MANJU VARMA Vs. STATE OF U P

JUDGEMENT

(1.) The subject matter of challenge in this appeal is an order passed by the Chief Justice of the Allahabad High Court transferring writ petition No. 1678 (S/B) of 1998 (Dr. Manju Verma v. State of U.P. and Ors.) from the Lucknow Bench of the High Court to Allahabad for hearing.

(2.) The respondent has raised a preliminary objection that the appeal was not maintainable under Article 136 of the Constitution. According to the respondent, the impugned order was not an "order" passed by a "Court" or a "Tribunal" within the meaning of Article 136, but was an order passed under paragraph 14 of the United Provinces High Courts (Amalgamation) Order 1948 on the administrative side. It is also submitted that the appropriate remedy of the appellant was under Article 226 of the Constitution. The Respondent has relied upon the decisions of this Court in Konkan Railway Corporation Ltd and Anr. v. Rani Construction Pvt. Ltd. (2002) 1 SCR 728 , Rajasthan High Court Advocates Association v. Union of India (2001) 2 SCC 294 and State of Rajasthan v. Prakash Chand 1998 CriLJ 2012 , to contend that the nature of the power conferred and exercised by the Chief Justice under paragraph 14 of the 1948 order was purely administrative.

(3.) The appellant has submitted that since the territorial jurisdictions of the High Court Benches at Lucknow and Allahabad are rigidly divided, the power exercised by the Chief Justice under paragraph 14 of the 1948 Order was similar to the powers conferred under Section 24 of the Code of Civil Procedure and Article 139A of the Constitution. It is submitted that the transfer of the case from one territorial jurisdiction to another territorial jurisdiction has always been considered to be judicial in nature and the functionary exercising such power, a Court or a Tribunal. It is submitted that a litigant as the dominus litis cannot be deprived of the right to choose a forum without being heard. According to the appellant, there was a lis between the appellant and the respondent as to whether the writ petition should be transferred or not. The Chief Justice in deciding such a lis exercised quasi judicial power and would be a Tribunal for the limited purposes for deciding the transfer of a case. It is contended that the power which was being construed in the Konkan Railway case (supra) was the power of the Chief Justice under Section 11(6) of the Arbitration and Conciliation Act 1996 which only involved the nomination of an Arbitrator to decide a case. Here there was already a case pending before a competent Court. Another distinction with Section 11(6) of the Arbitration Act is that the appointment could be questioned before the Arbitrator, whereas under Clause 14 of the 1948 Order, the correctness of the Chief Justices order could not be argued before the Court to which the case was directed to be transferred.