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N. Bhaktavatsalam and ors. Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 107 of 1961
Judge
Reported inAIR1964AP469
ActsMadras Civil Courts Act, 1873 - Sections 4, 5 and 11
AppellantN. Bhaktavatsalam and ors.
RespondentThe State of Andhra Pradesh and anr.
Appellant AdvocateA. Kuppuswamy and ;N.K. Acharya, Advs.
Respondent AdvocateD. Narasa Raju, Adv. General and P. Ramachandra Reddi, Govt. Pleader
DispositionAppeal dismissed
Excerpt:
civil - jurisdiction - sections 4, 5 and 11 of madras civil courts act, 1873 - state government incompetent to decide upon place at which a district munsif's court be located - jurisdiction lies with high court - government notification did not result in fixing of temporary location of district's munsif's court - notification only provided for continuation of court already in location fixed by high court - notification issued not beyond jurisdiction of state government. - .....act iii of 1873) hereby directs that with effect on and from the date on which the district munsif, avanigadda, posted takes charge the courts mentioned in column 2 of the table below shall have and exercise jurisdiction over the areas shown in column 3 thereof.serial no.name of the court area over which itexercises jurisdiction.1.district munsif's court, masulipatam.(a) bandar taluk. (b) kapileswaram firka of gannava-ram taluk (comprising of 243 villages).2.district munsif's court, avangadda. divi taluk,'immediately thereafter, the present writ petition attacking the validity of the notification of the government dated 9-10-1961, was filed, inter alia, on the ground that the impugned notification is illegal and opposed to the provisions of the madras civil courts act.5. it was.....
Judgment:

Chandra Reddy, C.J.

1. This is an appeal against the order of our learned brother Seshachelapati, J., dismissing a petition for the issue of a Writ of Mandamus directing the 1st respondent to forbear from giving effect to G. O. Rt. No. 2957 Home (Courts-I) Department, dated 9-10-1961 or, in the alternative, to call for the records and issue a Writ of Certiorari to quash the above said G. O.

2. The facts material for the purpose of this enquiry are these. In July 1960, the State Government sanctioned an additional District Munsif's Court for the Krishna District for six months and it was located at Avanigadda in Divi Taluk with jurisdiction over the whole of that taluk which was till then being exercised before by the Court of the District Munsif, Masulipatam. The duration of the temporary Court was extended by subsequent notifications upto 30th June, 1961. As no orders were received from the State Government for the continuance of the temporary Court in September, 1961, the High Court issued the following notification:-

'Consequent on the abolition of the District Munsif-Cum-First Class Magistrate's Court at Avanigadda and in partial modification of the High Court's notification Roc. No. 516/59-EI dated 1-8-1960, the High Court in exercise of the powers conferred by Section 11 of the Madras Civil Courts Act, 1873 (Central Act III of 1873) hereby directthat with effect on and from 1-10-1961 the territorial limits of the District Munsif's Court at Masulipatam, shall include the area covered by the entire revenue taluk of Divi.'

3. In accordance with this notification, Avanigadda District Munsif's Court was closed on 30th September, 1961. On 9-10-1961 the State Government issued the notification which is the subject-matter of challenge in this case.

4. This led to the High Court issuing the notification Roc. No. 579/61-EI, dated 13-10-1961 in these words:-

'The High Court in exercise of the powers conferred under Section 11 of the Madras Civil Courts Act, 1873 (Central Act III of 1873) hereby directs that with effect on and from the date on which the District Munsif, Avanigadda, posted takes charge the Courts mentioned in column 2 of the table below shall have and exercise jurisdiction over the areas shown in column 3 thereof.

Serial No.Name of the Court Area over which itexercises jurisdiction.

1.District Munsif's Court, Masulipatam.(a) Bandar Taluk. (b) Kapileswaram firka of Gannava-ram Taluk (comprising of 243 villages).2.District Munsif's Court, Avangadda. Divi Taluk,'

Immediately thereafter, the present writ petition attacking the validity of the notification of the Government dated 9-10-1961, was filed, inter alia, on the ground that the impugned notification is illegal and opposed to the provisions of the Madras Civil Courts Act.

5. It was urged in support of the petition that the notification which directed the holding of an Additional District Munsif's Court at a particular place, is ultra vires the powers of Government, the authority to determine the place at which a Court should be located being vested inthe High Court under the Madras Civil Courts Act and that in directing the location of the Court at Avanigadda, the State Government usurped the jurisdiction which pertains to the High Court of Andhra Pradesh. This argument did not find acceptance with our learned brother who expressed the opinion that the State Government merely sanctioned the continuance of the temporary Court and that it was the High Court that fixed the locality of the Court at Avanigadda and issued the notification fixing the jurisdiction of that Court. In the result he dismissed the writ petition. This view of the learned Judge is canvassed in this appeal.

