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TMI Blog2004 (11) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) 2 SCC 388, Rajasthan High Court Advocate's Association v. Union of India, (2001) 2 SCC 294 and State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court with very wide powers to deal with all orders and adjudications made by Courts and Tribunals in the territory of India in order to ensure fair administration of justice in this country. It is significant that whereas Arts. 133(1) and 134 (1) provide for appeals to this Court against judgments, decrees and final orders passed by the High Courts, no such limitation is prescribed by Art. 136(1). All Courts and all Tribunals in the territory of India except those in Cl. (2) are subject to the appellate jurisdiction of this Court under Art. 136(1). It is also clear that whereas the appellate jurisdiction of this Court under Arts. 133(1) and 134(1) can be invoked only against final orders, no such limitation is imposed by Art. 136(1). In other words, the appellate jurisdiction of this Court under this latter provision can be exercised even against an interlocutory order or decision. Causes or matters covered by Art. 136(1) are all causes and matters that are brought for adjudication before Courts or Tribunals. The sweep of this provision is thus very wide". 5. Thus two conditions must be satisfied for invoking Article 136(1) :- (1) The proposed appeal must be against a j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in respect of any part of that Province by either of the "existing High Courts". The phrase "existing High Courts" has been defined in Paragraph 2(1) of the Amalgamation Order to mean the High Courts referred to in Section 219 of the Government of India Act, 1935 as the High Court in Allahabad and the Chief Court in Oudh. Clause 14 of the 1948 Order which is required to be interpreted by us reads :- "The new High Court, and the judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces appoint : Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such judges of the new High Court not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court : Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. It would be instructive in this context to compare the power of transfer of litigation from one jurisdiction to another under Section 24 of the Code of Civil Procedure. Section 24 allows the High Courts or the district Courts either on the application of any of the parties after notice and hearing or of its own motion without such notice to inter alia transfer any suit/appeal or other proceedings, pending in any court subordinate to it for trial or disposal to any other court subordinate to it and competent to try and dispose of the same. Similar power has been granted under the Letters Patent to Chartered High Courts to withdraw proceedings from any Court within its jurisdiction to itself. Thus Clause 13 of the Letters Patent 1865 in relation to the Calcutta High Court provides :- "And we do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned order directed such transfer. There can in the circumstances be no doubt that the order of the Chief Justice was, if not judicial, at least quasi-judicial. 15. The next question is whether the Chief Justice could be said to have acted as a "Court" or as a "Tribunal". 16. In Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., 1954 SCR 272 this Court declared :- "…the expression "Tribunal" as used in Article 136 does not mean the same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The only Courts or Tribunals, which are expressly exempted from the purview of Article 136, are those which are established by or under any law relating to the Armed Forces as laid down in Clause (2) of the article." 17. In Indian National Congress (I) v. Institute of Social Welfare and Ors., (2002) 5 SCC 685 this Court posits :- "Where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2001 in connection with her appointment to the post of Reader in the Department of Obstetrics and Gynaecology and obtained an interim order without impleading the present appellant as a party. It was also noted that the hearing of the appellant's writ petition had been fixed with the consent of the parties. After further discussion, the Court was of the view that the application for adjournment was a device to get the case adjourned so that the respondent No. 6 could get an appointment order issued in her favour in her writ petition. Having rejected the respondent's No. 6 application for adjournment, the matter was directed to be proceeded with. It was then that the respondent No. 6 filed the application for transfer of the appellant's writ application from Lucknow to Allahabad. When the appellant's writ application was taken up for hearing on 25th July, 2001 an order was passed by the Division Bench to the following effect : "Supplementary counter affidavit on behalf of respondent No. 6 filed today be placed on record. Heard learned Counsel for the petitioner and learned Counsel for the opposite parties. Arguments concluded. Judgment is reserved." 20. Six months later o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal basis of this reason for transfer of the appellant's writ petition is also erroneous. It needs to be emphasized that the power under Paragraph 14 envisages transfer of a case or class of cases where the Lucknow Bench otherwise has jurisdiction to decide the matter. Whether the Lucknow Bench had/had no jurisdiction was not only an issue to be decided judicially in the appellant's writ petition but also an issue which would, if answered in the negative, cut at the root of the Chief Justice's power under Paragraph 14 of the Order since Paragraph 14 confers the power in the Chief Justice to transfer cases only in respect of any case or class of cases otherwise within the jurisdiction of the Lucknow Bench to Allahabad. 24. The second reason for transfer was that the appellant and the respondent No. 6, as well the U.P. Public Service Commission were at Allahabad. But the State Government which issued the impugned order and against which the mandamus was prayed for by the appellant is in Lucknow. In the circumstances, the mere fact that the respondent No. 6 and the appellant were both in Allahabad should not have weighed with the Chief Justice in depriving the appellant of her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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