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IN THE HIGH COURT OF ORISSA
R.C. Patnaik, D.M. Patnaik, JJ.
BHABANI SHANKAR TRIPATHY - APPELLANT
Versus
SECRETARY TO THE GOVERNMENT OF ORISSA, HOME DEPARTMENT AND ANOTHER - RESPONDENT
O.J.C. No. 1298 of 1991
Decided On : 13-11-1991
HIGH COURT - SEAT - SHIFTING - LOCUS STANDI - LAWYER - PUBLIC INTEREST LITIGATION - JURISDICTION - LEGISLATIVE COMPETENCE - CONSTITUTION AND ORGANISATION - ADMINISTRATION OF JUSTICE - ARTICLE 10 OF ORISSA HIGH COURT ORDER, 1948 - ENTRY 78 OF LIST I - ENTRY 11-A OF LIST III - ENTRY 65 OF LIST II - ARTICLE 225 OF THE CONSTITUTION OF INDIA - ARTICLE 214 OF THE CONSTITUTION OF INDIA - ARTICLE 216 OF THE CONSTITUTION OF INDIA - ARTICLE 217 OF THE CONSTITUTION OF INDIA - ARTICLE 220 OF THE CONSTITUTION OF INDIA - ARTICLE 221 OF THE CONSTITUTION OF INDIA - ARTICLE 222 OF THE CONSTITUTION OF INDIA - ARTICLE 223 OF THE CONSTITUTION OF INDIA - ARTICLE 224 OF THE CONSTITUTION OF INDIA - ARTICLE 224A OF THE CONSTITUTION OF INDIA - ARTICLE 226 OF THE CONSTITUTION OF INDIA - ARTICLE 227 OF THE CONSTITUTION OF INDIA - HIGH COURT AT PATNA (ESTABLISHMENT OF A PERMANENT BENCH AT RANCHI) ACT, 1976 - HIGH COURT OF BOMBAY (EXTENSION OF JURISDICTION TO GOA, DAMAN, DUE) ACT. 1981 - REX V. GREATER LONDON COUNCIL, EX PARTE BLACKBURN - S.P. GUPTA VS. PRESIDENT OF INDIA AND OTHERS - PRAMATHA NATH MITTER AND OTHERS VS. HON'BLE THE CHIEF JUSTICE OF THE HIGH COURT AT CALCUTTA IN THE STATE OF WEST BENGAL AND OTHERS - CHAITANYA KUMAR V. THE STATE OF KARNATAKA AND ORS. - DR. D. C. WADHWA AND ORS. V. STATE OF BIHAR AND ORS. - GOVERNMENT OF INDIA ACT, 1935 - BLACK'S LAW DICTIONARY - INDIA PROVISIONAL CONSTITUTION (AMENDMENT) ORDER, 1948 - ORISSA HIGH COURT ORDER, 1948 - CONSTITUTION OF INDIA, AS AMENDED BY THE 42ND AMENDMENT.
Fact of the Case:
The petitioner, an advocate practicing in the Orissa High Court, filed a writ petition challenging the State Government's decision to shift the seat of the High Court from Cuttack to Bhubaneswar. The petitioner contended that the State Legislature lacked the competence to enact a law for shifting the seat of the High Court and that the executive had no power to direct such a shift. The State Government, on the other hand, argued that it had the authority to make such a decision under Entry 11-A of List III of the Seventh Schedule of the Constitution of India, which deals with the 'Administration of Justice'.
Finding of the Court:
The Court held that the State Legislature did not have the competence to enact a law for shifting the seat of the High Court, as this matter fell under the subject of 'Constitution and Organisation' of High Courts, which was exclusively reserved for the Parliament under Entry 78 of List I of the Seventh Schedule of the Constitution of India. The Court further held that the executive did not have the power to direct such a shift, as this would be an encroachment on the powers of the Chief Justice under Article 10 of the Orissa High Court Order, 1948, which vested the authority to appoint the seat or seats of the High Court exclusively in the Chief Justice, with the approval of the Governor.
