Back
High Court Of Madhya Pradesh
T. N. SINGH
JAGDISHLAL DHODY - Appellant
Versus
STATE OF M.P. - Respondents
MISC. PETN. 720 Of 1986
Decided On : 03/12/1987
"Respective powers of Judges" of any existing High Courts can only be altered or amended in accordance with the provisions of the Constitution and of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. AIR 1986 SC 1272 followed. [ Para 10
(2) Constitution of India-Art. 227, Seventh Schedule. List I, entry 78 -power of the High Court under article 227-how can be amended.
The scope and ambit of the power which is envisaged under Article 227 can evidently be modified in any manner by a Constitutional amendment because no State legislature is explicitly empowered there under to undertake such an exercise Indeed, entry 78 of List I of Seventh Schedule of the Constitution invests legislative competence exclusively in the Parliament in matters of "constitution and organisation (including vacation) of High Courts." [ Para 10
(3) Constitution of India-Arts. 227 & 225 -power of the High Court to act suo motu under Article 227-cannot be curtailed by Rules made under Article 225-how such power can be curtailed.
When any Judge, sitting alone or Judges sitting in any Division Court, exercises or exercise powers Suo motu, in virtue of any constitutional or statutory entitlement, the Rules framed by the Court cannot evidently regulate the exercise of the power, so as to deny them the power to do so. The Rules may merely "regulate sittings of the Court" in order that the business of a High Court is conveniently managed and the Judges sitting alone or in Division Court deal with different types of business which are earmarked to them under the Rules. The Rules which Article 225 enable to be framed by the High Courts, cannot, in any manner, regulate suo motu exercise of power of a Single Judge or of a Division Bench in a matter of which such Judge or Bench is duly seized of. If it is found that a Single Judge or Division Bench can exercise powers under Art. 227 suo motu, then their exercise of such power can only be curtailed necessarily by a Constitutional amendment, and nothing short of that. It cannot be done by any ordinary law of any Legislature, including the Parliament; much less by any Rule framed under Article 225 of the Constitution. [ Pam 11
When a matter has come up before such a Judge or a Court in accordance with the roster of cause-list, such a Judge or Court is free to exercise suo motu any power in the manner he thinks best for the ends of justice if such Judge or Court possesses Constitutional or statutory entitlement to exercise Suo motu power in that behalf. [ Para 12
(4) Constitution of India-Art. 227-Rules of the High Court-Rr. 7 to 4 - power of the High Court to hear suo motu a petition under Art. 227.
In exercise of powers conferred under Article 225 of the Constitution of India and clause 27 of the Letters Patent, Rules were framed in Chapter 16 of the Rules of the Court, providing the procedure for disposal, according to Rule 1 (a) of "an application under Art. 227 (1)" contemplating that such application shall comply with the provisions of Rules 2 and 3 of Chapter IV of the Rules of the High Court in addition to the other requirements stated therein. Rule 4 of the same Rules (of Chapter 16) provides that "such petitions shall be heard by a Division Bench, provided that during summer vacation or when no Division Bench is sitting, they may be heard by a Single Bench.... ." However, what is also to be noted is Rule 6 (a) which enabled a Court "of its own motion" to requisition any record of a case or proceeding in possession of any Court or Tribunal over which superintendence is claimed. Evidently this is recognition of the Constitutional position that power of superintendence envisaged under Article 227 can be exercised suo motu even by a Single Judge in circumstances contemplated under Rule 4. [Pala 14
(5) Constitution of India--Art. 227 (7)-oral or written application jar conversion-Judge can exercise suo motu power-nature of the application.
The mere fact that the decision to act suo motu is taken on an oral prayer or a written application made in that regard, would not deprive the Judge of the jurisdiction and power to act suo motu in the footing that such a prayer-written or ora1would be deemed to be a petition made under Article 227 (1) of the Constitution. Even when a written application for conversion is made such an application would not evidently comply with the requirements of the Rules of the Court for filing petitions under Art. 227, because it would not be an independent and self contained petition stating factual and legal contentions for the relief claimed on merits in the pending matter on which any judicial decision earlier rendered could be challenged. AIR 1955 SC 223, AIR 1978 All. 27 & AIR 1958 All. 154 relied on. [Para 16
(6) Constitution of India-Preambled`rules in interpretation of the Constitution.
The Constitution being an organic document reflecting the aspirations of the people of the country, its interpretation should not be subjected to pedantic rules, but informed by a wide vision. Indeed the socio-economic and political ethos of the Basic Law is to be found in the Preamble, the Directive Principles as also other like provisions as permit progressive evolution of law for dispensation of justice in the social, economic and political context of the destiny of a progressive people. [ Para 19
(7) Constitution of India-Art. 227-High Court a Court of record-import of-ambit of the powers under Article 227.
Being designated as "Court of record", the decisions of a High Court are invested with "high and super· eminent authority‘‘ and it is constituted as an organised judicial tribunal exercising independent functions.
