Bombay High Court
Partur Advocates Bar Association ... vs The State Of Maharashtra & Ors on 5 May, 2016
Bench: A.S. Oka
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pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5098 OF 2012
Partur Advocate Bar Association,
Partur, Dist. Jalna. (Through it's President-
Vijaykumar s/o Ganpatrao Kulkarni,
Age:57 years, Occup : Legal Profession,
R/o : Rajput Galli, near Sidla Devi Temple,
Partur Town, Partur, Dist. Jalna. ... Petitioner
Versus
1 State of Maharashtra,
Through it's Principal Secretary,
Law and Judiciary Department,
Mantralaya, Mumbai 400 032.
2 The Hon'ble High Court of Bombay,
Through it's Registrar General
Fort, Mumbai
3 The District Judge,
District and Sessions Court,
Jalna, at Jalna. ... Respondents
Mr. S.B. Talekar a/w Ms. Pradnya Talekar and Mr. Vinod Sangvikar for
the Petitioner.
Mr. A.B. Vagyani, Government Pleader a/w Mr. V.B. Thadani, AGP for
the Respondent No.1.
Mr. E.P. Bharucha, Senior Advocate a/w Mr. Sanjay Udeshi i/by M/s.
Sanjay Udeshi & Co. for the Respondent Nos.2 and 3.
CORAM : A.S. OKA & C.V. BHADANG, JJ.
THE DATE ON WHICH JUDGMENT IS RESERVED : 08th February 2016
THE DATE ON WHICH JUDGMENT IS PRONOUNCED : 5 th May 2016
( As per Rule 1 of Chapter XI of the Appellate Side Rules, 1960, signed
Judgment is pronounced by Shri A.S. Oka, J at Bombay as Shri C.V.
Bhadang, J is sitting at the Bench at Goa.)
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JUDGMENT (PER A.S. OKA, J.):-
. The issue involved in this Petition under Article 226 of the
Constitution of India is as regards the establishment of the Courts of the
District and Additional Sessions Judge as well as the Civil Judge, Senior
Division at Partur, Taluka Partur, District Jalna. The issue which arises
for consideration is for establishing the said Courts, which is the
decision making authority, the State Government or the High Court
Administration.
2 With a view to appreciate the submissions canvassed across
the Bar, a brief reference to the facts of the case will be necessary. The
Petitioner is a Bar Association of the Advocates at Partur. At Partur,
which is a Taluka Headquarter, there is a Court of Civil Judge (Junior
Division) and the Judicial Magistrate First Class. The Petitioner
Association has been espousing the cause of the people living in Talukas
of Partur, Mantha and Ghansawangi in District Jalna and have taken up
their demand for establishing the Courts of Additional District Judge,
Additional Sessions Judge (for short "the ADJ ") and the Court of Civil
Judge, Senior Division (for short "the CJSD ") at Partur for the aforesaid
three Talukas. The Petitioner has pointed out that in similar situations,
the Courts of ADJ and CJSD have been established at various Taluka
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places in the Districts of Hingoli, Parbhani and Ahmednagar. Reliance is
placed on various resolutions passed by the Petitioner Bar Association.
The challenge in the Petition is to the stand taken by this Court as well
as the Government of Maharashtra that the State Government has no
power to establish the Courts of ADJ and CJSD without prior approval
of this Court. On 30th March 1998, the State Government declined to
consider the request of the Petitioner on the ground that there was no
approval of this Court. After the High Court Administration by its
communication dated 13th August, 2009 declined to grant approval to a
proposal to establish the Courts of ADJ and CJSD at Partur, the
Petitioner Association made an application on 28 th October, 2009 for
seeking review of the decision dated 13th August, 2009. The prayer in
this Petition under Article 226 of the Constitution of India is for
quashing the decision dated 13th August, 2009 refusing to grant
approval to the proposal of establishing the Courts of ADJ and CJSD at
Partur. Another prayer is for directing the State of Maharashtra to
decide the proposal regarding establishment of the said Courts at Partur
without being influenced by the decision of the High Court
Administration dated 13th August, 2009. By carrying out amendment, a
challenge was incorporated to the order of this Court dated 24 th
February 1993. By the said administrative order, it was directed that the
Petitions under Article 226 filed at the Benches at Nagpur, Aurangabad
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and Panaji against the Hon'ble Chief Justice of this Court and Officers of
this Court stand transferred to the principal seat at Bombay. A challenge
is also to similar order issued by the Hon'ble the Chief Justice on 6 th
January 2010. No submissions are canvassed in this Petition on these
two prayers.
