble Supreme Court in a case reported in AIR 1960 SC 1329 Narumal versus State of Bombay held that ordinarily means except where otherwise provided in the Code of Criminal Procedure.
Similar interpretation has been given to the word, "ordinarily" in other judgments providing that ordinarily means in the large majority of cases but not invariably vide AIR 1961 SC 1346 Kailash Chandra versus Union of India, AIR 1993 Del 239, 245 Maj. Y.K. Bammi versus Jawahar Lal Nehru University.
76. While interpreting the High Court Rules in a case reported in (1974)1 SCC 128 Krishan Gopal versus Shri Prakash Chandra, Hon'ble Supreme Court held that the word, "ordinarily" qualifies the number of Judges who can exercise the jurisdiction which is vested in the High Court to try an election petition. The said word indicates that normally it would be a single Judge of the High Court who can exercise the jurisdiction which is vested in the High Court but in appropriate cases, such jurisdiction can also be exercised by two or more Judges.
77. In a case reported in (2001)1 SCC 315 Eicher Tractors Limited Haryana versus Commr. of Customs, Hon'ble Supreme Court held that ordinarily does not include extraordinary or special circumstances.
78. In a case reported in AIR 2008 (NOC) 2729 (Bom) Shakeel Ahmed Fateh Mohd Sundke versus Aziz Ahmed Khan, Bombay High Court while interpreting the word, "ordinarily" held that it indicates exceptional and extraordinary cases and the period within which courts are required to pronounce judgment can be extended.
79. In view of above, part-heard and tied up cases should be listed before the same Bench for disposal. Listing of part-heard and tied-up cases to other Bench is an exception. Accordingly, in case Hon'ble Chief Justice is of the opinion that a particular case is to be listed before other Bench for fresh hearing, then necessarily, it implies that an order should be passed with regard to withdrawal of such cases by applying mind to individual case. Listing of part-heard and tied-up matter to other Bench is an exception which requires separate order.
Hence, by general (sweeping) order or circular while changing the roster, it is not permissible to release all part-heard cases by the Chief Justice, without applying mind to individual cases.
WITHDRAWAL OF CASE
80. Withdrawal of a case may be for variety of reasons which may be administrative or otherwise on complaint against the Judge concerned or for some other reasons. After withdrawing a petition/case, Chief Justice may refer to other Bench or nominate a particular Bench. Nomination of a petition/case to other Judge/Bench also depends upon a variety of factors keeping in view the ability, competency or knowledge of a particular Judge. Once a case is nominated to a particular Judge, then it does not appear that it may be denominated or go to other regular Bench with the change of roster. Nominated case may be withdrawn or be listed to other Bench or regular Bench only in case Chief Justice passes some order withdrawing the same followed by nomination to other Bench competent to adjudicate the controversy in accordance with rules of the Court. In absence of fresh nomination, it shall not be open for the registry to withdraw and send it to other Bench with the change of roster.
Exercise of power with regard to allocation of work at regular interval for the purpose of change of roster stands on different footing than the power exercised by Chief Justice to withdraw a particular case from a particular Bench or nomination to other Bench.
81. In a case reported in (2007)13 SCC 580 High Court of Andhra Pradesh versus Special Deputy Collector (L.A.) Andhra Pradesh and others, Hon'ble Supreme Court held that where the matter is heard in part, normally, it should not be transferred to another Bench. Chief Justice of the High Court has power even to transfer part heard case from one Bench to another but this should be done in exceptional cases for special reasons. To quote relevant portion from the judgment (supra) :
"5. In view of the circular dated 6.1.2007 the confusion seems to have cleared. At this juncture, it is to be noted that where the matter is heard in part, normally it should not be transferred to another Bench or learned Single Judge. But it has come to notice in several instances that cases have been noted to be part-heard even when it was really not so. Such practice is to be discouraged. The Chief Justice of the High Court has power even to transfer a part-heard case from Bench to another or from one learned Single Judge to another. But this should be done in exceptional cases for special reasons."
