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i.J. Raja Sekhar Vs. G. Immanuel and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ1693
Appellanti.J. Raja Sekhar
RespondentG. Immanuel and ors.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....alladi kuppuswami, j. 1. the criminal appeal and the revision petitions are preferred against judgments of one or other of the four district judges who were appointed by the government of andhra pradesh by an order dated 7-12-1975. writ petitions were filed in the high court challenging the appointment of these four judges. one of the writ petitions w. p. no, 895/74 was dismissed by this court, but on appeal to the supreme court, the supreme court by its order dated 2-9-1975 in c. a. no. 2059 1975-2 aplj (sc) 21 : air 1975 sc 1922) held that these judges were not eligible to be appointed as their names had not been recommended by the high court as required by article 233(2) of the constitution. the appointments of these four district judges were quashed and the four posts manned by them.....
Judgment:

Alladi Kuppuswami, J.

1. The Criminal Appeal and the Revision Petitions are preferred against judgments of one or other of the four District Judges who were appointed by the Government of Andhra Pradesh by an order dated 7-12-1975. Writ Petitions were filed in the High Court challenging the appointment of these four Judges. One of the writ petitions W. P. No, 895/74 was dismissed by this Court, but on appeal to the Supreme Court, the Supreme Court by its order dated 2-9-1975 in C. A. No. 2059 1975-2 APLJ (SC) 21 : AIR 1975 SC 1922) held that these judges were not eligible to be appointed as their names had not been recommended by the High Court as required by Article 233(2) of the Constitution. The appointments of these four District Judges were quashed and the four posts manned by them were declared vacant. The appellant and the petitioners in each of these cases raised a contention before Madhusudan Rao J. before whom they were posted that the judgments rendered by the District Julges in each case, whose appointment has been held by the Supreme Court to be constitutionally invalid, was void and for that reason alone the judgment has to be set aside and the case be directed to be re-heard by another Judge. Our learned brother, Madhusudan Rao J. considered that this question was of considerable importance and it was therefore expedient that it should be decided by a larger Bench. These cases have therefore, been posted before us. Though the order of reference seems to indicate that it is the question of law as to the validity and binding nature of the judgment in each of these cases that is to be decided by a Division Bench, we find from the appellate side rules that there is no provision for a Single Judge referring a question of law alone to a Division Bench. Under Rule 1, a Single Judge before whom a matter is posted for hearing, may adjourn it for determination by a Bench of two Judges. Under this rule, it is the entire matter that is posted before him that may be posted for determination by a Bench of two Judges. There is no provision enabling him to refer merely a question of law to a Bench of two Judges, Such a contingency is provided for only under Rule 2, where a Bench of two Judges may refer a question of law to a Full Bench. But a similar provision is not found in Rule 1 which deals with a reference by a Single Judge to & Bench of two Judges. In that case the entire matter posted before him has to be referred. In these circumstances, we take it that our learned brother directed that the entire case be posted before us, as he felt that the preliminary point raised in each case regarding the validity of the judgment which is sought to be attacked in appeal or revision is of considerable importance.

2. It was agreed by the advocates on both sides that if we accept the contention of the appellant or the petitioner the appropriate order to be passed would be to set aside the judgment in each case and direct the matter to be re-heard by another Judge. If, however, we do not agree with this contention, the appeal and the revisions have to be heard on merits by us. We therefore, proceed to consider the preliminary point raised by the appellant and the petitioner in each of the cases viz. that the judgment of the court below is void, as the Judge concerned was not duly appointed and had therefore no right to function as a Judge on the relevant date .and to hear and dispose of the case.

