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1994 Supreme(J&K) 42
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Syed Saghir Ahmad,M.L. Koul, JJ.
H.S. Rainal - Appellant
Versus
Union Of India & Ors. - Respondent
LPA (W) No. 48/1994
Decided On : 08 April, 1994
Advocate For Appellant: M.S. Malik
Advocate For Appellant: Davinder Singh
Advocate For Respondent: J.A. Kawoosa
Advocate For Respondent: D.S. Thakur
The Chief Justice of a High Court has the power to transfer cases from one Wing to another Wing of the High Court under Rule 8 of the J&K High Court Rules, 1975.
Headnote:
CONSTITUTIONAL LAW - HIGH COURT - CHIEF JUSTICE - ADMINISTRATIVE POWERS - TRANSFER OF CASES - J&K HIGH COURT RULES, 1975 - RULE 8 - SCOPE AND INTERPRETATION - POWER OF CHIEF JUSTICE TO TRANSFER CASES FROM ONE WING TO ANOTHER WING OF THE HIGH COURT - JUDICIAL OR ADMINISTRATIVE POWER - DISTINCTION - JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS - PRINCIPLES GOVERNING.
Fact of the Case:
The appellant, who was posted as Divisional Manager in National Insurance Company Ltd. Division II, Canal Road, Jammu, filed SWPNo.947 of 1991 in the Srinagar Wing of the High Court. An application for transfer of the case was moved at Jammu Wing before the Lord Chief Justice. The transfer of the writ petition was sought on the ground that on account of the militant situation prevailing at Srinagar it was not possible for the respondents to contest the petition there. The Hon’ble Chief Justice in his wisdom after hearing the appellant and the respondents transferred the writ petition, along with its connected CMPs and contempt petitions, to Jammu wing, holding that Rule 8 of the Jammu & Kashmir High Court Rules confers power upon the Chief Justice to constitute Benches and the power to transfer a case from one Wing to another.
Finding of the Court:
The Court held that the impugned order passed by the Chief Justice transferring the writ petition from Srinagar Wing to Jammu Wing was not a judicial order but an administrative order passed in exercise of the administrative powers vested in him as Chief Justice of the High Court. The Court further held that the Chief Justice had the power under Rule 8 of the J&K High Court Rules, 1975 to transfer cases from one Wing to another Wing of the High Court and that this power was not limited to cases where the transfer was sought on the ground of convenience of the parties.
Issues: 1. Whether the impugned order passed by the Chief Justice transferring the writ petition from Srinagar Wing to Jammu Wing was a judicial order or an administrative order? 2. Whether the Chief Justice had the power under Rule 8 of the J&K High Court Rules, 1975 to transfer cases from one Wing to another Wing of the High Court?
Ratio Decidendi: 1. The Court held that the impugned order passed by the Chief Justice transferring the writ petition from Srinagar Wing to Jammu Wing was not a judicial order but an administrative order passed in exercise of the administrative powers vested in him as Chief Justice of the High Court. The Court relied on the following factors in reaching this conclusion: * The order was passed by the Chief Justice in his administrative capacity, not in his judicial capacity. * The order did not decide any issue in the writ petition. * The order was not subject to appeal. 2. The Court held that the Chief Justice had the power under Rule 8 of the J&K High Court Rules, 1975 to transfer cases from one Wing to another Wing of the High Court. The Court relied on the following factors in reaching this conclusion: * Rule 8 of the J&K High Court Rules, 1975 confers wide powers upon the Chief Justice to constitute Benches and provide work to be done by them either under his written orders by way of the cause list or even under his direction by the Registry. * Rule 8 of the J&K High Court Rules, 1975 owes its origin to Section 101 of the Constitution of Jammu and Kashmir and these rules are directly in consonance and within the authority contained in Section 101 of the Constitution of Jammu and Kashmir. * The Chief Justice is the final authority to determine the number of the Judges, who shall sit from time to time at Srinagar and Jammu, for such period as may be deemed necessary and it is the Chief Justice alone, who can allot and provide judicial work to such Benches, to be done by them, either directly or under his directions.
Final Decision: The Court dismissed the appeal and held that the impugned order passed by the Chief Justice transferring the writ petition from Srinagar Wing to Jammu Wing was valid and proper.
1. This Letters Patent Appeal has arisen out of an order of Hon™ble the Chief Justice dated 11.2.1994, whereby writ petition No.947 of 1991 titled H.S. Rainal Vs. National Insurance Company and others has been transferred from Srinagar Wing to Jammu Wing of this Court, alongwith all connected CMPs. and contempt petitions arising therefrom.
2. A challenge has been made to the passing of such order on the ground that the impugned order being a judicial order has been passed by Hon™ble the Chief Justice under the administrative powers vested in him as Chief Justice of the High Court. The said order being a judicial order could not be passed in exercise of the administrative powers vested in him and his Lordship failed to appreciate and consider the arguments raised by the counsel for the appellant. The learned Single Judge failed also to appreciate that power to transfer cases from one Wing to another Wing had not been conferred under the J&K High Court Rules and that his Lordship also failed to appreciate that the respondents were bound to prefer an appeal before the Srinagar Wing, as the writ petition was pending in that Wing of the Court.
3. The facts of the case giving rise to filing of this L.P.A., in short compass, relate that the appellant preferred SWPNo.947 of 1991 in the Srinagar Wing of the High Court, while he was posted in Jammu, as Divisional Manager in National Insurance Company Ltd. Division II, Canal Road, Jammu. This writ petition was admitted to hearing by the learned Single Judge at Srinagar and an application for transfer of the case was moved at Jammu Wing before the Lord Chief Justice. The transfer of the writ petition was sought on the ground that on account of the militant situation prevailing at Srinagar it was not possible for the respondents to contest the petition there. The plea taken with regard to the appellant was that so far as his convenience was concerned, the cause of action had accured to him at Jammu and as he was posted at Jammu, therefore, it was all the more easy for him as well to contest the petition at Jammu. The Hon™ble Chief Justice in his wisdom after hearing the appellant and the respondents transferred the writ petition, alongwith its connected CMPs and contempt petitions, to Jammu wing, holding that Rule 8 of the Jammu & Kashmir High Court Rules confers power upon the Chief Justice to constitute Benches and the power to transfer a case from one Wing to another.
4. Heard learned counsel for the parties; also bestowed our thoughtful consideration over the record on the file.
5. Mr. M.S. Malik, representing the Appellant, has vaguely argued that the Chief Justice has no power under the J&K High Court Rules, to transfer a case from one Wing to another Wing of the High Court, and this power being a judicial power could not be exercised by the Chief Justice in his administrative capacity.
6. This argument of learned counsel for the appellant was impelled by the counsel opposite, Mr. J.A. Kawoosa, who argued that the power of the Chief Justice is contained in Rule 8 of the J&K High Court Rules, which empowers the Chief Justice with ample powers to assign and allot work to the Benches, as he desires fit. In this regard it is material to make mention of Chapter III of the J&K High Court Rules which provides a scheme for the formation of the Cause List and the Misc. instructions for the conduction of work before the different Benches as assigned, allotted or regulated by the Chief Justice. Rule 8 deals with the constitution of Benches and says that:
"Judges shall sit alone or in such Benches as may be constituted from time to time by the Chief Justice, and do such work as may be allotted to them by the Chief Justice or under his directions".
This Rule has conferred ample powers upon the Chief Justice to allow the other Judges of the High Court to sit alone or in such Benches as may be constituted from time to time by the Chief Justice and do such w