3 The learned counsel appearing for the Petitioner urged that
there cannot be any doubt about the proposition that the citizens must
have a fair access to the justice. He invited our attention to the powers
of the High Court under Articles 233 and 235 of the Constitution of
India. The submission is that even as per the provisions of the
Constitution of India, the power to establish the Courts as prayed for by
the Petitioner is not vested in the High Court Administration but it
continues to vest in the State Government. He invited our attention to
the provisions of Sections 14 and 15 of the Maharashtra Civil Courts,
1869 (for short "the Civil Courts Act"). He submitted that the State
Government is empowered to appoint one or more Additional District
Judges who shall ordinarily hold their Court at the same place as the
Principle District Judge. However, when the Principle District Judge
directs an Additional District Judge to hold his Court elsewhere in the
District, previous sanction of the High Court is required. He relied upon
Section 19 of the Civil Courts Act which confers power on the State
Government to invest any Additional District Judge with all or any of
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the powers of the District Judge in a particular part of the District. He
pointed out that under Section 21 of the Civil Courts Act, which
provides that there shall be in each District so many Civil Courts
subordinate to the District Court as may be directed by the State
Government from time to time. He urged that under the Civil Courts
Act, the power to establish the Courts of ADJ and CJSD at Taluka places
in a judicial District is of the State Government and the consent or
concurrence of the High Court is not required. His submission is that
the provisions of the Civil Courts Act have undergone many
amendments after the coming into force the Constitution of India, but
the aforesaid powers of the State Government are retained.
4 The learned counsel appearing for the Petitioner invited
our attention to the provisions of the Civil Courts Act as well as the
Code of Criminal Procedure, 1973 (for short "the CrPC."). He urged
that the State Government under Section 3 of the Civil Courts Act has a
power to create judicial District, to alter the limits of a judicial District
and to create new Districts. He emphasized on Section 19 of the Civil
Courts Act which confers power on the State Government to invest
Additional District Judge with all the powers of the District Judge
within a particular part of a District and from time to time determine
and alter the limits of such part. He pointed out that third part of
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Section 19 specifically provides that every such Additional District
Judge who is invested with the powers by the State Government shall
ordinarily hold his Court at such place within the local limits of his
jurisdiction as may be determined by the State Government, and may,
with the previous sanction of the High Court hold it at any other place
within such limits. His submission is that power to establish a Court of
ADJ having powers of the District judge confined to particular area is
only of the State Government. He pointed out that even Section 23
confers power on the State Government to decide at which place or
places the Civil Judges shall hold their Courts. He pointed out that the
State Government has a power to order that a Civil Judge shall hold his
Court at a place outside the local limits of his jurisdiction. His
submission is that thus the power to establish the Courts of ADJ and
CJSD at a place other than the District place is vesting in the State
Government. He submitted that the said power remains unaffected by
the Constitution of India. He invited our attention to various affidavits
on record and the figures of pendency of cases in various Taluka Courts.
5 He invited our attention to the decision of this Court in the
case of Vidharbha Labour Law Practitioners Association Vs. State of
Maharashtra & others1. He relied upon a decision of the Apex Court in
1 2003(6) Bom.C.R. 468
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the case of M.P. Gangadhar Vs. State of Kerala2 and the principles laid
down therein. He relied upon the 120th Report of the Law Commission
of India on Manpower Planning in Judiciary. He relied upon the report
of the Law Commission of India being report No.230. He pointed out
page 142 of the additional compilation to show as to how the Courts of
ADJ and CJSD have been established at various Taluka places in the
State. He pointed that though the population of Jalna District is
19,59,046, not a single court of ADJ or CJSD has been established in
the said District at a Taluka place. But, in the three Districts having
lesser population, such Courts have been established at Taluka places.