3. Having regard to the decision of the Supreme Court dated 2-9-1975 in C. A, No. 2059 of 1974 which is reported in (1975) 2 APLJ (SC) 21 : AIR 1975 SC 1922 there cannot be any doubt that the appointment of the Judge concerned was constitutionally invalid and he had no right to act as a Judge and hear the case on the date when he rendered the judgment. It is therefore argued by Sri Sivasankar that it would automatically follow that any judgment rendered by such a person without legal authority would be void. Logically speaking if a person who has no authority to do so functions as a Judge and disposes of a case, the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void, judgments, rendered by Judges and other Public Officers whose title to the office may be found to be defective at a later date, courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions the acts of a Judge or officer not legally competent, may acquire validity. In England, an early recognition of this doctrine is found in Parker v. Kett 1701-1 Ld Raym 658 and Turner v. Baynes 1795-2 Hy BI 559. In Milward v. Thatcher 1787-2 TR 81 at p. 87, Buller J., said:

The question whether the Judges below be properly Judges or not, can never be determined; it is sufficient if they be judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the recorder of such court were not duly elected, the conviction would still be good in law, he being the judge de facto.

In Scanding v. Lorant (1851) 3 HLC 418 the House of Lords decided that a valid rate can be made even by merely de facto Vestrymen. The reason for this was stated by the Lord Chancellor:

Your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties and whose title to office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind, It would create uncertainty with respect to the obedience to public officers, and might also lead persons...... to set right anything done by the officers, taking the law into their own hands.

The same view has been taken in the courts in the United States of America. In Black on Judgments it is stated in Article 175 as follows:

A person may be entitled to his designation who although he is not a true and rightful incumbent of the office, yet is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office, is a de facto judge, and his acts are valid until he is properly removed.

In Cooley's Constitutional Limitations at P. 1355 it is stated:

An officer de jure may be excluded from his office by either an officer de facto or an intruder. An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it, or made in such disregard of legal requirements as to be ineffectual in law. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence

No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void, But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of third parties.

This statement of law is based upon a number of authorities cited in the footnote. This principle which for convenience is referred to as the 'de facto doctrine' also seems to have been applied in Canada. See also Rubenstein 'Jurisprudence and Illegality' P. 205 and Markose 'Judicial Control of Administrative Action in India' P. 356.

4. We do not see any reason why such a wholesome principle should not be applied in this country also; otherwise the consequences of holding as void the judgments rendered by such judges who were functioning bona fide under colour of office, whose appointments have been subsequently found to be invalid, would be very grave, and would lead to disastrous consequences. For instance the Judge might have given a capital sentence which might have been even carried into execution, decrees for dissolution might have been passed. Titles to property might have been made by the officer concerned and all these acts would be nullities if it were held that acts done by Judges or officers not validly appointed are nullities.

5. This principle found favour with a Full Bench of the Allahabad High Court in Jai Kumar v. State 1968 All LJ 877. In that case it was contended that as the appointment of Assistant Sessions Judges and Sessions Judges who rendered judgments impugned in certain criminal revision petitions were invalid, the impugned judgments have to be set aside on that ground. The passage cited above in Scadding v. Lorant 1851-3 HLC 418 (supra) was referred to with approval. In P. S. Menon v. State : AIR1970Ker165 , it was observed that the de facto doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and the individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they ,are all, by virtue of the particular circumstances, officers in fact, whose acts public policy requires should be considered valid (see American Jurisprudence, Vol. 43 Art, 470 under the heading De facto officers.)

6. While admitting that this principle is a wholesome principle which should be invoked in this country also, Sri Shivasankar relied upon the decision of the Supreme Court in Jyoti Prakash v. Chief Justice, Calcutta High Court : [1965]2SCR53 and contended that the Supreme Court took the view that in such circumstances the judgment also would suffer from constitutional invalidity and would therefore, be void. In other words, he contended that the Supreme Court did not think fit to adopt this principle in our country. He relied strongly on the following passage at page 967.

If a dispute arises about the age of a Judge, any prudent and wise Chief Justice would naturally think of avoiding unnecessary complications by refusing to assign any work to the sitting Judge if, at the time when the dispute had been raised, it appears that the allegation is that at the relevant time the Judge in question has reached the age of superannuation. In such a case, if the decision of the President goes against the date of birth given by the appellant, a serious situation may arise because the case which the said Judge might have determined in the meanwhile would have to be reheard, for the disability imposed by the Constitution when it provides that a Judge cannot act as a Judge after he attains the age of superannuation, will in evitably introduce aconstitutional invalidity in the decision of the said Judge and it is plain that it would be the duty of the Chief Justice to avoid such a complication.

