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Rajinder Mohan Sehgal and ors. Vs. Dr. Y.S. Parmar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 87 of 1974
Judge
Reported inAIR1976HP1
ActsConstitution of India - Article 226; ;Himachal Pradesh Courts Order, 1948 - Section 16(1); ;Punjab Courts Act, 1918 - Section 19(1)
AppellantRajinder Mohan Sehgal and ors.
RespondentDr. Y.S. Parmar and ors.
Appellant Advocate M.G. Chitkara, Adv. for; Trilok Chand and Ors.
Respondent Advocate B. Sitaram, Adv. General for; Y.S. Parmar and Ors.
DispositionPetition dismissed
Cases ReferredFlying Officer S. Sundarajan v. Union of India
Excerpt:
.....prejudiced - petition dismissed. -..........dated january 21, 1974 whereby the governor of himachal pradesh has fixed the headquarters of the solan sessions division and of the solan civil district at nahan in the district of sirmur.2. three notifications were issued by the governor of himachal pradesh. the first notification no. 11-2/66-appt. (dp) (i) dated august 30/31, 1972 was made under section 7 (2) of the code of criminal procedure and by it the limits of the existing sessions divisions were altered and the sessions divisions were re-constituted, the limits of the newly constituted solan sessions division being the solan and sirmur districts with headquarters at solan. by the same notification the governor, acting under section 9 (1) of the code of criminal procedure, established a court of session for each of the sessions.....
Judgment:

R.S. Pathak, C.J.

1. By this writ petition under Article 226 of the Constitution the petitioners challenge the validity of two, notifications dated January 21, 1974 whereby the Governor of Himachal Pradesh has fixed the headquarters of the Solan Sessions Division and of the Solan Civil District at Nahan in the district of Sirmur.

2. Three notifications were issued by the Governor of Himachal Pradesh. The first notification No. 11-2/66-Appt. (DP) (i) dated August 30/31, 1972 was made under Section 7 (2) of the Code of Criminal Procedure and by it the limits of the existing Sessions Divisions were altered and the Sessions Divisions were re-constituted, the limits of the newly constituted Solan Sessions Division being the Solan and Sirmur districts with headquarters at Solan. By the same notification the Governor, acting under Section 9 (1) of the Code of Criminal Procedure, established a court of Session for each of the Sessions Divisions so constituted. A copy of this notification is Annexure 'A' to the writ petition. The next notification is No. 11-2/66-DP (Apptt) (ii) dated January 21, 1974, whereby while modifying the aforesaid notification the Governor, acting under Sections 7 (2) and 9 (2) of the Code of Criminal Procedure, fixed the headquarters of the Solan Sessions Division at Nahan in the district of Sirmur and directed that the Sessions Judge for the Sessions Division of Solan would sit at Nahan and would also hold his court at Solan and at Nalagarh of the Solan District. A copy of this notification is Annexure 'B' to the writ petition. By another notification of the same date the Governor acting under Section 16 (1) of the Himachal Pradesh Courts Order, 1948 and Section 19 (1) (ii) of the Punjab Courts Act, 1918, ordered that the headquarters of the Solan civil district would be Nahan. A copy of this notification is Annexure 'C' to the writ petition. In the writ petition the petitioners have assailed the validity of the notifications set out at Annexures 'B' and 'C' to the writ petition.

3. In challenging the validity of the two notifications, the submissions made by learned counsel for the petitioners are as follows :--

(1) The notification, Annexure 'B', is invalid because it has not been passed in consultation with the High Court.

