Karnataka High Court
Sri.N.P.Amrutesh vs The Union Of India on 30 May, 2023
Bench: B.Veerappa, K S Hemalekha
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.21879/2014 (GM-RES)-PIL
BETWEEN:
SRI.N.P.AMRUTESH,
S/O. LATE PUTTASWAMY,
AGED 54 YEARS,
R/O NO.28(103), 10TH MAIN,
BEHIND AMBEDKAR B.ED COLLEGE,
J.C. NAGAR, KURUBARAHALLI,
BANGALORE-560 086. ...PETITIONER
(BY SRI V.R., DATTAR, ADVOCATE FOR
SRI N. K. SIDDESWARA, ADVOCATE)
AND:
1. THE UNION OF INDIA,
MINISTRY OF LAW AND JUSTICE SOUTH BLOCK,
NEW DELHI-110 001,
REPRESENTED BY ITS SECRETARY.
2. THE HONOURABLE HIGH COURT OF KARNATAKA,
BANGALORE-560 001,
REPRESENTED BY ITS REGISTRAR GENERAL.
3. THE HONOURABLE CHIEF JUSTICE,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
2
4. THE STATE OF KARNATAKA,
DEPARTMENT OF LAW AND JUSTICE,
VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI,
BANGALORE-560 001,
REPRESENTED BY ITS SECRETARY.
5. THE AUDITOR AND COMPTROLLER
GENERAL OF INDIA,
HAVING HIS OFFICE,
OPP: VIDHANA SOUDHA (NORTH),
BANGALORE-560 001.
6. GULBARGA HIGH COURT
ADVOCATES ASSOCIATION,
HIGH COURT OF KARNATAKA ,
BENCH AT GULBARGA,
GULBARGA 585103,
REP. BY ITS PRESIDENT / SECRETARY.
7. DHARWAD HIGH COURT
ADVOCATES ASSOCIATION,
HIGH COURT OF KARNATAKA ,
BENCH AT DHARWAD,
DHARWAD 580011,
REP. BY ITS PRESIDENT/SECRETARY.
....RESPONDENTS
IMPLEADING APPLICANT IN I.A. No.1/2016:
SIDDARAMAPPA
S/O DURGAPPA,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O MANVI, TQ: MANVI,
RAICHUR DISTRICT -584123.
(BY SRI H. SHANTHI BHUSHAN, DEPUTY SOLICITOR GENERAL
OF INDIA FOR R1 AND R5;
SRI DHYAN CHINNAPPA, ADDITIONAL ADVOCATE GENERAL A/W
SRI KIRAN KUMAR, HIGH COURT GOVERNMENT PLEADER FOR
R4; SRI S.S. NAGANAND, SENIOR COUNSEL A/W
3
SRI S.G. PRASHANTH MURTHY, ADVOCATE A/W
SMT. SUMANA NAGANAND, ADVOCATE FOR R2 AND R3;
SRI KARTHIK YADAV U., ADVOCATE FOR
SRI S.K. VENKATA REDDY, ADVOCATE FOR R6;
SMT. SONA VAKKUND, ADVOCATE FOR R7 ;
SRI D.C. PARAMESHWARAIAH, ADVOCATE FOR IMPLEADING
APPLICANT IN I.A.1/2016)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION UNDER ARTICLES 226 AND 227 OF CONSTITUTION
OF INDIA BY CALLING OF RECORDS FROM THE RESPONDENT
NOS.1 TO 4 REGARDING ESTABLISHMENT OF CIRCUIT BENCHES
AND CONVERTING THEM INTO PERMANENT BENCHES BY ORDER
DATED 19.10.2004 VIDE ANNNEXURE-E AND ORDER DATED
04.06.2008 LOCATING OF CIRCUIT BENCHES AT DHARWAD AND
GULBARGA VIDE ANNEXURE-F AND MAKING IT INTO
PERMANENT BENCHES BY PRESIDENTIAL ORDER DATED
08.08.2013 VIDE ANNEXURE-M AND DECLARE THEM AS
UNCONSTITUTIONAL, CONTRARY TO LAW AND AS OPPOSED TO
PUBLIC INTEREST.
ISSUE WRIT OF MANDAMUS OR WRIT ORDER OR
DIRECTION IN THE NATURE OF MANDAMUS OR ANY OTHER
APPROPRIATE WRIT ORDER OR DIRECTION UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA BY DIRECTING THE
RESPONDENT NO.5 TO CONDUCT PERFORMANCE AUDIT
INCLUDING FINANCIAL AUDIT OF REGARDING THE
INVESTMENT, EXPENDITURE AND FUNCTIONAL VIABILITY OF
THESE BENCHES AT DHARWAD AND GULBARGA AND ITS
SUSTENANCE IS IN PUBLIC INTEREST.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, B. VEERAPPA J., PASSED THE
FOLLOWING:
4
ORDER
The petitioner practicing Advocate has filed the present
Public Interest Litigation seeking writ of certiorari to struck down
the establishment of Circuit Benches and converting them into
Permanent Bench by the order dated 19.10.2004 vide
Annexures-E and F dated 4.6.2008 at Dharwad and Gulbarga
and the Presidential Order dated 8.8.2013 vide Annexure-M as
unconstitutional, contrary to law and opposed to public interest;
and a writ of mandamus directing respondent No.5 - Auditor
and Comptroller General of India to conduct performance of
audit including financial audit with regard to investment,
expenditure and functional viability of these Benches at Dharwad
and Gulbarga and it's sustenance in public interest.
I - FACTS OF THE CASE
2. It is the case of the petitioner that he is a practicing
advocate of High Court of Karnataka at Principal Bench, Dharwad
and Gulbarga Benches and he is a public spirited citizen, who
has taken up several causes of the citizen as also of advocates,
in the matter of maintenance of the Rule of law and efficacy of
justice delivery system.
3. The petition raises several questions of law interalia as
to the relative scope and scope of the Karnataka High Court Act,
1961 (for short, hereinafter referred to as 'Act 1961') and
establishment of Permanent Bench of the High Court of
Karnataka under the provisions of Section 51(2) by converting
the High Court of Karnataka, Circuit Benches at Dharwad and
Gulbarga and of the State Re-organisation Act, 1956(for short,
hereinafter referred to as 'S.R. Act, 1956) issued under Section
51(3) of the S.R. Act, 1956 in 2004/2008. It is further
contended that the establishment of the said Benches, first, as
Circuit Benches and later converting them as Permanent
Benches is contrary to law and severely affects the public
interest as it is contrary to the dictum of the Hon'ble Supreme
Court in the case of the Federation of Bar Association -vs- Union
of India reported in (2000)6 SCC Page 715 apart from the
recommendation of Hon'ble Justice Jaswant Singh's Commission
Report, since factually the number of cases, filed, disposed of
and the expenditure incurred in maintenance of these
establishments are not conducive to the public interest, as it
affects the functional integrity and unity of the institution of the
Hon'ble High Court. The respondents are the respective
authorities representing His Excellency, the Hon'ble President of
India, the Hon'ble Chief Justice of Karnataka and His Excellency,
the Governor of Karnataka thus answering the description of the
term within the meaning of Article 12 of the Constitution of India
and the 5th respondent is a Constitutional authority responsible
for undertaking performance of audit, including financial audit of
Public Institutions/Authorities.
4. The petitioner further stated that the Mysore High
Court Act, 1884 (for short, hereinafter referred to as 'Act, 1884')
was enacted to establish and constitute the High Court of Mysore
and to provide for administration of Justice by the High Court of
Mysore. Section 3 of Act, 1984 defines the term 'High Court'
which means the Chief Justice of the High Court and refers to
the Chief Court or to the High Court in any Regulation, Act or
other Laws for the time being in force and shall be deemed to
have been made to the High Court of Mysore. The provisions of
Section 17 of Act, 1884 prescribes that the High Court shall hold
its sittings at such place as the State Government may, from
time to time, appoint any other place by way of Circuit, interalia.
Section 19 of Act, 1884 permits the High Court to make Rules for
exercise of powers of one or more of its judges under the said
Act or any other Enactment. The Rules made thereunder were
required to receive sanction from the State Government under
Section 21 of the Act. Section 14 of the Act 1961 has continued
and retained the operation of provisions of Sections 17, 19 and
21 of the Act, 1884 interalia which has the force of law under
Article 372 of the Constitution of India.
5. It is the further stated of the petitioner that under the
Constitution of India as framed in 1950, the State of Mysore was
classified as Part-B State. Under Section 12 of the States Re-
organisation Act, 1956 (for short, hereinafter referred to as 'S.R.
Act, 1956) Parts-A, B and C of the Constitution were
modified/deleted and following parts were substituted whereby
Part-A state at Sl.No.8 Mysore with territories specified in Sub-
section 1 of Section 7 of the States Re-organisation Act amended
the provision of State of Mysore being Part-B State and
formation of a new Mysore State was created under Section 7 of
the S.R. Act.
6. It is further stated of the petitioner that Sub-Section(1)
of Section 7(b) of Belgaum District except Chandgad Taluks and
Bijapur, Dharwad and Kanara Districts which were existing in the
then State of Bombay and also under (c) Gulbarga District
except Kodanga and Tandur Taluks, Raichur District except
Alampur and Gadwal Taluks and Bidar District except Admadpur,
Nilanga and Udgir Taluks and the portions specified in clause (d)
of Sub-Section (1) of Section 3 in the existing State of
Hyderabad became part of the new State of Mysore. It is further
contended that under Part-V of the S.R. Act, 1956, High Courts
were established under Section 49(2) which reads as under:-
"As from the appointed day, there shall be a
established High Court for each of the new
States of Kerala, Mysore and Rajasthan."
7. The petitioner further states that High Court of Mysore
was established under the S.R. Act, 1956 which came into effect
in Mysore/Karnataka from 1.11.1956 and the new High Court of
Mysore at Bangalore started functioning from 1.11.1956. Under
Part-V, Section 51(1) of the S.R. Act, 1956, Principal Bench of
the High Court of Mysore was established at Bangalore. Section
51 contemplates Principal seat and other places of High Courts
for new States shall be at such place as the President may, by
notified order, appoint after consultation with the Governor of a
new State and the Chief Justice of the High Court for that State,
by notified order, provide for the establishment of a Permanent
Bench or Benches of that High Court at one or more places
within the State other than the principal seat of the High Court
and for any matters connected therewith. Notwithstanding
anything contained in sub- section (1) or sub- section (2), the
Judges and division courts of the High Court for a new State may
also sit at such other place or places in that State as the Chief
Justice may, with the approval of the Governor, appoint. It is
further contended that Section 69 of the said Act contemplates
'Savings', that nothing in this Part shall affect the application to
the High Court for a new State of any provisions of the
Constitution, and this Part shall have effect subject to any
provision that may be made on or after the appointed day with
respect to that High Court by any Legislature or other authority
having power to make such provision.
8. It is the further stated by the petitioner that after
coming into force the Constitution in the year 1950, the High
Court of Mysore which was functioning under the 1884 Act,
having its seat of justice at Bangalore, continued to exercise its
jurisdiction throughout in the then existing territories under the
First Schedule of the Constitution to the Part-B State. Under the
Constitution by virtue of Article 372, it continued to operate and
exercise its jurisdiction even after the 1956 Act came into effect,
and exercised its jurisdiction in the existing territories under Part
B State and also on the new territories i.e., Districts which
merged and formed the new State of Mysore. In view of Section
62 of 1956 Act, pending proceedings before the High Court of
Bombay, Madras and Hyderabad were transferred to the Mysore
High Court. Therefore, in terms of Article 214 of the Constitution
of India, the High Court of Mysore was established having its
Principal Bench at Bangalore, and had continued to do so even
after S.R. 1956 Act came into force. Thereafter, the Mysore
High Court Act, 1961 Act 5 of 1962 came to be enacted which
provided for an Act 'to make provisions for regulating business
and exercise of powers of the State of Mysore/Karnataka in
relation to the administration of justice and to provide for its
jurisdiction'. Though in the meantime, the High Court of
Mysore/Karnataka Rules 1959 came into effect which provided
Chapter-II Rule 1 (a) for the Principal Bench at Bangalore, which
was in terms of Section 49(2) of the S.R. Act, 1956 and as the
said Rules were framed under Article 225 of the Constitution r/w
Section 54 of S.R. Act, 1956, Sections 122 and 129 of the Code
of Civil Procedure, Section 19 of the Mysore High Court Act which
had same force of law as though enacted under Article 254 of
the Constitution being precursor to the subsequent High Court of
Mysore (Karnataka) Act, 1961, being saved under Section 69 of
the S.R. Act, 1956 which also recognized the only place of sitting
of the Principal Bench at Bangalore.
9. It is further stated that the preamble of the 1961 High
Court Act provides that "Whereas it is expedient to make
provision for regulating the business and the exercise of powers
of the State of Karnataka in relation to the administration of
justice and to provide for its jurisdiction and other matters
hereinafter appearing thereby the then existing Mysore State
Legislature enacted the Mysore High Court Act which received
the Presidential assent on 25.12.1961." It is further contended
that in view of Article 214 of the Constitution under Chapter 5 of
Part-6 of the Constitution, the then existing Mysore High Court
continued to exercise its jurisdiction in Part-B State under the
Constitution and after 1956 Act came to be enacted and
enforced, it exercised its jurisdiction in respect of the new
territories added/merged with the State of Mysore. Hence, after
re-establishment of the Principal Bench for the new State of
Mysore under Section 49(1) and (2) r/w 51(1) of the S.R. Act,
1956 and Section 51 as a whole was not applied to the new
State of Mysore as it had an existing High Court/Chief Court in
the State of Mysore and continued to be a High Court for the
New State of Mysore in terms of Section 7 of the S.R. Act, 1956.
Thereby the application of Section 51(2) and 51(3) did not and
would not arise at that point of time. The authorities mentioned
in the said provision did not deem it necessary to either establish
any separate permanent Benches under Section 51(2) of the
S.R. Act nor there was a need to establish Circuit Benches under
Section 51(3) of the S.R. Act. Therefore, the provisions of
Section 51(2) and 51(3) could not be invoked in the absence of
provisions of the Mysore High Court Act, 1961 as the application
of Part V of the States Re-organisation Act is enabling provision
if the appropriate Legislature had not enacted any law with
respect to the High Court in terms of saving clause in Part V
Section 69 of the S.R. Act, 1956. However, immediately after
the New State of Mysore came into existence firstly High Court
of Mysore/Karnataka Rules 1959 were framed and immediately
thereafter, the State Legislature enacted High Court of
Mysore/Karnataka Act, 1961, which estopped invoking of
provisions of Section 51(2) and 51(3) of the S.R. Act by
respondent Nos.1 to 3 as the 1961 Act was self contained
enactment and by virtue of Section 69 of the S.R. Act, 1956, no
contingency of establishment of Permanent Benches at any other
place than at Bangalore was envisaged, which is also the
considered view of the Hon'ble Supreme Court in the case of
Federation of Bar Associations reported in (2000)6 SCC 715 as
also recommended by the Justice Jaswant Singh Commission.
10. The petitioner further states that under 1961 Act, the
Legislature thought it fit not to make provision for establishment
of either a Circuit Bench or a Permanent Bench anywhere outside
the seat of Principal Bench at Bangalore as it was felt that there
was no need for necessity. State of Mysore/Karnataka as
created under the S.R. Act, 1956 came into existence based on
the language spoken (i.e., Kannada Language) in the territories
merged and unification of Kannada speaking people into the
State of Mysore as it existed then. Hence, merged territories
accepted the High Court of Mysore with it's Principal seat of
Justice at Bangalore as their High Court. Moreover, the State of
Mysore was an existing State in Part-B with addition of new
territories, its territorial extent was enlarged to include Kannada
Language loving people, who merged/integrated into State of
Mysore physically, emotionally and psychologically and as the
Seat of Government, Bangalore was the Capital City. The
Principal Seat of Justice was also Bangalore and there was no
incongruity in both being at one place which was felt, it did not
allow any fissiparous or divisive tendencies after the new State
of Mysore came into existence. Many of the Lawyers/Advocates
who were then Practising at High Court of Bombay or at
Hyderabad or at other District lever places migrated to
Bangalore and established their practice at the High Court of
Mysore/Karnataka at Bangalore and never expressed regrets for
having come over to Bangalore, which is the Garden City.
11. It is further stated that it appears in the year 1973-
74, section of Advocates at Dharwad started agitation for
establishment of a Permanent Bench at Permanent Bench at
Dharwad. However, the same was not conceded either by the
Government of Karnataka or by the High Court of Karnataka. It
appears that under misconception of applicability of Section 51
of 1956 Act, agitation was started and ultimately, it was rejected
8 out of 9 times by the High Court of Karnataka in its Full Court
and Union Government being apprised of the demand for
establishment of Permanent Bench at Dharwad i.e., outside
Bangalore, referred the question of establishment of Permanent
Bench outside Principal seat of High Court at Bangalore, in the
North Karnataka region to Justice Jaswant Singh Commission
which was enquiring into this issue in respect of establishment of
Bench in the State of Madhya Pradesh and Madras/Tamilnadu,
which enquired into the matter and in it's report submitted that
there was no necessity nor need to establish permanent Bench in
State of Karnataka outside its Principal Bench at Bangalore.
12. Further the said report and the opinion was challenged
before the Hon'ble Supreme Court by the Federation of Bar
Association in Karnataka against the Union of India and the
Hon'ble Supreme Court by the order dated 24.7.2000 held that
the establishment of a Bench of High Court away from
Bangalore is inadvisable. Not satisfied with the said decision,
Dharwad Bar Association addressed a letter/representation on
12.10.2001 to the Hon'ble Chief Justice then to reconsider the
establishment of High Court at Dharwad. Thereafter, the High
Court of Karnataka i.e., the then Hon'ble Chief Justice by a
Notification dated 21.3.2002 constituted 7 Member Committee to
look into the matter. Under the Chairman of Mr. Justice G.C.
Bharuka, a committee was constituted, who gave a report dated
6.6.2003 that the Bench may be established in Rayapur area
between Hubli and Dharwad and expressed opinion that the
Bench ought to be of permanent character and gave its report.
13. The said committee consisting of 7 members,
submitted a report wherein a note of dissent was put by two
Hon'ble Judges, who did not agree with the establishment of
Permanent Bench as recommended by Justice G.C. Bharuka
Committee and the remaining 5 Members took a contrary view
and supported the recommendation. Therefore, the said
recommendation cannot be said to be unanimous
recommendation or by majority. Thereafter, on 19.10.2004
assuming power under Section 51(3) of S.R. Act, 1956, with the
approval of His Excellency the Governor of Karnataka, the then
Hon'ble Chief Justice of the High Court of Karnataka issued
Notification notifying sitting of Judges and functioning of High
Court of Karnataka at Dharwad and Gulbarga though the date of
sitting was to be notified later. Thereafter keen interest was
shown by the then Hon'ble Chief Justice, the work of
construction of High Court Building was expedited and on
4.6.2008, the then Hon'ble Chief Justice of Karnataka High Court
issued notification establishing Circuit Bench at Dharwad and
Gulbarga for hearing the cases arises from respective District of
Bagalkot, Bellary, Belgaum, Dharwad, Gadag, Haveri, Uttara
Kannada, Karwar and Koppal to be heard and decided at Circuit
Bench at Dharwad and the cases arising from the Districts of
Bidar, Bijapur, Gulbarga and Raichur to be heard and decided at
Circuit Bench at Gulbarga. Pending cases were transferred for
being heard and decided at Circuit Bench. However, contrary to
the concept of Circuit Bench, new cases in Circuit Benches were
permitted to be filed from 7.7.2008.
14. It is further stated that subsequently the notification
dated 29.12.2008 was issued to post the Review Petitions
relating to judgments, Decree, Order or sentence pronounced,
made or passed by the Division Bench or Single Bench in respect
of Circuit Bench, Dharwad, as per the roster existing in the
Circuit Bench, Dharwad. On 26.3.2010, the said notification
dated 29.12.2008 came up for consideration before the Division
Bench of the Circuit Bench at Dharwad. The Division Bench held
that the said notification dated 29.12.2008 was contrary to Rule
5 of Chapter III of the High Court of Karnataka Rules, 1959 and
accordingly quashed the said notification. However while
interpreting the said notification, the Division Bench held that
the notification dated 4.6.2008 establishing Circuit Benches at
Gulbarga and Dharwad did not exclude the litigant from
approaching the Principal bench at Bangalore for filing of the
cases before the Principal Bench though could also exercise their
option to file it before the Circuit Bench. It is further stated that
the said judicial order was challenged by the High Court itself
through the Registrar General in SLP © 7682/2010 before the
Hon'ble Supreme Court. The Hon'ble Supreme Court stayed the
judgment of the Division Bench, thereby the litigant public from
12 districts coming under Circuit Benches of Dharwad and
Gulbarga were denied access to approach the Principal Bench of
Bangalore and their cases were not entertained before the
principal Bench, Bengaluru.
15. It is further stated that as the viability of these two
circuit benches was in doubt, the then Hon'ble Chief Justice took
the decision to give separate numbers to the interim applications
to increase/boost the pendency of the cases in the two circuit
benches by issuing a notification, which was again challenged
before this Court and the Division Bench of this Court being of
the view that the said notification is contrary to the rules, has
struck down the said notification by its judgment dated
26.3.2010 in the case of M.S. Poojary -vs- the Registrar
General reported in 2010(4) Kar.LJ 175. Subsequently, the
said notification of giving separate numbers to the interim
applications was withdrawn by the then Hon'ble Chief Justice,
thereby the interim applications have been given I.A. numbers
and were not treated separately for the purpose of numbering
and it has reduced the pendency and infact in the year 2012 the
pendency in the Gulbarga Circuit bench was less that 3,000
cases and contemplating to close it down as it was not serving
any useful purpose and has become a burden on the
establishment. Thereby, the petitioner approached the
Information Officer of the High Court by his application dated
19.1.2013 and accordingly, he has been furnished with the
information. The documents furnished would show that there
was no need to continue with the circuit benches muchless make
them into permanent benches in the absence of any cogent
material before the authorities.
16. It is further stated that pendency of cases was on
decline and both the circuit benches were not serving the
purpose for which it was created/established and infact the
number of Hon'ble Judges sitting at Gulbarga Bench has been
reduced from 5 to 3, the Division Bench was sitting only in the
forenoon session etc., However, certain vested interests, who
were interested in continuance of the circuit benches sought
political intervention and thereafter the matter was referred to
the Union Cabinet on 4.6.2013 and the subject matter to make
Circuit Benches into permanent Benches was placed before the
Union Cabinet and the Union Cabinet has cleared the same on
27.3.2013. It was notified that the Union Cabinet has given
approval for establishment of permanent Benches at Dharwad
and Gulbarga with the concurrence of His Excellency Governor of
Karnataka and the Hon'ble Chief Justice of Karnataka.
Thereafter, the President of India in exercise of the powers
under Section 51(2) of the S.R. Act, 1956 issued a formal order
as per Annexure-M for establishment of permanent benches of
High Court of Karnataka at Dharwad and Gulbarga, thereby the
Dharwad Bench would become functional as Permanent Bench
from 24.8.2013 and that Gulbarga Bench from 31.8.2013 and
the Chief Justice of High Court of Karnataka has been
empowered to nominate Judges to sit at Dharwad and
Kalaburagi Benches. It is further contended that as this was a
sudden event, it appears to have not taken into account ground
realities as to the status of two circuit benches as there was
neither performance report was conducted nor financial audit
was conducted by the 5th respondent before the decision was
taken to make it into permanent bench though it involved an
investment of 300-400 crores of rupees with recurring
expenditure of Rs.15-18 crores per annum. Infact suitability of
continuation of the Circuit benches had not been ascertained and
the then Hon'ble Chief Justice had not appointed any committee
to ascertain the aspect of viability and sustainability of these two
High court Benches and all of a sudden Circuit Benches
converted into permanent benches. It is further contended that
correspondence took place mainly for increasing the strength of
the High Court Judges from 41 to 56 inter alia for notifying
circuit benches at Dharwad and Gulbarga as permanent benches
under Section 51(2) of the S.R. Act, 1956. Accordingly, the
strength of the Karnataka High Court Judges revised to 50 i.e.,
33 permanent Judges and 17 Addl. Judges and formal order
dated 16.11.2009 was issued in this regard as per Annexure-S.
