IMPORTANT POINT
An appeal filed under Article 136 of the Constitution, against an order passed by the Chief Justice of the Allahabad High Court transferring writ petition from the Lucknow Bench of the High Court to Allahabad for hearing, is maintainable.

Headnote:(i) Constitution of India-Article 136-United Provinces High Courts (Amalgamation) Order, 1948-Paragraph 14-Civil Procedure Code, 1908-Section 24-Appeal by Special Leave-Conditions to be satisfied for invoking Article 136(1)-Respondent applied to the Chief Justice under paragraph 14 of the 1948 Order for a transfer of the appellant s writ petition from Lucknow to Allahabad Bench-Chief Justice of the Allahabad High Court directed transfer of writ petition from the Lucknow Bench of the High Court to Allahabad for hearing-Appeal filed against the Order of the Chief Justice of the High Court-Preliminary objection raised regarding the maintainability of the appeal-Whether the impugned order was on order passed by a Court or a Tribunal within the meaning of Article 136 of the Constitution-(Yes)-Order of the Chief Justice was, if not judicial, at least quasi judicial-Whether the Chief Justice could be said to have acted as a Court or as a Tribunal -Held, the Chief Justice while exercising jurisdiction under paragraph 14 of the 1948 Order, acts as a judicial authority with all the attributes of a Court-His order is amenable to correction under Article 136 of the Constitution.
       Held : Article 136 of the Constitution confers broad powers on this Court to grant special leave to appeal from any order whether an appeal lies from such an order under law or not. "The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way". (Para 4)
       Thus two conditions must be satisfied for invoking Article 136(1):-
        (1) The proposed appeal must be against a judicial or quasi judicial and not a purely executive or administrative order and;
        (2) The determination or order must have been made or passed by any Court or Tribunal in the territory of India. (Para 5)
       The Benches of Lucknow and Allahabad although part of one High Court, exercise distinct and exclusive jurisdiction over demarcated territories. (Para 11)
       There was nothing executive in the procedure followed in this case. The respondent had applied to the Chief Justice under paragraph 14 for a transfer of the appellant s writ petition from Lucknow to Allahabad. The Chief Justice heard the parties and by a detailed and reasoned order directed such transfer. There can in the circumstances be no doubt that the order of the Chief Justice was, if not judicial, at least quasi judicial. (Para 15)
       In ordering the transfer of the case under the 1948 Amalgamation Order, the Chief Justice was determining the plea of the respondent and the objection of the appellant to the transfer of the appellant s writ petition. He could not allow the plea without hearing the affected party and without determining on objective criteria and upon investigation whether the case was (a) transferable and (b) should be transferred. His decision would affect the right of the appellant to choose her forum conveniens . He was therefore acting as an adjudicating body empowered by the Constitution to discharge judicial functions. We would accordingly hold that the Chief Justice while exercising jurisdiction under paragraph 14 of the 1948 Order, acts as a judicial authority with all the attributes of a Court and his order is therefore amenable to correction under Article 136. The preliminary objection of the respondent is therefore rejected. (Para 19)
       (ii) United Provinces High Courts (Amalgamation) Order, 1948-Paragraph 14-Transfer of writ petition from Lucknow Bench to the Allahabad Bench-Appeal against-Appellant s writ petition related to the seniority list of Readers in the State Medical Colleges-Hearing of the writ petition was concluded-Subsequently, matter was released because of the personal embarrassment faced by one of the Judges who had heard the matter-Matter again heard by another Bench-Respondent 6 filed an application for transfer of appellant s writ petition from Lucknow to Allahabad-Petition allowed based on factual assumption which was incorrect-Legal basis for transfer of appellant s writ petition was also erroneous-Mere fact that respondent No. 6 and appellant were both in Allahabad should not have weighed with the Chief Justice in depriving appellant of her right as dominus litis-Order of Chief Justice directing transfer of writ petition held liable to be set aside-Lucknow Bench directed to proceed with the matter-Constitution of India-Article 136.
       Held : Before considering the reasons given by the Chief Justice for allowing the transfer it is necessary to delineate the ambit of his power under paragraph 14 of the Order. The first proviso of paragraph 14 which confers the power of transfer on the Chief Justice allows the Chief Justice to provide that in respect of such cases, namely, those which arise in areas in Oudh, shall be heard at Allahabad. The proviso assumes first, that the case or class of cases to be transferred by the Chief Justice from Lucknow to Allahabad are those which the Lucknow Bench would otherwise have the jurisdiction to entertain; and second that the power of transfer must be exercised for the purpose of having the matter heard at Allahabad. If the matter has already been heard, then the Chief Justice would not have power to transfer the case from Lucknow to Allahabad. (Para 21)
       It is true that the respondent No. 6 had filed a writ petition in 2000 before the Lucknow Bench (W.P. No. 1945 (S/B) of 2000). It is also true that an order had been passed by the Lucknow Bench holding that it had no jurisdiction to entertain the writ petition and that the writ petition should have been filed at Allahabad. What has been overlooked is that the respondent No. 6 has challenged this order by way of civil revision and the civil revision petition is still pending. Independent of this, a second writ petition (W.P.No. 23879 of 2001) was filed by respondent No. 6 in the High Court in Allahabad in 2001. This writ petition pertains to the issuance of an appointment order to the respondent No. 6 as a Reader as noted by us earlier. The legal basis of this reason for transfer of the appellant s writ petition is also erroneous. It needs to be emphasized that the power under paragraph 14 envisages transfer of a case or class of cases where the Lucknow Bench otherwise has jurisdiction to decide the matter. Whether the Lucknow Bench had/had no jurisdiction was not only an issue to be decided judicially in the appellant s writ petition but also an issue which would, if answered in the negative, cut at the root of the Chief Justice s power under paragraph 14 of the Order since paragraph 14 confers the power in the Chief Justice to transfer cases only in respect of any case or class of cases otherwise within the jurisdiction of the Lucknow Bench to Allahabad. (Paras 23 and 24)