In some other Districts in Marathwada area, such Courts have been
established even in three or four Talukas. He submitted that pendency
of cases cannot be the sole criteria for deciding whether the
establishment of the Courts of ADJ and CJSD at Taluka places is
necessary. On facts, he pointed out that at the State Government level, a
decision was taken to establish the Courts of ADJ and CJSD at Partur
and even a budgetary provision was made. He invited our attention to
the provisions of the CrPC and urged that the power to establish a Court
of Sessions is vesting in the State Government and even concurrence of
this Court is not required. It is the prerogative of the State Government
to take a decision on this aspect. He urged that neither the provisions of
the Civil Courts Act nor the provisions of CrPC support the view taken
2 2006(6) SCC 162
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by the High Court that the State Government cannot establish the
Courts of ADJ OR CJSD at Taluka places without its concurrence. He
urged that the object of establishing the Court of ADJ and CJSD is to
provide access to justice. The decision about viability of establishing
new Courts cannot be taken only on the basis of pendency of cases as
ultimately the Courts will have to be established to sub-serve the need
of the common man. He urged that the stand taken by the High Court
Administration is not consistent. At various places where there is no
adequate pendency, the Courts of ADJs and CJSD have been
established at Taluka places. He urged that going by the statistics made
available, as on 15th October, 2015 there were 406 civil cases and 277
criminal cases pending in the District Court pertaining to only two
Talukas of Partur and Mantha. As of that day, the pendency in the
Court of the CJSD at Jalna pertaining to the said two Talukas was about
2082 civil cases. He urged that these figures justify the establishment of
the Courts of the ADJ and CJSD at Partur.
6 He pointed out the affidavits filed by the High Court
Administration. He submitted that in the first affidavit of Shri Sangitrao
S. Patil, Registrar (Legal and Research), reliance is placed on policy
decision taken on 21st April, 2001 of not establishing new Courts till
Government accommodation for Courts and residence for the Judicial
Officers is made available. He submitted that from time to time, a
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departure has been made from the said decision. He invited our
attention to the affidavit in rejoinder dated 7 th September, 2012 to
which the figures of cases arising out of Taluka of Partur, Mantha and
Ghansawangi have have been annexed which show that there are
sufficient number of cases available for establishing a separate Court for
the said three Talukas at Taluka Partur. He lastly invited our attention to
the affidavit of Shri Shrinivas Brijmohan Agarwal, Registrar(Legal)
dated 3rd November, 2015. He urged that even going by the quota as
suggested by the report of the Committee relied upon in the said
affidavit, establishment of the Courts at Partur can be justified. He
urged that the fact that infrastructure is not available at Partur is no
ground inasmuch as this Court can always direct the State Government
to provide infrastructure.
7 The learned Senior Counsel appearing for the High Court
Administration urged that the State Government cannot establish new
Courts without concurrence of the High Court Administration as only
High Court Administration can decide the issue of the viability of new
Court.
8 The learned Government Pleader has tendered written
submissions. He has relied upon the provisions of the Civil Courts Act
and urged that the prerogative of setting up the Courts lies within the
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exclusive domain of the State Government in consultation with the High
Court. He urged that in those cases, where the High Court is of the view
that it is not necessary to establish the new Court, the Government will
abide by the opinion of the High Court. He relied upon a decision of
Madras High Court in the case of V. Anil Kumar Vs. State of T.N. 3. He
submitted that the members of the Bar cannot decide at which place the
Court should be established.
The learned counsel appearing for the Petitioner while
making submissions by way of reply submitted that the learned
Government Pleader has made a volta face. He urged that the
Government Pleader cannot make any unwarranted concession on
behalf of the State Government and the said concession cannot be
contrary to the provisions of the Civil Courts Act. He relied upon the
doctrine of separation of powers. He submitted that the High Court has
power to appoint Judges to the posts of District Judges, ADJs and Civil
Judges but the High Court cannot assume power of deciding as to at
which place Courts should be established.
