RAJA SEKHAR Vs. G IMMANUEL

JUDGEMENT

(1.) The Criminal Appeal and the Revision Petitions are preferred against the judgments of one or other of the four District Judges who were appointed by the Government of the Andhra Pradesh by an order dt.7-12-1973. 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 dt/2-9-1975 in C A.No.2059 (1975-11 APLJ S.C.21 )held that these judges were not eligible to be appointed as their names had not been recommended by the High Court as required by Art. 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 Judges 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, Madusudan Rao, J. considered that this question was of considerable importance and it was therefore expedient that it should be decided by 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 I, 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 which deals will a reference by a single judge to a 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 d/2-9-1975 in CA No. 2059/74 which is reported in 1975-11 A.P. L.J. (SC) P. 21, 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 Sivasanker 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 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 priniciple 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 I Ld.Raym 658) and Turner v. Baynes (1795 2 H.B.I. 559), In Milward V. Thatcher (1787) 2 T. R. 81 at 87), Buller J., said.