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Rajasthan High Court Advocates Association Vs. Union of India & Ors.
NATIONAL LAW UNIVERSITY
Presented to Sanjay Pandey Sir.
Faculty, Code of Civil Procedure
Submitted by: Mayank Jain
Roll no.- 410
Submitted on: 20
FACTS 1. On October 27, 1956, in furtherance of his powers conferred by Sub-section (1) of Section 51 of the States Reorganization Act, 1956, the President of India in exercise of the powers directed Jodhpur to be the principal seat of the new High Court for the State of Rajasthan and a temporary bench of the High Court of Rajasthan at Jaipur by the Chief Justice, which was turned permanent in 1976 by Presidential order. In pursuance of this order, another order from the chief justice was passed giving territorial demarcations for High Court of Rajasthan at Jodhpur and the bench at Jaipur. 2. The relevance of certain specific clauses of this impugned order had specifically demarcated the areas of jurisdiction for the High Court at Jodhpur and the bench at Jaipur as all cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chitorgarh, Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur (except such case or class of cases as may by special order be transferred to the Jaipur Bench) shall be disposed of by the Court at Jodhpur, and all cases arising in the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk (except such case or class of cases as may by special order be transferred to the Court at Jodhpur) shall be disposed of by the Court at Jaipur. EXCLUSIVE JURISDICTION CARVED OUT 3. It is this order impugned in the present matter as it led to dissonance on following points: • • The Permanent Bench of High Court of Rajasthan at Jaipur should not have come in force by an order passed by the Acting Chief Justice. The Acting Chief Justice should not have passed any Order for the transfer of pending cases or the cases instituted at the main seat at Jodhpur upto 31-1-1977
under the authority of the Presidential Order, which in itself prospective in operation. • Furthermore the proviso to the Presidential Order, cases falling within the jurisdiction of the Jaipur Bench could be withdrawn to the main seat at Jodhpur but should not have happened vice versa. • The Acting Chief Justice could not, in his administrative capacity, decide the fact of jurisdiction for the purpose of allocation of cases to the Jaipur Bench on the basis of cause of action, which is untenable. This give rise to following issues on the Points of Law which were deliberated upon in this case by the court. These being: 1.Whether the power of to frame roster vests with Chief Justice administrative control over distribution of work of Court has nothing to do with how judge would then judicially function while dealing with case? 2.Can, a writ case be heard or refused to be heard by judge depending upon his judicial opinion as to place of arising of cause or action? 3.Whether or not case arises in district lying within jurisdiction of bench is to be decided judicially on case-to-case basis or is it a question to be decided by administrative order of Chief Justice? Furthermore the case pertains with a distinction between the Administrative and the Judicial powers of the Chief Justice of a High Court (Rajasthan High Court), in the form of an issue as to whether a CJ of a high Court can pass an ordinance or order demarcating the jurisdiction of the High Court and it’s Permanent Bench(s) established in s given state, as broached by the Advocates on the Bar Council of the respective state. The present case is essentially a subject matter of two disciplines or courses, one the Code of Civil Procedure 1908 and second Constitutional Governance II. ‘Determination
of Jurisdiction’ and ‘Cause of Action’, its place of origin are very basic to the initiation of a civil suit by filing it in the appropriate civil forum (Order II Rule 2), in the present matter the Chief Justice of the Rajasthan High Court had basically in exercise of his Administrative powers, by an order carved out the ‘Exclusive jurisdictions’ of both the High Court of Rajasthan and the permanent bench created at Jaipur. This is contended on the ground that the determination of appropriateness of the jurisdiction is a judicial process. Therefore the determination that Whether the case arises from one of the specified districts or not so as to determine the jurisdiction competence to hear by reference to territory bifurcated between the principal seat and the Bench seat of the High Court shall be an issue to be decided in an individual case by the Judge(s) hearing the matter if the question may arise in that regard. Thus it remains an open ended question altogether. The case reflects interesting discourse on the Distribution of business and administrative control of the Chief Justice of a High Court and after enumerating and commenting on each of the powers, it is debated by both the parties as to whether the exclusive demarcation of districts in Rajasthan and the cause of action arising thereto be considered an exercise of administrative powers of the Chief Justice or not. Section 44 of the said act provided that: The Chief Justice shall be responsible for the distribution and conduct of the business of the High Court, The High Court may, by its own Rules, provide as it thinks fit for the exercise by one or more Judges, or by Division Courts constituted by two or more Judges of the High Court, of its original and appellate jurisdiction. Further it says that the administrative control of the High Court shall vest in the Chief Justice and may on advice of other judges delegate such of his functions. So the Counsel for the respondents (State) content that section 44(2) entrusts the Chief Justice with responsibility for distribution and conduct of the business of the High Court and exercise the power to frame a roster. Therefore the bifurcation of the business that is the Districts of the state and providing for an exclusive jurisdiction over the Cause of