It is further contended that it is also not known as to whether
the opinion of the learned Judges was obtained in Full Court
Meeting. In the circumstances, it creates suspicion that it was
politically motivated than in reality judicially required and there
was no consultation or assessment of functioning of the circuit
benches for a period of 3 years.
17. It is further contended that Annexures - R and S as
also Annexure - C are challenged in a Public Interest Litigation in
Writ Petition No.24110/2011 (PIL-Res) which was admitted and
was pending. Subsequently, a memo came to be filed to
withdraw the said writ petition on the ground that material on
record was insufficient and certain additional information was
sought under the RTI Act. Accordingly, the said writ petition
came to be dismissed as withdrawn with liberty to file fresh writ
petition. In the mean time in June-2013 the announcement was
made that the Circuit Benches would be made permanent and
the Union Cabinet had approved it and thereafter the formal
notification was issued succeeded by the presidential order under
Section 51(2) of the S.R. Act on 8.8.2013. Hence the present
writ petition is filed for the reliefs sought for.
II. Statement of objections filed by
Respondent Nos.1 & 5/Central Government
18. It is stated that in accordance with the
recommendation made by the Jaswant Singh Commission and
the Judgment pronounced by the Apex Court in W.P. (C) No.379
of 2000, Benches of the High Court are established after due
consideration of a complete proposal from the State
Government, which is to provide infrastructure and meet the
expenditure, alongwith the consent of the Hon'ble Chief Justice
of the High Court, which is required to look after the day to day
administration of the High Court and its Benches. The proposal
has also consent of Governor of the State Government.
19. It is further stated that the Hon'ble Supreme Court in
the case of Federation of Bar Association in Karnataka -vs-
Union of India in Writ Petition (Civil) No.379 of 2000 held that
as the Chief Justice of High Court concerned is the important
consultee in the matter of establishment of a Bench of the High
Court, he being the head of that High Court has to form an
opinion when it is required during such consultation process.
Normally, the Chief Justice will not be guided by any Political or
Parochial considerations and when he gives opinion, it is the
opinion of the High Court and not merely his personal opinion.
20. It is further stated that the Bench of High Court was
established after receiving the complete proposal from the State
Government, in consultation with the Chief Justice of the High
Court and the Governor of the State. The Chief Justice of
Karnataka High Court in July, 2009 had requested the Central
Government to notify the Circuit Benches of the High Court of
Karnataka at Dharwad and Gulbarga as permanent Benches
under Section 51(2) of the S.R. Act, 1956 and to enhance the
sanctioned strength of Hon'ble Judges of the Karnataka High
Court from 41 to 56.
21. It is also stated that after approval of the Chief Justice
of India and with concurrence of the State Government, 6 posts
of additional Judges for Dharwad Bench and 3 posts for Gulbarga
Bench were created in November 2009. The proposal for
establishment of permanent Benches of the High Court of
Karnataka at Dharwad and Gulbarga and issuing Presidential
Order under Section 51(2) of the S.R. Act, 1956 was placed
before the Central Cabinet, which in its meeting dated 4.6.2013
had approved the above proposal. Accordingly, a notification for
operationalization of permanent Benches of the Karnataka High
Court at Dharwad, w.e.f 24.8.2013 and Gulbarga w.e.f.
31.8.2013 was issued on 14.8.2013.
22. Respondent Nos.1 & 5 further stated that the sitting of
the Judges of High Court of Karnataka in Single and Division
Bench at Dharwad and Gulbarga and establishment of Circuit
Benches of the Karnataka High Court at Dharwad and Gulbarga
were notified by the Karnataka High Court in consultation with
the State Government. This was done under Section 51(3) of
the S.R. Act, 1956. The notification of operationalization of
permanent Benches of the Karnataka High Court at Dharwad and
Gulbarga was issued by the Central Government on 14.8.2013
with the concurrence of the Chief Justice of the Karnataka High
Court, State Government and Governor of the State. The said
notification was issued under Section 51(3) of the S.R. Act,
1956.
23. It is further stated that the Cabinet in its meeting
dated 4.6.2013 approved the establishment of permanent
Benches of the Karnataka High Court at Dharwad and Gulbarga
and accordingly presidential order was issued after approval of
the Cabinet. The notification for establishment of Permanent
Benches of the Karnataka High Court at Dharwad and Gulbarga
was issued in exercise of the powers under Section 51(2) of the
S.R. Act after consultation with the Governor of Karnataka and
the Chief Justice of the High Court of Karnataka. The Hon'ble
Supreme Court in Writ Petition No.379/2000 also held that the
High Court is the best suited machinery to decide whether it is
necessary and feasible to have a bench outside the principal seat
of that High Court. It is submitted that the recommendations
made by the Jaswanth Singh Commission was referred to the
concerned authorities and the action was taken by the Central
Government as per the existing procedure and that
establishment of permanent Benches at Dharwad and Gulbarga
was a policy decision taken by the Government in exercise of its
sovereign functions. It is further contended that establishment
of permanent Benches at Dharwad and Gulbarga is a public
welfare measure. The establishment of permanent benches
should not be construed as an investment for returns at all, but
should only be taken as "Pro Bono Publico" measure, thereby
sought to dismiss the writ petition.
III. Statement of objections filed by learned counsel for
24. The Respondent Nos.2 and 3 stated that even though
the present writ petition is filed in the form of Public Interest
Litigation, the element of public interest is totally absent and
the petitioner cannot be considered as an 'aggrieved person' and
cause reflected in the writ petition cannot be considered as a
public cause and on that ground alone the writ petition is liable
to be dismissed.
25. It is further stated that the Chief Secretary,
Government of Karnataka, Bengaluru by D.O. letter dated
19.10.2004 addressed to the Hon'ble Chief Justice, High Court of
Karnataka informed that His Excellency the Governor of
Karnataka has approved the proposal for establishment of High
Court circuit benches at Dharwad and Gulbarga under the
provisions of Section 51(3) of the S.R. Act. Subsequently, a
notification was issued as required under Section 51(3) of the
S.R. Act. In the said notification, the sittings of Single Judges
and Division Benches of High Court of Karnataka at Dharwad and
Gulbarga and also the date of sitting was proposed to be notified
after securing a report of the Hon'ble Committee which was
constituted exclusively for establishment of examining feasibility
of circuit benches as per the order passed by the Hon'ble Chief
Justice. It is further contended that as a matter of fact a
studied and thoughtful decision was taken to establish circuit
benches at Dharwad and Gulbarga. Various aspects which were
required to be considered were considered threadbare and a final
decision was taken in the interest of the public and the same
cannot be found fault with by anyone including the petitioner.
26. It is further stated that the pendency of cases as on
31.5.2014 in the Dharwad Bench was 41,777 and in the
Gulbarga Bench was 17,050 and the sanctioned strength of the
Hon'ble Judges in the High Court of Karnataka as on 2014 was
50 and number of permanent Judges was 33 and number of
Additional Judges was 17. It is contended that the proposal for
establishment of circuit benches was examined in detail by the
Committee of Hon'ble Judges headed by Hon'ble Sri Justice G.C.
Bharuka. The Committee considered the demand of people of
North Karnataka for establishment of Benches therein, in
addition to other aspects. Selection of land for construction of
Circuit Bench buildings was also done on proper and relevant
consideration and as per the recommendation by the committee
of Hon'ble Judges.
27. It is further stated that the Hon'ble Supreme Court in
the case of Federation of Bar Association in Karnataka -vs-
Union of India reported in (2000)6 SCC 715 held that High
Court is the best-suited machinery to decide whether it is
necessary and feasible to have a Bench outside the principal seat
of that High Court, thereby it is clear that the Hon'ble Chief
Justice has got every power and authority to recommend for
establishment of Benches outside the Principal Bench and hence
the prayer of the petitioner seeking for quashing the notification
dated 19.10.2004, is not sustainable in law. The present writ
petition filed by the petitioner lacks any public interest of
preserving structural and functional integrity and composition of
the institutions of High Court and in preventing disintegration.
In exercise of the powers conferred under sub-section (2) of
Section 51 of the S.R. Act, 1956 the President, after consultation
with the Government of Karnataka and Chief Justice of High
Court of Karnataka was pleased to order the operationalization
of the permanent Bench of High Court of Karnataka at Dharwad
from 24.8.2013 and at Gulbarga from 31.8.2013. The
establishment of Permanent Benches at Dharwad and Gulbarga
was as a result of need based demand and necessity of the
people of the northern Karnataka and later they were converted
into permanent benches. A lot of agitation took place by the
Advocates of that region and the litigant public as also public at
large joined in putting forth their demands. The establishment
of High Court Benches is a policy decision taken as per the
constitutional scheme. The very preamble of the Constitution of
India mandates that all efforts be taken to render justice to a
common man. Under the circumstances, the writ petition is
liable to be dismissed with costs.
IV. Regarding particulars/material furnished by
Respondent Nos.2 and 3 in pursuance of
the order dated 3rd March 2023
28. We have heard the learned counsel for the parties in
the entire afternoon session on eight hearing dates, at length
from 7.12.2022 to 3.3.2023 and sufficient opportunity was given
to both the parties to putforth their respective cases. By the
order dated 3.3.2023, this Court directed the respondent Nos.2
and 3 to furnish the following particulars/material pertaining to
Benches at Dharwad and Kalaburagi separately from the date of
the establishment of the Benches till 3rd March 2023.
1) Pendency of cases as on the date of
establishment of the Benches;
2) The amount spent for infrastructure of the
buildings in both the Benches;
3) Number of employees appointed in both
the Benches;
4) Number of cases disposed in both the
Benches;
5) The amount spent by the State
Government for both the Benches.
29. Learned counsel for Respondent Nos.2 and 3 produced
the relevant material on 24.3.2023 and subsequently alongwith
the Memo dated 11.4.2023, High Court has furnished the
statements showing the expenditure incurred towards salary,
allowances etc., at Dharwad and Kalaburagi Benches from 2008-
09 to 2022-23.
V. Arguments advanced by learned
counsel for the petitioner
30. Sri V.R. Datar, learned counsel for the petitioner
contended that in view of the provisions of Article 214 of the
Constitution of India there shall be a High Court for each State.
Section 51 of the S.R. Act, 1956 contemplates Principal seat and
other places of sitting of High Courts for new States, which reads
as under:
"51. Principal seat and other places of sitting of High
Courts for new States.
(1) The principal seat of the High Court
for a new State shall be at such place as
the President may, by notified order,
appoint.
(2) The President may, after consultation
with the Governor of a new State and the
Chief Justice of the High Court for that
State, by notified order, provide for the
establishment of a permanent Bench or
Benches of that High Court at one or
more places within the State other than
the principal seat of the High Court and
for any matters connected therewith.
(3) Notwithstanding anything contained in
sub- section (1) or sub- section (2), the
Judges and Division courts of the High
Court for a new State may also sit at such
other place or places in that State as the
Chief Justice may, with the approval of
the Governor, appoint."
31. Learned counsel would further contend that as per
Section 17 of the Mysore High Court Act-1884, the High Court
shall hold its sittings at such place as the State Government
may, from time to time, appoint in that behalf and whenever it
appears to the State Government convenient that the
jurisdiction and powers vested in the High Court by this Act, or
any other law for the time being in force, should be exercised in
any place other than the place appointed under paragraph-1 of
this section, or at several of other places by way of circuit, the
State Government may by order authorise and direct any one or
more of the Judges of such Court to hold sittings in such place or
places as by such order may be directed, and the Judge or same
Judges acting under such order shall have and exercise the
jurisdiction and authority as would be had and exercised by a
Judge or Judges of the High Court, as the case may be, in its
ordinary place of sitting. He would contend that while enacting
the Karnataka High Court Act, 1961, under Section 14 of the
said Act, the provisions of Sections 11 to 16, 16A, 16B, 20 and
22 of the Mysore High Court Act, 1884 (Mysore Act I of 1884)
were repealed, but Section 17 of the Mysore High Court Act has
not been repealed, thereby, the High Court of Karnataka has no
power to set up permanent Benches at Dharwad and Kalaburagi.
He would further contend that the provisions of Section 51(2)
and (3) of the S.R. Act, 1956 are not applicable to the formation
of Benches at Dharwad and Kalaburagi. He also contended that
Sections 49 to 69 of the S.R. Act, 1956 come within Part V,
which relate to High Courts. He would further contend that
certain words in Entry-3, List-II of Seventh Schedule were
omitted by the Constitution (Forty-second Amendment) Act,
1976 with effect from 03/01/1977. Entry 11A of List III of
Seventh Schedule relates to "Administration of Justice;
constitution and organisation of all Courts, except the Supreme
Court and the High Courts". He would further contend that
Annexure - "E" dated 19/10/2004 issued in exercise of powers
under Section 51(3) of the S.R. Act, 1956 notifying sittings of
Judges and Division Courts of the High Court of Karnataka at
Dharwad and Gulbarga, is invalid. He also draws the attention of
the Court to the notification dated 4.6.2008 (Annexure-F),
wherein it is stated that in exercise of the powers under Section
51(3) of the S.R. Act, the Hon'ble Chief Justice vide notification
dated 19.10.2004 was pleased to notify sittings of Judges and
Division Courts of the High Court of Karnataka at Dharwad and
Gulbarga and the Full Court of the High Court vide resolution
dated 3.6.2008 has resolved to commence sitting of Judges and
Division Courts at the Circuit Benches at Dharwad and Gulbarga
with effect from 07/07/2008. He would further contend that
the President of India in exercise of the powers under Section
51(2) of the S.R. Act, 1956 issued a formal order as per
Annexure-M for establishment of permanent benches of High
Court of Karnataka at Dharwad and Gulbarga, thereby the
Dharwad Bench would become functional as Permanent Bench
from 24.8.2013 and that Gulbarga Bench from 31.8.2013. He
would further contend that Clauses 4 and 5 of the Notification
dated 08/08/2013 (Annexure-M) delegates the powers to the
Chief Justice to nominate Judges of the High Court of Karnataka
to sit at Dharwad and Kalaburagi Benches. Clause 5 of the said
notification prescribes that notwithstanding anything in sub-
paragraph (i) and (ii) of paragraph 4 of the said notification, the
Chief Justice of the High Court of Karnataka may in his
discretion, order that any case or class of cases arising in any
such District shall be heard at Bengaluru. He would further
contend that in view of Article 214 of the Constitution of India
and report of the Hon'ble Mr.Justice Jaswant Singh Commission
dated 30/04/1985, the very establishment of circuit Benches at
Dharwad and Kalaburagi and later converting them into
permanent Benches, is contrary to law.
32. Learned counsel for the petitioner filed the list of
dates and particulars/events and contended that the issuance of
Annexure-P and Annexure-N, which relate to establishment of
Circuit Benches at Dharwad and Gulbarga and later converting
them to Permanent Benches in 2013, is patently contrary to law
as the Karnataka High Court Act, 1961 does not contemplate the
creation and establishment of circuit benches or permanent
benches by invoking the provisions of Sections 51(3) and 51(2)
of the S.R. Act, 1956. He would further contend that the S.R.
Act, 1956 was a Temporary or Transitional enactment for
creation of the new States and once the new States were
created in terms of the S.R. Act,1956 the organs of the State
such as Legislature, Executive and the Judiciary came into
existence and the said organs became functional and hence it
was upto the new State to lay down its policies in respect of
Administration of justice and formation of Benches, if any, for
the High Court, by making appropriate provisions for the
Administration of Justice in the State of Mysore (now
Karnataka). Under Section 7 of the S.R. Act,1956 the State of
Mysore, a new State came into existence on 1.11.1956.
Thereafter, the first elections to the Legislative Assembly and
Legislative Council of the State Legislature took place in 1957
and thereupon the Government/Executive was formed. The
Judiciary started functioning as High Court of Mysore at
Bangalore in place of the Chief Court of Mysore since 1.11.1956.
It is further contended that in terms of the S.R. Act as the
Principal Bench was established at Bangalore and started
functioning since 1.11.1956 for the State of Mysore, which was
continued in terms of Article 214 of the Constitution of India and
as there was only one provision pertaining to establishment of
circuit benches was made in terms of Section-14 of Mysore High
Court Act, 1961 by retaining the provision of Section 17 of the
Mysore High Court Act, 1961, which was not repealed which
contemplated that State Government was empowered to
establish Circuit Benches. There was no provision for
establishment of Permanent Benches as the Legislature in its
wisdom thought it was not necessary. Hence, the establishment
of circuit benches and permanent benches by invoking the
provisions of Sections 51(3) and 51(2) of the S.R. Act in terms
of Annexures E and M was ex facie contrary to law muchless
contrary to S.R. Act.
33. Sri V.R. Datar would further contend that the report of
the Committee of Hon'ble Judges headed by Hon'ble Sri Justice
Ashok Bhan dated 05/06/2000 clearly depicts that establishment
of the Circuit Benches at Dharwad and Gulbarga, was not
feasible. The same was confirmed by the Hon'ble Supreme
Court in the case of Federation of Bar Association in
Karnataka -vs- Union of India reported in (2000)6 SCC 715
(Paragraphs 4,5,6 to 10). He also referred to the report dated
6.6.2003 (Annexure-D) submitted by majority of five Hon'ble
Judges of this Court so also note of dissent dated 6.6.2003.
Learned counsel brought to the notice of the Court Annexure-M
dated 8.8.2013 passed by the President of India, in exercise of
the powers under the provisions of Section 51(2) of the S.R. Act
so also statement of objects and reasons of the said Act. He
also brought to the notice of the Court Section 69 of the S.R.
Act, 1956 which prescribes that "nothing in this Part shall affect
the application to the High Court for a new State of any
provisions of the Constitution, and this Part shall have effect
subject to any provision that may be made on or after the
appointed day with respect to that High Court by any Legislature
or authority having power to make such provision", thereby S.R.
Act, 1956 could not have been invoked. In view of the
provisions of Section 14 of the Karnataka High Court Act,
Sections 17, 18, 19, 21 and 23 of the Mysore High Court Act,
1894 have not been repealed. He further contended that in
view of the provisions of Article 246(3) of the Constitution of
India and Entry 3 of List II of Seventh Schedule of the
Constitution, the very constitution of permanent Benches of the
High Court is void, ab initio and invalid. Section 28 of the S.R.
Act, 1956 contemplates changes in composition and allocation of
sitting members (Legislative Assembly). He would further
contend that vide Annexure-N dated 15.4.2010, the then Hon'ble
Chief Justice of this Court made a reference to the Law Minister
of India requesting for enhancement of strength of permanent
Judges and Annexure-P dated 24.8.2009 is the letter from the
Chief Minister to Law Minister of India and vide Annexure-Q
dated 15.4.2010, the Governor has given consent to the
proposal of the Hon'ble Chief Justice and communicated the
same to the Law Minister of India. He would further contend
that in view of the provisions of Section 51(2) of the S.R. Act-
1956, Part V of the said Act is not applicable for the constitution
of the permanent Benches, as it is only temporary and
transitional provision. Once the Karnataka High Court Act,
1961 came into force, the provisions of the S.R. Act, 1956 are
not applicable. The law declared by the Hon'ble Supreme Court
in (2000)6 SCC 716 (paragraphs 11 and 12) is binding on the
Court as well as the respondents. Therefore, learned counsel
sought for allowing the writ petition.
34. In support of his contentions, learned counsel for the
petitioner relied upon the following judgments:
1. Federation of BAR Associations in Karnataka
vs. Union of India - (2000) 6 SCC 715 (para 11
and 12)
2. Kantaru Rajeearu Vs. Indian Young Lawyers
Association- (2020) 2 SCC 1 (para 52 and
60)
3. State of Karnataka Vs. K.T. Rajashekar - 2020
(4) KCCR 2634 (DB) .. (para 16)
4. S.R. Bhagwat vs. State of Mysore - AIR 1996
SC 188 .. (para 11 and 12)
5. Union of India Vs. K.M. Shankarappa - (2001)
1 SCC 582 (para 7 and 8)
6. Report of the Law Commission for India (para
9 and 10)
7. 14th Report of Law Commission of India (para
81 and 82)
8. South India Corporation (P) Ltd., Vs. Secretary
Board of Revenue - AIR 1964 SC 207 (para 13,
15, 18 and 19)
9. Petroleum and Natural Gas Regulatory
Authority Vs. Indraprastha Gas Ltd., -AIR 2015
SC 2978 (para 18, 19 and 23)
10. Municipal Corporation of Pune vs. Bharat Forge
Co. Ltd., - AIR 1996 SC 2856 ..(para 31 to 34)
11. State of M.P. Vs. Bhopal Sugar Industries - AIR
1964 SC 1179.. (para 6 and 7)
12. State of Maharahstra vs. Narayan S Puranik -
AIR 1983 SC 46 .. (para 27)
13. Municipal Corporation for city of Pune and
another .vs. Bharat Forge Co., Ltd and others -
AIR 1996 SC 2856 (Paras 31 to 34)
14. Smt. Swaran Lata vs. Union of India and
others - (1979) 3 SCC 165 (para 37 to 41)
15. Shri Swamiji of Shri Admar Mutt vs The
Commissioner - AIR 1980 SC 1 (para 23, 24
and 29)
16. Moor and General Traders vs. state of A.P. and
others -AIR 1984 SC 121(1) (para 16 and 17)
17. Babu Verghese and Others vs. Bar Council of
Kerala - AIR 1999 SC 1281.. (para 31)
18. Bhavnagar University vs Palitana Sugar Mills
(P) Ltd., - (2003) 2 SCC 111 ..(para 40)
19. A.L. Kalra vs. The Project and Equipment
Corporation of India AIR 1984 SC 1361 (para
18)
20. Union of India vs. Sankalchand Sheth- AiR
1977 SC 2328 (para 102)
21. B.V. Narayana Reddy and others .vs. State of
Karnataka - AIR 1985 Kar 99 (para 34)
22. M.I.Builders Pvt. Ltd., vs. Radhey Shyam Sahu
and others - AIR 1999 SC 2468 .. (para 82)
23. Tirupati Balaji Developers Pvt. Ltd., vs. state of
Bihar -(2004) 5 SCC 1 (para 21 and 24)
VI. Arguments advanced by Sri Shanti Bhushan,
learned Deputy Solicitor General of India
for Respondent No.1
35. Per contra, Sri H. Shanthi Bhushan, learned Deputy
solicitor General of India for Respondent No.1 while reiterating
the averments made in the statement of objections would
contend that the very writ petition filed by the petitioner is not in
the public interest and rather it is in the personal interest and
the same is liable to be dismissed. He would contend that there
is no infringement of any fundamental right nor any scope for
enforcement of fundamental rights in the writ petition and all the
Courts exist for convenience of litigants and not for the
Lawyers. Adjudicating the present writ petition would only be
an academic exercise. The establishment of the Courts should
not be construed as an investment, but to help the litigants and
there is absolute absence of profit motive, but it is for welfare of
the society. Creation of Benches would be beneficial for the
litigants. He would further contend that much water has flown
under the bridge and intervening in this matter at this stage
would only be futile exercise. In view of Part IV of the
Constitution of India, Directive Principles of State Policy cannot
be challenged. Article-38 contemplates State to secure a social
order for the promotion of welfare of the people and Article 39A
contemplates equal justice and free legal aid.