10 Considering the submissions canvassed across the Bar,
broadly, two issues arise for consideration of the Court which read
thus :-
3 AIR 2008 MADRAS 56
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(I) What should be the consideration for establishing new
Courts of ADJ and CJSD at Taluka places within existing
judicial District;
(II) Whether in the matter of deciding the issue of
establishment of aforesaid Courts, the State Government
has a primacy or the High Court Administration has the
primacy.
11 Now we deal with the first issue. There is no gainsaying
that Courts are required to be established to ensure that common man
has an easy access to justice. It is the duty of the State to ensure that
citizens get access to the justice. Article 39A forming a part of the
directive principles of the State Policy reads thus:
"39-A. Equal justice and free legal aid.--The State
shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and
shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not
denied to any citizen by reason of economic or
other disabilities."
The state must ensure that an opportunity to seek justice is
not denied to any citizens. If the Courts remain inaccessible due to long
distance or other material factors, in case of some citizens, it will
amount to denial of justice. Therefore, ensuring easy access to justice is
a part of Article 39A..
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12. The question as to what should be the criteria for establishing
new Courts is not easy to answer inasmuch as there cannot be a straight
jacket formula. The learned counsel appearing for the Petitioner has
relied upon various reports of the Law Commission. In our country,
where we are short of resources, it is not possible to maintain the ideal
Judge Population Ratio. In fact, we do not live in an ideal situation.
13 There are large number of Courts in the State which are
housed in privately owned rented properties. At many stations, there
are no judicial quarters available and wherever they are available, the
same are not adequate in number. In a city like Mumbai, the judicial
officers do not get quarters immediately after they are posted and,
therefore, they are required to stay in a make-shift hostel facility at
Small Causes Court at Mumbai. In other bigger Cities in the State , even
such transit facility is not available. Most of the Taluka and District
Courts lack elementary infrastructure. In fact, in large number of PILs
pending in the Court wherein the issues of lack of infrastructure has
been raised, this Court has issued directions from time to time to the
State Government to provide funds and or infrastructure. In many
cases, this Court was required to issue writs directing release of funds
for construction of Court buildings. In many cases, the Court premises
which are situated in rented properties require repairs but the landlords
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are refusing to co-operate and permit repairs. The Judiciary has no
financial independence in the sense that for carrying out even a small
work of repairs or for buying furniture, the Courts have to seek sanction
of the State Government for release of funds. The orders passed by this
Court shows that it is difficult to get funds from the Government even
for basic needs of the Court. Various orders passed by this Court in PILs
show that from time to time, this Court was required to issue directions
to the State Government for providing elementary facilities to the
litigants such as availability of washrooms, water purifiers, water filters,
etc. Many buildings of the Courts are being constructed only after a writ
of mandamus is issued by this Court for the release of funds. For
establishment of new Courts, land and buildings are required for the
Courts and judicial quarters. Additional Judges are required and
additional posts of staff are required to be created by the State
Government. Additional furniture, computers, printers etc are required.
Perhaps, that is the reason why the High Court Administration took a
policy decision that unless all the infrastructure/ facilities are provided
by the State Government, new Courts should not be established. It is
true that there are cases of departure from the said decision. But, they
are only by way exceptions. That is the reason why there are inherent
limitations on the implementation of the ideal concept of the justice at
door-steps.
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14 Therefore, every demand for establishing Courts of ADJ
and CJSD at Taluka places within the Districts cannot be accepted.
