Allahabad High Court
Pankaj Srivastava & Anr. [ P.I.L. ] ... vs High Court Of Judicature At ... on 3 June, 2011
Bench: Uma Nath Singh, Satish Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved Court No.2
Writ Petition No. 1010(MB) of 2011
Pankaj Shrivastava & another ......Petitioners
vs.
High Court of Judicature at Allahabad and another .....Respondents
&
Writ Petition No. 630 (MB) of 2011
Kashi Prasad Yadav ....... Petitioner.
Versus
The Registrar General and others ...... Opp.Parties.
Hon'ble Uma Nath Singh,J.
Hon'ble Dr. Satish Chandra, J.
(Per Uma Nath Singh, J.)
This order shall also dispose of connected Writ Petition No. 630 (MB) of 2011 (Kashi Prasad Yadav vs. Registrar General and others), as both these matters impugn the same cause of action namely, bifurcation of PIL matters as PIL (Civil) and PIL (Criminal) under the orders of Hon'ble Chief Justice of this court dated 28.8.2010; and dated 31.8.2010, and listing of the same separately before two Benches.
Brief facts of the case leading to filing of these writ petitions are that Hon'ble Chief Justice passed the impugned two orders of bifurcating the PIL matters into PIL (Civil) and PIL (Criminal). According to the petitioners, the aforesaid bifurcation under the orders of Hon'ble Chief Justice is without any authority of law and further that this exercise has been undertaken only for the Lucknow Bench of Allahabad High Court, and not for the Principal Seat at Allahabad. The petitioners have inter alia alleged that the bifurcation orders have been passed to extend undue favour to the present Chief Minister Sushri Mayawati in respect of the pending three writ petitions namely, Writ Petition No. 2087 (MB) of 2009 (Smt. Anupama Singh vs. Central Bureau of Investigation and others), Writ Petition No. 2795 (MB) of 2009 (Mohd. Kateel Ahmad vs. Union of India and others), and Writ Petition No. 2019 (MB) of 2009 (Kamlesh Verma vs. Union of India and others) and also in pending other matters wherein, the arguments of both parties are almost near conclusion. The petitioners have contended that the impugned bifurcation orders have been passed also to facilitate the transfer of the aforesaid three writ petitions from the Court generally hearing /assigned the jurisdiction of PIL matters to another Court.
As per averments made in writ petition [No.1010[M/B] of 2008], the
Hon'ble Supreme Court in IA Nos. 376 and 386 filed in Writ Petition (Civil) No. 13381 of 1984 (M.C.Mehta vs. Union of India) on the allegation of bungling to the tune of 17 Crores in connection with beautification of Taj Mahal directed the Central Bureau of Investigation (For short 'the CBI') vide order dated 16.07.2003 to conduct an inquiry into the execution of Taj Heritage Corridor Project launched under the Taj Trapezium Zone Area at Agra, and in furtherance there of, the CBI registered preliminary inquiry no. PE 0062003 A 004. On 14.08.2003, it submitted a report before the Hon'ble Apex Court, and thereafter, the Hon'ble Court directed the Investigating Agency to verify the assets of the Officers/individuals connected with decision making process for the said project. The CBI, thus, submitted two reports on 11.09.2003 and 18.09.2003 before the Hon'ble Apex Court when, the Hon'ble Court directed the CBI to register an FIR against the Officers/individuals involved in the project and to further investigate,which led to registration of RC No. 006200380018 under Sections 120B, 42, 467, 468 and 473 I.P.C. read with Sections 13(2) and 13(1) and (d) of the Prevention of Corruption Act, 1988, against the accused persons including Sushri Mayawati and a member of her cabinet, Shri Naseemuddin Siddiqui, who were arrayed as parties in the writ petition.
The Hon'ble Apex Court, thereafter, vide the order dated 27.11.2006 (reported as M.C.Mehta vs. Union of India 2007 1 SCC Page 110] directed as under:
"We, accordingly, direct CBI to place the evidence/ material collected by the Investigating team along with the report of the SP as required under Section 173(2) Cr.P.C. before the Court/Special Judge concerned who will decide the matter in accordance with law. It is necessary to add that, in this case, we were concerned with ensuring proper and honest performance of duty by CBI and our above observations and reasons are confined only to that aspect of the case and they should not be understood as our opinion on merits of accusation being investigated. We do not wish to express any opinion on the recommendations of the SP. It is made clear that none of the other opinions/recommendations including that of the Attorney General for India, CVC shall be forwarded to the court/Special Judge, concerned."
Thereafter, the CBI filed a report under Section 173 Cr.P.C. before the learned Special Judge [Anti-corruption], CBI, Lucknow. It appears that the report contained a specific mention that in order to prosecute Sushri Mayawati and Shri Naseemuddin Siddiqui, a sanction as contained in Section 19 of the Prevention of Corruption Act, 1988 was not required. The learned Special Judge did not accept this submission, which according to learned counsel for the petitioners suffer from the vice of non application of mind. The learned Judge failed to consider the point as to whether a sanction for prosecution as provided under Section 197 Cr.P.C. or under Section 19 of the Prevention of Corruption Act 1988 was in fact required. The learned Judge also ignored the fact as mentioned in the police report filed under Section 173, Cr.P.C. by the CBI that the sanction for prosecution was not required.
