2006 Supreme(SC) 504

2006(4) Supreme 489
SUPREME COURT OF INDIA
(From Kerala High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
M.P. Gangadharan & Anr.—Appellants
versus
State of Kerala & Ors.—Respondents
Civil Appeal No. 2638 of 2006
(Arising out of S.L.P. (Civil) No. 25465 of 2005)
Decided on 12-5-2006
Counsel for the Parties :
For the Appellants : Dr. Rajiv Dhawan, Sr. Advocate, G. Prakash and Deepak Prakash Advocates.
For the Respondents : T.L.V. Nair and C.S. Rajan Sr. Advocates, Vipin Nair, P.B. Suresh for M/s. Temple Law Firm, E.M.S. Anam and Ramesh Babu M.R., Advocates.

IMPORTANT POINTS
1. While constituting a Family Court the State must provide for all infra structure so as to meet the objects for which the Family Courts are required to be established. It according to the High Court, the building in which the Family Court is established, is not suitable so as to meet the requirements of the litigants, the State Government can shift the Family from one place to another within that area having jurisdiction.
2. The interest of the litigants should be uppermost in the mind of the High Court while making a recommendation for shifting of the High Court from one place to the other.

Headnote:Family Courts Act, 1984—Sections 3(1)(a), (b), 7, 9, 11, 20, 21—Shifting of Family Court from one place to another in a State—State of Kerala established a Family Court at Manjeri in year 1999 in a tenanted premises wherefor a sum of Rs. 6,668/- was payable by way of monthly rent—Manjeri is about 12 kms. North of Malappuram, a district in Kerala—Litigant public, court staff and others concerned were facing a lot of difficulties in attending family court at Manjeri—Bar Association of Malappuram submitted a representation seeking shifting of the Family Court at Manjeri to Malappuram—A Government building was shown to be available at Malappuram—According to the High Court, the same satisfied the basic needs for running a Family Court—Government of State of Kerala issued a Government order directing the shifting of the Family Court from Manjeri to Malappuram—Writ petition filed by appellants for quashing the said order for shifting the court—Constitutional question as regards the authority of the State to direct shifting of the Family Court was raised—It had been wrongly averred that population in the town of Manjeri was more than one million—Whether State Government has jurisdiction to shift a Family Court from one place to another—(Yes)—Whether High Court can recommend in the matter of shifting of the Family Courts—(Yes)—General Clauses Act, 1897—Section 21—Constitution of India—Article 235, 236.

       Held : Clauses (a) and (b) of Sub-section (1) of Section 3 of the Act operate in two different fields. Whereas in the area which would attract Clause (a), the State is bound to establish a Family Court, over areas which are not covered by Clause (a), the State has a discretion to establish or not to establish a Family Court. In the case of the former, the State may not have any power to shift the Family Court from the city or town whose population exceeds one million; but we do not find any reason why a Family Court established at a place having jurisdiction over an area including more than one town or village cannot be shifted from one place to another within that area.(Para 14)

       In terms of Section 21 of the General Clauses Act, 1897, (corresponding to the relevant provisions in Interpretation and General Clauses Act, 1925), the power to issue would include the power to amend, vary or rescind, notifications and orders. If a notification could be issued establishing a Family Court at Manjeri, we do not see any reason why another notification cannot be issued by the State to shift the said Court to another place put within the same area of the Family Court. In terms of Section 21 of the General Clause Act, the State Government will indisputably have jurisdiction to abolish a Family Court and establish one at another place. If such an extensive jurisdiction can be exercised by the State, we fail to comprehend as to why its jurisdiction should be held to be limited in the matter of shifting of Court from one place to another but within the same area, particularly, in view of the fact that in terms of sub-section (2) of Section 3 of the Act even a change in the area is permissible.(Para 15)

       The power to shift a court from one place to another involves a jurisdictional question. The State Government exercised the said jurisdiction in consultation with the High Court. It agreed to the suggestion of the High Court for shifting of the Family Court from one place to the other. For the aforementioned purpose, the High Court can make its recommendations having regard to its control over the subordinate courts on the administrative side.(Para 29)

       The Courts are meant for imparting justice. The interest of the litigants should be uppermost in the mind the court while making such a recommendation. The High Court emphasized the need for having a proper building. It emphasised the requirement for shifting of the court building in the interest of the litigant public. The High Court has taken all possible steps to retain the court at Manjeri. It had not only sought for reports from the Judge, Family Court but also from the District Judge. It has considered the existing infrastructure at Manjeri. Before making the recommendation, not only all relevant factors were taken into consideration, but the Appellant-Association was also given an opportunity to furnish full details of other suitable buildings available at Manjeri, for the proposed shifting. They could suggest only one building. As per the report of the District Judge, that building was situated at a distance of 2 furlongs south of District Court Building at Manjeri and was quite inconvenient to accommodate the Family Court.(Para 30)