It is the inherent nature of the power inscribed in Article 227 (1) which charges each and every Judge of a High Court with the duty to fulfil his Constitutional obligation in turns of his oath of upholding the Constitution and the laws, by ensuring that the inferior Courts and tribunals within the jurisdiction of the High Court act "within the bounds of their authority" and that "they do what their duty requires and they do it in the legal manner". AIR 1954 SC 215, AIR 1962 SC 1I35, AIR 1986 SC 1272, AIR 1968 SC 1481, AIR 1972 SC 1598, AIR 1980 SC 892 relied on. [ Para 21
(8) Land Revenue Code, 7959 (M. P.)-S.50-order under section 50-cannot be deemed to be under suo motu power. 1975 JLJ 155 referred to. [ Para 23
(9) Constitution of India-Art. 227-the Article specks of "High Court," - power of Singh Judge not affected.
The mere fact that Article 227 speaks of "High Court" and not of a Judge or Judges of a High Court, would not mean that a Single Judge of a High Court is not empowered to exercise power of superintendence contemplated there under. [ Para 26
(10) Constitution of India-Art. 227-object and nature of the COl1slitulion-power under Art, 227.
The Constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that Court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statutes in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the Court is invested with unlimited and unfathomable reserve of judicial power of supervision under Article 227. AIR 1969 Delhi 1, AIR 1960 Punj. 35, AIR 1973 SC 1641, AIR 1952 Punj. 70, AIR 1977 SC 237, AIR 1979 SC 1 & AIR 1969 Guj. 292 discussed. [ Para 30
( 1 ) SAVE by constitutional amendment, powers of a single Judge of a High Court to act suo motu under Art. 227, in a pending matter, of which he is in seisin, cannot be taken away.
( 2 ) IS that a constitutionally valid and acceptable proposition ?
( 3 ) HAPPILY, the obvious importance of the constitutional issue lying in its sui generis character, has motivated Gwalior's legal fraternity to serve a public cause by joining the debate. I heard petitioner's counsel Shri Lahoti who forcefully pressed the above thesis for acceptance, but also heard Senior Counsel Shri J. P. Gupta who volunteered to assist the Court as amicus curiae. Besides, I also heard Shri S. K. Dubey, President, High Court Bar Association, Gwalior and indeed, the State Counsel Shri Sinha at good length, because he forcefully voiced his strong opposition to the thess propounded, albeit placing implicit reliance on the Rules framed by this Court under Art. 225 of the Constitution.
( 4 ) UNDOUBTEDLY inspiration to propound the thesis is drawn mainly from a recent decision of the Apex Court in Umaji v. Radhikabai, AIR 1986 SC 1272. It may not be inappropriate to add further that this Court in Anwar v. Wahidan, 1986 Jab LJ 600 , held it permissible to allow an application, in a pending revision under S. 115, C. P. C. , for suo motu exercise by the Court of its power under Art. 227 of the Constitution and the instant case being also one of "conversion". Government Advocate Shri Sinha, appearing for the respondent/state, raised the objection that the amended Rules of this Court have robbed me of the jurisdiction to further deal with the matter. It has thus become necessary to resolve the controversy.
( 5 ) THE validity of the thesis may be conveniently tested formulating two questions of which the first question may be dealt with in two parts - (i) whether powers under Art. 227 can be exercised suo motu; (ii) and by a single Judge of a High Court in pending matter of which he has seisin. The second question is - whether Art. 225 of the Constitution conferred any power on a High Court to make Rules to regulate the exercise suo motu power by any Judge of the Court by virtue of the Constitutional entitlement of "superintendence" ?
( 6 ) THE decision in Umaji (AIR 1986 SC 1272) (supra) claimed much time and attention as it really ought to and at the Bar, counsel on both sides laid emphasis, in support of rival contentions, of what is to be read in paras. 27, 84, 85, 89, 90, 96-100, 102 and 105 of the Report. However, I would first like to extract a portion of observations of their Lordships only from para 84 of the Report which, according to Shri Lahoti, indubitably supports the thesis, or rather provides the source of the thesis. In para 84, it is observed as follows :-"further, the insertion of Arts. 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation. "
( 7 ) NOW, I quote relevant portions also of paras. 89 and 90 of the Report which have a material bearing on the scope and purport of Art. 225 vis-a-vis Art. 227 of the Constitution. In para. 89, it was thus stated :". . . UNDER Art. 225 the jurisdiction of the existing High Courts and the law administered by them and the powers of the High Courts to make rules and to regulate the sittings of the Court and of members thereof sitting singly or in Division Courts have been preserved and continued subject to the provisions of the Constitution and of any law made by the appropriate Legislature. "indeed it may also be added that the view of the Bombay Full Bench, which was under their Lordships' consideration, concerning interpretation of the words "subject to" occurring in
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