Under the circumstances, the CBI approached the sanctioning authority namely His Excellency the Governor of Uttar Pradesh to consider grant of sanction under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act 1988 (For short 'the P.C. Act') against the accused persons. In connection therewith, on request, learned Additional Solicitor General of India gave an opinion on 31.5.2007 clarifying that the sanction as provided in Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act, 1988 was necessary for the prosecution of Sushri Mayawati and Shri Naseemuddin Siddiqui. Thereafter, His Excellency the Governor of Uttar Pradesh vide order dated 03.06. 2007 declined the request of CBI to accord sanction for the prosecution of accused persons. The CBI thus moved an application before the learned Special Judge along with the opinion of learned Additional Solicitor General of India dated 31.05.2007 and the order dated 03.06.2007 passed by His Excellency the Governor of Uttar Pradesh declining the request for grant of sanction. The learned Judge in the absence of sanction to prosecute, declined to take cognizance and issue process against Sushri Mayawati and Shri Naseemuddin Siddiqui vide the order dated 5.6.2007 as reproduced hereinbelow:
".....
As observed earlier by the Court in the Order dated 15.02.2007, that in absence of sanction to prosecute Ms Mayawati and Shri Naseemuddin Siddiqui, this Court has no jurisdiction either to take cognizance or to proceed further in respect of Ms Mayawati and Shri Naseemuddin Siddiqui in this case......"
The CBI did not challenge this order in higher Forum. Therefore, the aforesaid three writ petitions namely,Writ Petition No. 2087 (MB) of 2009 (Smt. Anupama Singh vs. Central Bureau of Investigation and others), Writ Petition No. 2795 (MB) of 2009 (Mohd. Kateel Ahmad vs. Union of India and others) and Writ Petition No. 2019 (MB) of 2009 (Kamlesh Verma vs. Union of India and others) were filed in this Court.
As per the further averments of the instant writ petition, the Court assigned with the roster of hearing the PIL matters heard the parties on the aforesaid three writ petitions at length and then issued notices to Sushri Mayawati and Shri
Naseemuddin Siddiqui. In the meantime, there were certain peculiar developments and one of the petitioners namely Smt. Anupama Singh filed an application on 22.02.2010 for the withdrawal of her PIL before the next dates fixed for hearing on the application for interim relief and the main petition on 05.03.2010 and 18.03.2010 respectively. A Division Bench headed by the then Hon'ble Acting Chief Justice passed the following order:
" It has been contended before us that the matter was heard by Bench comprising Hon'ble Pradeep Kant, J and Hon'ble Shabihul Hasnain. Therefore, it is desirable that the matter may be placed before that Bench for the purpose of appropriate consideration along with Writ Petition No.2795 (MB) of 2009 and 2019 (MB) of 2009 preferably in the week commencing from 8.3.2010."
It further appears that the Joint Registrar (Listing), Lucknow Bench, put up a submission on 23.07.2010 for bifurcation of fresh PIL matters, as there was a huge pendency of PIL cases, say about 677 at that time, as per the report of Computer Section. Relevant portion of the submission along with the order of Hon'ble Chief Justice, on reproduction, reads as under:
"My Lord, it is also kindly mentioned that Hon'ble Pradeep Kant,J. The Senior Judge presiding the Division A Bench in Court No.1 is the senior most Court dealing with all civil matters and Hon'ble A. Mateen J. presiding the Division Bench in Court No.25 is the senior most Court dealing with all criminal matters.
In view of the aforesaid facts, it is most respectfully submitted before your Lordship that all the pending PIL matters in different Courts which are tied up and part-heard B may kindly be ordered as released and to revert them back in the prescribed Court of PIL i.e. Court No. 1 which is presided over by Hon'ble Senior Judge.
It is also humbly prayed before your Lordship to consider henceforth, the procedure to classify the fresh P.I.L. C cases into civil and criminal nature where as such till date there is no procedure for bifurcation of fresh PIL cases in this Bench.
Therefore, if your Lordship most respectfully consider to specifically nominate the Courts to deal with such matters with the condition as to their non- transferability to any other Court. It may accelerate the speedy disposal of cases and decrease the pendency thereof.
Submitted. Sd/-
(Vikas Kumar Srivastava)
Joint Registrar (Listing)
23.07.2010
"Approved in term of A, B and
C for Lucknow Bench. Please take steps to categorize PIL ( C ) and PIL (Crl.)"
Sd/-
30.07.2010"
It further appears that petitioner Smt. Anupama Singh also filed C.M.A. No. 27890 of 2010 later for the withdrawal of her Vakalatnama given in favour of Shri C.B.Pandey and Shri Rohit Tripathi, Advocates. Both applications namely for the withdrawal of her PIL petition, and the withdrawal of vakalatnama moved by petitioner Smt. Anupama Singh were heard at length by the Court entrusted with PIL jurisdiction, and the orders were reserved on 23.08.2010. A month later, on 23.09.2010, the Court rejected the application for withdrawal of writ petition, but allowed Advocates Shri C.B.Pandey and Shri Rohit Tripathi to withdraw their powers. The Court took an exception to the conduct of petitioner Smt. Anupama Singh in moving the application for withdrawal of main writ petition at the stage when the petition after consuming a lot of precious time of the Court, had become ripe for hearing. The Court, thus, imposed the costs of Rs. 20,000/-.
As per further narration of the sequence of events, a Division Bench, which had been assigned the jurisdiction of Crl. Misc. Bench matters, in W.P. No. 8254 (MB) of 2010 (M/s Pepsi Co. India Holdings [Pvt.] Ltd. And Another Vs. State of U.P. Through its Secy. Food and Civil Supplies Lko.) passed the following order:-
"An objection has been raised that the matter is cognizable by a Division Bench dealing with civil miscellaneous matters as the main relief claimed is for quashing the Executive Circular/Government Order dated 11.05.2010 whereas this bench has been assigned writs relating to quashing of FIRs as per the roster.
