High Court in writ jurisdiction shall not usurp the jurisdiction of other Fora unnecessarily.

Kalyan Jyoti Sengupta, J.

1. Office objections are sustained.

2. This writ petition has been filed invoking provisions of Articles 226 and 227 of the Constitution of India to impugn the order passed by the learned Court below under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’).

3. The Department has raised an objection as to entertainability of the writ petition. While taking note of the objection of the department, we have just checkup up the records and find that the learned Chief Judge, City Civil Court, Hyderabad, has been made a party.

4. Sri S. Ravi, learned Senior Counsel, appearing for the petitioner says that this writ petition is perfectly entertainable as the learned Chief Judge has not decided the matter as he ought to have done under law. Therefore, it is an illegal functioning of the learned Judge and he is amenable to writ jurisdiction to rectify his functioning.

5. If we struck out the name of the learned Judge from the array of the parties, then obviously Article 226 cannot be invoked in this matter but it is possible to invoke Article 227 in that case. First, we shall deal with the submission of Mr. Ravi with regard to impleadment of the learned Judge and his functioning.

6. The Judges in this country when act in judicial capacity in Court enjoy immunity from being prosecuted and sued as a Judge. They cannot be made a party in any proceeding wherein they have decided the matter, as his decision can be rectified by judicial proceeding. The petition under Article 226 of the Constitution of India is not a judicial proceeding in the sense to correct the functioning of the subordinate Civil Courts. This view of ours is supported by the Supreme Court decision in Savitri Devi v. District Judge, Gorakhpur and others AIR 1999 SC 976and paragraph 14 of the report, reads as under:

Before parting with this case it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the Special Leave Petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division) Gorakhpur are shown as respondents and in the Special Leave Petition they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or Special Leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.”

(emphasis supplied)

7. In view of the aforesaid observations and mandate of the Apex Court, we delete the learned Judge from the array of the respondents.

8. Now, the question is whether Article 226 of the Constitution of India can be invoked in the absence of any respondent who is not a ‘State’ within the meaning of Article 12 of the Constitution of India and ‘other authorities’ within the meaning of Article 226 as above.

9. Obviously, the respondent is a foreigner and cannot be said to be a ‘State’ within the meaning of Article 12 of the Constitution of India or ‘other authorities’ within the meaning of Article 226 of the Constitution of India. It is true any private individual whether natural or artificial can sometimes be treated as ‘other authorities’ when they discharge public function of a monopolistic character. It appears that the subject matter of the writ petitio