(2) The notification, Annexure 'C', is invalid because while the Governor has power under paragraph 16 (1) to determine the headquarters of a civil district, he has no power under Section 19 (1) (ii) of the Punjab Courts Act to fix the headquarters of a civil district, and therefore, the entire notification must fail. Elaborating this submission, learned counsel for the petitioners urged that the determination of the headquarters of a court included the determination that it would discharge its judicial functions at the place appointed as its headquarters, and when regard was had to Section 31 of the Punjab Courts Act, 1918, it is apparent that the High Court alone had the power to fix the place or places at which the court would be held. In support of this submission we have been referred to paragraphs 38 and 39 of the Himachal Pradesh Courts Order, 1948. Paragraph 38 provides that in the event of the death of a District Judge or of his being prevented from performing his dirties by illness or other cause or of his absence from the Civil District on leave, the Additional District Judge, if any, in the District or where there is no such Additional District Judge the first in the rank of the Subordinate Judges shall assume charge of the District Court, without interruption to his ordinary jurisdiction, and while so in charge, shall perform the duties of a District Judge with respect to the filing of suits and appeals, receiving pleadings, execution of processes, return of writs and the like. Paragraph 39 declares that a District Judge leaving the headquarters and proceeding on duty to any place within his District, may delegate to the Additional District. Judge, if any, or where there is no such Additional District Judge, to a Subordinate Judge at the headquarters, the power of performing such duties, enumerated in paragraph 38 as may be emergent, and such officer shall be designated as the Additional District Judge or the Subordinate Judge, as the case may be, in charge of the headquarters. It is urged that the filing of suits and appeals, receiving pleadings, execution of processes and return of writs and the like mentioned in paragraph 38 and referred to by paragraph 39 involve judicial functions, and therefore, it must be inferred that the determination of the headquarters of the district envisages the place where besides his administrative functions the District Judge will also perform his judicial functions.

4. Two sets of submissions have been made by learned counsel for respondents Nos. 1, 2 and 3 in opposition to the writ petition. The learned Advocate General contends that the appointment of the headquarters of a civil district contemplates the place where the District Judge will perform his administrative functions, and it has nothing to do with the place where he will perform his judicial functions. The appointment of the headquarters, it is said, is concerned only with the discharge of administrative business and has reference to financial considerations. It is urged that the administrative seat of the district court may be different from the judicial seat of the court. In this regard, it is pointed out that while paragraph 16 (1) or the Himachal Pradesh Courts Order, 1948 deals with the determination of the headquarters of the district, separate prevision has been made by paragraph 26 of the said Order providing for the fixation of the place or places at which the court is to be held. The second set of submissions on behalf of respondents Nos. 1, 2 and 3 has been made by Shri Hari Kishan who points out that as the petitioners have not challenged the original notification. Annexure 'A' they are not entitled to challenge the notincation. Annexure 'B'. As regards Annexure 'C'. he departs to some degree from the submission of the learned Advocate General and contends that the expression 'headquarters' specifies the place not only where the administrative business of the court will be conducted but also the principal place where it will sit for performing its judicial functions. Every court, he says, must have a permanent place of sitting, designated as its principal seat and synonymous with its head-quarters. When the power to constitute a court is given by legislative enactment to the State Government, it implies that tie State Government will also have the power to appoint the principal place where the court will perform its administrative and judicial functions. Involved in the concept of the constitution of a court, he submits, is the necessary ingredient of appointing its principal seat, and that implies the administrative headquarters and the principal place of sitting of the court. Therefore, he says, when construing paragraph 26 of the Himachal Pradesh Courts Order, 1948, the power given therein to fix the place or places at which the court is to be held must be understood as the power to fix other place or places for the sitting of the court besides that already indicated as the principal place of sitting by reason of the determination of the headquarters of the district under paragraph 16 (1) of the Order. In this way, learned counsel attempts to reconcile the provisions of paragraphs 38 and 39 of the Order, and also satisfies the validity of the notification in the light of the Punjab Courts Act, 1918, which by Sections 18 and 19 constitutes a court of the District Judge for a civil district. Learned counsel submits that when Section 31 of the Punjab Courts Act empowers the High Court to fix the place or places at which the court is to be held, it confers the power to fix such other places for the sitting of the court besides that already fixed by the State Government when constituting the court and defining the civil district.

5. Besides the aforesaid contentions, learned counsel for the respondents NOS. 1, 2 and 3 have raised a preliminary objection to the maintainability of the writ petition. It is contended that the petitioners have no locus standi, and that ground by itself is sufficient to defeat the writ petition.