It means part-heard cases may be withdrawn and nominated to other Bench for special reason, by applying mind by Hon'ble chief Justice to the record of respective petition followed by an order for the purpose.
82. Case of High Court of Andhra Pradesh (supra) deals with the cases of part heard matters which includes exercise of power by the Bench in view of nomination done by Chief Justice. Word of caution seems to be that the part-heard cases should be withdrawn exceptionally only for special reasons by applying mind to the record of respective case. There may be instances when one Chief Justice exercises power consciously while nominating a particular Bench to decide a pending matter, the other Chief Justice takes a decision for withdrawal of the case, but in that event, a reason should be precisely assigned by the Chief Justice, keeping in view the facts and circumstances of each case, and not by a general order.
83. 21st Century is a century of transparency where every person holding constitutional office or other high office should ordinarily be transparent in his or her decision making process and the people have right to know the reason or grounds on which a decision has been taken by a constitutional authority. In case reason is assigned, then the Judge concerned from whom a case is withdrawn shall know his inability or demerit and may correct himself. Using same yardstick while dealing with all Judges in the matter of withdrawal of nominated or other part-heard cases may discourage the upright Judges who have put in long labour and heard a petition for long period and intend to deliver the judgment keeping in view the Constitutional philosophy and statutory mandate. It shall always be better to withdraw a case in the event of a complaint by assigning reason instead of passing blanket order for withdrawal of all part-heard matters. People have right to know the quality and conduct of their Judges.
84. Judgement in the case of Special Deputy Collector (supra) is further strengthened by catena of judgments of Hon'ble Supreme Court.
85. A Full Bench of this Court while considering the importance of reason in a case reported in 2013(11)ADJ 22 Ms. Ranjana Agnihotri and others[P.I.L.] versus Union Of India Through Secy. Ministry of Home Affairs & others had considered various pronouncements of Hon'ble Supreme Court and held that the reason is the part and parcel of Article 14 of the Constitution of India. Relevant portion from the judgement of Ms. Ranjana Agnihotri (supra) is reproduced as under :
"190. Learned author (De Smith's Judicial Review, 6th Edition) has rightly held that failure to give adequate reasons may indicate that a decision is irrational. Learned author observed as under :
"The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything, that adversely affects others. The administration in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making. The giving of reasons increases public confidence in the decision-making process. The giving of reasons can also render it easier to determine if a decision is irrational or erroneous."
191. Sir W.W.R. Wade in his famous treatise "Administrative Law" (10th Edition) observed :
"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely-that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. "
192. Learned author(supra) referred a case reported in Breen versus Amalgamated Engineering Union (1971)2 QB 175 where Lord Denning MR has relied upon the earlier judgment of House of Lords, Padfield versus Minister of Agriculture, Fisheries and Food and held as under :
"The importance of the House of Lords' decision was underlined by Lord Denning MR.
The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this : the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law."
193. In The United States, the Courts from time to time insisted upon recording of reasons in the decision taken by administrative authority. In Phleps Dodge Corporation versus National Labour Relations Board (1940)85 Law Ed 1271 at p. 1284, it has been held that the authority should give clear indication that it has exercised the discretion with which it has been empowered because administrative process will best be vindicated by clarity in its exercise.
194. In Securities and Exchange Commission versus Chenery Corporation (1942)Law Ed 626 at p. 636, it has been held that orderly functioning of the process of the administrative agency be clearly disclosed and adequately sustained.
195. The Federal Administrative Procedure Act, 1946 prescribes the basic procedural principles which are to govern formal administrative procedures and contained an express provision (Section 8(b)) to the effect that all decisions shall indicate a statement of findings and conclusions as well as reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record.
196. The Supreme Court in a case reported in AIR 1976 SC 1785 Seimens Engineering and Manufacturing Company of India Limited versus Union of India and another, held as under :
""6..............If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the ad judicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."