Hence, such demands are required to be tested on the basis of some
rational criteria. The learned counsel appearing for the Petitioner is
right when he submits that availability of adequate number of cases in
the proposed Court cannot be the sole criteria. Some of the Districts in
the State have areas which are backward in many respects. Some
Districts have hilly terrain. In some areas, there are no proper public
transport facilities available due to various reasons. In some of the
Districts, easy modes of transport are not available for reaching District
Headquarters. In some Districts, there is a large Tribal area. In some
Districts, there are areas where there is a naxalite dominance. The
litigants in such areas cannot easily approach the District Court and
Court of CJSD at District Headquarters. Therefore, in the peculiar facts
of the case, litigants at particular Taluka place may find it very difficult
to commute up to the District headquarter for attending their cases. In
some Taluka places, there may be a very large number of cases
justifying establishment of the Courts of ADJ and CJSD, but the Taluka
places may be close to District Headquarters and may have easy
accessibility in terms of the availability of easy and quick modes of
transport. Therefore, availability of requisite number of cases cannot be
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the sole criteria for establishing the Courts of ADJ and CJSD at Taluka
places. Various other factors are required to be considered with a view
to ensure that there is no denial of easy accessibility to justice. While
taking a decision whether a new Court should be established, the cases
which may be available to the newly established Courts is not the only
consideration. The proposal to establish Courts of ADJ and CJSD at
Taluka places cannot be rejected only on the ground that number of
cases as per the quota fixed by the High Court will not be available. All
the relevant factors are required to be considered some of which are
stated above only by way of illustration. The said factors are not
exhaustive. The issue of easy access to justice to a common man should
be one of the main considerations. To that extent, the submissions of
the Petitioner will have to be accepted.
15 Now we turn to second question. Reliance is placed by the
learned counsel appearing for the Petitioner on the provisions of
Sections 19 and 23 of the Civil Courts Act. The said Sections read
thus :-
"19. Power to invest (Additional District Judge)
with powers of District Judge.- The State
Government may, by notification in the Official
Gazette, invest an Additional District Judge
with all or any of powers of a District Judge
within a particular Part of a district, and may,
by like notification, from time to time
determine and alter the limits of such part.
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The jurisdiction of an Additional District Judge
so invested shall protanto exclude the
jurisdiction of the District Judge from within
the said limits.
Every Additional District Judge so invested shall
ordinarily hold his Court at such place within
the local limits of his jurisdiction as may be
determined by the State Government, and may,
with the previous sanction of the High Court
hold it at any place within such limits.
23. Situation of Subordinate Courts.- The Civil
Judges shall old their Court at such place or
places as the State Government may from time
ig to time appoint within the local limits of their
respective jurisdiction:
[Provided that for special reasons it shall be
lawful for the State Government to order that a
Civil Judge shall hold his Court at a place
outside the local limits of his jurisdiction.]
Wherever more than one such place is
appointed, the District Judge shall, subject to
the control of the High Court, fix the days on
which the Civil Judge shall hold his Court at
each of such places, and the Civil Judge shall
cause such days to be duly notified throughout
the local limits of his jurisdiction."
16 For interpreting the Sections, the entire scheme of the Civil
Courts Act will have to be considered. Section 3 of the Civil Courts Act
provides that the State Government may by a notification create a new
District. Sections 5 and 6 of the Civil Courts Act read thus :-
"5. District Judges.- There shall be in each district a
District Court presided over by a Judge to be called
the District Judge.
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6. Situation of District Court.- The District Judge
shall ordinarily hold the District Court at the sadr
station in his district, by may, with the previous
sanction of the High Court, hold it elsewhere
within the district."
17 As provided in Section 7, the District Court shall be the
Principal Court of original civil jurisdiction in the District, within the
meaning of the Code of Civil Procedure, 1908. Section 8 confers
Appellate powers on the District Courts. The purport of Section 6 is that
if a District Judge wants to hold a sitting at a place other than the
District headquarters, he can do so only with the previous sanction of
the High Court.