6. The learned counsel for the appellant repeats the contention which was raised before the learned Judge. For an appraisal of the respectivecontentions, it is necessary to quote the relevant provisions of the Madras Civil Courts Act. Section 4 of the Act recites:-

'The number of Subordinate Judges and District Munsifs to be appointed under this Act foreach district, shall he fixed and may from time totime be altered, by the State Government.

xx xx xx The State Government may after consultation with the High Court fix and from time to time vary by notification the number of Subordinate Judges to be appointed for a Subordinate Judge's Court or the number of District Munsifs to be appointed for a District Munsif's Court.' xx xx xx

Section 5 runs thus:-

'The place at which any Court under this Act shall be held may be fixed, and may from time to time be altered in the case of a District Court or a Subordinate Judge's Court, by the State Government, in the case of a District Munsif's Court, by the High Court.

The places fixed for any Court under this Section shall be deemed to be within the local jurisdiction of that Court.'

7. The submission founded on Sections 4 and 5 is that, while under Section 4 the State Government is empowered only to fix the number of Subordinate Judges and District Munsifs for each district and to alter their number from time to time and to fix the place at which a District Court or a Subordinate Judge's Court should function, the place at which a District Munsif's Court should function should be fixed by the High Court. Thus, the determination of the place at which a District Munsif should sit is within the exclusive jurisdiction of the High Court and it was not within the competence of the State Government to indicate as to where the Court should be held. The High Court, instead of itself fixing the place where the Court should be established, merely gave effect to the decision of the Government regarding the habitation of the Court. We are not impressed by this argument.

8. It is true that the Government is not competent to decide upon the place at which a District Munsif should sit and it is entirely for the High Court to do it. That is not contested by the Advocate-General appearing for the Government. Nor does Government purport to perform the function which is within the exclusive power of the High Court. In our judgment, the notification impeached before us does not have the effect attributed to it. It discloses the continuance of a District Munsif's Court which happened to be located at Avanigadda. An Additional Court was sanctioned for the Krishna District for a particular term and that Court was being held at Avanigadda. The duration of the temporary Court was to be extended for a further term. The notification merely recited that the temporary Court at Avanigadda was continued for another year. The words 'the continuance of the temporary District Munsifs Court at Avanigadda' are evidently intended to convey the thought that the temporary District Munsif's Court, the term of which was being extended, was being held then at Avanigadda. It has no significance except as a factual statement. That does not denote that the Government was sanctioning the continuance of an additional Court and directing that such a Court was to be either established or continued only at Avanigadda.

Further, it is not the impugned order that results in the location of the Court at Avanigadda. It is only under the notification of the High Court dated the 13th of October, 1961, that the Court will be held there. The question whether the High Court was initially in favour of the continuance of the Court at Avanigadda or not is not quite relevant for this enquiry. We are only concerned with the effect of the final notification of the High Court which is not called in question. It is argued that since there is no notification under Section 5 of the Madras Civil Courts Act issued by the High Court, the final notification must be deemed to have been issued to give effect to the impugned order. We do not agree.

9. It is the High Court that fixed the locality of the temporary Court at Avanigadda as could be seen from the notification dated 13-10-1961. It is true that the notification was issued under Section 11 of the Act which provides that 'the High Court shall fix and may from time to time modify the local jurisdiction of District Munsif' and Section 5 of the Act was not cited there. But the absence of reference to Section 5 in that notification cannot lead to the inference that this notification merely gave effect to the decision of the Government to locate the Court at Avanigadda. Section 5 does not contemplate the issue of notification. It is only after deciding as to where a particular Court should be held that it proceeds to fix the habitation of that Court. Section 5 merely requires the High Court to determine the place at which the District Munsif's Court should be held. When the High Court fixes the territorial jurisdiction of a Munsifs Court, it implies that it has determined the location of that Court at Avanigadda. It cannot define the territorial jurisdiction of Courts in the abstract. It can confer jurisdiction only upon Courts in existence. Thus, there is in substance compliance with the requirements of Section 5 also.

It cannot also be overlooked that the Munsif-Magistrate's Court functioned for a year at Avanigadda and was closed a few days before. So, a direction that the temporary Court sanctioned by the Government for a further period of one year should be held at Avanigadda is inherent in the High Court's notification. The High Court's notification cannot be considered to be a mere corollary to the impugned G. O. but must be regarded as one issued after fixing the habitation of the Court at Avanigadda. We, therefore, reject the contention that the notification of the High Court in question merely carried into effect the order of the Government that the establishment of the temporary Court should be at Avanigadda. In these circumstances, we are not convinced that the learned Judge was wrong in refusing to issue a writ.

10. In the result, the writ appeal is dismissed.


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