Issues: 1. Whether the State Legislature had the competence to enact a law for shifting the seat of the High Court from Cuttack to Bhubaneswar? 2. Whether the executive had the power to direct such a shift?
Ratio Decidendi: 1. The Court interpreted Entry 78 of List I and Entry 11-A of List III of the Seventh Schedule of the Constitution of India and held that the subject of 'Constitution and Organisation' of High Courts was exclusively reserved for the Parliament, while the subject of 'Administration of Justice' did not include the power to shift the seat of a High Court. 2. The Court also interpreted Article 10 of the Orissa High Court Order, 1948, and held that it vested the authority to appoint the seat or seats of the High Court exclusively in the Chief Justice, with the approval of the Governor.
Final Decision: The Court allowed the writ petition and declared that the State Legislature did not have the competence to enact a law for shifting the seat of the High Court from Cuttack to Bhubaneswar and that the executive did not have the power to direct such a shift.
JUDGMENT :
R.C. Patnaik, J. - The High Court, the apex Court of the State, is not a mere lifeless edifice of bricks and mortar standing on a parcel of land. It is a living entity--the Bar being its heart and soul; the other adjuncts are its limbs assisting in dispensation of justice.
2. High Court is a temple; its presiding deity is justice. Lawyers are its priests. Rest are votaries discharging their assigned role. Entertaining ah idea of shifting a temple is considered a sacrilege except in exceptional circumstance and when it is unavoidable. Only compelling, cogent and convincing grounds may justify shifting of a temple. But entertaining a desire to shift a temple in a cavaliar fashion or on whim or caprice or to please a group of people is neither wholesome nor desirable. If there be deficiency, cure the same; if it needs improvement or beautification, carry out the same, but desist from acting thoughtlessly.
3. The Bar is not a mere conglomerate of Law Graduates. Its glory is its tradition which is not acquired but grows in course of time, over the ages by the consecrated and dedicated service rendered to the cause of justice by the members by their sweat, toil and tears.
4. Tradition of the Cuttack Bar rolls back to ancient times growing and gathering strength from generation to generation of lawyers, its interaction with the High Court having commenced with the functioning of the Circuit Bench of the Patna High Court at Cuttack.
The aforesaid would be the answer of a lay man to the questions of locus standi and shifting of the seat of the High Court involved in this case.
5. But what is the position in law ?
6. The petitioner an advocate practising ordinarily in this Court and a member of the Cuttack Bar, has filed this writ application in his individual capacity, as well as in the nature of public interest litigation for a declaration that neither the State Legislature has competence to enact a law for the shifting of the seat of the High Court from Cuttack to Bhubaneswar nor has the executive power to direct shifting and for an order restraining the executive from taking any decision in the matter of shifting. He has alleged that the shifting of the High Court from Cuttack to Bhubaneswar would not only affect his livelihood but the livelihood of hundreds of lawyers ordinarily practising in Cuttack and the litigant public. The aforesaid allegations have been made with a view to giving him a standing to maintain the application.
7. The immediate cause of action, as alleged in the petition, was the statement of the Law Minister on the floor of the Assembly that the Government had taken a decision to shift the High Court from Cuttack to Bhubaneswar. The statement was reiterated by a Press-Note and was given wide publicity over the television and newspapers. A news item published in the daily Samaj dated 9-3-1991 has been annexed as Annexure-1. He has alleged that under the Orissa High Court Order, 1948, it is the Chief Justice who is to take a decision regarding the seat of the High Court. Until the provision contained in the Order is abrogated by law enacted by a competent legislature, the executive has no locus standi and having regard to the subject. Constitution and Organisation' of the High Courts under Entry 78 of List I of Schedule VII of the Constitution of India, the State Legislature has no competence to enact the law. Hence, the decision which was given wide publicity was capricious, ma/a fide and arbitrary. Since an authority incompetent under the law to take a decision or give a direction has given threats, was justification to move this Court for an appropriate writ and/or order.
8. In the return submitted by the State-opp. party No. 1, it has been averred that various Bar Associations of the State had taken recourse to agitational activities for establishment of Circuit Benches of the High Court. When the Bar Council of Orissa did not take any initiative and the High Court remained silent, the State Government had
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