197 In one another case reported in (2004)5 SCC 568 State of Orissa versus Dhaniram Lunar, their Lordships of Supreme Court held as under :
"8......... Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made..........".
198. In Mc Dermott International Inco. Versus Buru Standard Co. Limited and others (2006) SLT 345, their Lordships observed as under :
"...Reason' is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills' Arbitration In Re, "proper, adequate reasons". Such reasons shall not only be intelligible but shall be a reason connected with the case which the court can see is proper. Contradictory reasons are equal to lack of reasons................"
199. A Division Bench of this Court in a case reported in 2007 LCD 1266 Vijai Shanker Tripathi versus Hon'ble High Court of Judicature at Allahabad has considered the concept of exercise of discretionary power by the State or its authorities including the High Court held that every administrative order passed by authorities must fulfil the requirement of Art. 14 of the constitution.
200. Supreme Court in a case reported in JT 2010(9) SC 590 M/s. Kranti Associates Private Limited and another versus Sh. Masood Ahmed Khan and others held that a cryptic order shall deem to suffer from vice of arbitrariness. An order passed by quasi judicial authority or even administrative authority must speak on its face.
In a case reported in 2010(4) SCC 785 CCT versus Shukla and Brothers, their Lordships held that the reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. To quote relevant portion from the judgment (supra), to quote :
"Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principle are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements."
201. The aforesaid view with regard to reasoned order by authorities which include judicial and quasi judicial authorities has been consistently reiterated by the Supreme Court in earlier judgments. Their Lordships of Hon'ble Supreme Court held that the authorities have to record reasons, otherwise it may become a tool for harassment vide K.R. Deb versus The Collector of Central Excise, Shillong, AIR 1971 SC 1447; State of Assam and another versus J.N. Roy Biswas, AIR 1975 SC 2277; State of Punjab versus Kashmir Singh, 1997 SCC (L&S) 88; Union of India and others versus P. Thayagarajan, AIR 1999 SC 449; and Union of India versus K.D. Pandey and another, (2002)10 SCC 471.
In a recent judgment reported in AIR 2013 SCW 2752 Union of India versus Ibrahimuddin(para 33), their Lordships of Hon'ble Supreme Court reiterated that every order passed by the administrative authority, judicial or quasi judicial must be a reasoned order.
86. In a case reported in 2010(9) SCC 496 Kranti Associates Private Limited and another versus Masood Ahmed Khan and others, Hon'ble Supreme Court held as under :
"15. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the "inscrutable face of a sphinx".
87. In one other case reported in (2014)3 SCC 502 Dipak Babaria versus State of Gujarat, Hon'ble Supreme Court held as under :
"64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay v. Gordhandas Bhanji reported in AIR 1952 SC 16 in the following words:
"9. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting's and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commissioner reported in 1978 (1) SCC 405 wherein Krishna Iyer, J. has stated as follows:
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
88. From the aforesaid proposition of law, there appears to be no room of doubt that even the administrative order requires some precise reason. Judges hold constitutional office. They apply mind to a particular petition assigned to them in terms of roster. In some cases, they may have heard at length and may be at the verge of finality while dealing with the subject matter with their respective regular roster. In others, they may have exercised power in pursuance to nomination of the case by Chief Justice or predecessor Chief Justice. High Court Rules contain mandate to list before same Bench (supra). In such situation, in case by general order, the case stands released without applying mind to individual cases with the change of roster, it shall not only be contrary to century old tradition of Allahabad High Court or even the Supreme Court's judgment (supra) but shall also affect the right of Judges to reach logical conclusion of a matter assigned to them at original stage and shall make Bench hunting easier for the Members of the Bar. It shall also be violative of High Court Rules (supra).
Release of part-heard matter, nominated or otherwise by the Chief Justice with the change of roster seems to be unreasonable, unjust, improper and undignified. The practice prevailing in the Supreme Court and majority of the High Courts to continue with part-heard matter with respective Benches seems to be based on sound principle of law and judicial propriety, subject to withdrawal of the individual case by the Chief Justice. In case there is some material against the Judge or there is some complaint based on substantial material or for administrative reason based on certain material, the Chief Justice wants to withdraw the case, then that may be done but that too by applying mind to individual cases and as far as possible, after assigning some reason, may be precisely.