Action arising in the demarcated zones is an administrative function, well justified by the order issues by the High Court CJ. The appellants in their appeal press that the provisions of section 44 does not vest the Chief Justice with power to enact an Explanation as is in question. They contend that the Administrative Powers vested are those of preparing a roster only, done generally by identifying particular subject matter or nature of cases which will be listed for hearing before different Benches consistently with the rules of business of the Court. Thereafter listing of cases is to be done by the Registrar in a routine. Power to frame a roster vests on the Chief Justice with an administrative control over the distribution of judicial work of the Court. Thus the powers exercised here by the Chief Justice of the High Court are not within the Administrative powers as the respondents contend in the matter. Another issue that shall be important for further elaborative analysis is with regards to the term "exclusive jurisdiction". In the case, via the impugned order the bench at Jaipur was empowered to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur would not have jurisdiction to hear those cases that fall within the territorial jurisdiction of Jaipur Bench. The contentions of appellants at this are highly rebellious where they submit that the use of word "exclusive" pre-fixed to 'jurisdiction' is in itself restricting the scope of jurisdiction and options to the litigants. But it would be interesting to critically appraise as to how in the case the High Court negates it completely stating that the purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent Bench seat at Jaipur. The cases are to be heard accordingly unless the Chief Justice may exercise in his discretion the power vested in him within the Presidential Order. The comment shall further enlight the point as to how the Clauses (1) and (2) of Article 226 of the Constitution provide guideline for exercising territorial jurisdiction by any High Court. Also the test evolved to justify the disputed point in the present matter
involves interesting matrix of law, which shall be commented upon in light of the factual analysis of the case done by the Hon’ble Court holding that cause of action determines jurisdiction, which depends on from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution. Another important issues in the case that is indelible to comment upon are that of “Writ Cases”. How can the jurisdiction of writ case be limited by carving out an ‘Exclusive Jurisdiction’, merely by CJ’s order. The contention of the appellants that the impugned act, even if assumed to be administratively justified, can’t by any means cover Writ matters. A dubious explanation was adopted by the court in negating this argument stating that A writ case shall be deemed to arise in the district where the first order pertaining to that case was passed by a Court, Tribunal or Authority irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision. Thus, as per my opinion there has been an eloquent negation of much an impressive arguments put forth the advocates association (appellants), and dismissal of an appeal with in my opinion shall be differently decided, all of which shall be jotted in the selfexplanatory comment on the case. On the ground that the acting Chief Justice of the High Court should not have passed such an order is further deliberated upon in the case of Ram Rakh v. Union of India and Ors.1 , whereby the court appreciated that the grounds on which challenge was laid to the Order of the Acting Chief Justice were such that the Acting Chief Justice could not have passed any Order under its authority until the time the ordinance had become a law of was effectuated in itself. The Acting Chief Justice could not have passed any Order for the transfer of pending cases or the cases instituted at the main seat at Jodhpur under the authority of the Presidential Order, inasmuch as the Presidential Order is clearly prospective in operation, leaving no real scope in the Acting Chief Judge in that capacity to so legislate.
Furthermore the Acting Chief Justice has erred grossly in discriminating between the jurisdictions of the two courts. Under the proviso to the Presidential Order, cases falling within the jurisdiction of the Jaipur Bench could be withdrawn to the main seat at Jodhpur and not vice versa. It was so brought out via judicial appreciation that the Acting Chief Justice cannot decide, in his administrative capacity, the fact of jurisdiction for the purpose of allocation of cases to the Jaipur Bench on the basis of cause of action. A perusal of the decision of the Division Bench in Ram Rakh's case (supra) goes to show that in various grounds of challenge to the validity of the order issued by the Acting Chief Justice, the Division Bench had observed so that "these contentions cannot, in our opinion, prevail." Now owing close bearing to the present matter the Order of the Chief Justice refers to the Presidential Order, Sub-section (2) of Section 44 of the Rajasthan High Court Ordinance, 1949 and Sections 54 and 57 of the States Reorganization Act, 1956 as the sources of power exercised in issuing the notification and so the validity of the Acting Chief Justice’s argument is dubiously under contentions. In the present case the Presidential Order having established a permanent Bench of the High Court of Rajasthan at Jaipur and having appointed the minimum number of Judges as would sit at Jaipur proceeded to declare that the permanent Bench seat at Jaipur shall exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in the districts, 11 in number, as mentioned above. A discretionary jurisdiction was also conferred on the Chief Justice of the High Court to order that any case or class of cases arising in any district forming part of territorial jurisdiction of the permanent Bench at Jaipur shall be heard at Jodhpur (principal seat). The Presidential Order on the face of it appears to be clear and seems to be consisting of mandatory requirements. The jurisidiction allocated to the permanent Bench at Jaipur is by reference to territory covered by the 11 specified districts. The proviso appended to para 2 of the Presidential Order, which mandated such a demarcation of jurisdiction pertaining to the cause of action speaks of any case or class of cases'. But it is incomprehensible that how come a power in the Chief Justice to define cause of action be read from the above said clause.