(the underlining is ours).

These observations were made in connection with the refusal of the Chief Justice of the Calcutta High Court to assign any work to Justice Jyoti Prakash Mitter after 26th December 1961 on which date according to the President of India he was to retire. It was argued by Sri Sivasankar that this passage clearly shows that the Supreme Court was of the opinion that if it was found subsequently that a Judge had no right to function due to superannuation, all the judgments rendered by him would be affected by constitutional invalidity and the cases would have to be reheard. On the same principle he contended that, in this case where the appointments were found to be constitutionally invalid as the High Court had not recommended their names, all judgments rendered by them would be affected by constitutional invalidity. _Sri Sivasanker contended that it is clear from the above passage that the Supreme Court was not inclined to apply the doctrine, that judgments rendered by de facto Judges under colour of office cannot be held to be invalid even though their appointments may be invalid, in this country and there is an implied rejection of the de facto doctrine. Before considering the argument founded upon this passage, it would be necessary to consider the context in which these observations were made. The writ petition which ultimately came up on appeal to the Supreme Court was filed by Justice Jyoti Prakash Mitter for a writ of mandamus requiring the Chief Justice of the Calcutta High Court to recall the order passed by him by which he decided that the appellant was to retire from his office as a Judge with effect from 27th December, 1961. His case was that he would reach the age of superannuation only on the 27th December, 1964. When attention was drawn to the Home Ministry of the Government of India that according to some documents the date of birth of Justice Mitter was 22nd December, 1901 the Government of India after making an enquiry decided that the appellant's date of birth was 27th December, 1901, and the file was placed before the President On the 15th May, 1961. A noting was made on the file indicating that the Government of India intended to ask the officer to retire from office on the 26th December, 1961. After this proposal was approved by the President, the Government of India asked the Chief Minister of West Bengal to communicate this decision to the appellant through the Chief Justice of the Calcutta High Court. The Chief Justice, thereupon passed an order directing that the appellant would remit his office on December 26, 1961 and it is the validity of this order which was questioned by Mitter, J., in the writ petition. The Supreme Court held that the order of the President on 15th May, 1961 could not be treated as a decision within the meaning of Article 217(3) of the Constitution as the evidence of the appellant was not available to the President when he made the decision. The question concerning the age affected the appellant in & very serious manner and consideration of natural justice and fair play required, before the question was determined by the President, that the appellant should be given a chance to adduce evidence. The Supreme Court therefore, held that the appellant was entitled to have a formal decision of the President in terms of Article 217(3). If the decision of the President was in favour of the appellant, the appellant would be entitled to claim that he would continue to be a Judge notwithstanding the order passed by the Chief Justice of the Calcutta High Court and would continue in office until he attains the age of superannuation. On the other hand, if the decision of the President were to go against the appellant the said order of the Chief Justice of the Calcutta High Court would be held to be valid and proper. During the course of the arguments, the appellant seems to have contended that pending the decision of the dispute by the Supreme Court, he continued to be a Judge and should not be required to step down from his office. He therefore, seems to have objected to the Chief Justice refusing to assign any work to him after 26th December. 1961. Dealing with this it was observed by the Supreme Court in paragraph 24 extracted above that he could not make a grievance of this fact as it was the duty of the Chief Justice to avoid complications arising from the appellant functioning as a Judge after that date, if it turned out subsequently that he attained superannuation on the 26th December, 1961. In that context they observed that a Judge cannot cease to be a Judge merely because a dispute has been raised about his age and the same was being considered by the President and he should not be required to step down from his office pending such dispute. But they went on to add that if a dispute arises about the age of a Judge, any prudent and wise Chief Justice would naturally think of avoiding unnecessary complications by refusing to assign any work to the sitting Judge.