6. Before proceeding to deal with the contentions of learned counsel for the parties, it may be noted that during the hearing of the writ petition Shri M.G. Chitkara, learned counsel for the petitioners withdrew the prayer for relief against the notification Annexure 'B' issued under the Code of Criminal Procedure We are therefore concerned only with the remaining notification, Annexure 'C' issued under the Himachal Pradesh Courts Order, 1948 and the Punjab Courts Act, 1918.

7. It appears proper that we should consider the preliminary objection first. The writ petition has been filed by six petitioners. The petitioner No. 1, Shri Rajinder Mohan Sehgal, has withdrawn from the petition. The petitioners Nos. 2 and 3 reside, at Solan and petitioners Nos. 4 and 5 reside at Kandaghat They work for gain at those places. The petitioner No. 2 has a reference under the Land Acquisition Act pending before the District Judge at Solan. The petitioner No. 6 is an Advocate practising at Nalagarh. Except in the case of petitioner No. 2, who is said to be interested in maintaining the writ petition because of the pendency of his Land Acquisition reference before the District Judge at Solan and the petitioner No. 6, who is an Advocate practising at Nalagarh, there is no specific averment indicating the precise interest of the remaining petitioners in maintaining the writ petition. Certain general considerations have, however, been set out in the writ petition. It is stated that if the headquarters are shifted from Solan to Nahan the litigant public will not be in a position to obtain competent legal assistance, that Nahan is an 'out of the way' place and it will involve financial strain on the litigants and also lead to delay in the disposal of their cases. It is pointed out that Solan is more centrally located than Nahan, that four sub-divisions in the Sessions Division of Solan are closer to Solan than to Nahan, that Solan is situated on the main national highway and is also connected by rail, while Nahan is situated in a remote corner of the Division. It is also pointed out that Solan is directly connected with all the sub-divisions while Nahan has no direct link with any of the sub-divisions and the litigant public has to pass through Solan to reach Nahan. It is averred that the work-load of Solan district is far heavier thar, that of Sirmur District, and that the number of cases pending before the Senior Subordinate Judge, Sirmur is hardly sufficient for ten days in the month. It is urged that if the headquarters remain at Solan, the litigant public can utilise the services of leading lawyers from Chandigarh and Simla for arguing their cases. It is said that if the headquarters remain at Solan the practice of appointing the District and Sessions Judge of Simla Division as the Additional District and Sessions Judge of Solan Division and the District and Sessions Judge of Solan as the Additional District and Sessions Judge of the Simla Division can more conveniently be adopted than if the headquarters are maintained at Nahan. Emphasis has been laid on the fact that Nahan is situated in a corner of the Solan Division and that in the case of appeals and bail applications the absence of a lawyer from places other than Nahan for the purpose of appearing before the District and Sessions Judge at Nahan will interfere with the normal working of the Courts where he ordinarily practises. All the considerations cited are of a general nature, and it is necessary to examine whether the petitioners by reason thereof are entitled to maintain this writ petition.

8. In a long series of cases the courts in India have held that in order to maintain a writ petition the petitioner must have some legal right or interest in the subject-matter of dispute sufficient to entitle him to locus standi in the case. See Calcutta Gas Co. v. State of West Bengal. AIR 1962 SC 1044 at p. 1047; State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685; Jonnala Narasimharao and Co. v. Slate of Andhra Pradesh, AIR 1971 SC 1507 & State of Orissa v. Rajasaheb Chandanmull Indrakumar (P) Ltd., AIR 1972 SC 2212. In Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828 the Supreme Court observed that while a writ petitioner should 'ordinarily' be one who has a personal or individual right in the subject-matter of the petition the personal right need not be in respect of a proprietary interest but may relate to the interest of a trustee. That apart, it was observed that in exceptional cases a person who has been prejudicially affected by an act or omission of an authority can file a writ petition even though he has no proprietary or even fiduciary interest in the subject-matter thereof. It is settled law, therefore, that either a petitioner must have some legal right or interest in the subject-matter of the petition, or at the very least he must be prejudicially affected by the act or omission of some authority. The latter criterion prescribes the minimum standard which needs to be established before a writ petition can be maintained. In the absence of any injury to some personal legal right or interest or prejudice otherwise, it is not open to a petitioner to apply for relief under Article 226 of the Constitution. The only exception to this rule appears to be the case of a petition for habeas corpus or quo warranto. The rule particularly applies to a petition for a writ in the nature of mandamus. And in the present case that is the only relief which can be claimed.