He would further contend that justice delivery to door step is
the objective of the State. In the present case, no
circumstances are brought to the notice of this Court by the
petitioner and the establishment of circuit Benches at Dharwd
and Gulbarga, cannot be termed as arbitrary, whimsical,
unreasonable and contrary to any statutory provisions resulting
in illegality. He would further contend that the Government
has been conferred with power to be exercised as a part of duty
towards the public and every power of this nature is, therefore
coupled with a duty, which is to be performed in public interest.
36. Learned Deputy Solicitor General of India brought to
our notice Government of India - Law Commission of India
Report No.230 with regard to some suggestions to reforms in the
Judiciary relating to 'Justice at easy reach' and 'Access to justice'
and the recommendation made by the Law Commission of India.
He also relied upon the judgment of Constitution Bench of the
Hon'ble Supreme Court in the case of Anita Kushwaha -vs-
Pushap Sudan in Transfer Petition (C) No.1343 of 2008 dated
19th July 2016, wherein it is held at paragraph-30 that four main
facets that constitute the essence of access to justice are:
i) The State must provide an effective adjudicatory
mechanism;
ii) The mechanism so provided must be reasonably
accessible in terms of distance;
iii) The process of adjudication must be speedy; and
iv) The litigants access to the adjudicatory process
must be affordable.
37. Lastly, Sri Shanthi Bhushan contended that Dharwad
and Kalaburagi Benches were established in the year 2008 and
now we are in the year 2023 and more than 14 years has
elapsed and the petitioner has not made out any case to grant
relief at this belated stage, keeping in view the interest of the
citizens of the districts coming under the jurisdiction of the
Dharwad and Kalaburagi Benches, staff appointed, number of
cases disposed off, money spent for establishment etc.,
Therefore, he sought to dismiss the writ petition.
38. In support of his contentions, learned Deputy Solicitor
General of India has relied upon the following judgments:
1. Judgment of High Court of Judicature at Madras in Writ
Petition No.2402 of 2002 dated 26.2.2002. (paras 24 and
25)
2. Federation of BAR Associations in Karnataka vs. Union of
India - (2000)6 SCC 715 .. (paragraphs 6 and 7)
3. State of Maharashtra vs. Narayan Shamrao Puranik and
others - (1982)3 SCC 519 with regard to establishment of
Aurangabad Bench (paras 12, 13, 15, 21, 25 and 26)
VII. Arguments advanced by learned senior counsel
for Respondents 2 and 3
39. Sri Naganand, learned senior counsel along with Sri
S.G. Prashanth Murthy, learned counsel for Respondent Nos.2
and 3 would contend that originally Mysore High Court Act, 1884
was in force. The preamble of the said Act reads as under:
"Whereas it is expedient to amend the Constitution of
and to provide for the administration of justice by
(inserted by Act XXXV of 1951) the High Court of
Mysore; His Highness the Maharaja of Mysore is
pleased to enact as follows:
40. Learned senior counsel also referred to the provisions
of Section -17 of the Mysore High Court Act, 1884 relating to
place of sitting of High Court, which reads as under:
"17. Place of sitting of High Court :- The
High Court shall hold its sittings at such place as the
1[State Government] may, from time to time,
appoint in that behalf.
Whenever it appears to the 1[State
Government] convenient that the jurisdiction and
powers vested in the High Court by this Act, or any
other law for the time being in force, should be
exercised in any place other than the place
appointed under paragraph 1 of this section, or at
several of other places by way of circuit, the 1[State
Government] may by order authorise and direct any
one or more of the Judges of such Court to hold
sittings in such place or places as by such order may
be directed, and the Judge or same Judges acting
under such order shall have and exercise the
jurisdiction and authority as would be had and
exercised by a Judge or Judges of the High Court, as
the case may be, in its ordinary place of sitting.
1. Substituted by Act No. 1 of 1956"
41. Learned senior counsel also brought to the notice of
the Court Entries - 78 and 79 of List I - Union List of Seventh
Schedule (Article 246) of the Constitution of India, which reads
as under:
"78. Constitution and organisation including
vacations of the High Courts except provisions as to
officers and servants of High court; persons entitled
to practise before the High Courts.
79. Extension of the jurisdiction of a High Court to,
and exclusion of the jurisdiction of a High Court
from, any Union Territory."
42. Learned senior counsel would further contend that
before the amendment by Constitution (Forty-Second
Amendment) Act, 1976 w.e.f. 3.1.1977, Entry-3 of List II of
Seventh Schedule of the Constitution of India contemplates the
words, "Administration of justice; constitution and organistion of
all courts, except the Supreme Court and the High Courts".
Thereby, the said words were existing in the Entry-3 of List-II as
on the date of enactment of the Karnataka High Court Act,
1961. Now, the same words are introduced in verbatim in
Entry-11A of List III w.e.f. 3.1.1977.
43. Learned senior counsel would further contend that
what was questioned before the Hon'ble Supreme Court was the
report submitted by the Committee of five Judges, constituted
by the Chief Justice of Karnataka High Court, under Article 32 of
the Constitution of India and not the final decision of the
President of India in the case of Federation Of Bar
Associations in Karnataka -vs- Union Of India reported in
(2000)6 SCC 715 - (paragraphs-2, 8, 9 and 11), wherein it is
held that the question of establishment of a Bench of High Court
away from the principal seat of the High Court is not to be
decided on emotional or sentimental or parochial considerations.
'The High Court is the best suited machinery to decide whether it
is necessary and feasible to have a bench outside the principal
seat of that High Court.' If the High Court does not favour such
establishment it is pernicious to dissect a High Court into
different regions on the ground of political or other
considerations. So it is out of question to decide for
establishment of a bench outside the principal seat of a High
Court contrary to the opinion of the Chief Justice of that High
Court which has been formed after considering the views of the
colleague Judges. He would further contend that petitioner has
not made out any case on merits and the writ petition was
dismissed by the Hon'ble Supreme Court as the Committee of
Judges constituted by the Chief Justice of the High Court has
come to the conclusion that establishment of a bench of the High
Court away from Bangalore is not advisable, thereby the
judgment in the case of Federation of Bar Association in
Karnataka -vs- Union of India reported in (2000)6 SCC 715
is based on the committee report and not on any final decision
taken by the jurisdictional authorities and therefore, the present
writ petition is liable to be dismissed with costs.
44. The learned Senior Counsel would further contend
that in view of the provisions of Section 51(2) and (3) of the
S.R.Act, 1956, the Hon'ble Supreme Court in the case of State
of Maharashtra -vs- Narayan Shamrao Puranik and Others
reported in (1982) 3 SCC 519 (paragraphs-11, 14,15,16, 17 and
18) has held that the power may be exercised from time to time
when occasion arises unless a contrary intention appears is well
settled. A statute can be abrogated only by express or implied
repeal. It cannot fall into desuetude or become inoperative
through obsolescence or by lapse of time. The Judges and
Division Courts at a temporary Bench established under Sub-
section (3) of Section 51 of the Act function as Judges and
Division Courts of the High Court at the Principal seat and while
so sitting at such a temporary Bench they may exercise the
jurisdiction and power of the High Court itself in relation to all
the matters entrusted to them.
45. Learned senior counsel would further contend that the
recommendation of a Committee consisting of seven Hon'ble
Judges was approved by the Hon'ble Supreme Court and final
decision was taken by the President of India on the basis of the
material on record. The scope of writ petition/judicial review is
very limited. In support of his contentions, the learned Senior
Counsel placed reliance on the dictum of the Hon'ble Supreme
Court in the case of Union of India -vs- Kali Dass Batish
reported in (2006)1 SCC 779, particularly paragraph-14.
46. The learned Senior Counsel further contended that the
Courts are meant for a general public at large and not for
lawyers or judges. No litigant is before this Court except the
lawyer, who has filed the present writ petition in the nature of
Public Interest Litigation and even other single Lawyer in the
entire State supported the case of the petitioner.
47. The learned Senior Counsel relying upon the
provisions of Section 69 of the S.R. Act, 1956 contended that the
petitioner cannot seek to enforce a provision of a Pre-
Independence Legislation viz., Section 17 of the Mysore High
Court Act, 1884 and seek to confer power on the State
Government whose legislative competence in relation to the
matters of High Courts are expressly denuded in the aforesaid
provisions of the Constitution. The said submission is fortified by
Article 372 of the Constitution which provides for the
continuance of the laws and their adaptation that were in force
prior to the commencement of the Constitution. However, the
continuation of the existing laws was made subject to the other
provisions of the Constitution. Therefore, Section 17 of the
Mysore High Court Act, 1884 being repugnant to Entries 78 and
79 of List I of Seventh Schedule, is unenforceable. In support of
his contention, he relied upon the judgments of the Hon'ble
Supreme Court in the case of John Vallamattom and Another -
vs- Union of India reported in (2003)6 SCC 611 (paragraph-18)
and Union of India -vs- City Municipal Council reported in
(1979) 2 SCC 1 (para-8).
48. The learned senior counsel would further contend that
paragraphs-4(a) and (b) of the Jaswanth Singh Committee
report are not applicable to the provisions of the Mysore High
Court Act, 1884. He would contend that the Constitution and
Organisation of the High Courts, extension of the jurisdiction to
and exclusion of the jurisdiction of the High Court, from any
Union Territory are the subject matters for framing of laws under
Article 246 of the Constitution by the Parliament in as much as
the same would fall within the ambit of Entry 78 and Entry 79 in
List I (Union List) of Seventh Schedule appended to the
Constitution of India. Therefore, the S.R. Act, 1956 legislated by
the Parliament and the exercise of power therein under Section
51(2) and 51(3) of the said Act, cannot be found fault with. In
support of his contentions, he relied upon the judgment in the
case of Abdul Taiyab Abbas Bhai Malik and Others -vs- The
Union of India and Others reported in AIR 1977 MP 116,
49. He would further contend that the impugned
annexures have been issued by the authorities who have
jurisdiction to do so and Section 17 of the Mysore High Court
Act, 1884 envisages that the place of sitting of the High Court is
as notified by the State Government from time to time.
50. He contended that even assuming that the provisions
of the S.R. Act, 1956 are not applicable, the fact that the State
Government was involved in the deliberation and consultation
process for creating benches at Dharwad and Gulbarga would
reflect the compliance of Section 17 of the Mysore High Court
Act, 1884.
51. Learned senior counsel further contended that 'access
to justice is a fundamental right under Article 21 of the
Constitution of India.' Therefore, it is incumbent upon the State
including the Judiciary to ensure that the justice delivery system
reaches out to every nook and corner of the territory. This also
means that the State should provide enhanced capability and
adequate infrastructure for the functioning of the Courts to
enable the ease of access to justice to every citizen. In support
of his contentions, he relied upon the judgment of the Hon'ble
supreme Court in the case of All India Judges Assn. -vs-
Union of India reported in (2018)17 SCC 555 (paragraphs 6,7,
9 and 10).
VIII - ARGUMENTS ADVANCED BY LEARNED ADDITIONAL
ADVOCATE GENERAL FOR RESPONDENT NO.4/
STATE GOVERNMENT:
52. Sri Dhyan Chinnappa, learned Additional Advocate
General along with Sri Kiran Kumar, learned High Court
Government Pleader, for State submits that the present Public
Interest Litigation is filed in the year 2014 and now i.e., after
lapse of 14 years, the relief sought for is a futile exercise and is
liable to be dismissed. He further contended that this Court
while dealing with the process of proceedings, the constitution
bench at Dharwad and Kalaburagi, the public interest litigation is
not maintainable. He further contended that Federation of Bar
Association case relied upon by the petitioner, was a case
based only on the report and not on the constitution of bench.
The said case has no consequence, after States Reorganisation
Act, 1956 came into force and after taking decision in the
matter, in detail. He further contended that the petitioner is a
practicing advocate and, none of the District Bar Associations
within the jurisdiction of Dharwad and Kalaburagi Benches have
supported the case of the petitioner and there is no public
interest involved and thereby the writ petition is liable to be
dismissed. He further contended that the Courts are meant for
general public at large who come to the Court with great
expectations for the relief sought for and not meant either for
the advocates or the Judges. Thereby, the petitioner has not
made out any ground to exercise extraordinary writ jurisdiction
under Article 226 of Constitution of India and therefore, sought
to dismiss the writ petition. In support of his contentions,
learned Additional Advocate General relied upon the dictum of
the Hon'ble Supreme Court in the case of State of
Maharashtra vs. Narayan Shamrao Puranik and others
reported in (1982) 3 SCC 519, paragraphs 11, 15, 16 and 25.
He further contended that the entry 77 and 78 List I Seventh
schedule, entry 95 List I Seventh schedule, entry 65 List II
Seventh schedule, entry 46 List III Seventh schedule and entry
11A List III Seventh schedule of the Constitution of India
provides for establishment of Benches of High Court for
convenience of litigant public. He further contended that Section
64 of the States Reorganization Act is meant only for practice
and procedure, and Section 17 of Mysuru Act is nullity in the eye
of law. Thereby, petitioner has not made out any case to grant
the relief sought for and therefore, sought to dismiss the writ
petition.
IX- ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR
RESPONDENT NO.6/KALABURAGI BAR ASSOCIATION:
53. Sri Karthik Yadav, learned counsel for Sri
S.K.Venkata Reddy, learned counsel for respondent No.6, while
adopting the arguments advanced by Sri S.S.Naganand, learned
Senior Counsel for respondent Nos.2 and 3 and, Sri Dhyan
Chinnappa, learned Additional Advocate General for respondent
No.4, would contend that the provisions of Section 14 of the
General Clauses Act, 1897 and Sections 2 and 3 of States
Reorganisation Act, 1956, has to be exercised from time to time
as and when occasion arises. He further contended that in
similar circumstances two advocates filed two separate writ
petitions before High Court of Judicature, Madras, in
W.P.Nos.2402/2002 and 3333/2002 which came to be
dismissed. Against the said Order Writ Appeal No.926/2002
came to filed which was also dismissed by the Division Bench of
the Madras High Court on 11.03.2004, wherein, at paragraphs 6,
7, 20 and 21, it is specifically held as under:
"6. Learned single Judge then held that the Madras
High Court would also be covered by the State
Reorganisation Act, 1956 since Madras was also a
State, which was a subject-matter of the State
Reorganisation Act, 1956 in terms of Sec. 4 in Part II
of the said Act. Quoting Sec. 4 of the said Act, it was
pointed out that some territory from the erstwhile
State of Madras while some others, which were not
part of the Madras State, were added. The learned
Judge, therefore, held that the State of Madras was a
'new State' within the meaning of State
Reorganisation Act and, therefore, there was always
a power available to the Chief Justice under Sec.
51(3) of the State Reorganisation Act and that the
permanent Benches could also be set up under Sec.
51(2) of the said Act. On these reasons, the learned
single Judge dismissed the writ petition, W.P. No.
2402 of 2002.
7. In so far as the writ petition, W.P. No. 3333 of
2002 was concerned, the learned Judge refuted the
arguments that under Art. 214 there could be only
one High Court for each State and held that the
Benches of the High Court are as much part of the
main High Court. For this also, learned single Judge
relied on the aforementioned decision in State of
Maharashtra v. Narayanan (supra). Learned Judge
then rejected the contention raised in that petition
that the jurisdiction to deal with the High Court was
a parliamentary power and in the absence of any
parliamentary law or constitutional provision, no
such decision can be taken. For this, learned Judge
relied on Arts. 225 and 372 and the Letters Patent.
Lastly, the learned single Judge also refuted the
contention that Clause 31 of the Letters Patent could
not be invoked because of the unamended language
of the said Letters Patent. It was pointed out that by
Adaptation Order, 1937 and 1950, the provisions
would have to be read and the suitable changes
would have to be deemed to be there in the Letters
Patent. Before parting, learned Judge ultimately
noted that tremendous expenditure had already been
made in creating the infrastructure for the Madurai
Bench and that the subject of creation of a High
Court Bench at Madurai was in the vogue for the last
thirty years. Learned Judge ultimately came to the
conclusion that the petitioner could not plead
ignorance of the developments regarding the
creation of Bench at Madurai and the writ petition
was liable to be dismissed in limine on the ground of
laches. The learned Judge, therefore, dismissed the
writ petition, W.P. No. 3333 of 2002.
20. Shri Vijayan, however, took great exception to
the factual statement made by Shri V.T. Gopalan in
which the learned Additional Solicitor General also
referred to Sec. 51(2) of the State Reorganisation
Act and wanted to contend that such a decision could
not be possible in view of the fact that the State of
Tamil Nadu was not a 'new State' and that the power
under Sec. 51(2) of the States Reorganisation Act
could be implemented only in respect of the 'New
State'. We have already explained that the learned
single Judge has already held that the words 'State
of Tamil Nadu' (the then Madras State) referred to in
Sec. 4 under Part II of the States Reorganisation Act
can be deemed to be a 'new State' and the inference
of the learned single Judge and the consequential
dismissal of the writ petition, W.P. No. 2402 of 2002,
where this question was raised has remained
unchallenged. We would, therefore, leave the
question at that. Further, in our opinion, it would
now be futile to go into that question as the
procedural aspect of creation of the Bench of the
Madras High Court at Madurai is inextricably
connected with the basic question as to whether
there should be a Bench at all at Madurai or not. We
have already pointed out that this basic issue and
the decision therefor could have been challenged
only at the proper time. The petitioner chose to keep
silent at the material time and has chosen to woke
up now after crores of rupees have been spent and is
trying to raise the procedural objections only to
thwart the basic objective of creation of the Bench at
Madurai, which is not permissible. We have no
doubts in our minds that the Central Government
would take proper steps in law procedurally by
taking recourse to proper legal procedure. In any
event, by a mere procedural challenge, petitioner
could not be permitted to achieve a wider objective
of thwarting the Bench at Madurai at all more
particularly at this juncture in the year 2004 when
the first decision was taken in the year 1995 and was
ratified in the year 2000 after a firm decision was
taken in that behalf by the Central Government and
further when crores of rupees are spent in creating
infrastructure.
21. It must be borne in mind that the High Court, in
exercise of its' powers, cannot ask the Legislature to
legislate or to legislate in a particular manner. So
also, the High Court shall not ask the Legislature not
to legislate or to legislate in a particular manner.
How a particular objective is to be carried out or
realised has to be left to the wisdom of the
Legislature altogether and we have no doubts that
the objective of bringing about the Bench of the
Madras High Court at Madurai shall so obtained. We,
therefore, agree with the learned single Judge. The
judgment of the learned single Judge, dismissing the
writ petition, W.P. No. 3333 of 2002 and dismiss this
appeal. No other point were argued excepting those
referred to above."
Therefore, learned counsel sought to dismiss the writ
petition.
54. Smt.Sona Vakkund, learned counsel appearing for
Dharwad Bar Association adopted the arguments advanced by
the learned counsel for the Central Government, State as well as
the High Court.
X - POINTS FOR DETERMINATION
55. In view of the aforesaid rival contentions urged by
learned counsel for parties the points that would arise for our
consideration in the present writ petition are:
"(i) Whether the petitioner has made out a case
any public interest to quash the notification
dated 19.10.2004 vide annexure-E,
whereunder, Hon'ble the Chief Justice, High
Court of Karnataka, in exercise of powers
under Section 51(3) of the State
Reorganisation Act, 1956 with the approval of
His Excellency the Governor of Karnataka,
notified the sitting of Judges and Division
Courts of the High Court of Karnataka at
Dharwad and Gulbarga; notification dated
04.06.2008 vide Annexure-F, whereunder, it
was notified that the cases arising from the
Districts of Bagalkot, Bellary, Belgaum,
Dharwad, Gadag, Haveri, Uttara Kannada-
Karwar and Koppal will be heard and decided
at Circuit Bench at Dharwad, and, case arising
from the Districts of Bidar, Bijapur, Gulbarga
and Raichur, will be heard and decided at the
Circuit Bench at Gulbarga, and that sitting of
Judges and Division Courts at Circuit Benches
at Dharwad and Gulbarga will commence on
07.07.2008 and that the pending cases from
the respective districts coming within the
jurisdiction of the aforesaid two Circuit
Benches will be transferred to respective circuit
benches before 07.07.2008 and filing of new
cases at circuit benches will be permitted from
07.07.2008; and The High Court of Karnataka
(Establishment of Permanent Benches at
Dharwad and Gulbarga) Order, 2013, dated
08.08.2013, vide Annexure-M, whereunder,
the President of India, in exercise of powers
conferred by sub Section (2) of Section 51 of
the States Reorganisation Act, 1956 (37 of
1956), in consultation with the Governor of
Karnataka and Chief Justice of the High Court
of Karnataka, passed the Order to the effect
that the permanent Bench of the High Court of
Karnataka at Dharwad shall come into
operation on 24.08.2013 and the permanent
Bench of the High Court of Karnataka at
Gulbarga shall come into operation on
31.08.2013?
(ii) Whether the petitioner has made out any case
for issuance of a writ of mandamus to the 5th
respondent to conduct performance audit
including financial audit regarding the
investment, expenditure and functional
viability of Benches at Dharwad and Gulbarga,
in exercise of extraordinary writ jurisdiction
under Article 226 of Constitution of India?"
XI - CONSIDERATION
56. We have given our thoughtful consideration to the
arguments advanced by learned counsel for the parties and
perused the entire material including original records, carefully.
57. The substance of present Public Interest Litigation
filed by the petitioner who is a practicing advocate is, challenge
to the notification dated 19.10.2004 vide annexure-E,
notification dated 04.06.2008 vide Annexure-F, and Order dated
08.08.2013, vide Annexure-M, mainly on the ground that the
establishment of benches at Dharwad and Gulbarga was
inadvisable in view of the dictum of the Hon'ble Supreme Court
in the case of Federation of Bar Association in Karnataka vs
Union of India reported in (2000)6 SCC 715, on the ground
that, an executive act cannot over write judicial decision and
that, in view of Article 214 of the Constitution of India only one
seat at principal seat is provided and the establishment of circuit
benches is in Violation of Sections 51 and 69 of the States
Reorganisation Act and contrary to the provisions of Mysuru High
Court Act, 1884 and against Jaswant Singh Commission report,
and converting circuit benches into permanent benches by the
High Court before reviewing the performance of the benches
regarding functional viability, financial sustainability without
effecting the audit by the 5th respondent, as huge public money
is involved and thereby in the interest of public at large, it is
incumbent to quash the notifications sought for in the writ
petition.
58. The petitioner relied upon the report of Jaswant
Singh Commission report dated 30.04.1985 addressed to Union
Law Minister, wherein, it is stated that, although the members of
the Commission were able to examine and report on the
demands for establishment of permanent Benches of High Courts
of Madras and Madhya Pradesh besides Allahabad, they have not
found it practicable to complete the work in relation to Karnataka
and North Eastern States by the date set up by the Government
vide Ministry letter No.46/2/81-Jus, dated 04.04.1985 for the
reasons mentioned in the said letter. It is further stated that,
before embarking on the task assigned to it in regard to the
State of Karnataka, the Commission had a preliminary round of
talks with the Chief Minister of the State. During the course of
said task, the Chief Minister detailed before the Commission the
grounds, on the basis whereof the State Government considered
it necessary to have a Bench of the High Court for the two
Revenue Divisions of Belgaum and Gulbarga and the district of
Shimoga and its location at Dharwad. Thereafter, the
Commission met the Chief Justice and his companion judges, all
of whom appeared to be opposed to the establishment of a
Bench of the High Court of the State at any place away from its
Principal seat.
59. Subsequently, a demand for establishment of
separate bench of High Court in north Karnataka has often been
raised in last decades with regular intervals. The Mysuru State
now called 'Karnataka' was formed after reorganization of five
regions, viz.,
(a) Erstwhile Mysuru State
(b) Bombay Karnataka Area
(c) Hyderabard Karnataka Area
(d) Madras-Karnataka
(e) Erstwhile hilly region of Coorg.