A perusal of the reliefs clause shows that the first relief is for quashing of the G.O. Dated 11.05.2010 and the consequent relief is for quashing the FIR dated 11.08.2010 registered pursuant to the aforesaid Government Order.
Under these circumstances, Registry is directed to place the matter before Hon'ble the Chief Justice for appropriate orders. It is informed at the bar that Hon'ble The Chief Justice would be available on 28.08.2010 at Lucknow.
List this matter on 30th August, 2010 before the appropriate bench alongwith connected matters."
Thereafter Hon'ble Chief Justice passed an order dated 28.08.2010 towards the same as given below:-
"Since the ultimate relief sought is to quash the F.I.R., it will fall within the criminal jurisdiction of the Court.
Sd/-
C.J.
28.08.2010"
On 31.08.2010, Joint Registrar (A/C)/OSD (PIL) on an office note/proposal being approved by Hon'ble Chief Justice, issued the following order for classification of PIL:
"(A) Matter pending as PIL wherein sanction/non sanction or refusal to grant sanction U/s 196 or 197 Cr.P.C. as well as U/s 19 of the Prevention of corruption act is involved would be classified as Criminal PIL.
(B) Matter wherein main relief is against an Executive order/ Govt. Order/ Administrative Orders and other relief/ reliefs seeking quashing of FIR or any criminal proceeding pursuant thereto, it should be classified as Criminal Misc. Bench petition.
( C ) Matter wherein main relief is against an Executive order/ Govt. Order/ Administrative orders and other relief/ reliefs seeking quashing of FIR or any criminal proceeding pursuant thereto, should be classified as Criminal Misc. Bench if the writ petition is filed in the nature of PIL or is converted later on, by the Court, into PIL shall also be send to Court prescribed for PIL (Criminal).
It also appears that a three judges' Committee of this High Court vide its report dated 19.08.1998 framed some guidelines for PIL matters. Besides, the petitioners have also referred to the judgment dt. 18.01.2010 passed by the Hon'ble Apex Court in Civil Appeal Nos. 1134-1135 of 2002 (State of Uttranchal Vs. Balwant Singh Chaufal) to argue that though the Hon'ble Court has extensively discussed all the judgments passed on PIL matters right from its origin till date and has also examined the ambit, scope, use and misuse of PIL but there is no observation whatsoever regarding the bifurcation of PIL matters like PIL (Criminal) or PIL (Civil), in the judgment.
It seems that considering the abuse of process of Court, the Hon'ble Apex Court also directed all High Courts to frame rules for encouraging genuine PILs and discouraging PILs filed with oblique motives.
The petitioners have briefly referred to, in the writ petition, about the rules
framed by various High Courts on PIL in the light of directions of the Hon'ble Supreme Court, to contend that there is no bifurcation of PIL matters.
The petitioners have also made averments in respect of the article dated 04.09.2010 which appeared in the Hindustan Times, a daily newspaper, and the article dated 04.10.2010 that was published in the 'Outlook', a weekly magazine, containing contemptuous allegations against Hon'ble Chief Justice that he withdrew the PIL matters challenging closure of Taj Heritage Corridor Case from a particular Bench. They have also questioned the need and motive behind issuance of a Press Note by the Registrar General of this Court justifying the orders dated 28.08.2010 and 31.08.2010 passed by Hon'ble Chief Justice.
It is also mentioned in the averments that on 28.09.2010, the Registrar General called for explanation from the Editor-in-Chief, 'Outlook', New Delhi, in respect of the allegations in the Article published on 04.10.2010 relating to certain facts [which essentially pertain to administrative orders passed by Hon'ble Chief Justice] like mentioning about the withdrawal of a specific case challenging the refusal of grant sanction for Criminal prosecution against the Chief Minister from a particular Bench. Thus the article attributed motives to the high office of Hon'ble Chief Justice. The Press Note also clarified that on 21.07.2010, Hon'ble Chief Justice had met the Chief Minister to discuss only about the matters relating to Higher Judicial Service and continuity of Fast Track Courts.
As per averments containing further sequence of events that followed, a learned Senior Advocate of this High Court filed contempt petition (Criminal) No.17 of 2010 for punishing the contemners under the Contempt of Courts Act. On 11.10.2010, a Division Bench at Allahabad took cognizance and issued notice to all such persons who appeared to be involved in the publication of news-items as aforesaid.
In this background, learned counsel Shri Prashant Bhushan appearing for petitioners, submitted that the impugned orders dated 28.08.2010 and 31.08.2010, bifurcating the PIL matters into Civil and Criminal PILs, appear to be of unusual nature, which, on being given effect to, would send a wrong message about the independence of hearing on the question of refusal to grant sanction under Section 196 or 197 Cr.P.C. as also under Section 19 of the Prevention of Corruption Act. Shri Prashant Bhushan also submitted that in none of the provisions of the Rules on PILs framed by different High Courts towards the compliance of directions in the judgment rendered by the Hon'ble Supreme Court in the case of Balwant Singh Chaufal (supra), there is any mention about the classification of PILs as Criminal
and Civil PILs, nor has the Hon'ble Supreme Court made any observation on that point. Further, according to learned counsel, the subject of PIL is already dealt with vide newly inserted Sub-rule (3-A) (vide notification dt. 01.05.2010) in Chapter 22 of the Allahabad High Court Rules (Vol. I). Sub-rule (3-A) on reproduction, reads as under:
"(3A) In addition to satisfying the requirements of the other rules in this Chapter, the Petitioners seeking to file a Public Interest Litigation, should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause he is seeking to espouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised; and that the result of the Litigation will not lead to any undue gain to himself or anyone associated with him, or any undue loss to any person, body of persons or the State."