9. An unidentified interest or injury cannot sustain a petition for mandamus. In Nonnala Narasimharao (supra) the Supreme Court held that whatever objection the dealers may have had to the constitutional validity of Section 9 of the Andhra Pradesh General Sales Tax (Amendment) Act, 1970 by reference to Article 14 of the Constitution, their agents had no locus standi to complain about discrimination between the principals inter se. In Maganbhai Ishwarbhai v. Union of India, AIR 1969 SC 783 the Supreme Court was concerned with a petition for a writ in the nature of mandamus or any other appropriate order or direction under Article 32 of the Constitution to restrain the Government from ceding without the approval of Parliament certain areas in the Rann of Kutch to Pakistan. The questions raised on the merits were indisputably questions of public importance, but the Supreme Court considered it necessary to decide whether the petitioners had established any right or interest for maintaining their claim to relief. The Supreme Court observed: 'We discovered that most of the petitioners had no real or apparent stake in the areas now declared to be Pakistan territory. These persons claim that they had and still have the fundamental rights guaranteed to them by Article 19 (1) (d), (e) and (f), that is to say the right to travel, to reside or settle down, or to acquire, and hold property in these areas. None of them has so far made any move in this direction but their apprehension is that they will be deprived of these rights in the future. This, in our judgment, is too tenuous a right to be noticed by the Court in administering the law and still less in enforcing fundamental rights. When we communicated our view at an earlier hearing, some more petitioners came forward. Mr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoitre possibilities for settlement, but was turned back. In this way he claims that he had attempted to exercise his fundamental rights and they were infringed. Another party claims to have had a lease of grass lands some ten years ago in this area and he is now to be deprived of the right to obtain a similar lease. Lastly, one of the parties puts forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Pakistan. These petitioners too have very slender rights, if at all. The only person who can claim deprivation of fundamental rights is Mr. Madhu Limaye, although in his case also the connection was temporary and almost ephemeral. However, we decided to hear him and as we were to decide the question we heard supplementary arguments from the others also to have as much assistance as possible. But we are not to be taken as establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. From this point of view we would have been justified in dismissing all petitions except perhaps that of Mr. Madhu Limaye.' It will be noticed that the right or interest asserted must be real, the nexus claimed by the petitioner with the subject-matter of dispute must not be too tenuous or completely ephemeral. The Supreme Court rejected the claim of the several petitioners to maintain the writ petition except in the case of Shri Madhu Limaye in whose case there was the plea that he had attempted to penetrate this area to reconnoitre for settlement and had been turned back and therefore his fundamental rights had been infringed.

10. In his admirable analysis of the law on the point. Professor S.A. de Smith notes that an applicant for mandamus must have a substantial personal interest in the performance of the duty to which a right is claimed. He sees a good deal of judicial support for the view that a mere stranger has no locus standi and that an applicant must establish that be is specially aggrieved by the performance of the duty or has an immediate interest in its performance greater than that of members of the public generally. While scholars and jurists maintain that the Courts may in their discretion grant an application made by any member of the public, Professor de Smith points out that the preponderance of judicial authority is opposed to the view that the Courts are entitled to exercise a free discretion in determining questions of locus standi in applications for mandamus, and that it supports the view that an applicant must have a direct interest of his own in the performance of the duty. He concludes his discussion with the opinion that as the law stands at present the applicant's interest must normally be more substantial than the general interest of other members of the local community or the interest-group to which he belongs. Although there are exceptional cases, the courts have yet to reach the point where an application for mandamus is accorded the status of an action popularis In Dr. Satyanarayana Sinha v. S. Lal & Co. (P) Ltd., AIR 1973 SC 2720 the Supreme Court observed :--

'In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.'

