Gujarat High Court
High vs Uday on 6 May, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/539/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 539 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2848 of 2008
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HIGH
COURT OF GUJARAT
Versus
UDAY
LAXMIKANT DESAI & OTHERS
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Appearance :
Mr
Shalin N Mehta for the Appellant
NOTICE SERVED for Respondent(s)
: 1 - 2,6 - 7.
NOTICE UNSERVED for Respondent(s) : 3 - 5,9 -
12.
UNSERVED-EXPIRED (N) for Respondent(s) :
8,
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 06/05/2011
ORAL
JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
1. The writ petitions have been preferred by the respondent - writ petitioner against certain orders passed by the Presiding Officer, 4th Fast Track Court, Surat in Misc. Civil Appeal No.139 of 2006 and other matters. Those cases were disposed of on 13th January 2009 by the learned Single Judge directing the learned trial Court to decide and dispose of the respective suits as expeditiously as possible but not later than 31st March 2010. After disposal of the case, petitions were filed by the learned 2nd Additional Senior Civil Judge and ACJM, Surat requesting to extend the time for a further period of 18 months to finally decide and dispose of the Special Civil Suit No.415 to 419 of 2002. In the said case while allowing the time by the impugned order dated 7th May 2010, the learned Single Judge made following observations:
"5. Under the aforesaid circumstances, the Registry is directed to issue Circular to all the learned Principal District and Sessions Judges, informing that as and when any direction is issued by the High Court to the lower judiciary to decide and dispose of proceedings/ suit/application Ex.5 etc within stipulated time, the District Court must prepare and maintain a separate Register for the same containing the directions issued by this Court and the learned Principal District Judge to check the same and supervise and monitor the same every month regularly without fail and to see that the directions issued by this Court are complied with strictly.
6. Directions issued by this Court must be complied with by the courts below in toto, otherwise it would amount to insubordination on noncompliance of the order/direction issued by this Court. However, for any unavoidable reason or due to the circumstances beyond the control and/or due to the extraordinary circumstances, if the trial court is not in a position to decide and dispose of the proceedings within the time stipulated by this Court, in that case, the concerned Judge is required to send a report to the concerned Principal District and Sessions Judge one month advance along with the photocopy copy of the Rojkam, stating reasons for non-compliance of the direction issued by this Court and/or not disposing of the proceedings etc. within the time limit fixed by this Court and the concerned learned Principal District and Sessions Judge must forward report to this Court for extension of time along with application/report made by the trial court for extension of time with copy of the Rojkam, to this Court one month in advance from the last date of the time limit fixed by this Court.
7. As and when any direction is issued by this Court directing the learned trial court to decide and dispose of the proceedings/suit/application Ex.5 etc. within stipulated time, Registry to send the writ to the concerned learned Principal District and Sessions Judge also, so that as stated above, the concerned learned Principal District and Sessions Judge can supervise and monitor and see to it that the proceedings are disposed of within the time stipulated by this Court and in case of failure, necessary actions can be taken against the concerned Judge for non-compliance of the directions issued by this Court.
8. Registry is directed to issue necessary Circular to the aforesaid effect.
9. With this, present note stands disposed of."
2. The present appeal has been preferred by this High Court, through the Registrar General for deleting the direction and observation, as made in paragraphs 5 and 8 of the aforesaid order. Learned counsel appearing on behalf of the appellant - High Court would contend that the power to issue Circular to all Principal District and Sessions Judge and other Judicial Officers is a matter of policy, which can be determined from the High Court, in its administrative side under Article 235 of the Constitution of India. Those are the matters, which are normally taken up by the High Court in its administrative side in its meeting in Chamber (Full Court). This Court, under Article 226 of the Constitution, ought not to have issued such direction thereby taking away the power of the High Court, in its administrative side under Article 226 of the Constitution.