18 The Civil Courts Act is silent about the power to appoint
the District Judges. However, under Section 12, the State Government
has a power to appoint in any District a Joint District Judge who shall
be invested with co-extensive powers and concurrent jurisdiction with
the District Judge. Under Section 14, the State Government has a power
to appoint one or more Additional District Judges in addition to the
District Judge. Section 19 is material which we have quoted above. It
confers power on the Government to invest an Additional District Judge
with all or any of the powers of the District Judge (the Principal District
Judge) within a particular part of the District and may, by a notification
from time to time determine and alter the limits of such part. The
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jurisdiction of such Additional District Judge so invested shall pro tanto
exclude the jurisdiction of the Principal District Judge from within the
said limits. Such Additional District Judge so invested is entitled to hold
his Court at such place within the local limits of his jurisdiction as may
be determined by the State Government, and may, with the previous
sanction of the High Court to hold it at any other place within such
limits. Thus, under the Civil Courts Act, the State Government has a
power to alter the limits of the existing judicial Districts and to create
new judicial Districts. The authority of the State Government under
Section 19 is to confer powers on any Additional District Judge of a
District Judge in a particular part of a District. Once such power is
conferred on Additional District Judge with reference to a particular
part in the District, the jurisdiction of the Principal District Judge is
excluded to the extent of the said area. Thus, this is a power to invest
Additional District Judges with the powers of the District Judge
confined to one or more Talukas within a judicial District.
19 Section 22A confers power on the State Government to fix
the local limits of ordinary jurisdiction of the Civil Judges and to alter
the same. Even the place or places at which the Civil Judges shall hold
their Courts is to be determined by the State Government under Section
23. Therefore, by virtue of Section 23 of the Civil Courts Act, the State
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Government can appoint a Civil Judge, Senior Division (CJSD) who
will have jurisdiction confined to only one or more Talukas a judicial
District.
20 The learned counsel appearing for the Petitioner has relied
upon various provisions of the Code of Criminal Procedure, 1973 and
has contended that the State Government without the concurrence of
the High Court has a power to create a sessions division in a judicial
District.
21 It is true that CrPC is enacted post Constitution and Civil
Courts Act is a pre-Constitutional law. It is well settled that the
provisions of any enactments which are contrary to or in breach of the
provisions of the Constitution are ultra vires. However, it is always open
for the Courts to interpret the legal provisions to save the same from the
vice of ultra vires.
22 At this stage, it will be necessary to make a reference to
Article 235 and 236 of the Constitution of India, which read thus :-
"235. Control over subordinate courts. -
The control over district courts and courts
subordinate thereto including the posting and
promotion of, and the grant of leave to,
persons belonging to the judicial service of a
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State and holding any post inferior to the post
of district judge shall be vested in the High
Court, but nothing in this article shall be
construed as taking away from any such person
any right of appeal which he may have under
the law regulating the conditions of his service
or as authorising the High Court to deal with
him otherwise than in accordance with the
conditions of his service prescribed under such
law."
236. Interpretation. - In this Chapter -
(a) The expression "district judge" includes
judge of a city civil court, additional
ig district judge, joint district judge,
assistant district judge, chief judge of a
small cause court, chief presidency
magistrate, additional chief presidency
magistrate, sessions judge, additional
sessions judge an assistant sessions
judge;"
(b) the expression "judicial service" means
a service consisting exclusively of
persons intended to fill the post of
district judge and other civil judicial
posts inferior to the post of district
judge."
23 The Constitution of India incorporates the principle of
separation of powers. Therefore, the control over the District Courts and
Courts subordinate thereto including the posting and promotion of, and
the grant of leave to, persons belonging to judicial service of a State and
holding any post inferior to the post of District Judge has been vested in
the High Court. As far as the recruitment and appointments to the post
of District Judges and persons other than District Judges to the judicial
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services are concerned, Article 233 and 234 are relevant, which read
thus :-
"233. Appointment of district judges.- (1) Appointments of
persons to be, and the posting and promotion of,
district judges in any State shall be made by the
Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or
of the State shall only be eligible to be appointed a
district judge if he has been for not less than seven
years an advocate or a pleader and is recommended by
the High Court for appointment.
234. Recruitment of persons other than district judges to
the judicial service. - Appointment of persons other
than district judges to the judicial service of a State
shall be made by the Governor of the State in
accordance with rules made by him in that behalf after
consultation with the State Public Service Commission
and with the High Court exercising jurisdiction in
relation to such State."