Thus, learned counsel submitted that the impugned orders of bifurcation of PIL passed by Hon'ble Chief Justice are contrary to and in the teeth of the statutory rules framed by the Full Court of High Court, which is duly notified in gazette. It was also submitted by learned counsel that there are other pending cases of different nature filed by individual litigants which are, comparatively, of more urgent nature, and thus should have immediately drawn the attention of Hon'ble Chief Justice for disposal on priority basis than the issue of bifurcation of the PIL matters. In the first administrative order, the case of Taj Corridor was treated to be civil, whereas in the second one dt. 31.08.2010, it was categorized as PIL Criminal and thus, it seems that the impugned orders were passed only with reference to a specific case. Besides, such orders passed by Hon'ble Chief Justice are not only contrary to the statutory High Court Rules, but are also subject to the provisions of Cr.P.C. There is no doubt that Hon'ble Chief Justice is the Master of Rosters, but that power is to be exercised only within the ambit of statutory High Court Rules. It cannot be exercised arbitrarily or in malafide manner or for extraneous considerations.
Learned counsel also submitted that the press note issued by the Registrar General of this Court clarifying the impugned orders has, rather, confounded the confusion and seem to be actuated with malafide. Thus, according to learned counsel, the impugned orders are arbitrary and malafide in nature. They have been apparently issued with the sole motive to favour the Chief Minister and one Cabinet Minister by shifting the PIL impugning the question of refusal of prosecution
sanction in Taj Corridor's Case in the garb of the bifurcation orders from a Bench of High Court which was hearing the said PILs since 2009 and had since also passed several interim orders. Both the impugned orders are also in total contravention of the rule of the High Court which permits classification of writ petitions into two namely (i) Writ petitions filed enforcing fundamental rights (writ of habeas corpus) and (ii) Writ petitions other than habeas corpus. Further as per rule, writ other than habeas corpus has to be heard by the Bench hearing Civil matters. The Bench hearing three writ petitions connected with Taj Corridor's case vide its detailed order dated 18.09.2009 issued notices to respondent nos. 3 & 4 and the writ petition filed against the said order was also dismissed by The Hon'ble Apex Court. It is also submitted that there was a meeting of Hon'ble Chief Justice with the Chief Minister on 19.08.2010. Learned counsel submitted that on the very next date i.e. 20.08.2010 as is apparent from the press note issued by the High Court, Hon'ble Chief Justice approved a proposal moved by the Registry for bifurcating PILs into Civil and Criminal on the reports of its Computer Section. On 28.08.2010 a formal order was signed by Hon'ble Chief Justice bifurcating PILs into PIL (Criminal) and PIL (Civil). The PIL (Criminal) work at Lucknow Bench was assigned to another Bench. As per submissions, even the part heard matters were sifted to the newly designated Bench.
Learned counsel further submitted that as the order dated 28.08.2010 could not give a desired result, a clarificatory order was issued on 31.08.2010 explaining that the PIL wherein the issue of grant of sanction or refusal to grant sanction under Section 196 or 197 as well as Section 19 of the Prevention of Corruption Act was involved, it would be classified as Criminal PIL. Learned counsel further submitted that this clarificatory order was clearly meant to cover the PILs pending against respondent no.3, as these are the only cases which would be affected by the impugned orders.
Learned counsel also submitted that the second order dated 31.08.2010 although enumerated two-three other categories of PILs also, but the list was not exhaustive. Learned counsel further submitted that several other kinds of PILs like PIL for seeking an independent investigation were not included in the list. Learned counsel for petitioner contended that the Registrar General of the High Court issued a press note justifying the aforesaid two orders on the ground of administrative convenience but it also stated that:
" it is misleading to suggest that Hon'ble Chief Justice has passed any orders withdrawing the aforesaid case, from the Bench presided by Hon'ble Pradeep Kant, J. rather the same Bench
(Hon'ble Pradeep Kant, J. and Hon'ble Shabihul Hasnain,J.) is still ceased with the matter..."
It is also a contention of learned counsel that the main matter after bifurcation was being listed before a new Bench and it was only the application for withdrawal of a PIL that was reserved by the Bench which heard the matter earlier. The Bench delivered judgment on the application on 23.09.2010. Learned counsel in particular assailed that part of the press note which referred to an order dated 23.08.2010 passed in Pepsi. Co. matter which contained composite prayers namely, one for quashing some executive order and other for quashing of the F.I.R.,wherein directions were given to place the matter before Hon'ble Chief Justice to seek clarification as to whether that matter was to be listed before the Bench which had been assigned the jurisdiction of quashment of F.I.Rs. On 28.08.2010, Hon'ble Chief Justice issued an order classifying this matter as PIL (Criminal). Learned counsel took exception to the order for the reason that the petitioner Pepsi Co. had filed writ petition for quashment of some executive order as also an F.I.R. and thus it was purely a private matter. Categorisation of the writ petition as PIL had no basis save a justification for passing the impugned orders of bifurcating of PILs into Civil and Criminal matters. A statement in the press note that the move to bifurcate PIL matters actually originated in some office note of the Computer Section of the High Court on account of the huge pendency of PILs invited criticism of learned counsel mainly on the ground that the Computer Section is not assigned the job of moving any such proposal and if the object of bifurcation was quick disposal of a large number of pending PILs, then there was no logic behind sending the part heard matters to a new Bench and thus it defeated the very object of issuing the impugned administrative orders. According to learned counsel, the impugned orders appear to suffer from the vice of arbitrariness and malafide and apparently seem to have been issued with the sole motive for protecting private respondent nos. 3 and 4. The immediate effect of the impugned orders was that the PILs dealing with refusal of prosecution sanction against respondent nos. 3 and 4 in Taj Corridor's matters by stood shifted to a new Bench from the Bench which was earlier seized with these cases. These PILs had been heard on about forty dates by the said Bench out of which hearing on merit also took place at least on twenty dates. Thus Hon'ble Chief Justice issued unusual specific administrative orders which affected the one and only case. Chapter XXI and XXII of the High Court Rules permit classification of writ petitions into writ of Habeas Corpus and writ other than Habeas Corpus. Learned counsel referred to Rule 1 of Chapter XXII which provided as under:
"(1) An application for a direction or order or writ under Article 226 [and Article 227] of the constitution other than a writ in the nature of habeas corpus shall be made to the Division Bench appointed to receive applications or, on any day on which no such Bench is sitting, to the Judge appointed to receive applications in Civil matters....."