7. Having regard to the prayer in the writ petition, namely that a writ of mandamus to recall the order of the Chief Justice dated 26th December, 1961, we do not think it was necessary for the Supreme Court in that case to consider the question as to the validity of the judgments rendered by Justice Mitter on or after 26-12-1961 which would be the date of his superannuation, if ultimately the President found against him. The case before the Supreme Court related solely to the right of Justice Mitter to continue as a Judge after 26-12-1961 and did not relate to the validity of the judgments which might have been rendered by him if he had continued and heard cases after that date. The observations, in our view, especially those relating to the constitutional invalidity attacking the judgments and the need for re-hearing the cases decided by the Judge are merely in the nature of observations and cannot even be regarded as obiter dicta. It is also seen that no arguments were advanced before the Supreme Court that in such a case the judgment cannot be attacked as illegal on the principle that judgments rendered by de facto Judge under colour of office would still be valid, even if he was ultimately found not eligible to function as a Judge. We cannot regard these observations to mean that the Supreme Court was reluctant to apply the de facto doctrine in this country, even though such doctrine found favour from ancient times in various countries like England, the United States and Canada.

8. Sri Sivasanker referred to several decisions in support of his contention that even obiter dicta of the Supreme Court are binding upon this Court. Vide Sunderajan v. Union of India AIR 1970 Del 29 : 1970 Cri LJ 213 (FB) Jeevaraj v. Lalchand ; Ajaib Singh v. Commissioner of Wealth Tax : AIR1969Cal249 ; Chobey v. Sonu : AIR1969All304 . In reply to the submission that no argument was advanced before the Supreme Court regarding the application of de facto doctrine and hence the passage could not be relied on as a rejection of that doctrine, Sri Sivasanker drew our attention to B. M. Lakhani v. Malkapur Municipality : AIR1970SC1002 where it was observed that a decision of the Supreme Court is binding on the High Court and it cannot be ignored on the ground that the relevant provision was not brought to the notice of the Supreme Court and to T. G. Mudaliar v. State of T.N. : [1973]3SCR222 where it was held that binding effect of previous decision is not taken away merely because certain aspects of the Constitution were not expressly considered. While it is no doubt true that if an actual decision is rendered by the Supreme Court, it cannot be ignored merely because it was rendered without noticing certain provisions of law, we do not think that that principle will apply to the case of observations made by the Supreme Court in the course of a judgment, not amounting to a decision. In State of Orissa v. Subhansu Sekhar Misra : (1970)ILLJ662SC it was observed that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.

9. Even in Sunderajan v. Union of India 1970 Cri LJ 213 (Delhi) (supra) relied on by Sri Sivasanker it was observed that while even the principles enunciated by the Supreme Court including its obiter dicta, when they are stated in clear terms, have a binding force, when a question is neither raised nor discussed in a judgment rendered by the Supreme Court it is difficult to deduce any principle of binding nature from it by implication. Similarly in Jeevaraj v. Lalchand (supra) it was observed that where a point has not been argued and certain observations have been made which seemed to cover points not argued before the court they may not be considered to be binding and in such a case the binding nature of the observations of the court may be limited to the points specifically raised and decided by the court, As stated in Martell v. Consett Iron Co. Ltd. 1955-1 Ch 363 at p. 414 it is an abuse of authorities to extract from judgments general statements of the law made in relation to the facts and circumstances of particular cases and treat them as concluding cases in which the facts and cucumstances are entirely different and which raise questions to which their authors were not directing their minds at all. A discussion of this subject is found in Mohandas v. Sattenadhan : AIR1955Bom113 Chagla C J. held that the observations of Bhagavati J. that maximum penalty which customs officials can inflict was Rs. 1,000 was a casual observation not binding on any court and not correct. This view was confirmed by the decision of the Supreme Court in Atmaram's case (supra).*

10. We are not therefore prepared to accede to the contention of Sri Sivasanker that on the basis of the observations contained in paragraph 24 in Jyoti Prakash v. Chief Justice, Calcutta High Court AIR 1965 SC S61 (supra) it is to be held that the Supreme Court has decided that the de facto doctrine referred to above should not be applied by Courts in India. We do not see any conceivable reason why the Supreme Court should have been reluctant to apply that principle to this country.