The second issue framed in the given case is that whether the President, in who’s name the ordinance is issues, capable or empowered to pass such an ordinance. The explanation to this point is again a referential insight into an earlier decided judgment of State of Maharashtra v. Narayan Shamrao Puranik and Ors. 2, whereby it was so brought out by the court that Section 51 of the Act that undoubtedly the President has the power under Sub-section (1) to appoint the principal seat of the High Court for a new State. Likewise, the power of the President under Sub-section (2) thereof, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, pertains to the establishment of a permanent Bench or Benches of that High Court of a new State at one or more places within the State other than the place where the principal seat of the High Court is located and for any matters connected therewith clearly confer power on the President to define the territorial jurisdiction of the permanent Bench in relation to the principal seat as also for the conferment of exclusive jurisdiction to such permanent Bench to hear cases arising in districts falling within its jurisdiction. The creation of a permanent Bench under Sub-section (2) of Section 51 of the Act must therefore bring about a territorial bifurcation of the High Court. Thus the Presidential order is validated by the same. Such a validation of the Demarcation and division of jurisdiction after getting validated channelises the course of entire direction towards elaborating upon the concept of ‘Cause of Action’. In the present case the question or the realm of Cause of Action has been appreciated via Nasiruddin v. State Transport Appellate Tribunal3 and U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P.4. The reasoning goes like; the litigant always has the right to go to a Court where part of his cause of action arises. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. Though it would be incorrect to
say that the litigant can choose any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, applying this reasoning to the present case situation if the cause of action has arisen partly within specified areas in Jodhpur and partly outside the specified Jodhpur areas, the litigant will have the choice to institute proceedings either at either Jodhpur or Jaipur. It is then later to the Court to find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action. The case of Rashtriya Chini Mill Adhikari Parishad v. State of U.P.5 has been thoroughly been discussed and has been heftly relied upon in the present judgment therefore an indepth insight into the same is mandated to appreciate the reasoning of judges in coming to Conclude the present matter. The nature of controversy talked of in the present case was a subject matter of dispute even in the case of Rashtriya Chini Mill Adhikari Parishad v. State of U.P., where the order impugned was the Section 14 of High Court Amalgamation Order, 1948, and by an Amalgamation Order High Court in Allahabad and Chief Court In Oudh amalgamated and constituted as High Court of Judicature Allahabad. Now there came up a matter whereby the cause of action was brought against the Government of UP, against the selling of 6 sugar mills by Government challenged via a writ petition. Now one of sugar mills situated in Oudh area while five others situated outside its area, whether Lucknow Bench has jurisdiction. The Court relying upon Section 14 held that cause of action arose in part at a place within specified Oudh area and therefore Lucknow Bench has jurisdiction. Now thus the major question as in this case was that of determining of territoriality and restricting the jurisdiction of a seat court or Bench is in question.