The plea of a circuit bench or a permanent Bench at
Dharwad-Hubli and Gulbarga was being raised mainly on the
ground of inconvenience/expense caused to the litigant public
because of the distance from those areas to Bengaluru. It did
not find favour with successive Chief Justices. In the year 1999
the issue was raked up afresh followed by hunger strike resorted
to by the President of Dharwad Bar Association and certain
advocates. Their demand was that a permanent bench of High
Court be established at Hubli. Demand for benches at Belgaum,
Gulbarga, Bellary and Bidar were also made at the same time.
Pursuant to the representations of the members of Dharwad
District Bar Association dated 23.03.1999, the then Chief Justice
constituted a committee of five Judges to consider the
memorandum submitted for establishing a Bench of the High
Court at Hubli-Dharwad. The Committee, in its meeting dated
29.07.1999, resolved to invite President, Secretary and
representatives of the District Bar Association who made
representations for the establishment of the Bench of the High
Court at their respective District Head Quarters. The Committee
heard the President, Secretary and representatives of the Bar
Association of Hubli-Dharwad on 25.08.1999, of Belgaum on
18.09.1999, of Bijapur on 08.10.1999, of Gulbarga, Bidar and
Yadgir on 03.12.1999 and of Bellary on 13.12.1999.
60. Considering the demand for Bench of the High Court
at a place away from principal seat, in the last 30 years, on nine
occasions, the said question has been considered i.e., on
20.05.1969, 24.08.1973, 25.03.1975, 29.10.1979, 17.07.1990,
01.04.1991, 30.10.1991, 12.08.1993 and 29.11.1994. Except
for once, i.e., on 29.10.1979, on all other occasions, the
representations for creating the Bench of the High Court at a
place away of principal seat was rejected. In the year 1979, the
then Chief Justice was in favour of establishment of bench at
Dharwad subject to the condition that State Government
undertakes to construct a suitable building for the High Court. It
was stated that, unless all amenities were provided, the then
Chief Justice opposed for establishment of Bench at Dharwad.
The committee also considered Jaswant Singh committee report
and observed that there are 27 revenue districts in the State of
Karnataka including 7 new districts created in the year 1998.
However, so far as the sessions divisions are concerned, there
are only 20 divisions and, District Courts in the newly
established District headquarters have not yet been established.
The total area comprised in the State of Karnataka is 1,918
sq.kms and the population as per 1991 census is 4,49,77,000..
The northern districts of State of Karnataka are comprised in
Belgaum and Gulbarga division. The pendency of cases on the
file of the High Court arising out of the 8 districts i.e., Dharwad,
Karwar, Bijapur, Belgaum, Bellary, Bidar, Gulbarga and Raichur,
is 30.42% as on 22.11.1997 and the same has come down to
20.11% as on 01.08.1999 and as on 01.01.2000, the percentage
from these districts has further come down to 18.37%. The
Committee headed by Justice Ashok Bhan and four other Hon'ble
Judges also held that, the cost of travel is not a major part of the
litigation. Court fees and lawyers fee constitute the bulk of
expenditure. The presence of the parties at Bangalore would not
be necessary for the purpose of institution, prosecuting or
defending their cases in view of the new proposal to connect the
mufassil courts within the High Court through computers
connecting all the courts in vide area network in the State.
There would be no hardship faced by the litigant public of
northern Karnataka region at the principal seat of the High Court
at Bangalore in instituting, prosecuting and defending their cases
as the entire process of filing, scrutiny and the information
regarding the status of the case is being computerised and there
is also proposal to connect all the Courts in the State with the
High Court through the computers. It was further opined that
Bangalore Bar consists of advocates from all parts of the State
and the facilities and connections which the members of the Bar
are having with the litigant public is not only adequate but the
legal machinery is smoothly functioning. Where a State is a
Federation of different areas or it comprises of different regions,
such demands to crop up, but they lead to decentralization. The
paramount consideration in deciding such demand should be the
real and genuine need of the people for grant of a separate
facility. Thereby, the Committee opined that the demand is
neither real nor genuine and it is not for the benefit of litigant
public. Thereby, the Committee was of the opinion that, none of
the criteria laid down by Jaswant Singh commission report is
satisfied for considering expediency and desirability of
establishing a Bench away from principal seat of the High Court.
The Committee was of the opinion that it is not necessary to
have a Bench of the High Court of Karnataka at a place away
from principal seat of the High Court, and thereby, the question
of considering establishment of Bench at Hubali-Dharwad,
Belgaum, Bijapur, Gulbarga and Bidar or any other place away
from the principal seat of the High Court at Bangalore, does not
arise.
61. Subsequently, in the year 2001, the President, Bar
Association, Dharwad, made one more representation requesting
the then Chief Justice to recommend for establishment of Bench
at Hubli-Dharwad twin city, at the earliest. In view of the
representations and subsequent developments, the then Chief
Justice, by the notification dated 21.03.2002, constituted a
Committee consisting of 07 Hon'ble Judges of this Court, to
consider the question as to whether it is necessary to have a
Bench of the High Court at a place other than its principal seat at
Bangalore, and if necessary, to consider the situs of the Bench in
one of the places in North Karnataka.
The aforesaid Committee consisting of 07 Hon'ble Judges
met on 03.04.2002 and directed that the representations and
suggestions of the people be called for. Accordingly, public
notifications were issued in all leading newspapers inviting
representations from all sections of the society having interest in
the issue. Pursuant to the notification, 402 representations were
received. The committee, on examination of representations,
found it more advisable to visit the principal towns of the North
Karnataka districts and have a public hearing regarding the
demand and its reasonableness. Accordingly, the Committee
held public hearing at following places where audience was given
to diverse sections of the public including representatives of bar
association, trade and industry, public representatives like
Ministers, MLAs, MPs, counsellors, women organisations,
physically disabled persons, agriculturists, religious leaders and
social activist groups. At every place, there was a tremendous
public response with an unequivocal demand for having a Bench
of the High Court in northern region of the State. The place and
dates of visits were:
Sl. Place Date of visit No. of
No. representations
submitted at the
place
The statistical data:
1. Geographical Area: The geographical area of the State of
Karnataka is 1,91,791 sq.kms and the total area of district
comprised in North Karnataka is 98,621 sq.kms. Thus the
total area of 12 northern districts from 51.42% of the total
area of the State.
2. Demography: The total population of the Karnataka State,
as per 2001 census is 5,27,33,958. The population of the
12 northern districts is 2,25,28,449 which is 42.71% of the
total population of the State.
3. Litigational trend.
District Subordinate Courts: As on at the end of February,
2003, the following were the pendencies in the subordinate
Courts in the State of Karnataka.
Karnataka North Karnataka
(27 districts) (12 districts)
Civil 600,228 194,171
Criminal 397,357 86,471
Total 997,585 280,642
4. Per capita income and economic conditions: The
reorganised State's average per capita income in 1956 was
less than Rs.200/- and this rose to Rs.13,621/- by 1998 and
to Rs.17,482/- in 2001. The various districts per capita
income increased correspondingly and continuously.
However, the range of variation in district income is quite
wide. In 1997-98, the per capita income in Bidar (one of the
12 northern districts in the State) was Rs.7,861/- whereas in
Bengaluru Urban District it was Rs.25,740/-. It is noticeable
that the northern region of the State is relatively more
backward and economically downtrodden compared to
southerners.
5. Distance: The distance between Bengaluru and major
towns in the northern Karnataka area are as under.
Bangalore-Hubli 400 kms
Bangalore-Dharwad 426 kms
Bangalore-Belgaum 502 kms
Bangalore-Bijapur 579 kms
Bangalore-Gulbarga 613 kms
Bangalore-Bellary 304 kms
Bangalore-Bidar 669 kms
Bangalore-Raichur 415 kms
The Committee further recorded a finding that, Jaswant Singh
Commission had broadly laid down 21 criteria for considering the
desirability of establishment of the Bench of the High Court at a
place outside the principal seat. The above statistical data by
and large satisfies all the criteria laid down by Jaswant Singh
Committee. The pendency of cases from northern districts is
almost one third of the total pendency of the High Court. The
are (51.42%) and population (42.71%) of the demanding
districts is much more than one fourth of the total area and
population of the State. The journey from any place of the
demanding districts to Bangalore will take much more than 8 to
10 hours. The filing of cases from these districts to the High
Court is on the incline. The setting of the Bench at any place in
northern Karnataka will certainly tend to their convenience and
on ultimate analysis, it will substantially reduce the overall cost
of litigation and inconvenience to the litigant public belonging to
the area.
The High Powered Committee for Redressal of Regional
Imbalances constituted by the Government of Karnataka, in its
Final Report submitted in June 2002, has opined that 'more than
some of the disparities in facilities, non-fulfillment of the long-
time cherished desire of the people of North Karnataka to have a
Bench of the Karnataka High Court in their region has led to
greater anguish and frustration." The Chief Minister of the State
had made public statements regarding the need of a Bench of
the High Court at Hubli-Dharwad which had been supported by
all political parties irrespective of party affiliations. A statement
to this effect was also made by the Chief Minister on the floor of
the State Legislature. On February 28, 2003, while addressing
the Joint Session of the Karnataka Legislature, the Governor of
the State again reiterated the firm stand of the State
Government favouring establishment of a High Court Bench at
Hubli-Dharwad.
It can not be lost sight of that Jaswant Singh Committee was
constituted to formulate the criteria for establishment of the
permanent Benches of the High Court outside its Principal seat in
the new states created under the states Reorganisation Act,
1956. By this time, in all the States so created, except the State
of Karnataka, having regard to convenience of the litigants, such
Benches have been established. Creation of benches has hardly
posed any problem in administration of justice in such states. It
is of importance to note that Parliament itself has made an
unambiguous provision in the States Reorganisation Act
empowering the President of India to establish permanent
Benches, if the situation so demands, after consultation with the
State Government and the Chief Justice of the High Court. This
power has to be necessarily exercised if the cause of imparting
affordable and accessible justice to the people so demands. The
legislative intendment cannot be set at naught on an
apprehension that the establishment of permanent Benches
outside the principal seat would impair the unity and integrity of
the High Court.
Conclusion
Accordingly, the Committee opined that the Hon'ble Chief Justice
may recommend for establishment of permanent Bench of the
High Court on the location referred to above subject to the
conditions that:
(1) Before notifying the establishment of the
permanent Bench and making it functional, the State
Government should create complete infrastructure
by constructing buildings for housing the Bench, the
Judges, staff, lawyers as also ensuring availability of
adequate facilities for boarding and lodging of the
litigants, to the full satisfaction of the High Court;
and,
(2) State Government should also make appropriate
arrangements for availability of water throughout the
year for drinking and other purposes in the
corporation area of Hubli-Dharwad. We are making
this specific because there is a general complaint of
acute shortage of water in Hubli-Dharwad which may
cause great inconvenience to the litigant public and
other functionaries of the court and may defeat the
very purpose of establishing the Bench.
Before parting, we make it clear that under no
circumstance, the request for establishment of a
Bench in any temporary accommodation or on any
adhoc arrangement should be conceded to because,
according to us, any such adhoc arrangement may
acquire a permanent character and the Bench may
be required to continue functioning without their
being appropriate infrastructure and facilities as
indicated above.
Out of seven members of Justice G.C.Bharuka Committee,
majority of the members i.e., five members supported
establishment of circuit benches. However, two members who
were the members of earlier Committee of Ashok Bhan,
expressed that there is no need to have Benches of High Court
of Karnataka at a place other than Bengaluru.
62. A careful perusal of the report of Jaswant Singh
Commission dated 30.04.1985 depicts that the Commission at
Chapter V enumerated the Broad Principles and Criteria to be
followed in assessing the expediency and desirability of setting
up a bench of the High Court away from the Principal Seat. The
Commission met the Hon'ble Chief Justice and his companion
Judges who opposed to establish the bench at any place other
than principal seat, in the year 1985. When the Committee
headed by Justice Ashok Bhan was constituted, the Committee,
except considering representations of Bar Association, has not
given audience to representatives of trade and industry, public
representatives like Ministers, MLAs, MPs, counsellors, women
organisations, physically disabled persons, agriculturists,
religious leaders and social activist groups and has not noted the
distance from the Principal Seat, number of cases pending. The
subsequent Committee submitted the report dated 06.06.2003,
wherein, majority of the Committee members supported for
establishment of Benches. However, two members of the
Committee opposed for establishment of Bench at a place away
from Principal Seat.
It is also not in dispute on the recommendation made by
the Committee the Chief Secretary, Government of Karnataka,
addressed a letter to Hon'ble the Chief Justice, High Court of
Karnataka, informing that His Excellency the Governor of
Karnataka has approved the proposal for establishment of
benches at Dharwad and Gulbarga. Accordingly, Hon'ble the
Chief Justice, by notification dated 19.10.2004, in exercise of
powers under the provisions of Section 51(3) of the States
Reorganization Act issued notification notifying the sittings of
Judges and Division Courts of the High Court of Karnataka at
Dharwad and Gulbarga. The notification specifically depicts that
the date of sitting will be notified after getting satisfactory report
of the Hon'ble Committee (already constituted) by the Order of
the Hon'ble Chief Justice, High Court of Karnataka.
Subsequently, by notification dated 04.06.2008, Hon'ble Chief
Justice permitted to commence sittings of Judges and division
Courts at Dharwad and Gulbarga with effect from 07.07.2008.
63. The provisions of sub section (1), (2) and (3) of
Section 51 of the States Reorganization Act, 1956, reads as
under:
51. Principal seat and other places of sitting of High
Courts for new States.―
(1) The principal seat of the High Court for a new
State shall be at such place as the President may, by
notified order, appoint.
(2) The President may, after consultation with the
Governor of a new State and the Chief Justice of the
High Court for that State, by notified order, provide
for the establishment of a permanent bench or
benches of that High Court at one or more places
within the State other than the principal seat of the
High Court and for any matters connected therewith.
(3) Notwithstanding anything contained in sub-
section (1) or sub-section (2), the Judges and
division courts of the High Court for a new State may
also sit at such other place or places in that State as
the Chief Justice may, with the approval of the
Governor, appoint.
By careful reading of the said provision makes it clear that,
the principal seat of the High Court for a new State shall be at
such place as the President may, by notified order, appoint.
Further, the President may, after consultation with the Governor
of a new State and the Chief Justice of the High Court for that
State, by notified order, provide for the establishment of a
permanent bench or benches of that High Court at one or more
places within the State other than the principal seat of the High
Court and for any matters connected therewith. Notwithstanding
anything contained in sub-section (1) or sub-section (2), the
Judges and division courts of the High Court for a new State may
also sit at such other place or places in that State as the Chief
Justice may, with the approval of the Governor, appoint.
64. The then Hon'ble Chief Minister of Karnataka
addressed a letter dated 15.09.2004 to Hon'ble Chief Justice of
Karnataka enumerating the number of cases pending as on
different dates from 01.01.2000 to 30.07.2004 and has stated
that the said statistics indicates a rising trend of cases and
satisfies one of the important criteria of Jaswant Singh
Commission's recommendations. However, proximity has shown
to be a motivating factor for accessing the High Court for
redressal of grievances. Northern Karnataka's restrained use of
High Court's Court's jurisdiction can be largely attributed to the
difficulties faced by the people of northern Karnataka in reaching
the Hon'ble High Court located at Bengaluru. The establishment
of a Bench in northern Karnataka would prove to be an effective
instrument for the expeditious dispensation of justice and would
substantially reduce the inconvenience to the litigating public
belonging to said region. It was further stated that the
Government will endeavour to abide by the concerns listed at
Part II of Jaswant Singh Commission prescriptions in deciding
the location of the proposed Bench. Therefore, there is
necessary to have an in-principle approval for a Bench of the
High Court in northern Karnataka and that the State Government
has earmarked Rs.20 crores in the budget for the current year
for establishing a bench of the High Court in northern Karnataka.
It was further stated that, if a higher allocation is required
during the current financial year, the State Government is
committed to provide the same. In the subsequent years also,
adequate budget provision for this purpose was assured.
Thereby, requested the Chief Justice to establish two Circuit
Benches in northern Karnataka and hear matters emanating
from northern Karnataka region. Such an arrangement would
meet the people's immediate requirements, their aspirations,
improve the accessibility of High Court's services to the people of
northern Karnataka. Accordingly, there were letter
correspondences between Hon'ble Chief Justice and Hon'ble
Chief Minister of Karnataka.
65. In view of the above, the notifications came to be
issued by Hon'ble Chief Justice dated 19.10.2004 and
04.06.2008 exercising powers under Section 51(3) of the States
Reorganization Act, 1956, based on the report of Hon'ble Mr.
Justice G.C.Bharuka Committee and, taking into consideration
the interest of litigant public of northern Karnataka, it is just and
proper.
When majority of the members of Hon'ble Mr. Justice
G.C.Bharuka Committee submitted the report dated 06.06.2003
supporting the establishment of Benches, and consequently,
when the Benches came to be established, except relying on the
report of Jaswant Singh Commission which is of the year 1985
and the report of Justice Ashok Bhanu Committee, how the
present writ petition involves 'public interest' is not shown by the
petitioner by producing any materials before the Court.
Admittedly, the report of Justice G.C.Bharuka Committee, in
which, majority of the members supported the establishment of
Benches, is not challenged in the present writ petition. In the
entire pleadings, there is no whisper as to how the report of the
Committee headed by Justice G.C.Bharuka dated 06.06.2003 is
against public interest. It is also not in dispute that His
Excellency the Governor of Karnataka has also given approval in
exercise of powers conferred under Section 51(2) of the States
Reorganization Act, 1956 and the same is also not challenged by
the petitioner.
66. It is also not in dispute that, after establishment of
Circuit Benches at Dharwad and Gulbarga, and after receiving
complete proposal from the State Government in consultation
with Hon'ble Chief Justice of High Court of Karnataka and His
Excellency the Governor of Karnataka, the Hon'ble the then Chief
Justice of Karnataka, in July 2009 requested the Central
Government to notify the Circuit Benches of High Court of
Karnataka at Dharwad and Gulbarga as permanent benches,
under the provisions of sub section (2) of Section 51 of the
States Reorganization Act, 1956, and to enhance the sanctioned
strength of Judges of Karnataka High Court from 41 to 56. The
Deputy Secretary to the government of India addressed a letter
dated 03.11.2009 to the Chief Secretary, Government of
Karnataka, stating that, with the approva of the Chief Justice of
India, it has been decided to create 9 posts of additional Judges
(06 for Dharwad Bench and 03 for Gulbarga Bench) in the
Karnataka High Court and with this, the Judge strength of the
Karnataka High Court will stand revised to 50 i.e., 33 permanent
Judges and 17 additional Judges.
The proposal for establishment of permanent benches of
High Court of Karnataka at Dharwad and Gulbarga was approved
by Hon'ble President of India on 08.08.2013, after approval of
Central Cabinet, in exercise of powers under 51(2) of States
Reorganization Act. Accordingly, the High Court of Karnataka
(Establishment of Permanent Benches at Dharwad and Gulbarga)
Order, 2013, came to be issued by Hon'ble President of India, to
the effect that the permanent Bench of the High Court of
Karnataka at Dharwad shall come into operation on 24.08.2013
and the permanent Bench of the High Court of Karnataka at
Gulbarga shall come into operation on 31.08.2013. The same is
in accordance with law.
67. It is undisputed fact that Circuit Benches were
constituted on 04.06.2008 to start functioning w.e.f. 07.07.2008
and the present writ petition came to be filed on 16.05.2014
after lapse of more than six years. Absolutely there is no
explanation for the inordinate delay of 06 years in filing writ
petition challenging establishment of Circuit Benches. The
petitioner is a practicing Advocate. As admitted by him, he is
practicing in High Court of Karnataka, principal Bench and also at
Dharwad and Kalaburagi Benches. He was sitting on the fence
for more than 06 years watching the establishment of Benches,
enhancement of Judges and Staff strength. He woke up only
when the Circuit Benches were made permanent Benches by the
Hon'ble President of India on 08.08.2013 and filed the writ
petition on 16.05.2014. Thereby, petitioner is not entitled to
any relief. The powers exercised by the President under Section
51(2) of the States Reorganization Act, 1956, has not been
challenged by the petitioner. The petitioner, being a practicing
advocate, who has practiced in the principal Bench as well as at
Benches at Dharwad and Kalaburagi, as admitted by him in the
memorandum, has filed the present writ petition after lapse of
six years from the date of establishment of Benches. Thereby,
the writ petition is not maintainable and the same is liable to be
dismissed. It is also not in dispute that, the recommendation
made by Hon'ble Chief Minister, approved by His Excellency the
Governor of Karnataka, approved by Central Cabinet and Hon'ble
Chief Justice of India, with regard to establishment of permanent
Benches has not been challenged by the petitioner. What is
challenged is only annexure-M dated 08.08.2013 issued by
Hon'ble President of India in exercise of powers conferred under
Section 51(2) of States Reorganization Act, 1956 after
consonance with His Excellency the Governor of Karnataka and
Hon'ble Chief Justice of Karnataka. In the entire writ petition,
petitioner has not questioned the powers of Hon'ble President of
India under Section 51(2) of the States Reorganization Act,
1956. In the absence of the same, the writ petition filed by
petitioner is not maintainable and liable to be dismissed.
68. It is not the case of the petitioner that the findings of
the Committee headed by Hon'ble Mr. Justice G.C.Bharuka is not
based on any material on record. Once the report submitted by
Hon'ble Mr. Justice G.C.Bharuka Committee was accepted on
06.06.2003 and reached finality, followed by subsequent
notifications, the petitioner cannot have any grievance, unless it
is established before the Court that Committee recommendations
for establishment of Benches is without any material. On that
ground also the writ petition is liable to be dismissed.
69. Learned counsel for petitioner contended that Part V
of the States Reorganization Act, 1956, is not applicable for
constitution of permanent bench, as it is only temporary and
transitional provision. He contended that, once the High Court
Act, 1961 came into force, any of the provisions of States
Reorganization Act, 1956 is not applicable. Thereby, there is no
consistent stand of the petitioner as to which Act is applicable
i.e., States Reorganization Act, 1956 or Mysore High Court Act,
1884 or Mysore/Karnataka High Court Act, 1961. The preamble
of the Karnataka High Court Act, 1961 clearly depicts that, "an
Act to make provision for regulating the business and the
exercise of powers of the High Court of the State of Karnataka in
relation to the administration of justice and to provide for its
jurisdiction".
The provisions of Section 3 of the High Court Act, 1961
reads as under:
3. Registrar and Deputy Registrars. - [(1)] The
High Court shall have a Registrar and as many
Deputy Registrars as may be determined by the
Governor in consultation with the High Court.
[(2) The High Court may also have as many
Additional Registrars, Joint Registrars and Assistant
Registrars as may be determined by the Governor in
consultation with the High Court.]
The High Court must necessarily carry on its administrative
functions from the principal seat, i.e,. the place where the High
Court transacts every kind of business in all its capacities. The
High Court, as such, is located there, but it may have more than
one seat for transaction of judicial business. The constitution
and structure of High Court depends on statute creating it.
Unlike the creation of a permanent bench under sub section (2)
of Section 51 of the States Reorganisation Act, 1956, which must
bring about a territorial bifurcation of the High Court, there is no
territorial bifurcation of the High Court merely because the Chief
Justice appoints other places under Section 51(3), where the
Judges and division courts shall also sit. The power under
Section 51(3) is in the unquestioned domain of Hon'ble Chief
Justice, the only condition being that he must act with the
approval of His Excellency the Governor. It is basically an
internal matter pertaining to the High Court. The Chief Justice
has full power, authority and jurisdiction in the matter of
allocation of business of the High Court which flows not only
from provision contained in sub Section (3), but inheres in him in
the very nature of things. The opinion of Chief Justice in this
matter must therefore normally prevail, because it is for more
convenient transaction of judicial business. The non obstante
clause contained in sub Section (3) gives an overriding effect to
the powers of Hon'ble Chief Justice and Registrar General as
contemplated under Section 3, is only one Registrar General for
the High Court of Karnataka and there are Additional Registrar
Generals appointed to the Circuit/Permanent Benches at
Dharwad and Kalaburagi, as contemplated under Section 3 of the
Act. Legally, the position is quite clear under Section 51(3) of
the Act. The Judge sitting at Dharwad and Kalaburagi constitute
a part of High Court of Karnataka. They are as much as part of
High Court of Karnataka, Bengaluru. And if we might say so
distinguish part of the High Court of Karnataka, as if they were
sitting under the same roof under which Judges functioning at
High Court of Karnataka, Bengaluru. All that happens is that the
Chief Justice under the powers given to him distributed the work
to various Judges and various Divisional benches and acting
under that power he distributes certain work to Judges sitting at
Dharwad and Kalaburagi.