11. In Golak Nath v. State of Punjab AIR 1967 Pun 1643 after holding that the Constitution (First Amendment) Act, 1951 and the Constitution (Fourth Amendment) Act, 1955 and the Constitution (Seventeenth Amendment) Act, 1964 abridge the scope of the Fundamental Rights, it was stated that on the basis of the earlier decisions of the Supreme Court they were valid end become part of the Constitution, and acquiescence for a long time cannot now be challenged and they would continue to be valid by the application of the doctrine of 'Prospective overruling'. In other words, they applied a principle analogous to the 'de facto doctrine' to the case of a legislation which was declared unconstitutional as it was necessary to save several transactions that were affected on the basis of the earlier law. It is true that they laid down certain limitations for applying the doctrine by stating that the doctrine can be invoked only in matters arising under the Constitution and can be applied only by the Supreme Court. We are unable to see why the Supreme Court who subsequently applied the doctrine of 'prospective overruling' would have hesitated to apply the de facto doctrine, as both the doctrines have been evolved in order to save all that has been effected earlier, in the one case under a law which has been declared unconstitutional and in the other by a Judge whose appointment has been subsequently held invalid.

12. The learned Counsel for the appellant-petitioner also referred to Queen Empress v. Gangaram (1894) ILR 16 All 136 (FB) and submitted that this principle has not been adopted in India. In that case, the legality of the appointment of Justice Burkitt was questioned by way of objection to the Constitution of a Division Bench consisting of Knox and Burkitt, JJ. before which a Criminal Appeal was put up for hearing. Their Lordships ultimately held that as they were ignorant as to whether or not any power existed under which Burkitt J. may have been lawfully appointed to act as a Judge, there was a presumption that he was duly appointed which arose from the fact of his having acted as a Judge of the court since 1892 and that presumption had not been rebutted. During the course of the judgment it was observed that gravity of the question relating to the legality of the appointment of Burkitt, J, was apparent from the fact that he was a party as such a Judge to the confirming of capital sentences in many cases. He was also a party to the making of decrees absolute for dissolution of marriage involving possibility of the legal status of persons as yet unborn. It was observed that if Burkitt, J. was not legally appointed all his judgments, decrees and orders in civil and criminal cases would have been ultimately ultra vires and illegal and in some cases, mischief would now be irreparable, as for instance in capital cases. From this, it is argued that the Full Bench was clearly of the view that all the judgments and orders passed by a person, who had not been validly appointed would be void and ultra vires. It is however, seen that no reference was made to the de facto doctrine and there is no consideration of the question whether in view of that doctrine the judgments and orders could be regarded as valid. We do not consider ourselves bound by the mere observations of the Full Bench in this case.

13. Sri Sivasanker also drew our attention to the Twentieth Amendment of the Constitution by which Article 233A was introduced. The occasion for introducing that Article was a declaration by the Supreme Court that the appointment of certain District Judges in the State of U. P. was invalid. In the statement of Objects and Reasons to the Bill which was passed on the 20th Amendment Act, 1966 it was stated as follows:

Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution. In another judgment, the Supreme Court has held that the power of posting of a District Judge under Article 233 does not include the power to transfer of such Judge from one station to another and that the power of transfer of a District Judge is vested in the High Court under Article 235 of the Constitution. As a result of these judgments a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders, and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a standstill. It is therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretobefore by all such District Judges in those States and also to validate the appointment, posting, promotion and transfer of such District Judges barring those few who were not eligible for appointment under Article 233.

It was submitted that the Statement of Objects and Reasons showed that even the Government of India felt that the validity of the judgments, decrees and orders and sentences passed by the District Judges would be invalid. It is true that the Government of India seems to have entertained a doubt about the validity of those judgments and therefore, considered it necessary to pass the 20th Amendment Act to validate not only the appointments, but the judgments rendered by the Judges whose appointments had been declared invalid. But from the mere fact that such a doubt was entertained and by way of abundant caution, the constitutional Amendment Act was passed validating the judgments it is not permissible to advance an argument that such judgments are invalid.