89. However, keeping in view the peculiar and sensitive nature of functioning of judiciary as well as complexity which often arises, if Hon'ble Chief Justice feels, His Lordship may withdraw cases only indicating in the order that "withdrawal is done for administrative reasons" or "for better administration of justice."
90. Workload or complexity of situation overburdening the administration of justice does not mean that the peoples may be given a perception that our action is unjust, unfair and suffers from extraneous reasons. Court has no reason to existence if it merely reflects the pressures of the day. Our system is built on the faith that men set apart for this special function, freed from the influences of immediacy and from the deflections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress and legislatures.(Page 158, The Literature of the Law by Brian Harris)
91. Nobel laureate Rabindra Nath Tagore in Gitanjali, while convasing for 'reason' or 'rationality' in life wrote, to quote a couplet :
".........where the clear stream of reason, has not lost its way into the dreary desert sand, of dead habit;
where the mind is led forward by thee, into ever-widening thought and action-
Into that heaven of freedom, my Father, let my country awake.
92. A great American Judge, Oliver Wendell Holmes said, to quote :
"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
93. In view of above, particularly the Apex Court's judgment, reported in 2007(13)SCC 580 (supra) and Allahabad High Court Rules (supra), though the Chief Justice may provide roster to regulate the functioning of the Court and the roster provided by Chief Justice shall be binding on all Judges sitting singly or in the Bench but once a petition or case is nominated to a particular Judge or Bench sitting singly or in Division Bench or a Larger Bench and is a part-heard matter, then the only option open for the Chief Justice is to withdraw the case for further nomination to other Bench after assigning reason which may be precise or for administrative reasons (supra).
94. For the reasons, discussed hereinabove, while passing order or deciding a case with regard to a detenue claiming right on the basis of live -in-relationship subject to individual constitutional right in appropriate case keeping in view its facts and circumstances, the courts may pass order after taking into account the customs, traditions and usages.
The part-heard and tied up matters shall remain part-heard and tied-up even after change of roster unless Hon'ble Chief Justice passes an order individually for withdrawal of cases from respective Bench, followed by nomination of other Bench. Depending upon the facts and circumstances of each case, a judgment delivered by the other Bench of High Court shall become judgment of the Court the moment it is signed by respective Judges.
Subject to above, the observation made and the finding recorded shall be applicable prospectively.
(Justice Devi Prasad Singh) January 16, 2015 kkb/ Case :- MISC. BENCH No. - 9470 of 2014 Petitioner :- Smt.Chawali (Habc 594/2012 Now P.I.L.) Respondents :- State Of U.P. and others Counsel for Petitioner :- K.K.Tewari,Amrendra Kumar Singh,Anil Kumar Tripathi,Chandra Prakash Singh,Dinesh Kr. Ojha,Farhan Alam Osmany,Km. Vishwa Mohini,Rajesh Kumar Verma,Satyendra Nath Rai,Vimal Kumar,Vinod Kumar Counsel for Respondents :- G.A., Atul Verma, Dharmendra Kumar Mishra, Mohd. Ifran Siddiqui,Shishir Pradhan,Sunita Jaiswal connected with Special Appeal (D) No.32 of 2014, Writ Petition (U/s 482) No.2666 of 2013 and Writ Petition No.299(H/C) of 2014 Three separate judgments/opinion delivered today, i.e. 16.1.2015 under Chapter VII Rule 1(2) of Allahabad High Court Rules. The matter was heard by a Larger Bench consisting of Hon'ble Mr Justice Devi Prasad Singh, Hon. Mr. Justice A.P. Sahi and Hon'ble Mr. Justice Ajai Lamba.
(Justice Ajai Lamba) (Justice Devi Prasad Singh) 16.1.2015 kkb/