70. The political changes necessarily affected the
constitution and structure of the High Court. Under the
Constitution of India, Parliament alone has legislative
competence to make law relating to entry 78 List I of Seventh
Schedule which reads as under:
78.Constitution and Organization (including
vacations) of the High Courts except provisions as
to officers and servants of High Courts; persons
entitled to practice before High Court.
Under the Scheme of States Reorganisation Act, 1956, 1956 (Act
37 of 1956) it would appear that having constituted the High
Court for the State of Karnataka under Section 49(1) of the Act
and conferred jurisdiction on it under Section 52 in relation to
the territories of the State, formed and left to the various high
constitutional functionaries designated in these subsections of
Section 51 of the Act to determine the place where the principal
seat of the High Court should be located and places where
permanent benches of the High Court may be established, as
has been done in State of Karnataka, one bench at Dharwad and
one bench at Kalaburagi to ensure access justice to the door
step of litigants or where the Judges of division of high court
may also sit, on the reorganisation of States as from appointed
day i.e., 01st November 1956, the territories of the State of
Karnataka. On the second recommendation made by majority of
five Judges of the Committee consisting of seven Judges
committee, two circuit benches viz., Dharwad and Kalaburagi,
came to be established, taking into consideration the overall
circumstances, with the approval of all constitutional
functionaries as contemplated under Section 51 of the States
Reorganization Act, 1956. The cabinet decision was taken by
Government of India and was approved by the Hon'ble Chief
Justice of India. This Court cannot sit over the decision of not
only Government of India but also decision of Hon'ble Chief
Justice of India. One cannot assume or impute to a high
constitutional authority, like the Chief Justice of India, such
procedural or substantive error. If Parliament has reposed faith
in the Chief Justice of India as the paterfamilias of the judicial
hierarchy in this Country, it is not open for anyone to contend
that the Chief Justice of India might have given his concurrence
without application of mind or without calling for the necessary
inputs. Admittedly, in the present case, on the recommendation
made by the committee consisting of Senior Judges of this Court
about establishment of circuit benches, same was approved by
Hon'ble Chief Minister and with the approval from His Excellency
the Governor of Karnataka, Chief Justice of Karnataka made a
proposal for establishment of circuit benches and the same was
approved by Central Cabinet as well as Hon'ble Chief Justice of
India. Accordingly, Hon'ble President of India, by the order
dated 08.08.2013 concurred for establishment of permanent
benches at Dharwad and Kalaburagi in exercise of powers under
Section 51(2) of the States Reorganization Act, 1956. Thereby,
the petitioner has not made out any ground to quash the
notification issued by Hon'ble the President of India. On that
ground also, the writ petition is liable to be dismissed.
71. It is undisputed fact that the opinion of the Chief
Justice to appoint the seat of the High Court at a place other
than the principal seat under sub section (3) of Section 51 of the
Act must therefore normally prevail because it is for the more
convenient transaction of judicial business. The Judges and
Division Courts at Dharwad and Kalaburagi are part of the High
Court of Karnataka, Bengaluru, which is the principal seat and
they exercise the jurisdiction as Judges of High Court of
Karnataka. Hence it is apparent that, by virtue of power
conferred on the Chief Justice under sub section (3) of Section
51 of the Act, the Chief Justice can establish benches, at such
place or places where the Judges and Division Courts may sit
and he has power and authority to issue administrative
directions for filing of cases or institution of proceedings at such
place or places. By that process, there will be no territorial
bifurcation of the High Court of Karnataka, merely because of
the arrangement made in terms of the impugned notifications
vide Annexures-E and F dated 19.10.2004 and 04.06.2008
respectively. The Hon'ble Chief Justice of High Court has the
prerogative to distribute the business of the High Court, both
judicial and administrative. The Chief Justice is the master of
roster and that he alone has the right and power to decide how
the benches of the High Court are to be constituted, which Judge
has to sit along and which cases he can and as required to hear
and also as to which Judges shall constitute Division Bench and
what work those benches shall do. It cannot be held to be
wrong or illegal. Thereby, there is nothing wrong in specifying
that new cases arising from certain Districts shall be filed at a
particular circuit bench, as those cases are to be heard and
decided by Judges sitting at that circuit bench. Such an
arrangement, is for administrative convenience and advantage of
the litigants. "After all, the Courts are meant for the benefit of
litigant public and hence, their convenience should be the
paramount consideration and not for the lawyers or Judges."
Thereby, the impugned notifications Annexures-E, F and M
issued by the constitutional authorities are positive and concrete
step to achieve the goal of providing "easy and less expensive
access to justice to all." On that ground also, the writ petition is
liable to be dismissed.
72. Though, learned counsel for the petitioner mainly
contended that constitution of benches at Dharwad and
Kalaburagi is against the dictum of the Hon'ble Supreme Court in
the case of Federation of Bar Association in Karnataka and
that dictum of the Hon'ble Supreme Court is binding on all
Courts as provided under Article 141 of the constitution of India,
it was a case where a committee of five judges was constituted,
who after hearing only the Bar Associations submitted the report
disfavouring the proposal for establishment of a bench away
from principal seat of High Court. The Hon'ble Supreme Court,
relying upon the Committee report which disfavoured the
establishment of a Bench outside the principal seat of the High
Court, held that the Chief Justice cannot be pressurised to take a
different view through agitations and other tactics and question
of establishment of a bench of the High Court away from
principal seat of the High Court is not to be decided on emotional
and sentimental or parochial considerations. "The High Court is
the best suited machinery to decide whether it is necessary and
feasible to have a bench outside the principal seat of High
Court." When the Chief Justice of a High Court is a singular
office, and when the Advocate General is also a singular office,
vivisection of the High Court into different benches at different
regions would undoubtedly affect the efficacy of the functioning
of the High Court. Distance factor may be a relevant
consideration, but not the sole consideration nor even the
decisive consideration in determining the question of establishing
other Benches of the High Court away from the principal seat.
Accordingly, the Hon'ble Supreme Court dismissed the writ
petition. Admittedly, the said writ petition came to be filed by
Federation Of Bar Association disfavouring the proposed
establishment of separate bench on the basis of the report of the
committee of five Judges and the finding of the committee
approved by the Hon'ble the Chief Justice and no final decision
was taken for establishment of separate benches of High Court
of Karnataka away from principal seat. As held by Hon'ble
Supreme Court in the said case, it is the Hon'ble Chief Justice
who is the final authority to take a view.
73. Admittedly in the present case, on the demand made
by the Bar Association, Dharwad, the Chief Justice constituted a
Committee consisting of seven Judges to consider the question
as to whether it is necessary to have bench of the High Court in
northern Karnataka. Majority of the committee members, i.e.,
five judges submitted the report dated 06.06.2003 opining that
the Hon'ble Chief Justice may recommend for establishment of
permanent benches of High Court at Dharwad and Kalaburagi.
Thereafter, based on majority recommendation, the Hon'ble
Chief Minister requested to constitute the Bench and Hon'ble the
Chief Justice after considering the entire material on record and
subject to satisfaction, agreed to constitute benches of the High
Court of Karnataka away from principal seat. Thereby, the order
passed by the Hon'ble Supreme Court in the case of Federation
of Bar Association filed under Article 32 of the Constitution of
India is based on entirely different facts and circumstances.
Admittedly, the Federation Bar Association in Karnataka is not a
party to the present writ petition. Thereby, the said judgement
is no way helpful to the case of the petitioner. At paragraph 8 of
the said judgment, it is held as under:
"8. As the Chief Justice of the High Court
concerned is the important consultee in the matter of
establishment of a Bench of the High Court, he being
the head of that High Court has to form an opinion
when it is required during such consultation process.
Normally, the Chief Justice will not be guided by any
political or parochial considerations. When he gives
the opinion, it is the opinion of the High Court and
not merely his personal opinion. So naturally he will
ascertain the views of his colleague Judges before he
conveys his opinion. xxx"
With due respect, the said judgment does not bar the Chief
Justice either to set up a subsequent Committee for the same
purpose or precludes the exercise of powers under Section 51(2)
and 51(3) of the States Reorganization Act, 1956. In view of the
aforesaid ratio laid down by the Hon'ble Supreme Court, it is
apparent that setting up of a Committee headed by Justice
G.C.Bharuka, and accepting its report is in accordance with law
and is sustainable.
74. The States Reorganization Act, 1956, is a permanent
piece of legislation on the statute book and hence it cannot fall
into desuetude or become inoperative through obsolescence or
by lapse of time. A careful perusal of the provisions of the said
act do not suggest that the enactment would lapse after
achieving its object. In other words, the States Reorganization
Act, 1956, would continue to remain in force until specifically
repealed by parliament or struck down by competent Court. In
one breath, petitioner contended that the provisions of States
Reorganization Act, 1956 are not applicable, since the object of
the Act was Reorganization of States and all matters incidental
thereto. Hence resorting to sub sections (2) and (3) of Section
51 of the Act for the sole purpose of creating new benches of
High Court having no nexus to the object of the Act is misplaced
cannot be accepted. It is also contended by the petitioner that
impugned notifications issued by the Constitutional authorities
will not have powers. According to petitioner Section 17 of the
Mysore High Court Act, 1884 has not been repealed by
Karnataka High Court Act, 1961 and in the light of Section 69 of
States Reorganization Act, 1956, Section 17 of Mysore High
Court Act, 1884 is still enforceable, cannot be accepted. The
constitution and organization of the High Courts and extension of
jurisdiction to and of the High Court from any Union Territory are
the subject matter of framing laws by the parliament as the
same would fall within the ambit of entry 78 and 79 in list I of
Seventh Schedule appended to the Constitution of India.
Therefore, the provisions of States Reorganization Act, 1956
legislated by the parliament in exercise of powers therein under
Section 51(2) and (3) of the Act cannot be found fault with.
75. "Access to Justice is a fundamental right of a citizen
under Article 21 of the Constitution of India and therefore, it is
incumbent upon the State to include judiciary to ensure that
justice delivery system reaches out to every nook and corner of
its territory." "It means, the State should provide enhanced
capability and adequate infrastructure for functioning of the
Court to enable ease of access to justice to every citizen." Our
view is fortified by the dictum of the Hon'ble Supreme Court in
the case of All India Judges Association vs. Union of India
reported in (2018) 17 SCC 555, wherein at paragraphs 6, 7, 9,
10, it is held as under:
6. It has to be firmly borne in mind and accepted
as a reality that raising the infrastructure standards
in the court complexes is the need of the hour as it is
the basic requirement for the courts in the twenty-
first century. We are absolutely clear that when
people are aware of their rights, their desire to get
the rights realised is enhanced and they would like to
knock at the doors of the Court to shape their
aspiration into reality. It is a welcome phenomenon
and conceptually, Rule of Law nourishes and garners
the said idea. The idea of speedy and quality justice
dispensation system cannot be treated with status
quoist approach, for the definition of infrastructure
and the understanding of the same in all associated
contexts changes with the passage of time and
introduction of modern technology in many a sphere
of life. The consumers of justice expect prompt and
effective delivery of justice in an atmosphere that is
acceptable. Therefore, infrastructure enhancement
will go a long way in strengthening functioning of the
court and would improve the productivity in the
justice delivery system.
7. Be it noted, a court complex is not just a
building. It is the building of justice which breathes
and infuses life into the exalted and sublime ideals of
justice. The widening gap between the ideal and the
real and between the vision and the pragmatic
realisation of justice has to be bridged by proper
access to justice for all.
9. In view of the above, we deem it extremely
necessary to declare that it is essential to provide
basic infrastructural facilities, amenities, utilities and
access oriented features in all court complexes
around the country as it is axiomatic that
infrastructure forms the core for efficient and
efficacious dispensation of speedy and qualitative
justice.
10. The court development plan should comprise
of three components -- a short-term plan (or annual
plan); a medium-term plan (or a five-year plan); and
a long-term plan (ten-year plan). The annual plans
so prepared shall be incorporated into the five-year
plan which, in turn, rolls into the ten-year plan.
While focussing on judicial infrastructure, due regard
has to be given to adequate and model court
building, furniture, fixture, Judges, chamber,
record/file storage, adequate sitting and recreation
arrangement for staff and officers, sitting/waiting
room for litigants and Bar members, latest gadgets
and technology. In other words, the core factors in
the design of a court complex must reckon -- (a)
optimum working conditions facilitating increased
efficiency of judicial officers and the administrative
staff; (b) easy access to justice to all and particularly
to the underprivileged, persons with disability,
women and senior citizens; (c) safety and security of
Judges, administrative staff, litigants, witnesses and
undertrial prisoners. The court complex must consist
of:
I. COURT BUILDING
(i) Court rooms
(ii) Judges' chambers
(iii) Judges' residential complex
(iv) Litigants' waiting area
(v) Administrative offices
(vi) Conference Hall/Meeting Room
(vii) Video conferencing rooms
(viii) Mediation centre/Legal Services
Authority
(ix) Common rooms for male/female staff
(x) Staff canteen
(xi) De-stress rooms for male/female staff
(xii) Office space for Government
Pleader/Public Prosecutor/Advocate
General/Standing Counsel for Union of India
with separate cubicles for conducting
conferences and including space for
accommodating their Secretarial staff and
files
(xiii) Support facilities like ramp, crèche,
etc.
II. SPACE FOR LAWYERS/LITIGANTS
(i) Bar rooms for ladies and gents
(ii) Consultation rooms and cubicles
(iii) Stamp vendors and notary public/oath
commissioner/typist/photocopy/business
centre
(iv) Library
(v) Canteen for lawyers and litigants
(vi) Facilitation counter for litigants/visitors
(vii) Support facilities
III. FACILITY CENTRE providing for common
facilities for functioning of the complex
unrelated to courts such as bank, post office,
medical facility, disaster management, etc.
IV. UTILITY BLOCK for accommodating the utility
services such as AC plant, electrical sub-
station, DG set/Solar panel, STP, Repair
workshop, storage, garage, etc.
V. JUDICIAL LOCK-UPS.
VI. STRONG ROOM FOR RECORD PRESERVATION.
VII. ADEQUATE PARKING SPACE for Judges,
lawyers, litigants and other visitors.
VIII. IT INFRASTRUCTURE FOR COMPUTERISATION AND
ECOURTS
76. In identical circumstances, the Division Bench of the
Madras High Court while considering the constitution of Madurai
and other Benches, in the case of K.Sridhar Kumar vs. The
Union of India reported in 2002-1-LW 742, the learned single
Judge at paragraphs 24, 25 and 26, held as under:
"24. It may also be useful to refer a decision of the
Apex Court in S.I. Corporation (P.) Ltd. v. Secretary,
Board of Revenue, AIR 1964 SC 207 which lays down
that the expression "subject to the provisions of the
Constitution" occurring in Article 225 of the
Constitution means that it should not be inconsistent
with the Constitutional Provisions other than the
question relating to Legislative competence. In other
words, the Supreme Court has held that all existing
laws will continue in force without reference to the
question of Legislative competence, subject to the
same being not in conflict with any specific provision
of the Constitution. Clause 31 of the Letters Patent
has not been shown to be in conflict with any
provision of the Constitution. On the other hand, the
said provision is consistent with the scheme of the
Constitution, more particularly Article 231 (2) (c)
which contemplates a common High Court for two or
more States to have a Bench in a place other than
the principal seat. That apart, several enactments
passed by the Parliament transferable to Entry 78
List I to the VII Schedule contained provision
providing for the establishment of Benches outside
the place where the principal seat is situated.
Accordingly, there is no merit in any one of the
contentions raised by Mr. K. Vijayan, learned senior
counsel. Though he has referred to a decision of the
Supreme Court in Federation of Bar Association in
Karnataka v. Union of India, 2000 (5) Supreme 267
: 2000 (6) S.C.C. 715, even in the penultimate
paragraph Their Lordships have observed that there
is no use in harping on the situations in certain other
larger States where High Courts have benches
established away from the principal seat due to
variety of reasons. In such a circumstance, I am of
the view that the said decision is not helpful to the
petitioner's case.
25. In the light of what is stated above, there are no
merits in the above writ petitions and they are liable
to be dismissed. Before parting with these cases, as
stated earlier, both the writ petitions have been filed
by two practising advocates of the High Court,
Madras. The petitioner in the former case got
enrolled in the year 1986 and has been practising in
this Court on all branches of law. Though the
petitioner in the latter case did not set out the details
regarding his enrolment, however, it is stated that
he is a practising lawyer in the Madras High Court.
There is no explanation by either of them for filing
these writ petitions at this juncture. It is pertinent to
note that only considering the plight of the litigant
public, escalation in transport and other incidental
charges, the Committee has recommended the
constitution of a Bench at Madurai. According to the
learned Additional Advocate General, the structural
work for the Madurai Bench has already been
completed. It is not their case that they were not
aware of the report of the Jaswandh Singh
Commission recommending constitution of a Bench
at Madurai for the benefit of the litigant public hailing
from Southern Districts, and of the ear-marking of
substantial amount for the construction of the Court-
halls, administrative blocks, residential quarters for
the Judges etc. even a year back. The details about
the orders passed by the Government and the stages
of construction work, as well as the inspection by the
Hon'ble Chief Justice etc., have been flashed by the
Media at every stage. As stated earlier, the
petitioners being practising advocates in the High
Court, they cannot plead ignorance of the above
developments. As rightly pointed out by the learned
Additional Advocate General, both the writ petitions
have to be dismissed in limine on the ground of
laches. Even on merits, as stated above, the writ
petitions are lacking even the basic ingredients
justifying their claim. In any event, this Court places
on record its displeasure in the act of the petitioners
in filing these writ petitions unmindful of the precious
time of this Court which otherwise could have been
utilised in other better and genuine cases. This Court
places on record the strenuous efforts made by the
learned Additional Advocate General in placing all the
relevant materials to arrive at a just decision.
26. For all the above reasons, both the writ petitions
are dismissed. No costs. Consequently, W.P.M.P.
Nos. 3331 and 4684 of 2002 are also dismissed."
77. Against the said order of the learned single Judge, an
appeal came to be filed and the Division Bench, by the order
dated 11.03.2004 dismissed the appeal, i.e., in the case of R
Suresh Kumar, Advocate vs. Union of India and others
reported in 2004-2 LW 277,at paragraphs 17, 18, 19, 20 and
21 held as under:
"17. This takes us to the other argument by the
learned senior counsel that the High Court had no
jurisdiction to pass the resolution dated 31-8-1995
and the subsequent resolution of the Committee
dated 24-1-2000, which was ratified by the Full
Court by resolution dated 18-04-2000 for creating
the permanent Bench at Madurai, in the absence of
an order by the Chief Justice under Clause 31 of the
Letters Patent or a legislative provision for creating a
permanent Bench at Madurai. Learned counsel says
that the power to create a Bench of the Madras High
Court would lie only with the Central Government as
the subject is covered by Entry 78 of the Union List
under Schedule VII to the Constitution of India. The
said entry reads as follows:
"78. Constitution and Organisation
including vacations of the High Courts
except provisions as to officers and
servants of High Courts; persons entitled
to practise before the High Courts."
He, therefore, suggests that even for initiating the
proposal to create the Bench at Madurai, a legislative
pronouncement or, as the case may be, an order
under Clause 31 of the Letters Patent was necessary
and, in the absence of the same, the process
initiated to create a Bench at Madurai is otiose and
without jurisdiction.
18. The argument is undoubtedly incorrect. In the
first place, the learned counsel has not been able to
show us anything to suggest that the Chief
Justice/High Court cannot initiate the proposal to
create a Bench. It is undoubtedly true that under
Clause 31 of the Letters Patent, the Chief Justice can
start a Circuit Bench, of course, with the prior
approval of the Governor. In fact, the resolution
dated 31-8-1995 was only to that effect. However, it
seems that thereafter the proposal was mooted to
create a Permanent Bench, with which the High
Court seems to have agreed. It is pointed out by Shri
V.T. Gopalan that it is for that, resolution dated 24-
1-2000 was passed by the Special Committee of the
High Court, which was constituted by the then Chief
Justice and the resolution was also ratified by the
Full Court later on. According to the learned
Additional Solicitor General, the decision, therefore,
was taken to create a Permanent bench at Madurai,
which was to be implemented later on through a
legal procedure. He argues that the Bench can be
created firstly by passing a specific enactment in
pursuance of the powers under Entry 78 of the Union
List in Schedule VII to the Constitution or secondly,
through the Presidential notification made under Sec.
51(2) of the States Reorganisation Act. In addition to
this, learned Additional Solicitor General says that a
Circuit Bench can be created under Clause 31 of the
Letters Patent which has been found to be on par
with the provisions of Sec. 51(3) of the States
Reorganisation Act as held in State of
Maharashtra v. Narayan (supra). He made a
statement that a proper step will be taken to create
a Permanent Bench under a proper legislation which
could be either passing the law for that purpose
under Entry 78 of the Union List or, as the case may
be, by a Presidential notification under Sec. 51(2) of
the State Reorganisation Act. After this specific
statement made at the Bar by the learned Additional
Solicitor General, we have no doubts in mind that a
proper course will be undertaken for creation of the
Bench at Madurai and unless such steps are taken,
the Bench will not be operative unless, of course a
third option of creating a Circuit Bench via Clause 31
of the Letters Patent is taken, for which a prior
approval of the Governor would be necessary.
However, we cannot countenance an argument that
the process to create a Permanent or a Circuit Bench
at Madurai could not have been initiated at all unless
there was a law passed or unless a Presidential
Notification was issued under Sec. 51(3) of the
States Reorganisation Act or unless the Chief Justice
had passed an order with the prior approval of the
Governor under Clause 31 of the Letters Patent. We
have already explained and it has already come in
the address of the learned Additional Solicitor
General that the Central Government had also taken
a decision favouring a Permanent Bench at Madurai.
The High Court had also taken a decision firstly to
create the Circuit Bench way back in the year 1995.
After all, when such decision is taken, it has to be
considered by the concerned authorities like the
Central Government, the Chief Justice and the High
Court or, as the case may be, the Governor. The
peculiarity of the situation here was that the High
Court agreed to have a Circuit Bench or, as the case
may be, a Permanent Bench only provided there was
a full infrastructure ready and there was nothing
wrong in it because it would have been futile to
create/constitute a Bench first and then to wait for
years together before activating the same. It is
impossible for a Bench to work in the absence of the
necessary infrastructure like proper buildings for the
High Court, residential accommodation for the
Judges, residential accommodation for the staff and
the other facilities like Chambers for the lawyers,
etc. The contention that all the exercise is without
jurisdiction is, therefore, obviously incorrect.
19. The decision by the Central Government to
create a Bench at Madurai backed by the
administrative decision of the High Court would
provide a firm pedestal for taking taking the initial
steps to create a Bench. We do not see anything
wrong in the State Government creating the
necessary infrastructure in pursuance of the
agreement by the High Court and the decision taken
by the Central Government. The learned Additional
Solicitor General argues, rightly in our opinion, when
he says that a decision was already taken by the
Central Government and it should be left to the
Central Government to implement the same by
taking proper steps.