14. Again, reference was made to the passage at paragraph 21 in P. L. Lakhanpal v. A.N. Ray AIR 1975 Delhi 66 (FB). In that case the appointment of the present Chief Justice was challenged by a writ of quo warranto. The writ petition was dismissed on the ground that as all the Judges who were seniors to the present Chief Justice had retired and the Chief Justice became the seniormost puisne Judge, the issue of quo warranto would be futile. But during the course of the argument the Attorney-General seems to have drawn the attention of the court to the disastrous consequences that would follow in the circumstances of the case if the writ of quo warranto was issued, it was pointed out that the Chief Justice after his appointment had disposed of several cases sitting with other Judges and if the Chief Justice was ousted from his office, disastrous consequences would follow and all the decisions and appointments made by the Chief Justice would be rendered nullities. It was therefore contended by Sri Sivasanker that the learned Attorney General himself had proceeded on the assumption that if the appointment of a Judge is found invalid all his acts and judgments would be nullities. The fact that a particular contention is put forward by an advocate however eminent he may be, cannot be of any assistance in deciding a question before us, especially when the learned Judges stated that they did not wish to give any opinion on the question whether any such disastrous consequences would follow because it was not necessary in view of the opinion expressed already on several points.

15. Sri Sivashankar also referred to Kashinath v. State of Bombay : AIR1954Bom41 where after holding the election of a particular person as President of the Municipality was not valid and issuing an injunction restraining him from functioning as President, it was observed as follows:

Fortunately, the Bombay Municipal Boroughs Act, 1925 seems to have provided for a contingency like the present by enacting Section 57 and we hope that no difficulty would arise with regard to the acts performed by opponent No. 2 as President of the Kalyan Municipality by reason of the validating provisions contained in that section.

From this Sri Sivasankar wanted us to draw an inference that the Bombay High Court was of the view that but for the validating provision contained in Section 57 difficulty would arise with regard to the acts performed by the person whose election as President was held invalid. We are afraid it is not possible to draw any such inference as the question as to what would be the effect of the acts of such a person in the absence of a validating provision was not considered and decided upon by the High Court.

16. The learned Advocate-General to whom we directed notice and the learned Public Prosecutor submitted that it is not even open to the petitioner or appellant to question the validity of the appointment of the Judges in these proceedings which are by way of appeal or revision against the judgments rendered by them. They submitted that the validity of the appointment of any Judge or officer can be questioned only in proceedings directly relating to his appointment, like a writ of quo warranto and cannot be indirectly attacked in collateral proceedings. Apart from the principle which has already been referred to, that a judgment or order of a Judge or an officer functioning bona fide under the colour of office cannot be considered to be illegal merely because it is subsequently found that he was not eligible to function, another principle has been uniformly recognised, namely, that the validity of the appointment of a Judge or officer cannot be questioned in collateral proceedings.

17. In Rubinste in 'Jurisdiction and Illegality' at page 208 it is stated:

The rule is that acts of de facto officers cannot be collaterally impeached but collateral proceedings have in this context a particularly wide meaning; every proceeding which does not seek to remove the Judge, including any attack upon the decisions deemed collateral.

In Markose 'Judicial Control of Administrative Action', it is observed:

A factor which affects the province of quo warranto as a method of judicial control and demonstrates its importance is the principle that the validity of a de facto office can be questioned in a collateral proceeding.

This principle was applied in Bhaskara Pillai v. State of Travancore-Cochin AIR 1951 Trav-Co 45. In that case a retired puisne Judge of the Madras High Court who was more than 60 years of age was appointed by the Raj Pramukh of the United States of Travancore and Cochin to be the Chief Justice of the High Court on 20th January, 1950. For about a month he held the office of the Chief Justice and discharged his duties, judicial and administrative. On the 14th February, 1950 he sat on a Division Bench and dismissed a criminal appeal. The accused petitioned for special leave to appeal to the Supreme Court mainly on the ground that the appointment of the Chief Justice was invalid and the Bench on which the Chief Justice sat had no jurisdiction to hear and dispose of the appeal. It was held that the Chief justice was a de facto holder of judicial office and therefore even if his appointment is de jure perfect or not, its legality cannot be the subject of a collateral attack. The same principle was applied in Jai Kumar v. State 1968 All LJ 877 (FB) which followed Bhaskera Pillai v. The State of Travancore-Cochin AIR 1951 Trav-Co 45. In that case, dealing with these two principles it was observed:

There is an inseparate interrelation between these rules. They have an ancient ancestry in the year books and are a part of the common law of England, From there they were received in the U.S.A. and Canada. They have also been followed in India.