24 Thus, the appointment/recruitment of the judicial officers
is governed by Articles 233 and 234. But once appointments are made,
the posting of the Judges and promotion is the exclusive province of the
High Court. In fact, the High Court retains control over the District
Courts and Courts subordinate thereto and the control includes posting
and promotion of the persons belonging to the judicial service of the
State.
25 If the argument of the Petitioner is accepted that the power
under the CrPC and powers under various provisions of the Civil Courts
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Act and in particular Sections 3, 4, 12, 12A, 15, 19,21,22 22A and 23
has to be exclusively exercised by the State Government without
consultation of the High Court, it will be completely contrary to the
spirit of Article 235 of the Constitution of India and it will be contrary
to the principle of separation of powers between the judiciary and
executive adopted by the Constitution. Moreover, in a given case, it will
create a peculiar situation. The State Government may decide to
establish a Court of ADJ within a judicial district for one or more
Talukas without consultation with the High Court. The High Court after
finding that the Court is not viable, will be justified in refusing to post
a judicial officer to preside over such Court established by the State
Government as the said power is the exclusive domain of the High
Court under Article 235 of the Constitution. Hence, harmonious
construction of the provisions of the Civil Courts Act and CrPC with the
Constitutional provisions is necessary. The power of establishing Courts,
wherever conferred on the State Government, both under the Civil
Courts Act and the CrPC will have to be exercised by the State
Government after consultation with the High Court. In view of the
provisions of Article 235, the views of the High Court will have the
primacy. This can be the only harmonious interpretation put to the
relevant provisions of the Civil Courts Act and CrPC to make it
consistent with the provisions of the Constitution. If any other
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interpretation is made, the relevant provisions of the Civil Courts Act
and CrPC will be exposed to vice of unconstitutionality. In the case of
Namit Sharma v. Union of India 4, the Apex Court in paragraph 51 held
thus:
"51. Another most significant canon of
determination of constitutionality is that the courts
would be reluctant to declare a law invalid or ultra
vires on account of unconstitutionality. The courts
would accept an interpretation which would be in
favour of the constitutionality, than an approach
which would render the law unconstitutional.
Declaring the law unconstitutional is one of the last
resorts taken by the courts. The courts would
preferably put into service the principle of
"reading down" or "reading into" the provision to
make it effective, workable and ensure the
attainment of the object of the Act. These are the
principles which clearly emerge from the consistent
view taken by this Court in its various
pronouncements."
(emphasis added)
26 None of the decisions relied upon by the parties have a
direct bearing on the issues involved.
27 As far as the demand of the Petitioner of establishing the
Courts of ADJ and CJSD for three Talukas is concerned, considering the
consistent demand, in our view, it will be appropriate if the High Court
Administration considers the said request afresh in accordance with law.
4 (2013) 1 SCC 745
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28 Hence, we dispose of the Petition by passing the following
order :-
ORDER
(i) Subject to what is observed in the judgment, the
Petition is rejected;
(ii) We hold that availability of requisite number of cases
cannot be the sole criteria for establishing the Courts
of ADJ and CJSD at Taluka places. Various other
factors are required to be considered with a view to
ensure that there is no denial of easy accessibility to
justice. While taking a decision whether a new Court
should be established, the number of cases which
may be available to the newly established Court is
not the only consideration. The proposal to establish
Courts of ADJ and CJSD at Taluka places cannot be
rejected only on the ground that number of cases as
per the quota fixed by the High Court will not be
available without considering all the relevant factors,
some of which are stated in paragraph 14 above only
by way of illustration. The issue of easy access to the
justice should be one of the main considerations;
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(iii) The powers of establishing the Courts, wherever
conferred on the State Government, both under the
Civil Courts Act and the CrPC, will have to be
exercised by the State Government after consultation
with the High Court. In view of the provisions of
Article 235, the views of the High Court in such
matters will have the primacy:
(iv) It will be appropriate if the High Court
Administration reconsiders the demand of
establishing the Courts of District Judge and Civil
Judge (SD) at Partur in accordance with law:
(v) There will be no orders as to costs.
(C.V. BHADANG, J ) (A.S. OKA, J )
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