Thus, as per the Rule, all writ petitions other than Habeas Corpus have to be heard only by the Bench hearing Civil matters.
Learned counsel further reiterated that the justification given in the press note was done for administrative convenience but the same cannot be done in violation of the High Court Rules framed by the Full Court and also notified in the gazette. Hon'ble Chief Justice has full liberty to take any administrative decision regarding rosters or bifurcation of the writ petitions but the same can be done only within the framework of rules and any classification or bifurcation of roster in contravention thereof by an administrative order is definitely invalid. While referring to the ratio of judgement rendered by The Hon'ble Apex Court in the case of High Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal, (1998) 3 SCC 72, learned counsel in particular relied on the observation of the Hon'ble Court in regard to the powers of Hon'ble Chief Justice as under:
"Hon'ble Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority."
Learned counsel also cited other judgments in support of the arguments. In the case of High Court of Madhya Pradesh vs. Mahesh Prakash (1995) 1 SCC 203, at page 211, the Hon'ble Apex Court has held that a writ petition can be filed under Article 226 of the Constitution in the High Court challenging its administrative orders. Learned counsel also submitted that administrative orders like the ones passed by Hon'ble Chief Justice can be challenged on "Wednesbury Principles" on the ground of illegality, irrationality and bad faith as laid down by the The Hon'ble Apex Court in the catena of decisions like Om Kumar vs. Union of India, (2001) 2 SCC 386, at page 399, Union of India vs.G.Ganayutham, (1997)7 SCC 463, at page 472, Delhi Science Forum vs. Union of India, (1996) 2 SCC 405, at page 418,Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel, (2006) 8 SCC 200, at
page 209 and Kanna Dason vs. Ajoy Khose (2009) 7 SCC 1 at page 50.
In the case of Kanna Dason (supra) it has been held in para nos. 105, 106 & 107 that the power of judicial review, although is very restricted, cannot be denied to be exercised when a relevant fact in not considered.
On the other hand, learned Sr. counsel Shri S.P.Gupta appearing for the High Court submitted that the impugned orders of have not been passed in violation of the provisions of Chapter XXII Rule 1 of the Allahabad High Court Rules for the reason; (I) that Chapter XXII Rule 1 has to be read along with Chapter V Rule 1 and Rule II (viii) and (ii). Besides writ petitions have always been classified in different categories like Tax writs, Criminal Writs, Civil Misc. Writs etc. and are presented before different Benches and also before the Bench dealing with Civil Miscellaneous Writs. Regarding the submission of malafide and arbitrariness it has been contended that the order in W.P. No. 2087 (MB)/10, was passed on 23.09.2010 whereas the impugned orders were passed on 28.08.2010 and 31.08.2010. This case never remained part-heard on merit. In fact, there is observation in the order that it had become ripe for final hearing when the withdrawal application was filed. The last line of the order of 23.9.2010 says that the matter may now be listed before the regular bench. Thus according to learned counsel, no one could anticipate that the matter would be kept by the Bench hearing it. The argument of learned counsel for petitioners is founded on the brazenly false plea that the matter had been heard on merits on several dates and that it remained part-heard. Both these pleas are totally incorrect and are, in fact, conscious lies. Thus there absolutely nothing to allege arbitrariness and the impugned orders are manifestly general.
While dealing with the submission as to why these matters be listed before the Bench which heard it earlier, Learned Sr. counsel as well as Learned counsel on record for High Court have submitted in the written reply that the present writ as PIL (i.e. NO. 630) is 'unashamedly malicious and malafide.' It has been filed in disregard to the impartiality and integrity of Hon'ble judges of this Court. It is rather an aspersion cast on the integrity of the Hon'ble judges of two Division Benches, namely, the one headed by Hon'ble Mr. Justice Pradeep Kant and, the other, headed by Hon'ble Mr. Justice Abdul Mateen. It creates a wrong impression that the Bench of Hon'ble Justice Pradeep Kant may have decided the writ against the Chief Minister and that the Bench of Hon'ble Mr. Justice Abdul Mateen may give a decision favourable to the Chief Minister. Learned Counsel for the High Court have also submitted in the written reply that the element of malafide behind filing the present writ petition in the nature of PIL is clear from the fact that though the
objection to the jurisdiction of bench headed by Hon'ble Mr. Justice Abdul Mateen in respect of hearing of W.P. No. 2087 (MB)/09 had been rejected by that bench on 21.12.2010, and that order has since also become final and thus binding on the petitioner in that case, yet the petitioners have filed these writ petitions to raise the same issues under the cover of PIL in a different name in an attempt to beguile this Hon'ble Court.