Though generally these two principles are referred to together in connection with the question regarding the validity of judgments rendered by Judges who are ineligible to be appointed, we consider that there is an essential distinction between these two principles. The first principle assumes that the appointment is invalid and the Judge was not entitled to function as a Judge when he rendered the judgment, but still says that in view of the considerable inconvenience caused and the disastrous consequences which would result, it is necessary to hold that the judgment rendered by such a Judge under colour of office is not a nullity and is as effectual as it would be if he has been duly appointed. On the other hand, the second principle deals only with the validity of the appointment of the Judge and not with the validity of the judgments rendered by him. It says that one cannot question the validity of the appointment of a Judge in collateral proceedings. If a person desires to attack the validity of an appointment of a Judge, he has to do so in proceedings directly connected with the appointment in a proceeding like quo warranto. The main reason for this rule appears to be that any decision relating to the invalidity of appointment of a person should on principles of natural justice be obtained in his presence. That can be done only in proceedings to which he is a party like a writ of quo warranto. If a person is permitted to question his appointment in collateral proceedings, it would in effect mean that he is inviting decision as to the appointment of a particular incumbent of an office in his absence. The distinction between the two would become clear if we consider the case where immediately after a Judge is appointed before he renders judgment, his right to function as a Judge and to hear a particular case is raised before him. In this case obviously the first doctrine will not apply but the appreciation of the second principle would preclude the invalidity of appointment being raised before him in those proceedings,

18. Sri Sivasankar argued that the proceedings by way of appeal or revision cannot be considered to be a collateral proceeding as it is & direct attack upon the validity of the judgment. He relied upon the decision in Gajadharlal v. Suganchand : AIR1958MP184 where it was held that the attack on the validity of an order of a Judge in an appeal on the ground that the subordinate court giving the decision was not properly constituted is not a collateral attack but a direct attack against the judgment. We do not agree. Though this appeal and the revisions arise out of the judgment which is sought to be attacked, nevertheless the attack is in a collateral proceeding as the Judge whose appointment is attacked is not a party to these proceedings.

19. In Cyclopaedia of American Laws 621 the species of collateral attack are catalogued:

The right of a de facto Judge to hold his office is not open to question.........an action tried before him nor in certiorari proceedings, to review a conviction had before him, nor on an appeal by a person who has been tried and convicted before him. Affirmatively it may be said that the right of a Judge to hold office can only be inquired into in a proceeding to which he is a party.

It is also to be seen that even in Bhaskara Filial v. State of Travancore-Cochin AIR 1951 Trav-Co 45 (supra) and Jaikumar v. State 1968 All LJ 877 (FB) (supra) the appointment was attacked in proceedings arising out of the judgments rendered by the Judge concerned and it was still held that such a proceeding is a collateral proceeding.

20. Sri Sivasankar also relied on the following passage at page 1640 in Himansu Kumar v. Jyoti Prakash : (1966)IILLJ155SC .

It may be urged that a Judge of the High 'Court whilst he is in office must satisfy the constitutional requirement that he has not attained the age of 60 years and it would be unreasonable for any Judge to suggest that the question about his age cannot be raised just because he made a declaration before his appointment, and without any examination of the question, the said declaration was accepted by the Government of India when his appointment was made. Apart from the Government of India, it would prima facie be theoretically open to any litigant to raise the question about the competence of a Judge to hold his office as such on the ground that he has attained the age of 60 years, and if a serious allegation is made in that behalf, it may have to be judicially determined in a proper proceeding.

It is argued that the Supreme Court was of the view that the question of age could be judicially determined even in a collateral proceeding. We are not inclined to agree with this interpretation of the passage. The Supreme Court merely stated that the question of age could be determined in a proper proceeding. It did not say what that proper proceeding should be, as there was no necessity to go into that question. We do not understand the Supreme Court as saying that such a question could be determined in any proceeding even in a collateral proceeding.