The question before the Lucknow Bench of the High Court was whether the Bench at Lucknow or the High Court at Allahabad had the territorial jurisdiction to entertain the writ petition under Article 226 of the Constitution of India. The court expressed there
ability to answer the same depending on the interpretation of the expression "in respect of case arising in such areas in Oudh" occurring in first proviso to Article 14 of the High Court (Amalgamation) Order, 1948. It seems from the facts of the Chini Mill's case the Lucknow Bench had no jurisdiction to entertain the writ petition. According to the Division Bench of the High Court the writ petition could only be filed in the High Court at Allahabad, and this was what ultimately was held in the given case. Prior to this judgment came the judgment in Nasiruddin v. State Transport Appellate Tribunal 6, the facts were similar as in this later case of Chini Mills, there too, in respect of cases arising in such areas Oudh" in the first proviso to paragraph 14 of the impugned Order was answered by the High Court that with regard to applications under Article 226 the same will be "a case arising within the areas in Oudh" only if the right of the petitioner in such an application arose first at a place within an area in Oudh. The implication according to the High Court is that if the right of the petitioner arose first at any place outside any area in Oudh and if the subsequent orders either in the revisional or appellate stage were passed by an authority within an area in Oudh than in such cases the Lucknow Bench would not have any jurisdiction. The factor which weighed heavily with the High Court is that in most cases where an appeal or revision would lie to the State Government, the impugned order would be made at Lucknow and on that view practically all writ petitions would arise at Lucknow. To the general understating post analyzing the reasoning of the Hon’ble High Court, the conclusion as well as the reasoning of the High Court seems circular and incorrect. It is unsound because the expression "cause of action" in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be passed at Lucknow than Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. Like in the present matter (Rajasthan High Court Advocates Association Vs. Union of India & Ors. where the territoriality of the cause of actions was determined and provinces
[AIR 1976 SC 331]
like Amer, Ajmer, Bharatpur, Bari, Baseri, Bayana and Swaimadhopur and others totaling to 13 provinces were brought under the jurisdiction of the Jaipur Bench, by the order of the Chief Justice of the High Court. In the Chini Mills case even, historically, the territories with 12 districts of Lucknow, Faizabad, Sultanpur, Rai Bareli, Pratap Garh, Barabanki, Gonda, Baharaich, Sitapur, Kheri, Hardoi, and Unnao were brought under the then British crown within the jurisdiction of the Court of the Judicial Commissioner Oudh at Lucknow. Now before the High Court a notification/Order issued by the Uttar Pradesh Government at Lucknow, whereunder it was decided to sell six sugar factories was challenged by way of a writ petition. One of the sugar mills was situated within the Oudh area whereas the remaining five mills were situated outside the Oudh area. The contention raised before the Lucknow Bench was that the sale in terms of the notification, if finalized and was to be given effect at the places where the mills are situated and since five out of the six mills were situated outside Oudh area the Lucknow Bench had no jurisdiction to take cognizance, entertain and decide the writ petition in respect of the five mills in terms of clause 14 of the Amalgamation Order. Thus, the true intent ingrained in the expression appears to be that the Judges shall sit at Lucknow in order to exercise power and jurisdiction vested in the High Court in respect of cases "pertaining to" Oudh area alone and not pertaining to the area outside the Oudh area. By no stretch of imagination, it can be assumed that the Judges while sitting at Lucknow can exercise power and jurisdiction in respect of any area outside the Oudh area.
The theory of 'cause of action' originates from the CPC, which is of general character and is, therefore, a general law. In the present case, the theory of 'exercise of jurisdiction revolving on the place of sitting' originating from any special law or say a les specilis in not a legal generalia. Thus where the controversy pertains to the territorial jurisdiction of two different High Court, certainly the theory of 'cause of action' in the shape of Sub-
clause (2) of Article 226 of the Constitution of India comes into play with full force but where the controversy pertains to the exercise of jurisdiction of one High Court as is in the present case, the theory of 'exercise of jurisdiction revolving on the place of sitting' comes into play. Thus analyzing as to what shall be the post judgment in the Rajasthan High Court Advocates Association Vs. Union of India & Ors., through the judgment in eth Chini mills case could be expressed as: ‘the institution of writs is to be done or effected in the High Court in itself at the first instance and on the judicial prudence it can be shifted to the other court, subordinate or branch or say any amalgamation of same could be done, but the same shall not be effectuated by defining territoriality in terms of ‘arising of a cause of action’, which shall in essence be a non – general law and shall be mandated indisputably by Les Generalis. The relevance of the decision can be realize in light of the subsequent as well as predecessor decisions on similar matters. A brief appraisal of all the case mentioned and relied upon while deciding the present case like State of Maharashtra v. Narayan Shamrao Puranik & Ors. [AIR 1983 SC 46]; Nasiruddin v. State Transport Appellate Tribunal [AIR 1976 SC 331]; U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P. [(1995) 4 SCC 738], Rashtriya Chini Mill Adhikari Parishad v. State of U.P.MANU/SC/0422/1995, shall be brought forth in the comment to establish their impact, relevance and justification behind the judgment in the given case.
It is an important observation that a unprecedented underlying concern in the present matter has come in the form of Jurisdictional limits and powers of the High Court under Article 226 of the Constitution, which is exclusively it’s Writ Jurisdiction powers as discussed on some earlier occasion the Clauses (1) and (2) of Article 226 of the Constitution provide an in scope to the jurisdictional powers of the High Court. They
refer as to how the territorial jurisdiction shall be exercised by any High Court. Although the said Clauses do not deal with principal seat or permanent Bench of any High Court issue, but the court has been aptly right in so voicing out their opinion that, there is no reason why the principle underlying there under cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent Bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test - from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution. Thus leaving open the issue of Jurisdictional Limits on a case to case, basis and as per the individual appreciation of cases in form of writs, filed before either the principle seat or the bench is remarkable is establishing the supremacy of Article 226 and the judicial scope underlying thereto.
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