Learned Senior Advocate as well as learned counsel on record for High Court placed heavy reliance upon the judgment rendered by the Hon'ble Apex Court in the case of State of U.P. vs. Prakash Chand & others (1998) 1 SCC Page 1 to argue that Hon'ble Chief Justice being the master of roster can even transfer part heard cases from one Bench to another Bench. They also referred to the judgement of Hon'ble Apex Court rendered in the case of Divine Retreat Centre Vs. State of Kerala and others reported in (2008) 3 SCC Page 542 to argue that the constitution of Benches and allocation of work to Judges/Benches is the sole prerogative of Hon'ble Chief Justice and the Judges cannot pick and choose any case pending in High Court and assigned the same to themselves for disposal without appropriate orders of Hon'ble Chief Justice.
There is also a reference to a latest judgement of the Hon'ble Apex Court rendered in the case of State of U.P. vs. Neeraj Chaubey, (2010).10.SCC.320 to strengthen the argument that Hon'ble Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in Sub-section (3) of Section 51 of the States Re-organisation Act 1956 but inheres in him in the very nature of things. Hon'ble Chief Justice enjoys special status and he alone can assign work to a Judge sitting alone or to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. If Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. A Judge or a Bench of Judges can assume jurisdiction in a pending case only if the case is allotted to him or them by Hon'ble Chief Justice.
Learned Senior Advocate, Shri S.P. Gupta also cited a judgment of Full Bench of this High Court passed in the case of Prof. Y.C. Simhadri Vs. Deen Bandhu Pathak, 2001 (4) AWC 2688 to argue that Hon'ble Chief Justice is the
master of roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court. There is also a reference to another judgment rendered by a Full Bench of this High Court which is reported in the case of Sanjay Kumar Shrivastava Vs. Acting Chief Justice, 1996 (2) AWC 644 (Alld FB) to argue that in respect of constitution of the Bench under the Allahabad High Court Rules 1952 (Rules (1), (2) and (14) of Chapter V), Hon'ble Chief Justice alone has jurisdiction, and a part heard case ordinarily is to be listed before the same Bench for disposal, but it can not be invariably placed. In special circumstances, Hon'ble Chief Justice can list a part heard case before other Benches.
In the written rejoinder to the reply on behalf of the High Court, learned counsel for the petitioners Shri Prashant Bhushan has submitted that Chapter V which related to the roster of Hon'ble Single Benches and Hon'ble Division Benches has no bearing whatsoever on the issue in question. According to learned counsel, the issue in question was not decided by the Bench headed by Hon'ble Mr. Justice Abdul Mateen vide the order dated 21.12.2010, and on the contrary, the learned counsel has narrated the facts as follows:
" In view of the Order dated 28.08.2010 and the Clarification dated 31.08.2010 the Registry of the Court classified Taj Corridor matter as a Criminal PIL and placed it before the new bench comprising Hon'ble Mr. Justice Abdul Mateen and Hon'ble Mr. Justice Yogendra Kumar Sangal on 27.10.2010. On this date, an oral objection was raised before the said Bench for placing the matter before the earlier Bench, on which the Bench asked the Registrar General to place the clarification on record. (at page no.134)
On 17.11.2010 an application for intervention/modification being C.M.Appln. No. 117093/2010 was moved by one Mamta Singh in a writ petition filed by Smt. Anupama Singh. (at page nos. 135-140)
On the next date, i.e. 18.11.2010, the Counsels reminded the Bench about the earlier order with respect to the jurisdiction of the Bench. Upon this, the Bench issued notice to the Registrar General for appearing in person on the next date to clarify the position. (at page nos. 141-142)
On 20.12.2010, the Bench comprising Hon'ble Mr. Justice
Abdul Mateen and Hon'ble Mr. Justice Yogendra Kumar Sangal proceeded to hear the intervention/modification application without seeking any clarification from the Registrar General and pronounced an order rejecting the objections on the question of jurisdiction and the modification/intervention application on 21.12.2010. (at page nos. 144.146)
The Bench comprising Hon'ble Mr. Justice Abdul Mateen and Hon'ble Mr. Justice Yogendra Kumar Sangal simply held that they have jurisdiction to hear these PILs as these PILs have been categorized as Criminal PIL in view of the administrative orders issued by Hon'ble Chief Justice of the High Court of bifurcating the PILs into Civil and Criminal. The aforesaid Bench never decided the validity of the impugned administrative orders. In fact, they could not have decided this issue because at that point of time no such application or petition challenging these impugned orders was pending before them.
In fact, when the present writ petition was filed challenging the validity of these two administrative orders, it was first listed before the Bench presided over by the Hon'ble Mr. Justice Pradeep Kant on 20.01.2011 but he recused himself from hearing the said matter as his name was figuring in the impugned administrative orders, thereafter, on the same day, the matter was transferred to the Bench presided over by Justice Abdul Mateen who also recused from hearing the said matter on the same ground."
We have heard learned counsel for both parties at length and perused the materials placed on record.
On due consideration of rival submissions and careful reading of the narration of facts, it appears to be more a classic case of some high drama which can be titled as 'the tragedy of comedies' and also seems to have been staged and played inside and around the High Court premises, a highly respected institution, which not more than 3 decades ago, like any ecclesiastical institution, used to command the highest reverence from all, sheer out of immense public faith.
