GEORGE M I Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) The petitioner is a practising lawyer. He claims, he is a public spirited citizen very much interested in the efficient administration of justice. He points out that large number of cases are pending before this Court and the Civil Courts in the State. According to him, the panacea to cure the said ill is to reduce the vacations of this Court and the Civil Courts. He also suggests that all Saturdays should be made working days for this Court. Therefore, he has filed this Writ Petition, seeking the following reliefs:

(2.) The first prayer is for a mandamus to the respondents to amend the relevant rules and regulations concerning the vacations/working days of the High Court and the Subordinate Courts. It is well-settled in law that the High Court under Article 226 of the Constitution of India cannot issue a mandamus to the rule-making authority to frame or amend rules. The said principle is founded on the fundamental premise that no person can claim any legal right to have a rule framed/amended in a particular mariner and the rule-making authority does not owe any corresponding duty to do the same. In the absence of any right-duty relationship, no mandamus could be prayed for by the petitioner. Even assuming this Court issues a mandamus, it is going to be a futile exercise, because in matters of subordinate legislation, the rules framed by the State Government will have to be placed before the Legislature. If the Legislature by resolution undo the rule framed, the issuance of a Writ by this Court will become futile. Members of the Legislature are protected by the privileges under Article 194 of the Constitution of India and they are not answerable to the court for voting in a particular manner in the Legislature. So, the prayer for mandamus fails.

(3.) The next main prayer is to quash Section 23 A of the High Court Judges Conditions of Service Act, 1954 and Section 19 of the Kerala Civil Court Act providing for vacation to the High Court and the Lower Courts respectively. When a statutory provision is challenged, it is elementary that the prayers should be for a declaration that the provision is unconstitutional and for a mandamus nof to enforce that statutory provision. This legal position has been restated by the Apex Court in Prabod Verma v. State of U.P., AIR 1985 SC 167. The Honourable Supreme Court in the said decision had gone to the extent of saying that when a party is represented by a lawyer and such improper prayers are made while challenging a legislation, the Court should decline to hear the petition unless the Writ Petition is amended, by making proper prayers. But, we are not dealing with the matter on such technical grounds.