       The High Court for the aforementioned purpose noticed the report of the District Judge as regard travelling facilities for the litigant public to both the places, viz., Manjeri and Malappuram. It also looked at the geographic situation of the two towns. It took into consideration the representations of both the Bar Associations. We have been shown several photographs to highlight the absence of even the bare minimum requirements to run a court. There is no place for counselling. Even the records are kept in a toilet.(Para 31)

       Owing to lack of space, it had become very inconvenient to house the Family Court in the said building. The building was constructed for commercial purposes. There was a lodge (hotel) in the ground floor. A Cooperative Bank is also situated therein. There is only one staircase and it has only one approach through which the Judge, Family Court, litigants, advocates, staff and policemen enter the first floor. The court room is so small that even 15 advocates cannot sit in it. Advocates and litigants have to wait on the verandah or the staircase when the cases are called. The building lacked adequate ventilation. Lady lawyers have no separate area. Even the area earmarked for counselling is used by advocates to change dresses. There is no privacy at all even for the said purpose.(Paras 32)

       The procedures required to be followed in the Family Court are different from the procedures which ordinarily are required to be followed. It must have sufficient space. It must have a counselling centre. The Family Court must house a room for the family counsellors. There has to be sufficient space for conciliation. The atmosphere in a Family Court should be different from an ordinary court. We are informed that by and large the existing state of affairs in the Family Courts situated in the State of Kerala is similar. Adequate facilities and infrastructure are not available. The State of Kerala is enjoined with a duty to establish Family Courts. It is imperative on its part to establish a Family Court where clause (a) of Sub-section (1) of Section 3 of the Act is attracted but a court can be established also in cases where Clause (b) thereof is attracted. While constituting a Family Court the State must provide for all requisite infrastructure so as to meet the objects for which the Family Courts are required to be established. A court should not be established only because it is provided for under the Act. The State must be alive to the situation that it has a duty to see that the dispute resolution fora are provided with adequate infrastructure. (Para 34)

       If, according to the High Court, the present building is not suitable so as to meet the requirements of the litigants and because of it, it had taken the decision to shift the court to a better place, no fault can be found with the said decision only because the proposed site is situated at a distance of 12 kms. from the existing court building. We have been shown a map. From a perusal thereof, it appears that Malappuram is ideally situated geographically for having a court. It is the district headquarters. Number of cases from Malappuram is also more than the cases of Manjeri. The representations of the Bar Associations, although are relevant, cannot be the sole criterion. We have noticed hereinbefore that representations of the Malappuram Bar Association was not the only consideration which weighed with the High Court for making its recommendations. It may be true, as has been submitted by Dr. Dhawan that the State of Kerala in its counter-affidavit has categorically stated that the shift is temporary. As and when a proposed building is made available by the State, steps will be taken to shift the Family Court to that building. We have no doubt that the State would make an endeavour to make available an exclusive court complex for the Family Court and the High Court will then take steps to have the court located therein. (Para 35)

       There is another aspect of the matter which cannot be lost sight of. The Appellant as affirmed an incorrect affidavit as regards the population of the town.(Para 36)

       (ii) Family Courts Act, 1984—Section 3(1)—Constitution of India—Article 235—Family Courts—Whether Family Courts can be equated with courts constituted under the Consumer Protection Act—(No)—Consumer Protection Act, 1986—Section 16—Kerala Civil Courts Act, 1957—Section 2.(Para 23)

       (iii) Family Courts Act, 1984—Section 3(1)—Expression ‘consultation’—It may not mean ‘concurrence’. (Para 27)

       (iv) Constitution of India—Articles 235 to 237—Supervisory jurisdiction conferred upon the High Court over all the courts subordinate to it—Such jurisdiction can be exercised by the High Court in respect of judicial as also administrative matters.

       Held : Article 235 of the Constitution of India confers a supervisory jurisdiction upon the High Court over all the courts subordinate to it. Such jurisdiction can be exercised by the High Court in respect of judicial as also administrative matters. Article 236 of the Constitution of India, as referred to by Dr. Dhawan, provides for an interpretation clause. The expression “District Judge” would not only be an officer who has been specified in Clause (a) of Article 236 but would also be such officer who would otherwise be within the control of the High Court in terms of Article 235 of the Constitution of India.(Para 17)

       The High Court exercises control over the subordinate courts not only in terms of the Constitution of India as envisaged under Articles 235 and 227 thereof but also under other Acts, viz., Code of Civil Procedure and Code of Criminal Procedure. The officers appointed as the Judge, Family Court are selected by the High Courts from amongst the existing cadre of the District Judges. The ACRs of the said Judges are recorded by the High Court. It remains undisputed that there is a Committee of Judges Incharge of the Administration of the Family Courts. It may be true that the Act is a Federal Legislation but such Federal Legislation has been enacted by the Parliament for other purposes also as, for example, the Motor Vehicles Act, 1988 in terms whereof Motor Accident Claims Tribunals are constituted.(Para 18)