The present Hon'ble Chief Justice assumed the office on elevation from the Bench of Hon'ble High Court of Judicature at Bombay where, as per a copy of roster brought to our notice, there is a bifurcation of PIL matters into PIL (Civil) and PIL
(Criminal). It appears from the office note/submissions dt. 23.07.2010 placed by Joint Registrar (listing), Lucknow Bench, before Hon'ble Chief Justice that for a better docket management of PIL matters, based on a report of the Computer Section on account of pendency of about 677 such matters only in Lucknow Bench itself, it was thought necessary to seek bifurcation thereof. It seems that the proposal was accorded immediate approval of present Hon'ble Chief Justice, however, in stead of evoking warm cooperation from the relevant corners, this move led to embroiling the institution of Chief Justice into unnecessary controversy. But why? Perhaps, for the cravings in some Hon'ble Judges to get rosters of their choice. It is a common knowledge to all of us that some rosters/jurisdictions like writ petition (Civil) [Miscellaneous Bench and Service matters], writ petition (Criminal), PIL (Civil and Criminal) and Bail matters etc generally, with less efforts yield higher disposal and at the same time keep the Judges under the media glare in comparison with pure civil, criminal and tax matters which lay pending for years. Now even the Bar has lost interest beyond obtaining interim orders in such cases. Perhaps, this fact was well within the knowledge of the Hon'ble Apex Court in passing the judgment in Neeraj Chaubey's case (supra). The Hon'ble Apex Court has forewarned that If Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case.
With great respect to the institution of Hon'ble Chief Justice, if we may suggest, the ideal solution to the problem appears to lie in issuing only a mixed roster containing all types of cases including also from the oldest to the latest ones for every Bench, (Sitting Single or as Division Bench, as the case may be) according to its competence of jurisdiction. Asking or aspiring for a particular jurisdiction or case is generally un-welcomed by any Hon'ble Chief Justice and at the High Court level, a Judge is expected to sit in and decide all types of matters with equal proficiency and lucidity. One cannot be both a Judge of High Court (Constitutional Authority) and at the same time a member of an Specialized Tribunal generally entrusted to decide the cases of only one branch of law.
We may now come to the question as to whether the proposal to bifurcate the PIL matters emanated from the office of Hon'ble Chief Justice or it had been mooted earlier and remained in offing, and then surfaced for receiving the approval of His Lordship, Hon'ble Chief Justice? His Lordship, present Hon'ble Chief Justice took over the charge in this High Court only in the last week of June, 2010. Every Judge
from his experience of working in one High Court or different High Courts develops his own perception and views regarding the solution to perennial problem of docket management, and generally it always keeps occupying his mind, if the Judge wants to contribute something to the judicial system in order to prove the worth of his existence. Thus, if given the opportunity, he would definitely try to experiment and implement his experience, of course, in the interest of institution and for a bonafide cause. Thus the present Hon'ble Chief Justice is not an exception. He has longer experience as an Hon'ble Judge of Hon'ble High Court of Judicature at Bombay, one of the premier High Courts of the country. A huge pendency of over ten lacs cases in this High Court has always been a big challenge for every Hon'ble Chief Justice as well as Hon'ble Judges irrespective of the fact that the High Court is working at the less than half of the sanctioned strength of Hon'ble Judges, and thus out of determination to reduce the pendency, even if a move originated from the office of Hon'ble Chief Justice for bifurcation of PIL matters, which ordinarily consume more time of Courts because of monitoring of the subject matters than other types of litigations it can only be said to be a purely bonafide exercise of administrative powers for achieving a bonafide end and in our view there is nothing to read between the lines against the present Hon'ble Chief Justice who had no direct and practical knowledge about the functioning of this High Court till before he has worked for some time.
His Lordship's meeting with the Chief Minister appears to be a courtesy call wherein some routine administrative matters like selection in higher judicial service and continuity of Fast Track Courts also surfaced for discussion. Thus, it was not shrouded with any mystery. Such meetings are not uncommon today due to rapid change in the nature of litigation and the justice delivery system, and also due to growing expectation of the society from the judiciary and the challenges it is facing on account of tremendous increase in the volume of litigation. Lok Adalats, Mediation and Conciliation Activities, legal literacy and the slogan of justice at door step have gradually reduced the distance of two other organs of the State from the judiciary created due to strict separation of powers, though the grips of checks and balances on each other have not yet loosened. Moreover, on a careful scrutiny of the materials available before us, we do not find any incriminating fact except an unfounded apprehension on the part of petitioners in alleging motive to Hon'ble Chief Justice for according approval on the proposal for bifurcation of PIL matters, which according to learned counsel was designed to help the Chief Minister and her cabinet colleague, little realising the amount of damage it would cause to the
Institution of Chief Justice in the eye of litigant public, and the society at large. Now coming to other aspect of this matter that related to an order passed by a Division Bench of this High Court which was entrusted with the jurisdiction of deciding writ petitions (criminal) [generally filed for quashment of FIR, and for interim orders like grant of stay of arrest] in Writ Petition No. 8254 (MB) of 2010 (M/s Pepsi Co. India Holdings (Pvt.) Ltd. and another vs. State of U.P. through its Secretary (Food & Civil Supplies), Lucknow, We notice that on account of impugned order issued on 28.08.2010 on approval of the proposal by Hon'ble Chief Justice, there was some confusion about the classification of the Writ Petition containing composite prayers, namely, one for grant of relief of Civil nature and the other of Criminal nature in the sense that in one part of the writ petition an administrative order passed by the Government was challenged, while in the other, an FIR registered against the petitioners was sought to be quashed. Hon'ble Chief Justice while clarifying the position passed the following order;
"Since the ultimate relief sought is to quash the F.I.R., it will fall within the Criminal jurisdiction of the Court.
Sd/-
C.J.
28.08.2010"
The above order passed by Hon'ble Chief Justice is self explanatory as it has nothing to do with bifurcation of PIL matters, and thus, no oblique motive much less to say a motive to justify the order of bifurcation of PIL can be attributed to Hon'ble Chief Justice.
