R SURESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The appeal is directed against a common judgment, dismissing the writ petitions, W.P. Nos.2402 and 3333 of 2002 along with the WPMPs therein. By W.P.No.2402 of 2002, a practising Advocate of this Court, sought for a Writ, declaring the whole process of establishment of a permanent Bench of the Madras High Court at Madurai to be unconstitutional and illegal. In W.P. No.3333 of 2002, which was also filed by a practising Advocate of this Court, similar kind of Writ was sought, seeking a declaration that the decision under Clause 31 of the Letters Patent of High Court of Madras seeking to constitute and establish a Bench of the High Court of Madras at Madurai as illegal, void and unconstitutional for being passed in violation of the legislative powers of the Parliament under Article 246 read with Entry 78 of the Union List in Schedule VII to the Constitution of India and inconsistent with Article 214 of the Constitution of India. After the dismissal of these two writ petitions by the learned single Judge, writ petitioner in W.P. No.2402 of 2002 did not proceed. However, writ petitioner in W.P. No.3333 of 2002 has proceeded to challenge the decision by way of this appeal. We will, therefore, take into consideration the contentions raised in W.P. No.3333 of 2002.

(2.) The High Court of Judicature at Madras was established in the year 1862 under the Letters Patent issued by Queen Victoria. Till today, it has only one seat at Madras (Chennai). It is vaguely stated in paragraph 6 of the writ petition that the minutes of the Full Court Meeting of the Madras High Court, proposing to establish a Bench at Madurai declares a 'Circuit Bench' at Madurai (probably meaning that the Full Court recommended a Circuit Bench at Madurai) and not a ' permanent Bench'. The petition is silent about the date of the Full Court resolution. It is then suggested that in the said resolution, the Full Court inflicted certain pre-conditions like appointment of the full sanctioned strength of Judges of both permanent and additional and creating permanent establishment by acquiring land and constructing court-building, providing nine court halls and providing additional staff and protocol officers. In paragraph 3, the petitioner has declared that the petition was not being filed for protection of any of his interest, which would be hampered because of the bifurcation of the High Court at Madras. It is declared that the petitioner was only concerned with the larger interest of the need for confining to the rule of law and restricting the dignity and structural integrity of High Court at Madras in the interest of all the Members of the Bar including the petitioner. The petitioner refers to Clause 31 of the Letters Patent and asserts that creation of a Bench at Madurai amounted to organising and constituting a High Court as contemplated under Entry 78, List I of VII Schedule to the Constitution of India. It is then contended that Clause 31 read with Clause 44 of the Letters Patent specifically declares that the power to sit in other places other than the principal seat, first requires the pre-approval of the Governor-in-Council (now Governor). Relying on the language of Articles 214 and Art.366(14) of the Constitution of India, the petitioner states that there would be only one High Court for each State and that the establishment of such a High Court is legislative function, exercisable by the Parliament under Art.246 of the Constitution of India. It is then pleaded that the High Court cannot exercise its jurisdiction under Clause 31 of the Letters Patent to establish a Bench at Madurai even assuming that it is a 'circuit Bench' as there is no Governorin-Council. It is then suggested that Clause 31 is not the legislation of the Parliament and cannot go in contrast to the legislature and Constitution of India. In the grounds also, it is reiterated that the resolution passed by the Full Court, though for the establishment of a 'circuit Bench' was beyond the jurisdiction of the High Court. It is then suggested that since the State of Tamil Nadu is approachable from one end to another by rail or road, the expenditure involved in creating the infrastructure, etc. is unwarranted and instead the position of the Judges could be improved by increasing the number of Judges. Very interestingly in paragraph 19, the petitioner says: 'Even though the proposal for establishing a Bench of High Court at Madurai is mooted for more than a period of 30 years, the same was actively implemented only recently and further I am a new entrant to High Court of Madras quiet recently therefore the issue of lapses on the part of the petitioner will not arise.' We have already indicated the prayer above.

(3.) Learned single Judge considered1 the writ petitions together though he dealt with them separately. In the first mentioned writ petition, the ground raised was that the High Court of Madras is not the High Court of a 'new State' within the meaning of Sec.2(i) of the States Reorganisation Act, 1956 but of an 'existing State' as defined under Sec.2(g) of the said Act and, therefore, the whole process initiated by the High Court to establish a permanent Bench at Madurai under the provisions of the State Reorganisation Act, 1956 is illegal.