20. Shri Vijayan, however, took great exception to
the factual statement made by Shri V.T. Gopalan in
which the learned Additional Solicitor General also
referred to Sec. 51(2) of the State Reorganisation
Act and wanted to contend that such a decision could
not be possible in view of the fact that the State of
Tamil Nadu was not a 'new State' and that the power
under Sec. 51(2) of the States Reorganisation Act
could be implemented only in respect of the 'New
State'. We have already explained that the learned
single Judge has already held that the words 'State
of Tamil Nadu' (the then Madras State) referred to in
Sec. 4 under Part II of the States Reorganisation Act
can be deemed to be a 'new State' and the inference
of the learned single Judge and the consequential
dismissal of the writ petition, W.P. No. 2402 of 2002,
where this question was raised has remained
unchallenged. We would, therefore, leave the
question at that. Further, in our opinion, it would
now be futile to go into that question as the
procedural aspect of creation of the Bench of the
Madras High Court at Madurai is inextricably
connected with the basic question as to whether
there should be a Bench at all at Madurai or not. We
have already pointed out that this basic issue and
the decision therefor could have been challenged
only at the proper time. The petitioner chose to keep
silent at the material time and has chosen to woke
up now after crores of rupees have been spent and is
trying to raise the procedural objections only to
thwart the basic objective of creation of the Bench at
Madurai, which is not permissible. We have no
doubts in our minds that the Central Government
would take proper steps in law procedurally by
taking recourse to proper legal procedure. In any
event, by a mere procedural challenge, petitioner
could not be permitted to achieve a wider objective
of thwarting the Bench at Madurai at all more
particularly at this juncture in the year 2004 when
the first decision was taken in the year 1995 and was
ratified in the year 2000 after a firm decision was
taken in that behalf by the Central Government and
further when crores of rupees are spent in creating
infrastructure.
21. It must be borne in mind that the High Court, in
exercise of its' powers, cannot ask the Legislature to
legislate or to legislate in a particular manner. So
also, the High Court shall not ask the Legislature not
to legislate or to legislate in a particular manner.
How a particular objective is to be carried out or
realised has to be left to the wisdom of the
Legislature altogether and we have no doubts that
the objective of bringing about the Bench of the
Madras High Court at Madurai shall so obtained. We,
therefore, agree with the learned single Judge. The
judgment of the learned single Judge, dismissing the
writ petition, W.P. No. 3333 of 2002 and dismiss this
appeal. No other point were argued excepting those
referred to above."
78. The Hon'ble Supreme Court while considering the
provisions of Section 51(3) of the States Reorganization Act,
1956, in the case of State of Maharashtra vs. Narayan
Shamrao Puranik and others reported in (1982) 3 SCC 519
regarding establishment of a permanent Bench at Aurangabad,
at paragraphs 11, 12, 13, 14, 15, 17, 21, 25, 26 and 27, held as
under:
"11. Three questions arise for consideration in
this appeal: (1) Whether the power of the President
under sub-section (2) of Section 51 of the Act or that
of the Chief Justice of the High Court under sub-
section (3) of SSction 51 of the Act, can no longer be
exercised due to lapse of time. (2) Whether the
exercise of power by the Chief Justice under sub-
section (3) of Section 51 of the Act appointing
Aurangabad to be a place at which the Judges and
Division Courts of the High Court shall also sit is co-
related to the reorganisation of the States, or has no
nexus with the object and purposes sought to be
achieved by the Act and is only a part of the demand
for decentralisation of the administration of justice in
general. (3) Whether the power of the Chief Justice
under sub-section (3) of Section 51 of the Act does
not include a power to establish a Bench or Benches
at such place or places carving out territorial
jurisdiction for such Benches and authorising the
filing or institution of proceedings at such places.
12. It is difficult to agree with the High Court that
the High Court of Bombay is not the High Court of a
new State within the meaning of sub-section (1) of
Section 49 of the Act, merely because the bilingual
State of Bombay was bifurcated into two separate
States of Maharashtra and Gujarat under Section 3
of the Bombay Reorganisation Act, 1960. Nor do we
see any valid basis for the view taken by the High
Court that the power of the President to establish a
permanent Bench or Benches of the High Court
under sub-section (2) of Section 51 of the Act or that
of the Chief Justice to appoint, with the approval of
the Governor, a place or places where the Judges
and Division Courts may also sit under sub-section
(3) of Section 51 of the Act, can no longer be
exercised, in relation to the High Court of Bombay. It
was rightly not disputed before us that the High
Court of Bombay was the High Court for the new
State of Bombay within the meaning of sub-section
(1) of Section 49 of the Act and therefore the
provisions of Section 51 of the Act are still
applicable. That must be so because the High Court
of Bombay owes its principal seat at Bombay to the
Presidential Order issued under sub-section (1) of
Section 51 of the Act. The expression 'new State'
occurring in sub-section (1) of Section 49 of the Act
is defined in Section 2(i) to mean "a State formed
under the provisions of Part II". The State of Bombay
was a new State formed under Section 8 of the Act,
which occurs in Part II. The Bombay Reorganisation
Act, 1960 (11 of 1960) which reconstituted the
erstwhile State of Bombay into the State of
Maharashtra and the State of Gujarat provides, inter
alia, by sub-section (1) of Section 28 that, as from
the appointed day, i.e. May 1, 1960, there shall be a
separate High Court for the State of Gujarat and that
the High Court of Bombay shall become the High
Court for the State of Maharashtra. Sub-section (2)
of Section 28 of that Act provides that the principal
seat of the Gujarat High Court shall be at such place
as the President may, by notified order, appoint. It is
rather significant that the Bombay Reorganisation
Act, 1960 contains no similar provision with regard
to the principal seat of the High Court of Bombay.
That being so, the continued existence of the
principal seat of the Bombay High Court at Bombay
is still governed by sub-section (1) of Section 51 of
the Act. This conclusion of ours is reinforced by the
opening words of Section 41 of that Act which
provides for the setting up of a permanent Bench of
the Bombay High Court at Nagpur, and it reads:
"41. Permanent Bench of Bombay High
Court at Nagpur.--Without prejudice to the
provisions of Section 51 of the States
Reorganisation Act, 1956, such Judges of
the High Court at Bombay, being not less
than three in number, as the Chief Justice
may from time to time nominate, shall sit at
Nagpur in order to exercise the jurisdiction
and power for the time being vested in that
High Court in respect of cases arising in the
districts of Buldana, Akola, Amravati,
Yeotmal, Wardha, Nagpur, Bhandara,
Chanda and Rajpura:
Provided that the Chief Justice may, in
his discretion, order that any case arising in
any such district shall be heard at Bombay."
13. The legislative intent is clear and explicit by
the use of the words "without prejudice to the
provisions of Section 51 of the States Reorganisation
Act, 1956". The legislature presupposed the
continued existence of Section 51 of the Act in
relation to the High Court of Bombay. That shows
that while enacting Section 41 of the Act, Parliament
retained the power of the President of India both
under sub-section (1) and sub-section (2) of Section
51 of the Act and that of the Chief Justice under sub-
section (3) thereof. If there is continued existence of
sub-section (1) of Section 51 of the Act in relation to
the principal seat of the High Court for a new State,
a fortiori, there is, to an equal degree, the continued
existence of the provisions contained in sub-sections
(2) and (3) of Section 51 of the Act. This is also clear
from the provisions of Section 69 of the Act which in
terms provides that Part V which contains Section 51
of the Act shall have effect subject to any provision
that may be made, on or after the appointed day
with respect to the High Court of a new State, by the
legislature or any other authority having power to
make such provision.
14. Nor can we subscribe to the proposition that
the power of the President under sub-section (2) of
Section 51 of the Act, or that of the Chief Justice of
the High Court of a new State under sub-section (3)
of that Section, can no longer be exercised due to
lapse of time. The High Court is of the view that the
provisions of the Act and in particular of Section 51
were meant to be exercised either immediately or
within a reasonable time of the reorganisation of the
States and therefore the exercise of the power by
the Chief Justice under sub-section (3) of Section 51
of the Act appointing Aurangabad as a place where
the Judges and Division Courts of the High Court
may also sit, after a lapse of 26 years, is
constitutionally impermissible. Any other view,
according to the High Court, is bound to give rise to
a very anomalous situation as in nine out of 16
States not affected by the Act, the creation of a
permanent Bench of a High Court must be by an Act
of Parliament while in seven new States formed
under the Act, the same could be achieved by a
Presidential Notification under sub-section (2) of
Section 51 of the Act. Furthermore, in States where
the High Courts were established by Letters Patent,
the powers conferred on the Chief Justices of the
High Courts qua sittings of Single Judges and
Division Courts can be exercised only with legislative
sanction whereas under sub-section (3) of Section
51 it can be done by the Chief Justices of the High
Court for a new State, with the approval of the
Governor of that State. Such a construction of the
provisions of Section 51 of the Act would, according
to the High Court, result in creating discrimination
between the States. The reasoning of the High Court
that the Act being of a transitory nature, the exercise
of the power of the President under sub-section (2)
of Section 51 of the Act, or of the Chief Justice under
sub-section (3) thereof, after a lapse of 26 years,
would be a complete nullity, does not impress us at
all. The provisions of sub-sections (2) and (3) of
Section 51 of the Act are supplemental or incidental
to the provisions made by Parliament under Articles
3 and 4 of the Constitution. Article 3 of the
Constitution enables Parliament to make a law for
the formation of a new State. The Act is a law under
Article 3 for the reorganisation of the States. Article
4 of the Constitution provides that the law referred
to in Article 3 may contain "such supplemental,
incidental and consequential provisions as Parliament
may deem necessary". Under the scheme of the Act,
these powers continue to exist by reason of Part V of
the Act unless Parliament by law otherwise directs.
The power of the President under sub-section (2) of
Section 51 of the Act, and that of the Chief Justice of
the High Court under sub-section (3) thereof are
intended and meant to be exercised from time to
time as occasion arises, as there is no intention to
the contrary manifested in the Act within the
meaning of Section 14 of the General clauses Act.
The High Court has assumed that the provisions of
sub-sections (2) and (3) of Section 51 of the Act
have 'ebbed out' by lapse of time. This assumption is
plainly contrary to the meaning and effect of Section
69 of the Act which in terms provides that Part V
which contains Section 51 of the Act, shall have
effect subject to any provision that may be made on
or after the appointed day with respect to the High
Court of any State, by the legislature or any other
authority having power to make such provision.
15. It is a matter of common knowledge that
Parliament considered it necessary to reorganise the
existing States in India and to provide for it and
other matters connected therewith and with that end
in view, the States Reorganisation Act, 1956 was
enacted. As a result of reorganisation, boundaries of
various States changed. Some of the States merged
into other States in its entirety, while some States
got split and certain parts thereof merged into one
State and other parts into another. These provisions
were bound to give rise, and did give rise, to various
complex problems. These problems are bound to
arise from time to time. The Act is a permanent
piece of legislation on the statute-book. Section 14
of the General clauses Act, 1897 provides that,
where, by any Central Act or Regulation, any power
is conferred, then unless a different intention
appears, that power may be exercised from time to
time as occasion arises. The Section embodies a
uniform rule of construction. That the power may be
exercised from time to time when occasion arises
unless a contrary intention appears is therefore well
settled. A statute can be abrogated only by express
or implied repeal. It cannot fall into desuetude or
become inoperative through obsolescence or by
lapse of time. In R v. London County Council [ LR
(1931) 2 KB 215 (CA)], Scrutton, L.J. put the matter
thus:
"The doctrine that, because a certain
number of people do not like an Act and
because a good many people disobey it, the
Act is therefore 'obsolescent' and no one
need pay any attention to it, is a very
dangerous proposition to hold in any
constitutional country. So long as an Act is
on the statute-book, the way to get rid of it
is to repeal or alter it in Parliament, not for
subordinate bodies, who are bound to obey
the law, to take upon themselves to disobey
an Act of Parliament."
As to the theory of desuetude, Allen in his Law in the
Making, 5th Edn., p. 454 observes:
"Age cannot wither an Act of Parliament,
and at no time, so far as I am aware, has it
ever been admitted in our jurisprudence
that a statute might become inoperative
through obsolescence."
The learned author mentions that there was at one
time a theory which, in the name of 'non-
observance', came very near to the doctrine of
desuetude, that if a statute had been in existence for
any considerable period without ever being put into
operation, it may be of little or no effect. The rule
concerning desuetude has always met with such
general disfavour that it seems hardly profitable to
discuss it further. It cannot be said that sub-section
(2) or (3) of Section 51 of the Act can be regarded
as obsolescent. The opening words of Section 41 of
the Bombay Reorganisation Act, 1960 manifest a
clear legislative intention to preserve the continued
existence of the provisions contained in Section 51 of
the Act. It was as recent as December 8, 1976 that
the President issued a notification under sub-section
(2) of Section 51 of the Act for the establishment of
a permanent Bench of the Rajasthan High Court at
Jaipur. The High Court is therefore not right in
observing that the provisions of Section 51 of the Act
were not intended to be operative indefinitely and
they were meant to be exercised either immediately
or within a reasonable time, or that the powers of
the President or the Chief Justice thereunder can no
longer be exercised in relation to the High Court of
Bombay.
16. The conclusion reached by the High Court
that the impugned notification issued by the Chief
Justice under sub-section (3) of Section 51 of the Act
was not directly connected with the reorganisation of
the States, or had no nexus with the objects and
purposes sought to be achieved by the Act but was
only as part of the demand for decentralisation of the
administration of justice in general, can only be
justified as a necessary corollary flowing from its
views expressed on other aspects of the matter. The
creation of 14 new States by Part II of the Act based
on a linguistic basis virtually led to the redrawing of
the political map of India as a whole. Even after the
reorganisation of the States in 1956, the political
map of India continued to change owing to the
growing pressure of political considerations and
circumstances, The formation of the linguistic State
of Bombay constituted under Section 8 of the Act
became the source of struggle between the Gujarati
and Marathi speaking people as a result of which the
State of Bombay was further bifurcated in 1960.
These political changes necessarily affected the
constitution and structure of the High Court. Under
the Constitution, Parliament alone has the legislative
competence to make a law relating to the subject
under Entry 78 of List I of the Seventh Schedule
which reads:
"78. Constitution and organisation
(including vacations) of the High Courts
except provisions as to officers and
servants of High Courts; persons entitled
to practise before the High Courts."
17. Under the scheme of the Act, it would appear
that having constituted a High Court for the new
State of Bombay under sub-section (1) of Section 49
of the Act and conferred jurisdiction on it under
Section 52 in relation to the territories of the new
State, Parliament left it to the various high
constitutional functionaries designated in the three
sub-sections of Section 51 of the Act to determine
the place where the principal seat of the High Court
should be located and places where permanent
Bench or Benches of the High Court may be
established, or where the Judges and Division Courts
of the High Court may also sit. On the reorganisation
of the States as from the appointed day, i.e.
November 1, 1956, the territories of the new State
of Bombay formed under Section 8 of the Act and
with it the jurisdiction of the High Court was
considerably extended. The merger of the new
territories of the Vidarbha region of the former State
of Madhya Pradesh and the Marathwada region of
the erstwhile State of Hyderabad together with the
Saurashtra region of the newly constituted State of
Gujarat was an additional source of strength of the
High Court. It became necessary for the more
convenient transaction of judicial business to
establish, as from the appointed day, two Benches of
the High Court at Nagpur and Rajkot to deal with
matters arising from Vidarbha and Saurashtra
regions respectively. The formation of the separate
State of Gujarat in 1960 under Section 3 of the
Bombay Reorganisation Act, 1960 resulted in
severance of ties not only with the Saurashtra region
but also with the Gujarat districts over which the
High Court had exercised jurisdiction for about a
century. The High Court of Bombay therefore
underwent a major transformation in 1956 when the
bilingual State of Bombay was formed under Section
8 of the Act and then again in 1960 when with the
formation of a separate State of Gujarat under
Section 3 of the Bombay Reorganisation Act, the
residuary State of Bombay was to be known as the
State of Maharashtra. Nagpur which ceased to be the
seat of the High Court of the new State of Madhya
Pradesh, was given a Bench by an order issued by
the then Chief Justice of the High Court under sub-
section (3) of Section 51 of the Act. The
arrangement was made permanent by Section 41 of
that Act which provided for the establishment of a
permanent Bench at Nagpur to deal with cases
arising out of the Vidarbha region. It was a solemn
assurance given to the people of the Marathwada
region of the erstwhile State of Hyderabad by clause
(7) of the Nagpur Pact that the provision with regard
to the establishment of a permanent Bench at
Nagpur shall also apply mutatis mutandis to the
Marathwada region.
21. It is necessary to emphasise that besides
administering justice, the High Court has the
administrative control over the subordinate judiciary
in a State. The High Court must necessarily carry on
its administrative functions from the principal seat
i.e. the place where the High Court transacts every
kind of business in all its capacities. The High Court
as such is located there, but it may have more than
one seat for transaction of judicial business. The
constitution and structure of the High Court depends
on the statute creating it. The decision
in Nasiruddin v. State Transport Appellate
Tribunal [(1975) 2 SCC 671 : AIR 1976 SC 331 :
(1976) 1 SCR 505] is not directly in point as it
turned on the construction of the provisions of the
U.P. High Courts (Amalgamation) Order, 1948. It is
however an authority for the proposition that after
the amalgamation of the High Court of Allahabad and
the Chief Court of Oudh, the two High Courts ceased
to exist and became Benches of the newly
constituted High Court by the name of the High
Court of Judicature at Allahabad. Further, the Court
held that a case 'instituted' at a particular Bench had
to be 'heard' at that Bench. It recognised that there
can be two seats of the High Court without a
principal seat.
25. It is clear upon the terms of Section 51 of the
Act that undoubtedly the President has the power
under sub-section (1) to appoint the principal seat of
the High Court for a new State. Likewise, the power
of the President under sub-section (2) thereof, "after
consultation with the Governor of a new State and
the Chief Justice of the High Court for that State,
pertains to the establishment of a permanent Bench
or Benches of that High Court of a new State at one
or more places within the State other than the place
where the principal seat of the High Court is located
and for any matters connected therewith" clearly
confer power on the President to define the territorial
jurisdiction of the permanent Bench in relation to the
principal seat as also for the conferment of exclusive
jurisdiction to such permanent Bench to hear cases
arising in districts falling within its jurisdiction. The
creation of a permanent Bench under sub-section (2)
of Section 51 of the Act must therefore bring about a
territorial bifurcation of the High Court. Under sub-
section (1) and sub-section (2) of Section 51 of the
Act the President has to act on the advice of the
Council of Ministers as ordained by Article 74(1) of
the Constitution. In both the matters the decision
lies with the Central Government. In contrast, the
power of the Chief Justice to appoint under sub-
section (3) of Section 51 of the Act the sittings of the
Judges and Division Courts of the High Court for a
new State at places other than the place of the
principal seat or the permanent Bench is in the
unquestioned domain of the Chief Justice, the only
condition being that he must act with the approval of
the Governor. It is basically an internal matter
pertaining to the High Court. He has full-power,
authority and jurisdiction in the matter of allocation
of business of the High Court which flows not only
from the provision contained in sub-section (3) of
Section 51 of the Act but inheres in him in the very
nature of things. The opinion of the Chief Justice to
appoint the seat of the High Court for a new State at
a place other than the principal seat under sub-
section (3) of Section 51 of the Act must therefore
normally prevail because it is for the more
convenient transaction of judicial business. The non
obstante clause contained in sub-section (3) of
Section 51 gives an overriding effect to the power of
the Chief Justice. There is no territorial bifurcation of
the High Court merely because the Chief Justice
directs under sub-section (3) of Section 51 of the Act
that the Judges and Division Courts shall also sit at
such other places as he may, with the approval of
the Governor, appoint. It must accordingly be held
that there was no territorial bifurcation of the
Bombay High Court merely because the Chief Justice
by the impugned notification issued under sub-
section (3) of Section 51 of the Act directed that the
Judges and Division Courts shall also sit at
Aurangabad. The Judges and Division Courts at
Aurangabad are part of the same High Court as
those at the principal seat at Bombay and they
exercise jurisdiction as Judges of the High Court of
Bombay at Aurangabad. The Chief Justice acted
within the scope of his powers. We see no substance
in the charge that the impugned notification issued
by the Chief Justice under sub-section (3) of Section
51 of the Act was a colourable exercise of power.
26. As to the scope and effect of sub-section (3)
of Section 51 of the Act, the question came up for
consideration before Chagla, C.J. and Badkas, J.
in Seth Manji Dana v.C.I.T., Bombay [ Civil Appeal
No 995 of 1957, decided on July 22, 1958 (Bom)] .
This was an application by which the validity of Rule
254 of the Appellate Side Rules was challenged
insofar as it provided that all income tax references
presented at Nagpur should be heard at the principal
seat of the High Court at Bombay, and the
contention was that the result of this rule was that it
excluded income tax references from the jurisdiction
of the High Court functioning at Nagpur. In repelling
the contention, Chagla, C.J. observed:
"Legally, the position is quite clear.
Under Section 51(3) of the State
Reorganisation Act, the Judges sitting at
Nagpur constitute a part of the High
Court of Bombay. They are as much a
part of the High Court of Bombay, and if
we might say so distinguished part of the
High Court of Bombay, as if they were
sitting under the same roof under which
Judges function in Bombay. All that
happens is that the Chief Justice, under
the powers given to him under the
Letters Patent distributes the work to
various Judges and various Divisional
Benches, and acting under that power he
distributes certain work to the Judges
sitting at Nagpur."
He then continued:
"All that Rule 254 does is to permit as
a matter of convenience certain matters
to be presented at Nagpur to the Deputy
Registrar. If Rule 254 had not been
enacted, all matters would have to be
presented at Bombay and then the Chief
Justice would have distributed those
matters to different Judges, whether
sitting in Bombay or at Nagpur. It is out
of regard and consideration for the
people of Vidarbha and for their
convenience that this rule is enacted, so
that litigants should not be put to the
inconvenience of going to Bombay to
present certain matters. Therefore, this
particular rule has nothing whatever to
do either with Section 51(3) of the
States Reorganisation Act or with the
Constitution."
With regard to Rule 254, he went on to say:
"Now, having disposed of the legal
aspect of the matter, we turn to the
practical aspect, and let us consider
whether this rule inconveniences the
people at Nagpur. If it does, it would
certainly call for an amendment of that
rule. Now, there is particular reason why
all Income Tax References should be
heard in Bombay and that reason is this.
The High Court of Bombay for many
years, rightly or wrongly, has followed a
particular policy with regard to Income
Tax References and that policy is that
the same Bench should hear Income Tax
References, so that there should be a
continuity with regard to the decisions
given on these References. I know that
other High Courts have referred to this
policy with praise because they have
realised that the result of this policy has
been that Income Tax Law has been laid
down in a manner which has received
commendation from various sources. The
other reason is and we hope we are not
mistaken in saying so that the number of
Income Tax References from Nagpur are
very few. If the number was large,
undoubtedly a very strong case would be
made out for these cases to be heard at
Nagpur."
He then concluded:
"After all, Courts exist for the
convenience of the litigants and not in
order to maintain any particular system
of law or any particular system of
administration. Whenever a Court finds
that a particular rule does not serve the
convenience of litigants, the Court should
be always prepared to change the rule."
The ratio to be deduced from the
decision of Chagla, C.J. is that the
Judges and Division Courts sitting at
Nagpur were functioning as if they were
the Judges and Division Courts of the
High Court at Bombay.