In so far as the news item which appeared on 04.09.2010 in Hindustan Times, a daily newspaper, and the article dated 04.10.2010 published in the 'Outlook', a weekly magazine, are concerned, a Division Bench of the Principal seat at Allahabad is already seized with the matter and taken cognizance on the Contempt Petition (Criminal) No. 17 of 2000 filed by a learned Senior Advocate of this Court. Thus, it may not be proper for us to make any observation. However, the subject matter of the Articles since relate to the 'Taj Corridor Heritage Case' and the connected writ petitions are pending before the Lucknow Bench, Hon'ble Chief Justice may consider to shift the contempt matter to the Bench at Lucknow, hearing other pending writ petitions on the same subject matter.
Regarding the clarificatory Press Note issued by the Registrar General of this Court in respect of the news items that appeared in the Hindustan Times and weekly magazine 'Outlook', it appears to be only a hasty act which has rather confounded the
confusion that arose out of meeting of Hon'ble Chief Justice with the Chief Minister and also from passing of the orders of bifurcation of PIL matters into PIL (Criminal) and PIL (Civil) soon thereafter on 28.08.2010 and 31.08.2010.
Though Mr. Shri S.P.Gupta, an octogenarian learned Senior Advocate appearing for the High Court also registered his disapproval of the act of the Registrar General by very fairly conceding that the Registrar General should not have issued this Press Note with irrelevant reference and explanation, but he also prayed for a pardon. Thus, we refrain from making any adverse observation against the Registrar General, lest it may affect his future prospects who like many other Judicial Officers has learnt the art of survival. In this background we are of the considered view that Hon'ble Chief Justice and Hon'ble Full Court of the High Court, should not permit any Judicial Officer to over stay at one place, be he the Registrar General or any other Judicial Officer.
Regarding the questions of law that the administrative order passed by Hon'ble Chief Justice cannot contravene the statutory High Court rules framed by Full Court of the High Court which is also published in the official gazette, there is no quarrel about the legal proposition that an administrative order/executive direction cannot contravene, and have over-riding effect on an statutory rule except that it can have the force of statutory rule till the framing of rule, to cover a vacant space in the Area, the rules has been notified to operate. Here the question that requires our answer is as to whether Hon'ble Chief Justice has exceeded the powers given to him in Chapter V Rule 1 and 14 of the Allahabad High Court Rules, which empower him to constitute Benches and assign Judicial Works to Hon'ble Judges The said rules, on reproduction read as under:
"1. Constitution of Benches.--Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions.
...............................................
...............................................
14. Tied up cases.-
(1) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex
parte order shall not be deemed to be a case partly heard by such Bench.
(2) When a criminal revision has been admitted on the question of severity of sentence only, it shall ordinarily be heard by the Bench admitting it."
Thus, if Chapter XXII Rule 1 of the High Court Rules is read conjointly with Chapter V Rule 1 and 14, then the picture about the powers of Hon'ble Chief Justice regarding the Constitution of Bench and posting of part heard and tied up matters becomes clear. The High Court Rules, thus, clearly provides that the Hon'ble Chief Justice can even shift part heard matters to some other Bench though normally he may and should not do like that. Besides, the writ petitions have always been classified in different categories like Tax Writs, Criminal Writs, Civil Miscellaneous Writs etc. and are presented before different Benches and also before the Bench dealing with Civil Miscellaneous Writs etc. Moreover, we also notice that PIL Writ Petition No. 2087 (MB) of 2010 never remained part heard on merit and that is why in the order dated 23.09.2010 the Hon'ble Bench dealing with this case has observed that when the matter had become ripe for final hearing, the application for withdrawal was moved.
In view of all the aforesaid discussion, we do not find any element of extraneous consideration behind passing of impugned orders dated 28.08.2010 and 31.08.2010 as alleged in the petition. Moreover, we fail to understand from the materials placed before us as to why, there should be a preference for a particular Bench and objection to, for the other. Exercise of such choice may shake the public faith in the justice delivery system beyond redemption.
We may also notice that the order dated 21.12.2010 passed by a Division Bench headed by Hon'ble Mr. Justice Abdul Mateen holding that the Bench has got jurisdiction to hear and decide the writ petition (Criminal) filed in the Taj Corridor's case on merit, has since attained finality and the Special Leave Petition (Civil) No. 942 of 2011 filed against that order in respect of rejection of the intervention application by the High Court has also been dismissed with liberty.
Lastly, before parting with the matters, we think it expedient in the interest of this Institution to record our disapproval of vigorous trading of strong language by learned counsel for parties during the course of hearing and in their written submissions as well. Even in the reply filed on behalf of the High Court, learned counsel have not shown proper respect to two Hon'ble sitting Judges of this Bench and they have been addressed by names as 'Justice Pradeep Kant' and 'Justice Abdul Mateen' (without addressing even as 'Mr. Justice' although it should be 'Hon'ble Mr. Justice'). Use of words like 'brazenly false plea, conscious lies, unashamedly malicious and malafide' in the reply of the High Court also need to be noticed and deserve to be cautioned.
In the premises, discussed hereinabove, we do not find any merit in both these writ petitions [W.P. No.1010(M/B) of 2011 and W.P.No. 630(M/B) of 2011]. Therefore, the same are hereby dismissed.
(Dr. Satish Chandra,J.) (Uma Nath Singh,J.)
Dated: 03-06-2011
Irfan/A.Nigam/Sanjeet
Hon'ble Dr. Satish chandra,J.
Judgment delivered under Chapter VII, Rule 1(2) of the Allahabad High Court Rules, 1952.
Dated: 03-06-2011 (Dr. Satish Chandra,J.)