11. Having regard to the present state of the law, it is apparent that so far as the petitioners Nos. 3, 4 and 5 are concerned, they have no locus standi. The mere circumstance that they reside at Solan or Kandaghat and work for gain there does not entitle them to maintain the writ petition.

Judicial Review of Administrative Action, 2nd Edn. pp. 571 to 574.

12. As regards the petitioner No. 2 who has a Land Acquisition reference pending before the District Judge at Solan and the petitioner No. 6 who is an Advocate practising at Nalagarh, the position appears to be this. Under the impugned notification, the District Judge will hold court at Nahan and also at Solan and at Nalagarh. The whole point or requiring the District Judge to hold court at Solan and at Nalagarh is that cases arising out of those areas should be heard at Solan or Nalagarh. As was stated before us on behalf of the respondents, it is a time-honoured convention and practice reinforced by directions issued down from time to time, that cases, arising within a particular district should be taken up by the District Judge in that district, and also that when appeals and applications are to be instituted before the District Judge at a time when he is not holding court there, they should be presented before the local senior Subordinate Judge who will then transmit them to the District Judge That position has not been disputed before us. It may be noted that in compliance with the principle that cases arising in a district should be entertained, heard and disposed of in that district itself, the District and Sessions Judges by long practice divide the days of sitting in the month between the headquarters and the places of circuit according to the work-load pending at each place. It may also be pointed out that instructions have been issued by this Court to the various District and Sessions Judges that whenever they go on circuit they should send the files which are to come up for hearing before them during the circuit to the local senior Subordinate Judge four or five days ahead so that the lawyers and the litigants may be in a position to inspect the files; and the senior Subordinate Judges have been directed to allow inspection in accordance with the Rules. It may be that for taking certain emergent proceedings, which can be entertained by the District and Sessions Judge alone, a party may have to go wherever the District and Sessions Judge is then holding court. That is a burden cast alike on the litigants, be they from Solan District or the Sirmur District. It the District and Sessions Judge is at his headquarters at Nahan, the litigant from the Solan district must go there; and likewise if the District and Sessions Judge is at Solan on circuit the litigant from the Sirmur district must go to Solan. It is a burden inherent in the present system where the District and Sessions Judge, no matter where his headquarters, must hold Court at more than one place. So far as the obtaining of certified copies of documents in the record of the District and Sessions Judge is concerned, there is no doubt that for the present the Record Room is maintained at the headquarters alone, but copies can always be obtained by applying by post for which ample provision has been made under the Rules and Orders of the Court. All these arrangements arc patters of common knowledge, and cannot be denied.

13. Even if we were to assume that any inequality exists under the prevailing arrangements, there is no evidence of it in any proceeding presently taken by any of the petitioners. It is apparent that the Land Acquisition reference of the petitioner No. 2 will be beard and disposed of at Solan and he cannot complain of any prejudice to him by the impugned notification. As regards the petitioner No. 6, who is an Advocate practising at Nalagarh, we are also not satisfied that he has any genuine cause for grievance.

14. The petitioners rely on Dr. N.V. Subba Rao v. Govt. of Andhra Pradesh, AIR 1968 Andh Pra 98. In that case the residents of a locality challenged an order renewing a licence enabling the operation of a bone factory in the locality. It was alleged that the health of the residents was affected by the existence of the foul smell emanating from the bone factory Plainly, the residents had substantial interest in maintaining the writ petition. Learned counsel for the petitioners also relies on Flying Officer S. Sundarajan v. Union of India, AIR 1970 Delhi 29 (FB) where reference has been made to the observations of Professor de Smith mentioned above as well as to Calcutta Gas Co. (supra) and Dr. P.S. Venkataswamy v University of Mysore. AIR 1964 Mys 159. Nothing stated in those cases is of any assistance to the petitioners.

15. In our opinion, the petitioners have been unable to establish, upon the material before us, that the impugned notification impairs any legal right or interest belonging to them or that they are materially prejudiced by it. We have carefully considered the matter, and it appears that the preliminary objection raised by learned counsel for the respondents must be upheld.

16. In the circumstances, it is unnecessary to enter into the questions raised on the merits of the writ petition.

17. The writ petition is dismissed, but there is no order as to costs.


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