27. In Manickam Pillai case [AIR 1958 Ker 188 :
ILR 1958 Ker 629 : 1958 Ker LJ 280] the Kerala High
Court held that the curtailment of the territorial
jurisdiction of the main seat of the High Court of a
new State is a necessary concomitant to the
establishment of a permanent Bench under sub-
section (2) of Section 51 of the Act while contrasting
sub-section (3) with sub-section (2). There, a
question arose whether the temporary Bench of the
High Court of Kerala with its principal seat at
Ernakulam created by the Chief Justice at
Trivandrum by an order issued under sub-section (3)
of Section 51 of the Act was not the High Court of
Kerala, and the Judges and Division Courts sitting at
Trivandrum were precisely in the same position as
Judges and Division Courts sitting in the several
court-rooms of the High Court at its principal seat in
Ernakulam. In other words, the contention was that
the Judges and Division Courts sitting at Trivandrum
could only hear and dispose of such cases as were
directed to be posted before them by the Chief
Justice but no new case could be instituted there.
Raman Nayar, J. (as he then was) speaking for the
Court held that the Trivandrum Bench was not the
High Court of Kerala and the Judges and Division
Courts sitting at Trivandrum could hear and dispose
of only such cases as may be assigned to them. With
respect, we are of the opinion that the view
expressed by Chagla, C.J. in Manji Dana case [ Civil
Appeal No 995 of 1957, decided on July 22, 1958
(Bom)] is to be preferred. Chagla, C.J. rightly
observes that the Judges and Division Courts at a
temporary Bench established under sub-section (3)
of Section 51 of the Act function as Judges and
Division Courts of the High Court at the principal
seat, and while so sitting at such a temporary Bench
they may exercise the jurisdiction and power of the
High Court itself in relation to all the matters
entrusted to them."
79. It is also relevant to state at this stage that, the
Government of India-Law Commission of India, in its Report
No.230 on Reforms in the Judiciary-Some Suggestions submitted
during August 2009 headed by Hon'ble Dr. Justice
A.R.Lakshmanan, Chairman, Dr.Brahm A. Agrawal, Member
Secretary and other Full time and Part time members, at
paragraphs 1.7, 1.8, 1.9, 1.10, 1.11, 1.24, 1.25, 1.26, 1.40,
1.42, 1.71, 1.72, 1.75 has stated as under:
Increase in number of Judges and creation of new
Benches:
1.7 In almost every High Court, there is huge
pendency of cases and the present strength of the
judges can hardly be said to be sufficient to cope
with the alarming situation. The institution of cases
is much more than the disposal and it adds to
arrears of cases. The litigating citizens have a
fundamental right of life i.e., a tension-free life
through speedy justice-delivery system. Now it has
become essential that the present strength of the
judges should be increased manifold according to the
pendency, present and probable.
1.8 It is also necessary that the work of the High
Courts is decentralized, that is, more Benches are
established in all States. If there is manifold
increase in the strength of the judges and the staff,
all cannot be housed in one campus. Therefore, the
establishment of new Benches is necessary. It is
also in the interest of the litigants. The Benches
should be so established that a litigant is not
required to travel long.
1.9 It is true that the new establishments will
require money, but it is necessary as a development
measure, particularly, when efforts are being made
for all-round development of the country. Therefore,
the money should not be a problem. We have to
watch and protect the interest of the litigants. We
must always keep in mind that the existence of
judges and advocates is because of the litigants and
they are there to serve their cause only.
1.10 Sometimes, some advocates object to creating
of new Benches and selection of new sites for
construction of new buildings. But they raise
objections in their personal, limited interest.
Creation of new Benches is certainly beneficial for
the litigants and the lawyers and a beginning has to
be made somewhere.
1.11 There is huge pendency of cases in the apex
court also. Now the time has come when not only
the strength of the Hon'ble Judges in the Supreme
Court should be increased and recommendations are
made to fill up the vacancies soon but new Benches
be also established in southern and eastern regions.
Justice at easy reach:
1.24 The Indian Judicial system is constantly
exposed to new challenbges, new dimensions and
new signals and has to survive in a world in which
perhaps the only real certainty is that the
circumstances of tomorrow will not be the same as
those of today. The need of the hour is to erase
misconception about the Judiciary by making it more
accessible by utilizing the resources available to
improve the service to the public, by reducing delays
and making courts more efficient and less daunting.
1.25 Regarding decongestion, greater responsibility
lies on the shoulders of the Governments of States
or the Central Government. They are biggest
litigants in the courts. They should approach the
courts or contest cases only if necessary and not just
to pass on the buck or contest for the sake of
contesting. The time consumed in most of the cases
by Courts of Sessions is somewhat under control and
most of the cases are decided in a reasonable time-
schedule. Main problem is about huge pendency in
Magisterial Courts and the High Courts. It is
absolutely essential to have additional courts for
specifically trying the complaint cases filed under
section 138 of the Negotiable Instruments Act. The
present state of affairs defeats the very object with
which the provision was inserted in the Negotiable
Instruments Act. Further, large numbers of petty
offence cases should be taken out of the normal
court channel to be decided by the Special
Magistrates by appointing retired officers as Special
Magistrates.
1.26 A speedy trial is not only required to give quick
justice but it is also an integral part of the
fundamental right of life, personal liberty, as
envisaged in article 21 of the Constitution. The Law
Commission is putting forth few suggestions to
identify and remedy the causes of such delays in this
Report, of course, after identifying major hurdles and
impediments which cause delay in the disposal of
criminal cases.
Access to justice
1.40 Traditional concept of "access to justice" as
understood by common man is access to courts of
law. For a common man, a court is the place where
justice is meted out to him/her. But since the laws
enacted were in English and the proceedings of all
the courts were highly complicated, confusing and
expensive for the Indian public, the 'English' illiterate
Indian public found it difficult to get access to the
justice-delivery system. As a solution, the need to
have lawyers was felt as an effective mediator
between the legal world and the common man.
Therefore, we can see that a lawyer in addition to
being champion at the various laws also has a social
responsibility of helping the ignorant and the
underprivileged to attain justice.
1.42 Article 39A of the constitution provides for
equal justice and free legal aid. The said article
obligates the State to promote justice on a basis of
equal opportunity and, in particular, provide free
legal aid by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing
justices are not denied to any citizen by reason of
economic or other disabilities.
Reforms at the village level
1.71 The Gram Nyayalayas Bill has been enacted to
set up more trial courts at the intermediate
Panchayat level. The welcome feature is that the
procedures have been kept simple and flexible so
that cases can be heard and disposed of within six
months. It is also envisaged that these courts will be
mobile, to achieve the goal of bringing justice to
people's doorsteps. Training and orientation of the
judiciary, especially in frontier areas of knowledge,
like bio-genetics, IPR and cyber laws, need attention.
1.72 The Constitutional promise of securing to all its
citizens, justice, social, economic and political, as
promised in the Preamble of the Constitution, cannot
be realized, unless the three organs of the State i.c.
legislature, executive and judiciary, join together to
find ways and means for providing the Indian poor,
equal access to its justice system
1.75 We need:
• Speedy justice
• Reduction in costs of litigation
• Systematic running of the courts
• Faith in the judicial system
At the end, the Law Commission made seven
"recommendations", which reads as under:
2.1 Hon'ble Shri Justice Asok Kumar Ganguly, a
Supreme Court Judge, in his article titled "Judicial
Reforms" published in Halsbury's Law monthly of
November 2008 has suggested a few norms, which
the Judges and lawyers must agree to follow very
rigorously, in order to liquidate the huge backlog.
The suggestions are quoted below:
(1) There must be full utilization of the
Court working hours. The Judges must
be punctual and lawyers must not be
asking for adjournments, unless it is
absolutely necessary. Grant of
adjournment must be guided strictly by
the provisions of Order 17 of the Civil
Procedure Code.
(2) Many cases are filed on similar
points and one judgment can decide a
large number of cases. Such cases
should be clubbed with the help of
technology and used to dispose other
such cases on a priority basis; this will
substantially reduce the arrears.
Similarly, old cases, many of which have
become infructuous, can be separated
and listed for hearing and their disposal
normally will not take much time. Same
is true for many interlocutory
applications filed even after the main
cases are disposed of. Such cases can
be traced with the help of technology
and disposed of very quickly.
(3) Judges must deliver judgments
within a reasonable time and in that
matter, the guidelines given by the apex
Court in the case of Anil Rai vs. State of
Bihar, (2001)7 SCC 318 must be
scrupulously observed, both in civil and
criminal cases.
(4) Considering the staggering arrears,
vacations in the higher judiciary must be
curtailed by at least 10 to 15 days and
the Court working hours should be
extended by at least half-an-hour.
(5) Lawyers must curtail prolix and
repetitive arguments and should
supplement it by written notes. The
length of the oral argument in any case
should not exceed one hour and thirty
minutes, unless the case involves
complicated questions of law or
interpretation of Constitution.
(6) Judgments must be clear and
decisive and free from ambiguity, and
should not generate further litigation.
We must remember Lord Macaulay's
statement made about 150 years ago.
"Our principle is simply this-
Uniformity when you can have it,
Diversity when you must have it,
IN all cases, Certainty"
(7) Lawyers must not resort to strike
under any circumstances and must follow
the decision of the Constitution Bench of
the Supreme Court in the case of Harish
Uppal (Ex-Capt.) vs. Union of India
reported in (2003)2 SCC 45.
80. The Division Bench of this Court in the case of
E.Ram Mohan Chowdry vs. Registrar General, High Court
of Karnataka, reported in AIR 2008 KAR 195, while
considering the provisions of Section 51(3) of the States
Reorganization Act, 1956, at paragraph 7 held as under:
"7. In the case of Narayan Shamrao Puranik (supra),
the notification issued by the Chief Justice of Bombay
High Court, in exercise of the power under Section
51(3) of the Act, with the prior approval of the
Governor of Maharashtra, directing that the Judges
and Division Courts of the High Court of Bombay, will
sit also at Aurangabad, with effect from August 27,
1981 for the disposal of cases arising out of the
Marathwada region of the State of Maharashtra
which was struck down by the Bombay High Court by
its judgment dated 14-12-1981, was the subject
matter of consideration. Interpreting Section 51(3)
of the Act, it was held by the Hon'ble Supreme Court
as follows:
"25. ...................... In contrast, the power of
the Chief Justice to appoint under sub-
section (3) of Section 51 of the Act the
sittings of the Judges and Division Courts
of the High Court for a new State at places
other than the place of the principal seat
or the Permanent Bench is in the
unquestioned domain of the Chief Justice,
the only condition being that he must act
with the approval of the Governor. It is
basically an internal matter pertaining to
the High Court, he has full power,
authority and jurisdiction in the matter of
allocation of business of the High Court
which flows not only from the provision
contained in sub-section (3) of Section 51
of the Act but inheres in him in the very
nature of things. The opinion of the Chief
Justice to appoint the seat of the High
Court for a new State at a place other than
the principal seat under sub-section (3) of
Section 51 of the Act must therefore
normally prevail because it is for the more
convenient transaction of judicial business.
The non obstante clause contained in sub-
section (3) of Section 51 gives an
overriding effect to the power of the Chief
Justice. There is no territorial bifurcation
of the High Court merely because the
Chief Justice directs under sub-section (3)
of Section 51 of the Act that the Judges
and Division Courts shall also sit at such
other places as he may with the approval
of the Governor, appoint. It must
accordingly be held that there was no
territorial bifurcation of the Bombay High
Court merely because the Chief Justice by
the impugned notification issued under
sub-section (3) of Section 51 of the Act
directed that the Judges and Division
Courts shall also sit at Aurangabad. The
Judges and Division Courts at Aurangabad
are part of the same High Court as those
at the principal seat at Bombay and they
exercise jurisdiction as Judges of the High
Court of Bombay at Aurangabad. The Chief
Justice acted within the scope of his
powers. We see no substance in the
charge that the impugned notification
issued by the Chief Justice under sub-
section (3) of Section 51 of the Act was a
colourable exercise of power."
(Emphasis supplied by us)
Noticing the decision of the Bombay High Court in
the case of Seth Manji Dana v. C.I.T., Bombay in
Civil Appeal No. 995 of 1957, decided on July 22,
1958 and the Full Bench decision of the Kerala High
Court in the case of Manickam Pillai Subbayya
Pillai v. Assistant Registrar, High Court, Kerala,
Trivandrum, AIR 1958 Ker 188, the Hon'ble Supreme
Court has held as follows:
"27. In Manickam Pillai case, the Kerala
High Court held that the curtailment of the
territorial jurisdiction of the main seat of
the High Court of a new State is a
necessary concomitant to the
establishment of a Permanent Bench
under sub-section (2) of Section 51 of the
Act while contrasting sub-section (3) with
sub-section (2). There, a question arose
whether the temporry Bench of the High
Court of Kerala with its principal seat at
Ernakulam created by the Chief Justice at
Trivandrum by an order issued under sub-
section (3) of Section 51 of the Act was
not the High Court of Kerala, and the
Judges and Division Courts sitting at
Trivandrum were precisely in the same
position as Judges and Division Courts
sitting in the several court-rooms of the
High Court at its principal seat in
Ernakulam. In other words, the contention
was that the Judges and Division Courts
sitting at Trivandrum could only hear and
dispose of such cases as were directed to
be posted before them by the Chief Justice
but no new case could be instituted there.
Raman Nayar, J. (as he then was)
speaking for the Court held that the
Trivandrum Bench was not the High Court
of Kerala and the Judges and Division
Courts sitting at Trivandrum could hear
and dispose of only such cases as may be
assigned to them. With respect, we are of
the opinion that the view expressed by
Chagla. C.J. in Manji Dana case, is to be
preferred. Chagla, C.J., rightly observes
that the Judges and Division Courts at a
temporary Bench established under sub-
section (3) of Section 51 of the Act
function as Judges and Division Courts of
the High Court at the principal seat, and
while so sitting at such temporary Bench
they may exercise the jurisdiction and
power of the High Court itself in relation to
all the matters entrusted to them."
(Emphasis supplied by us)
Hon'ble Supreme Court has concluded as follows:
28. ............... order passed by the High
Court is set aside and the writ petition
filed by respondent 1 is dismissed. In
terms of the Order passed by us on May 4,
1982 ((1982) 2 SCC 440), we direct that
in accordance with the notification issued
by the Chief Justice of High Court of
Bombay dated August 27, 1981. The
sittings of the Judges and Division Courts
may be held and continue to be held at
Aurangabad with full and normal powers
to entertain and dispose of all matters
arising out of the Marathwada region, that
is to say, the area comprising the districts
of Aurangabad, Bhir, Jalna, Nanded,
Osmanbad and Parbani. All cases
pertaining to that region and pending as
on May 4, 1982 at the main seat of the
High Court at Bombay shall be dealt with
and disposed of as the Chief Justice of the
High Court may direct, consistently with
the terms of the aforesaid notifiction dated
August 27, 1981."
(Emphasis supplied by us)
Hence, it is apparent that, by virtue of the power
conferred on the Chief Justice under sub-section (3)
of Section 51 of the Act, the Chief Justice can
establish a Bench or Benches, at such place or places
where the Judges and Division Courts may sit and
that he has the power and authority to issue
administrative directions for the filing of cases or
institution of proceedings at such place or places. By
that process, there will be no territorial bifurcation of
the High Court of Karnataka, merely because of the
arrangement made in terms of the impugned
notification. Hon'ble Supreme Court in the case
of State of Rajasthan v. Prakash Chand reported in
(1998) 1 SCC 1 : (AIR 1998 SC 1344) has held that,
the Hon'ble Chief Justice of the High Court has the
prerogative to distribute the business of the High
Court, both judicial and administrative, that the Chief
Justice is the Master of the Roster and that he alone
has the right and power to decide how the Benches
of the High Court are to be constituted, which Judge
has to sit along and which cases he can and as
required to hear and also as to which judges shall
constitute a Division Bench and what work those
Benches shall do. In exercise of the said prerogative,
right and power, if the Chief Justice of the High Court
of Karnataka has directed that cases arising from
certain districts shall be heard and decided by the
Judges sitting at a particular Circuit Bench, it cannot
held to be wrong or illegal. There is nothing wrong in
specifying that new cases arising from certain
districts shall be filed at the particular Circuit Bench,
as those cases are to be, heard and decided by the
Judges sitting at that Circuit Bench. Such an
arrangement, is for administrative convenience and
the advantage of the litigants. After all, the Courts
are for the benefit of the litigant public and hence
their convenience should be the paramount
consideration. The impugned notification is a positive
and concrete step to achieve the goal of providing
easy and less expensive access to justice."
81. The Hon'ble Supreme Court while considering the
provisions of Articles 32 and 226 of the Constitution of India,
with regard to Public Interest Litigation, in the case of The
Janata Dal vs. H.S. Chowdhary reported in AIR 1993 SC 892
at paragraphs 96, 107, and 108, held as under:
"96. While this Court has laid down a chain of
notable decisions with all emphasis at their
command about the importance and significance of
this newly-developed doctrine of PIL, it has also
hastened to sound a red alert and a note of severe
warning that courts should not allow its process to
be abused by a mere busybody or a meddlesome
interloper or wayfarer or officious intervener without
any interest or concern except for personal gain or
private profit or other oblique consideration.
107. It is thus clear that only a person acting
bona fide and having sufficient interest in the
proceeding of PIL will alone have a locus standi and
can approach the court to wipe out the tears of the
poor and needy, suffering from violation of their
fundamental rights, but not a person for personal
gain or private profit or political motive or any
oblique consideration. Similarly, a vexatious petition
under the colour of PIL brought before the court for
vindicating any personal grievance, deserves
rejection at the threshold.
108. It is depressing to note that on account of
such trumpery proceedings initiated before the
courts, innumerable days are wasted which time
otherwise could have been spent for the disposal of
cases of the genuine litigants. Though we are second
to none in fostering and developing the newly
invented concept of PIL and extending our long arm
of sympathy to the poor, the ignorant, the oppressed
and the needy whose fundamental rights are
infringed and violated and whose grievances go
unnoticed, unrepresented and unheared; yet we
cannot avoid but express our opinion that while
genuine litigants with legitimate grievances relating
to civil matters involving properties worth hundreds
of millions of rupees and criminal cases in which
persons sentenced to death facing gallows under
untold agony and persons sentenced to life
imprisonment and kept in incarceration for long
years, persons suffering from the undue delay in
service matters, Government or private persons
awaiting the disposal of tax cases wherein huge
amounts of public revenue or unauthorised collection
of tax amounts are locked up, detenus expecting
their release from the detention orders etc. etc. --
are all standing in a long serpentine queue for years
with the fond hope of getting into the courts and
having their grievances redressed, the busybodies,
meddlesome interlopers, wayfarers or officious
interveners having absolutely no public interest
except for personal gain or private profit either for
themselves or as proxy of others or for any other
extraneous motivation or for glare of publicity break
the queue muffling their faces by wearing the mask
of public interest litigation, and get into the courts by
filing vexatious and frivolous petitions and thus
criminally waste the valuable time of the courts and
as a result of which the queue standing outside the
doors of the Court never moves which piquant
situation creates a frustration in the minds of the
genuine litigants and resultantly they lose faith in the
administration of our judicial system."
82. The Hon'ble Supreme Court, while considering the
Public Interest Litigation under Articles 32 and 226 of the
Constitution of India, in the case of State of Uttaranchal vs.
Balwant Singh Chauful and others reported in (2010) 3 SCC
402, at paragraphs 181 issued directions as under:
"181. We have carefully considered the facts of
the present case. We have also examined the law
declared by this Court and other courts in a number
of judgments. In order to preserve the purity and
sanctity of the PIL, it has become imperative to issue
the following directions:
(1) The Courts must encourage
genuine and bona fide PIL and effectively
discourage and curb the PIL filed for
extraneous considerations.
(2) Instead of every individual Judge
devising his own procedure for dealing
with the public interest litigation, it would
be appropriate for each High Court to
properly formulate rules for encouraging
the genuine PIL and discouraging the PIL
filed with oblique motives. Consequently,
we request that the High Courts who
have not yet framed the rules, should
frame the rules within three months. The
Registrar General of each High Court is
directed to ensure that a copy of the
rules prepared by the High Court is sent
to the Secretary General of this Court
immediately thereafter.
(3) The Courts should prima facie
verify the credentials of the petitioner
before entertaining a PIL.
(4) The Courts should be prima facie
satisfied regarding the correctness of the
contents of the petition before
entertaining a PIL.
(5) The Courts should be fully
satisfied that substantial public interest is
involved before entertaining the petition.
(6) The Courts should ensure that the
petition which involves larger public
interest, gravity and urgency must be
given priority over other petitions.
(7) The Courts before entertaining the
PIL should ensure that the PIL is aimed
at redressal of genuine public harm or
public injury. The Court should also
ensure that there is no personal gain,
private motive or oblique motive behind
filing the public interest litigation.
(8) The Courts should also ensure that
the petitions filed by busybodies for
extraneous and ulterior motives must be
discouraged by imposing exemplary
costs or by adopting similar novel
methods to curb frivolous petitions and
the petitions filed for extraneous
considerations."
83. Keeping the aforesaid principles laid down by the
Hon'ble Supreme Court and the provisions of States
Reorganization Act, 1956, Mysore High Court Act, 1884 and
Karnataka High Court Act, 1961, and on careful perusal of the
pleadings, it is pertinent to note that, except the petitioner who
is a practicing advocate, no other advocates who are practicing
within the jurisdiction of Dharwad and Kalaburagi-consisting of
12 Districts (110 talukas) or none of the litigants have any
grievance about establishment of Circuit/Permanent Benches and
none of the Bar Associations at Taluka and District places
including Dharwad and Kalaburagi have any grievance. A careful
perusal of the pleadings in the writ petition filed by the petitioner
is mainly on the basis of Jaswantsingh report and the dictum of
the Hon'ble Supreme Court in the case of Federation of Bar
Association in Karnataka. In the said case, the Hon'ble Supreme
Court while considering the report submitted by the five Judges
committee constituted by the then Hon'ble Chief Justice of
Karnataka and while exercising powers under Article 32 of the
Constitution held that the High Court is the best suited
machinery to decide whether it is necessary and feasible to have
a bench outside the principal seat of that High Court. The said
judgment is based on the report submitted by the committee
and there is no bar for the Chief Justice to decide whether it is
necessary and feasible to have a Bench outside the principal
seat of the High Court. The petitioner has not gone through the
subsequent report of the Justice G.C.Bharuka Committee and the
representations made by the President of Bar Association,
Dharwad and the recommendation made by Hon'ble Chief
Minister of Karnataka, and approval by His Excellency the
Governor of Karnataka and cabinet, Central Government and
Chief Justice of India. Distance of the geographical areas,
demography and other criteria and disparities in facilities, non
fulfilling of the long time cherished desire of the people of
northern Karnataka and greater anguish and frustration is not
noticed by the petitioner and has filed the present writ petition
against the "will of public at large," especially against the
citizens of northern Karnataka, as the petitioner is the resident
of Bengaluru. Without knowing the topography, problems faced
by the public at large the present writ petition is filed for his
personal glory and gain. Thereby, absolutely there is no public
interest made out in the present writ petition and in fact, "it is
against the public interest and against the people starving for
justice, ignoring the dictums of this Court and the Hon'ble
Supreme Court." Only a person acting bonafide and having
sufficient interest in the proceeding of PIL will alone have locus
standi and can approach the court to wipe out the tears of poor
and needy, suffering from violation of their fundamental rights.
Admittedly, though the present writ petition is filed as a Public
Interest Litigation, after going through the pleadings and
material placed on record, "it appears that this is nothing but to
bring the tears in the eyes of poor and needy who are suffering
from the violation of fundamental rights and starving for justice."
Thereby, the PIL brought before this Court is either for personal
gain of the petitioner or at the instance of somebody to ensure
the struck down of the establishment of the Circuit/permanent
benches at Dharwad and Kalaburagi, deserves rejection at the
threshold.
84. It is well settled that when people are aware of their
rights, their desire to get the rights realised is enhanced and
they would like to knock at the doors of the Court to shape their
aspiration into reality. Therefore, establishment of Dharwad
and Gulbarga Benches is the need of an hour and is a basic
requirement during the year 2008. The idea of speedy and
quality justice dispensation system cannot be treated with status
quoist approach. The consumers of justice expect prompt and
effective delivery of justice in an atmosphere that is acceptable.