21. Even with regard to this question, Sri Siva Sankar relied upon the decision in Queen Empress v. Ganga Ram (1894) ILR 16 All 136 (FB) (supra) and submitted that the Full Bench proceeded on the footing that the appointment could be questioned in a collateral proceeding, namely by way of objection to the Constitution of a Bench consisting of Burkitt, J. But here again, the question whether the appointment could be attacked in a collateral proceeding was not considered and decided by the Allahabad High Court and we cannot therefore regard it as an authority for the proposition that the validity of an appointment can be questioned in a collateral proceeding. Sri Sivasanker however, argued in this particular case there was no need for him to attack the validity of the appointment as there is already a decision of the Supreme Court rendered on 2-9-1975 that the appointment of these District Judges is illegal and opposed to the Constitution. That decision being the decision of the Supreme Court would be binding on all persons and on all courts. It is the duty of this Court to take note of that decision and hold that the judgments are nullities. We are unable to agree. It may be that there is a decision of the Supreme Court holding that the appointments are invalid, but still in the present proceedings, the person who is challenging the validity of the judgments on the ground that the appointments of Judges who rendered those judgments were invalid has to prove that the appointments are invalid. It may be that he is entitled to rely upon the decision of the Supreme Court for that purpose. But nevertheless the issue has to be raised and the matter has to be decided in these proceedings as to whether the appointment is invalid or not. The court is precluded from doing so as this is a proceeding to which the Judge is not a party and is therefore a collateral proceeding. In our view if a person is permitted to attack the validity of appointment in a revision or appeal against the judgment of a particular Judge it would be a collateral attack on his appointment for though the impugned judgment is rendered by the Judge in question he is not a party to the proceedings and any decision arrived at would be a decision arrived at without hearing the Judge concerned and without giving an opportunity to him to present his case.

22. Lastly Sri Siva Sankar submitted that this is not a case where the apointments were questioned after the judgment was delivered, but the dispute as to the validity of the appointment was raised in several writ petitions in this High Court long before the judgments are rendered by the Judges in question. The petitioners in those writ petitions applied for a direction that these Judges should not function until the writ petitions were disposed of. But as their prayer was not granted the Judges continued to toe Judges. Therefore, the Judges were aware that their right to function as Judges was the subject-matter of dispute and nevertheless they tried, heard and disposed of these cases. In these circumstances, it is open to the appellant and the petitioners to contend even in appeal or revision that their judgments were illegal and nullities. We do not see how on principle this circumstance makes any difference. If once it is held that the appointment of Judges cannot be attacked in collateral proceeding, it does not make any difference whether a dispute has been raised regarding the appointment in other proceedings, before the judgment was rendered. As long as the judgment was rendered before a decision was made declaring the appointment illegal it would be a judgment rendered by a person bona fide exercising his functions as a Judge and it could not be subject to attack in a collateral proceeding. Sri Sivasankar relied upon a passage at page 890 in Jai Kumar v. State 1968 All LJ 877 (FB) where it was observed that the impugned judgments are not liable to be set aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the judgments were rendered. He submitted that as in this case & dispute had been raised, the de facto colour under which the Judges functioned had been exposed. We are unable to agree with this interpretation of the judgment. What was obviously meant by the expression 'exposed' by the learned Judges was that the appointments had been declared illegal. In this case the appointments had not been declared illegal when the judgments had been delivered. Perhaps, a plausible argument may have been put forward if a person delivered judgment after his appointment is declared illegal. For instance when an appeal is preferred that the judgment holding the appointment illegal and stay has been obtained and later the judgment is confirmed in appeal, it may perhaps then be argued that the confirmation in appeal dates back to the date of the original judgment by which the appointment had been declared illegal and any judgment rendered by that Judge subsequent to that date must be held void. But we are not concerned with such a case here for, until the Supreme Court delivered its judgment, the Judges concerned were bona fide performing their functions, especially as the High Court had held that their appointments were valid.

23. In view of the two principles discussed above we are of the view that the appellant and the petitioners cannot question the validity of the judgments rendered by the Judges concerned in this appeal and the revision petitions.

24. As we have decided the preliminary point against the appellant and the petitioners, the cases will be set down for hearing on merits.


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