JUDGMENT

Ruma Pal, J.-The subject matter of challenge in this appeal is an order passed by the Chief Justice of the Allahabad High Court transferring writ petition No. 1678(S/B) of 1998 (Dr. Manju Verma Vs. State of U.P. and others) from the Lucknow Bench of the High Court to Allahabad for hearing.

2. The respondent has raised a preliminary objection that the appeal was not maintainable under Article 136 of the Constitution. According to the respondent, the impugned order was not an "order" passed by a "Court" or a "Tribunal" within the meaning of Article 136, but was an order passed under paragraph 14 of the United Provinces High Courts (Amalgamation) Order 1948 on the administrative side. It is also submitted that the appropriate remedy of the appellant was under Article 226 of the Constitution. The Respondent has relied upon the decisions of this Court in Konkan Railway Corporation Ltd. and Anr. Vs. Rani Construction Pvt. Ltd. 2002 (2) SCC 388, Rajasthan High Court Advocate s Association Vs. Union of India 2001(2) SCC 294 and State of Rajasthan Vs. Prakash Chand 1998 (1) SCC 1, to contend that the nature of the power conferred and exercised by the Chief Justice under paragraph 14 of the 1948 order was purely administrative.

3. The appellant has submitted that since the territorial jurisdictions of the High Court Benches at Lucknow and Allahabad are rigidly divided, the power exercised by the Chief Justice under paragraph 14 of the 1948 Order was similar to the powers conferred under Section 24 of the Code of Civil Procedure and Article 139-A of the Constitution. It is submitted that the transfer of the case from one territorial jurisdiction to another territorial jurisdiction has always been considered to be judicial in nature and the functionary exercising such power, a Court or a Tribunal. It is submitted that a litigant as the dominus litis cannot be deprived of the right to choose a forum without being heard. According to the appellant, there was a lis between the appellant and the respondent as to whether the writ petition should be transferred or not. The Chief Justice in deciding such a lis exercised quasi judicial power and would be a Tribunal for the limited purposes for deciding the transfer of a case. It is contended that the power which was being construed in the Konkan Railway case (supra) was the power of the Chief Justice under Section 11(6) of the Arbitration and Conciliation Act 1996 which only involved the nomination of an Arbitrator to decide a case. Here there was already a case pending before a competent Court. Another distinction with Section 11(6) of the Arbitration Act is that the appointment could be questioned before the Arbitrator, whereas under Clause 14 of the 1948 Order, the correctness of the Chief Justice s order could not be argued before the Court to which the case was directed to be transferred.

4. Article 136 of the Constitution confers broad powers on this Court to grant special leave to appeal from any order whether an appeal lies from such an order under law or not. "The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way".1 `According to The Engineering Mazdoor Sabha & Anr. Vs. The Hind Cycles Ltd.2.

"It is clear that Art. 136(1) confers very wide powers on this Court and as such, its provisions have to be liberally construed. The constitution-makers thought it necessary to clothe this Court with very wide powers to deal with all orders and adjudications made by Courts and Tribunals in the territory of India in o

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2004 Supreme(SC) 1418

IMPORTANT POINTAn appeal filed under Article 136 of the Constitution, against an order passed by the Chief Justice of the Allahabad High Court transferring writ petition from the Lucknow Bench of the High Court to Allahabad for hearing, is maintainable.

Cases Referred (6)

IMPORTANT POINT
An appeal filed under Article 136 of the Constitution, against an order passed by the Chief Justice of the Allahabad High Court transferring writ petition from the Lucknow Bench of the High Court to Allahabad for hearing, is maintainable.