Therefore, infrastructure enhancement will go a long way in
strengthening functioning of the court and would improve the
productivity in the justice delivery system. A court complex is
not just a building. It is the building of justice which breathes
and infuses life into the exalted and sublime ideals of justice.
The widening gap between the ideal and the real and between
the vision and the pragmatic realisation of justice has to be
bridged by proper access to justice for all. The said aspect of
the matter was not considered in the proper perspective by the
petitioner, who filed the present PIL. The present writ petition is
against the interest of the public at large. Therefore, the
petitioner is not entitled to any relief before this Court under the
extraordinary jurisdiction of this Court.
85. Deprivation of personal liberty without ensuring
speedy trial is not consistent with Article 21 of the Constitution
of India. While deprivation of personal liberty for some period
may not be avoidable, period of deprivation pending trial/appeal
cannot be unduly long. "At the same time, timely delivery of
justice is part of human rights and denial of speedy justice is
threat to public confidence in the administration of justice. As
held by the Hon'ble Supreme Court and this Court, the liberty
guaranteed in part III of the Constitution would cover within its
protective ambit not only due procedure and fairness, but also
access to justice and a speedy trial is imperative."
86. This Court directed the Registrar General, High Court
of Karnataka, to furnish the details and statistics pertaining to
constitution of Dharwad and Kalaburagi benches from the date of
establishment till date. The Statement showing the pendency of
Civil and Criminal Cases in the High Court of Karnataka,
Dharwad and Kalaburagi Benches, from 2008 till 28.02.2023, is
as under:
Dharwad Bench Kalaburagi Bench
Years Civil Criminal Total Civil Criminal Total
2008 18401 2365 20766 7301 862 8163
2009 34417 3089 37506 13696 963 14659
2010 48566 3848 52414 16538 1177 17715
2011 37096 1794 38890 12785 1244 14029
2012 40374 2088 42462 15742 1040 16782
2013 38076 2020 40096 15653 968 16621
2014 41648 2712 44360 17032 1315 18347
2015 44231 3446 47677 20254 1299 21553
2016 52755 3424 56179 22883 1477 24360
2017 59700 4384 64084 27608 1736 29344
2018 66333 5222 71555 30477 1687 32164
2019 72876 6188 79064 30343 2068 32411
2020 53056 6021 59077 20814 2198 23012
2021 48919 6233 55152 21158 1675 22833
2022 52190 6567 58757 22908 1844 24752
2022 51946 6640 58586 23898 1708 25606
(UP TO
28.02.2023
The amount spent annually for infrastructure and
maintenance of buildings at Dharwad Bench from 2007-2008 till
2022-23 is as under:
Dharwad Amount in Rupees
H/A:4059 35,13,58,135.68
Towards infrastructure
H/A:4216 29,72,91,779.10
H/A:2059 16,99,53,844.22
Towards maintenance H/A:2216 11,77,17,416.71
TOTAL 93,63,21,175.71
The amount spent annually for infrastructure and
maintenance of buildings at Kalaburagi Bench from 2007-2008
till 2022-23 is as under:
Kalaburagi Rupees in lakhs
H/A:4059 9576.54
Towards infrastructure
H/A:4216 264.35
H/A:2059 1890.32
Towards maintenance H/A:2216 875.75
TOTAL 12606.96
As per the Memo dated 20.03.2023 No.HCE 80/2018, duly
signed by Assistant Registrar, number of employees employed
both Dharwad and Kalaburagi benches:
Sanctioned strength Working strength
As per consolidated statement of expenses incurred by
Dharwad and Kalaburagi benches from the financial year 2008-
2009 till 2022-2023 as per the information furnished on
18.03.2023 is as under:
Expenditure incurred Rs.1,486,149,833
by Dharwad Bench
Expenditure incurred Rs.1,189,781,691
by Kalaburagi Bench
The approximate expenditure incurred towards salary,
allowances, etc., of the Hon'ble Judges sitting at Dharwad and
Kalaburagi Benches from the period from July 2008 to March
2003 (under the head of account:2014-00-102-0-01) is:
Dharwad Bench Rs.16,35,31,600
Kalaburagi Bench Rs.3,19,54,800
The approximate expenditure of travelling and daily allowances
in respect of Hon'ble Judges is:
Dharwad Bench Rs.63,937,701
Kalaburagi Bench Rs.39,373,660
Approximate expenditure incurred towards salary, allowances
etc., paid to Officers/officials for the period from July 2008 till
March 2023 is:
Dharwad Bench Rs.1570685105
Kalaburagi Bench Rs.1002980707
Approximate expenditure incurred towards travelling allowance
and daily allowances paid to Officers/officials for the period from
July 2008 till March 2023 is:
Dharwad Bench Rs.9,780,059.00
Kalaburagi Bench Rs.7,110,357.00
87. In pursuance of the order dated 3.3.2023 passed by
this Court, the Registry of High Court of Karnataka has furnished
the details by way of memo dated 23.3.2023 alongwith
Annexures-A to E/statements. The statement produced at
Annexure-A clearly indicate that at the inception of
establishment of Circuit Benches in the year 2008, 20,766
cases (18401 civil cases and 2365 criminal cases) were pending
in the Dharwad Bench and 25606 cases (23898 civil cases and
1708 criminal cases) were pending in the Kalaburagi Bench.
"The pendency statement also depicts that as on 28.2.2023,
58,586 cases (51946 civil cases and 6640 criminal cases) were
pending in the Dharwad Bench and 25,606 cases were pending
in the Kalaburagi Bench. These figures clearly indicate that from
the year 2008 till 28.2.2023, filing of both civil and criminal
cases have increased in view of establishment of Benches in the
northern Karnataka. As the Courts came to their doorsteps, the
awareness of legal rights has increased in the citizens of north
Karnataka and accordingly, the litigants approached the Courts
with great expectation for speedy and qualitative justice. Today,
the judiciary is repository of public faith. It is the trustee of the
people. It is the last hope of the people. After every knock at
all the doors fail people approach the judiciary as the last resort.
It is the only temple worshipped by every citizen of this nation,
regardless of religion, caste, sex or place of birth."
88. The statements furnished by the Registry of the
High Court of Karnataka at Annexures-B and B1 clearly depict
that the State Government spent Rs.93,63,21,175=71 at
Dharwad Bench and 12,606.96 lakhs at Kalaburagi Bench for
infrastructure and maintenance of buildings from the year 2007-
08 to 2022-23. Further, the information furnished by the
Registry as per Annexure-C depicts that the working strength of
officers/officials at Dharwad and Kalaburagi Benches is 325 and
193 respectively. Annexure-E depicts that the expenditure
incurred to Dharwad and Kalaburagi Benches from 2008-09 to
2022-23 is Rs.1,486,149,833/- and Rs.1,189,781,691/-
respectively.
Further, the information furnished by the Registry of High
Court of Karnataka by way of memo dated 11th April 2023
indicates that the approximate expenditure incurred towards
salary, allowances etc., of the Hon'ble Judges sitting at Dharwad
and Kalaburagi Benches from July-2008 till March-2023 is
Rs.16,35,31,600/- and Rs.3,19,54,800/- respectively. The
approximate expenditure of traveling and daily allowances of
Hon'ble Judges sitting at Dharwad and Kalaburagi Benches is
Rs.63,937,701/- and Rs.39,373,660/- respectively. The
approximate expenditure incurred towards salary, allowances
etc, to the officers/officials working in Dharwad and Kalaburagi
Benches from 2008 till March-203 is Rs.1570685105/- and
Rs.1002980707/- respectively. The approximate expenditure
incurred towards travelling allowance and daily allowances to the
officers/officials working in Dharwad and Kalaburagi Benches
during the above period is Rs.9,780,059/- and Rs.7,110,357/-
respectively.
89. The constitutional authorities taking into
consideration various factors and in the interest of litigant public
at large has established Circuit Benches at Dharwad and
Gulbarga, which later converted into permanent benches.
Government has spent crores of rupees for establishing the
Circuit Benches at Dharwad and Gulbarga as stated supra and
the citizens of North Karnataka are agitating their rights before
the said Courts and getting timely justice to their door steps.
The distance from Bangalore (which is the principal seat of the
High Court of Karnataka) to various district centres of North
Karnataka ranges between 425-613 kilometers and hence
litigants from all those districts have to travel a long distance to
reach the principal seat of the High Court at Bangalore and it is
highly expensive besides being time-consuming for such seekers
of justice. In the circumstances, it is not open for the petitioner
to contend that the establishment at Kalaburagi and Dharwad is
futile exercise. Infact lakhs of people are benefited by the
establishment of the Courts at Dharwad and Kalaburagi and the
people of north Karnataka are happy as the Courts are
established at their doorsteps and as a result, the litigants need
not travel long distances spending huge expenses. The
establishment of Benches at Dharwad and Gulbarga should not
be construed as an investment for returns at all, but should only
be taken as "Pro Bono Publico measure." It is the duty of the
State Government/constitutional authorities to help the litigants
and absolutely there is no profit motive and the establishment of
Benches at Dharwad and Gulbarga is a "public welfare measure."
Establishment of courts benefit the litigant public and justice
delivery at the doorstep is the objective of the State.
Admittedly, the circuit benches were established in the year
2008 and now we are in the year 2023 and more than 14 years
has elapsed and the citizens of North Karnataka are happy to
urge their rights in the courts established near their doorsteps
and the clock of the judicial system at Dharwad and Kalaburagi
is complete.
90. The High Court is the best suited machinery to
decide whether it is necessary and feasible to have a bench
outside the principal seat of that High Court as held by the
Hon'ble Supreme Court in the case of Federation of Bar
Associations in Karnataka -vs- Union of India reported in
(2000)6 SCC 715. In the present case, the then Chief Justice
constituted seven members committee to look into the matter
and majority of five judges supported the establishment of
circuit Benches and the Hon'ble Chief Justice recommended for
establishment of circuit benches. Accordingly, in consultation
with the State Government and the Chief Justice of India, the
President of India passed necessary orders and the same is in
accordance with law and the petitioner is not entitled to any
relief in the present writ petition.
XI - Regarding the judgments relied upon by the
learned counsel for the petitioner
91. (i) Insofar as the judgment relied upon by the
learned counsel for the petitioner in the case of Federation Bar
Associations in Karnataka -vs- Union of India reported in
(2000)6 SCC 715, it was a case where a Committee of five
Judges constituted by the then Chief Justice of Karnataka High
Court submitted a report in June-2000 disfavouring the proposal
for establishment of a separate Bench away from the principal
seat of the High Court and the same was agreed by the Hon'ble
Chief Justice and that was challenged before the Hon'ble
Supreme Court by Federation of Bar Associations in Karnataka,
which came to be dismissed on the ground that establishment of
a Bench of the High Court away from Bangalore is inadvisable,
but observed that High Court is the best suited machinery to
decide whether it is necessary and feasible to have a bench
outside the principal seat of that High Court. Admittedly,
Federation of Bar Associations in Karnataka is not a party to the
present proceeding and the said judgment does not bar the
Hon'ble Chief Justice of the High Court to constitute the new
committee and also for establishment of circuit
benches/permanent Benches outside the principal seat of the
High Court. In the present case, subsequently majority of
seven-member committee favoured establishment of benches
and same was agreed by the Hon'ble Chief Justice , thereby the
said judgment has no application to the facts and circumstances
of the present case.
(ii) In the case of S.R. Bhagwat -vs- State of Mysore
reported in AIR 1996 SC 188, the Hon'ble Supreme Court while
considering Article-246 of the Constitution of India held that
Section 11(2) of Karnataka State Civil Services (Regulation of
Promotion, Pay and Pension) Act, 1975 tries to do away with
judgments, decrees and orders of any Court which has become
final against the State and such exercise of power is
impermissible. In the present case, the judgment in the case of
Federation of Bar Association is based on the committee
report and not on any final decision taken by the jurisdictional
authorities. Therefore, the judgment in the case of S.R.
Bhagwat is not applicable to the peculiar facts and
circumstances of the case.
(iii) In yet another judgment relied upon by the learned
counsel for the petitioner in the case of Union of India -vs-
K.M. Shankarappa reported in (2001)1 SCC 582, the Hon'ble
Supreme Court held that a judicial pronouncement cannot be
malafide by the Executive or the Legislature. We have no
dispute with regard to the law laid down by the Hon'ble Supreme
Court, but in the present case, there is no judicial
pronouncement not to establish the circuit benches at Dharwad
and Kalaburagi for ever.
(iv) Learned counsel for the petitioner relied upon Fourth
Report of Law Commission of India, wherein it is observed that
the structure and composition of the Courts should not be
permitted to be influenced by political considerations and that
this has happened in the past in certain cases can be no valid
ground for the extension of that policy. Therefore, learned
counsel submits that setting of Benches at different seats is
undesirable. In this regard, Deputy Solicitor General of India
has produced Government of India - Law Commission of India
Report No.230, where the Law Commission was constituted
consisting of Chairman, Member Secretary and others and it has
given some suggestions for reforms in the Judiciary. In the
report, it is stated that a speedy trial is not only required to give
quick justice, but it is also an integral part of fundamental right
of life, personal liberty as envisaged in Article 21 of the
Constitution. Traditional concept of 'access to justice' as
understood by common man is access to Courts of Law. For a
common man, a Court is a place where justice is meted out to
him/her. A lawyer in addition to being champion at the various
laws also has a social responsibility of helping the ignorant and
the unprivileged to attain justice. Article 39A of the Constitution
of India provides for equal justice and free legal aid. It obligates
the State to promote justice on a basis of equal opportunity and
in particular provide free legal aid by suitable legislation or
schemes or in any other way, to ensure that opportunities for
securing justices are not denied to any citizen by reason of
economic or other disabilities. The report further emphasises
that the constitutional promise of securing to all its citizens,
justice, social, economic and political as promised in the
Preamble of the Constitution, cannot be realised, unless three
organs of the State i.e., Legislature, Executive, Judiciary, join
together to find ways and means for providing the Indian poor,
equal access to its justice system. The report further
emphasises need of:
• Speedy justice
• Reduction in cost of litigation,
• Systematic running of the courts
• Faith in judicial system and Other recommendations.
Thereby, the latest report of the Law Commission of India in
August, 2009 prevails than the reports relied upon by the
learned Counsel for the petitioner.
(v) The other judgments relied upon by the learned
Counsel for the petitioner are: (i) South India Corporation-
vs- Secretary, Board of Revenue reported in AIR 1964 SC
207 and (ii) Petroleum and National Gas Regulatory
Authority -vs- Indraprastha reported in AIR 2015 SC 2978
with regard to reasonable interpretation of the constitutional
provisions of Section 69 of the State Re-organisation Act, we
have no quarrel, but the said judgments have no application to
the facts and circumstances of the present case.
(vi) Another judgment relied upon by the learned Counsel
for the petitioner in the case of Manickam Pillai Subbayya
Pillai -vs- Assistant Registrar, High Court, Kerala,
Trivandrum reported in 1958 Kerala 188, to the effect that
that in view of Section 51(3) SR Act, there cannot be a separate
registry for establishment of Circuit Bench, which was dealt and
negatived in the State of Maharastra stated supra by the Apex
Court at paragraph-27 wherein it was held as under:
"27. the curtailment of the territorial jurisdiction
of the main seat of the high Court of a new State
is a necessary concomitant to the establishment
of a permanent bench under sub-section (2) of
Section 51 of the Act while contrasting sub-
section (3) with sub-section (2). There, a question
arose whether the temporary Bench of the High
court of Kerala with its principal seat at
Ernakulam created by the Chief Justice at
Trivandrum by an order issued under sub-section
(3) of Section 51 of the Act was not the high
Court of Kerala, and the Judges and division
Courts sitting at Trivandrum were precisely in the
same position as Judges and division Courts
sitting in the several courtrooms of the High Court
at its principal seat in Ernakulam. In other words,
the contention was that the Judges and Division
Courts sitting at Trivandrum could only hear and
dispose of such cases as were directed to be
posted before them by the Chief Justice but no
new case could be instituted there. Raman nayar,
J. (as he then was) speaking for the court held
that the Trivandrum Bench was not the High
Court of Kerala and the Judges and division
Courts sitting at Trivandrum could hear and
dispose of only such cases as may be assigned to
them. With respect, we are of the opinion that the
view expressed bv Chagla. C. J. in Manii Dana
case, is to be preferred. Chagla. C. J. rightly
observed that the Judges and Division Courts at a
temporary Bench established under sub-section
(3) of Section 51 of the Act function as Judges
and Division courts of the High Court at the
principal seat. and while so sitting at such
temporary Bench they may exercise the
jurisdiction and power of the High Court itself in
relation to all the matters entrusted to them. "
Admittedly in the present case as already stated supra, the
Circuit Benches at Dharwad and Kalaburagi subsequently made
as Permanent Benches are part and parcel of Principal Bench of
High Court of Karnataka at Bengaluru and only one Registrar
General is working for all the three Benches, except appointing
Additional Registrars at the Benches. Thereby, the said
judgment has no application to the facts and circumstances of
the present case.
(vii) Though the learned Counsel for the petitioner at one
breadth states that the provisions of S.R. Act is applicable, but at
another breadth states that after 47 years, the provisions of S.R.
Act are not applicable and placed reliance on the judgments of
the Hon'ble Supreme Court in the case of Municipal
Corporation for City of Pune and Another -vs- Bharat
Forge Co. Ltd., and Others reported in AIR 1996 SC 2856
and in the case of State of MP -vs- Bhopal Sugar Industries
Ltd., reported in AIR 1964 SC 1179, but the said judgments
have no application to the facts and circumstances of the present
case in view of the specific reasons stated supra.
(viii) The other two judgments in the case of Shri
Swamiji of Shri Admar Mutt, etc., -vs- The Commissioner,
Hindu Religious and Charitable Endowments Dept and
Others reported in AIR 1980 SC 1 to the effect that the
provisions of S.R. Act cannot be applied for temporary measure
or temporary purpose as well as in the case of Motor General
Traders and Another -vs- State of A.P. and Others
reported in AIR 1994 SC 121(1).
92. As already stated supra, all the demands made by the
citizens of North Karnataka, the then Chief Justice constituted a
Committee of 7 members, the committee has taken pains to visit
all the places after considering the pros and cons, and
considering Justice Jaswanth Singh Commission Report and the
judgments of the Hon'ble Supreme Court, President of Bar
Association opined that there was a necessity to constitute
Circuit Benches both at Dharwad and Kalaburagi and
subsequently made as Permanent Benches and the said Benches
as part and parcel of the Principal Seat, Bengaluru High Court
and thereby the said judgments have no application to the facts
and circumstances of the present case.
93. With regard to other judgments relied upon by the
learned Counsel for the petitioner, in view of the peculiar facts
and circumstances of the present case and the fact that the
Circuit Benches have become Permanent Benches and are
working for more than 14 years providing speedy and timely
access to justice to the citizens of the Northern Karnataka, they
have no application to the facts and circumstances of the present
case.
94. The Hon'ble Supreme Court in the case of Dattaraj
Nathuji Thaware -vs- State of Maharashtra and Others
reported in AIR 2005 SC 540 held that the petitioner, who
comes to the Court for reliefs in interest must come not only
with clean hands like any other writ petitioner, but also with a
clean heart, clean mind and clean objective and further observed
that, it is high time for the Bar Councils and Bar Associations to
ensure that no Member of the Bar becomes party as the
petitioner or in aiding and/or abetting filing frivolous petitions,
carrying the attractive brand name of 'Public Interest Litigation'.
95. In view of the above dictum, the petitioner is not
entitled for any relief before this Court and the writ petition is
liable to be dismissed.
96. The Hon'ble Supreme Court in the case of R.N.
Godavarman Thirumalpad -vs- Union of India reported in
AIR 2006 SC 1774 held that a person acting bonafide alone
can approach the Court in public interest. Such a remedy is not
open for unscrupulous person, who acts, in fact, for someone
else. In the peculiar facts and circumstances of the present
case, we see no bonafide on the part of the petitioner that too a
practicing advocate of this Court to file a public interest
litigation, infact, it is against public interest at large, who were
starving for tension free life through speedy justice delivery
system and access to justice. On that ground also, the writ
petition is liable to be dismissed.
97. It is relevant to state at this stage that the
establishment of Benches at Dharwad and Kalaburagi ensures
speedy and qualitative justice to the needy citizens of North
Karnataka to their door steps, creates an opportunity to the
many young advocates to excel themselves by assisting the
Hon'ble Judges in achieving the object of justice delivery system
and after establishment of Circuit Benches at Dharwad and
Kalaburagi, the accomplished advocates have been elevated as
Hon'ble Judges of this Court and thereby, distributive justice has
been rendered to all the regions. Therefore, the establishment
of Circuit Benches - Permanent Benches at Dharwad and
Kalaburagi has fulfilled the object of Preamble of the Constitution
of India.
XIII - CONCLUSION
98. For the reasons stated above, the points raised in the
present writ petition is answered in the negative holding that
the petitioner has not made any public interest to quash the
notification dated 19.10.2014, Annexure-E and the notification
dated 4.6.2008 Annexure-F issued by the Chief Justice of
Karnataka and the Presidential Order dated 8.8.2013 Annexure-
M issued by the President of India in exercise of powers
conferred under Sub-section (2) of Section 51 of the State Re-
organization Act, 1956 and the petitioner has not made out any
case to issue writ of mandamus directing the 5th respondent to
conduct performance audit including financial audit with regard
to investment, expenditure and functional viability of the
Benches at Dharwad and Kalaburagi and it's sustenance is in
public interest in exercise of extra ordinary jurisdiction of this
Court under Articles 226 and 227 of the Constitution of India.
99. In view of the facts and circumstances of the present
case and the petitioner, who wasted public precious time in filing
frivolous public interest litigation to struck down the Benches at
Dharwad and Kalaburagi, though this Court is inclined to impose
heavy costs on the petitioner, but taking into consideration that
the petitioner is aged about 62 years as on today and he has
become senior citizen and infact earlier had filed genuine public
interest litigations to protect the interest of the general public at
large, we decline to impose any costs on him with an advise to
the petitioner - practicing advocate to be cautious in future in
filing such frivolous litigations and shall ensure to protect
precious time of the Court as the Court is not anybody's personal
property, but it is a Divine of Temple. People approach the
Court after every knock to all the doors as a last resort. It is the
temple worshipped by every citizen of this nation regardless of
religion, caste, sex or place of birth.
100. The application - I.A. No.I/2016 for impleading filed
by the applicant, who is the resident of Raichur in support of
establishment of Dharwad and Kalaburagi Circuit Benches, does
not survive for consideration as this Court has not granted any
relief in favour of the petitioner. Accordingly, it has to be
disposed off.
101. The services rendered by Sri V.R. Datar, learned
counsel for the petitioner; Sri H. Shanthi Bhushan, Deputy
Solicitor General of India for Respondent Nos.1 and 5; Sri Dhyan
Chinnappa, learned Additional Advocate General a/w Sri Kiran
Kumar, learned HCGP for Respondent No.4; Sri S.S. Naganand,
learned senior counsel a/w Sri S.G. Prashanth Murthy and Smt.
Sumana Naganand, learned counsel for Respondent Nos.2 and
3; AND Sri Karthik Yadav U, learned advocate for Sri S.K.
Venkata Reddy, learned advocate for Respondent No.6, to arrive
at this conclusion is appreciated and placed on record
XIV - RESULT
102. In view of the above, we pass the following:
(i) Writ Petition is dismissed as being devoid of
any merit;
(ii) Consequently, I.A.1/2016 for impleading does
not survive for consideration and accordingly,
it is disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
Para Nos.1 to 3... Nsu
14 to 51 ... gss
52 to 86... Kcm
87 to 91(iv)... gss
91(v) to end ... Nsu