3. Learned counsel referred to a Division Bench decision of this Court in Suo Motu v. S.J. Gaekwad, reported in 2001 (1) GLR page 752. Therein, the Court held as follows:-
"10. Under Article 229 of the Constitution, the Chief Justice may exercise the power himself or exercise it through such other Judge or officer (such as the Registrar) of the Court, as he may direct. Any direction to hold an inquiry against an officer or other member of the High Court staff would therefore essentially amount to exercise of powers under Article 229 and this can be done only by the Chief Justice or his Nominee. The power of the Chief Justice or his Nominee to take disciplinary action against officers and servants of the High Court cannot be curtailed by any interference from any quarter, not even from his brother Judges. Nor can there be a regular monitoring of any departmental action against an employee by the Court, because, that would amount to usurping the constitutional powers of the Chief Justice under Article 229, resulting in judicial arm-twisting of the Chief Justice and would constitute a serious inroad in the exclusive administrative powers of the Chief Justice. The initiation, nature, progress and outcome of disciplinary action against any officer or other employee of the High Court are the sole preserve of the Chief Justice. No contempt action can therefore be taken by this Court against any officer or other employee of the High Court for any administrative lapse or inaction, for which a proper remedy would be of administrative reform by the Chief Justice or departmental action that may be taken by the Chief Justice in his wisdom under Article 229 of the Constitution.
PER : A.M.KAPADIA, J. :
"12. Heard the erudite and lucid judgement dictated in Open court by my learned Brother Hon'ble Mr. Justice R.K. Abichandani and I entirely agree with the same. I would however like to reemphasize at the cost of repetition that if all Judges of the High Court while exercising powers under Article 226 of the Constitution start issuing instructions, writs or orders to the Registrar in relation to the High Court administration,to do a particular act or not to do a particular act, it would tantamount to interference in the exclusive domain of the Chief Justice envisaged under Article 229 of the Constitution, which empowers the Chief Justice alone to administer the High Court. If such powers are exercised under Article 226, the powers under Article 229 of the constitution would become nugatory and it would lead to an embarrassing situation for the Chief Justice in running the High Court administration resulting in a chaotic situation."
4. Learned counsel for the High Court would contend that if the order direction, as has been given in paragraphs 5 and 8 of the aforesaid order dated 7th May 2010, is recalled, in no manner, it will affect the right of the respondent - writ petitioners or contesting respondents to the said case.
5. In the present case, we find that the High Court has merely sought for setting aside portion of the order direction, as given at paragraphs 5 and 8 in the judgment dated 7th May 2010 passed in Special Civil Application No.2848 of 2008 and other cognate matters. If such a direction is withdrawn, in no manner, it will affect the respondent - writ petitioners or the contesting respondents or the suit pending before the Court below.
6. The Constitutional Bench of the Supreme Court in Chief Justice of A.P. v. L.V. A. Dixitulu, reported in (1979) 2 SCC 34 held, in the context of Article 229, that, in regard to the servants and officers of the High Court, Article 229 of the Constitution makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the provisos to the Article. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view was to ensure the independence of the High Court.
Registrar General of the High Court or the Registrars are under direct control of the Chief Justice of the High Court. If they are judicial officers, they are on deputation and/or if they are ministerial staff, all of them remain in the exclusive domain of the Chief Justice envisaged under Article 229 of the Constitution. Such being the position of law, we hold that the High Court, while exercising the power under Article 226 of the Constitution of India, cannot pass any order which tantamount to interference in the exclusive domain of the Chief Justice envisaged under Article 229 of the Constitution.
7. In the present case as we find that the learned Single Judge in paragraphs 5 and 8 has issued a direction on the Registry of the High Court, and the same tantamount to interference with the power of the Chief Justice under Article 229 of the Constitution of India, we set aside order contained in paragraphs 5 and 8 of order dated 7th May 2010 passed in Special Civil Application No.2848 of 2008 and cognate matters. The rest part of the impugned order was continued. Appeal is allowed with the aforesaid observations.
(S.J. Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) *mohd Top