Whether Nyaya Panchayats are ‘courts’ subordinate to High Court – Yes

Whether Nyaya Panchayats are ‘courts’ subordinate to the High Court within the meaning of Section 3 of the Contempt of Courts Act

Citation: Allahabad High Court in Ram Saran Tewari vs Raj Bahadur Varma And Ors. ( AIR 1962 All 315)

15. Section 3 of the Contempt of Courts Act–hereinafter called the Act–runs thus:–

“(1) Subject to the provisions of Sub-section (2), every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempt of itself.

2. No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the I. P. C.”

16. The applicability of the aforesaid section to Nyaya Panchayats thus depends upon the answer to the questions (1) whether Nyaya Panchayats are Courts, and if the answer to that question is in the affirmative, (2) Whether they are Courts subordinate to the High Court? I shall therefore, proceed to answer those questions in the order in which they are set out above.

17. The word “court” has not been defined in the Act, but as it has received interpretation from the highest court of the land in a number of cases, its essential attributes have to be regarded as no longer open to discussion. In the latest case of (S) AIR 1956 SC 66 the Supreme Court after discussing the earlier decisions in Bharat Bank Ltd., Delhi v. Employee’s of Bharat Bank Ltd., Delhi, AIR 1950 SC 188, Maqbool Husain v. State of Bombay, AIR 1953 SC 325 and A. Venkataraman v. Union of India, AIR 1954 SC 375 laid down, the essential attributes of a ‘court’ in the following terms :–

“It is clear, therefore, that in order to constitute a Court in the strict sense of the term an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which arc the essential tests of a judicial pronouncement.”

18. The ‘trappings of a judicial tribunal’ referred to above are nothing else than the four requisites which the Supreme Court adopted from Cooper v. Wilson, 1937-2 KB 309 in AIR 1950 SC 188 and reiterated in Maqbool Husain, AIR 1953 SC 325 and Venkataraman, AIR 1954 SC 375. The relevant quotation, from 1937-2 KB 309 reads thus:-

“A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites:- (1) the presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf ot the parties on the evidence; (3) if the dispute between them is aquestion of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the faets in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.”

19. The question whether Nyaya Panchayats are courts has thus to be decided with reference to the tests enumerated above.

20. Now, the Nyaya Panchayats were brought into existence under the U. P. Panchayat Raj Act, 1947–hereinafter called the Panchayat Act–for deciding certain types of criminal, civil and revenue cases. Section 52 of the Panchayat Act gives a list of the offences which are cognizable by Nyaya Panchayats. Similarly Section 64 lays down the types of civil cases which Nyaya Panchayats may take cognizance of Section 75 then provides tor the manner in which ciyil, criminal and revenue cases can be instituted. As this section is of some importance for the determination of the question before this Bench it is necessary to quote it in full. Thut section reads thus:-

“(1) Any person who wishes to institute a (civil, criminal or revenue case) under this Act before a Nyaya Panchayat may make an application orally or in writing to the Sarpanch (and in his absence to the Sahayak Sarpanch) of the Nyaya Panchayat or in case of (their) absence from the circle to such other Panch as may have been appointed by the Sarpanch in this behalf and shall at the same time pay the prescribed Tee. The Court Fees Act, 1870, shall not apply to Nyaya Panchayat except as may be prescribed. In every civil case the plaintiff shall state its value.

2. Where a civil, criminal or revenue case is instituted orally, the Sarpanch, Sahayak Sarpanch or Panch receiving the application shall record without delay the prescribed particulars and the signature or thumb-impression of the applicant shall be taken thereon.” Section 76 then provides for the laying of the application referred to in the previous section before a Bench of the Nyaya Panchayat for disposal and for the fixing of a date for the first hearing of the application before the said Bench and for the giving of notice of the said date to the applicant, complainant or plaintiff as the case may be and to the members of the Bench. Section 83 lays down the procedure which the Nyaya Panchayat has to follow in trying cases. As this again is a section of considerable importance for the purposes of deciding the point before us it has to be quo ed in full :

“Procedure and power to ascertain truth-

(1) The Nyaya Panchayat shall receive such evidence in a civil, criminal or revenue case as the parties may adduce and may call for such further evidence as, in their opinion, may be necessary for the determination of the points in issue. It shall be the duty of the Nyaya Panchayat to ascertain the acts of every civil, criminal or revenue case before it by every lawful means in its power and thereafter to make such decree or order, with or without costs, as to it may seem just and legal. It may make local investigation in the village to which the dispute relates. It shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1898, the Indian Evidence Act, 1872 and the Indian Limitation Act, 1908, shall not apply to any civil, criminal or revenue case in a Nyaya Panchayat except as provided in this Act or as may be prescribed.

2. Nothing in this sub-section shall entitle any party to compound any offence which is not compoundable under the provisions of the Cr. P. C. or to compound an offence without the permission of the Bench concerned, if it is compoundable with permission under the provisions of the said Code.”

21. Rules 95 and 100 of the U. P. Panchayat Raj Rules framed under Section 110 of the Panchayat Act lay down the details of the procedure which the Nyaya Panchayats have to follow at the hearing of cases pending before them. Rule 95 provides for the examination of parties and their witnesses and states that:-

“(1) At the hearing of a civil or revenue case, a Nyaya Panchayat may first examine the parties to ascertain their cases and to find out what points of difference between them are. In taking evidence the Nyaya Panchayat shall first examine the plaintiff or the applicant and his witnesses and afterwards the defendant or the objector and his witnesses, as the case may be. While trying a criminal case, the Nyaya Panchayat shall first explain to the accused the charge or charges made against him and record the prosecution evidence and then examine the accused and record, the evidence in defence:

Provided that if in a criminal case an accused makes a clear and voluntary confession of the crime, he shall be convicted without recording any evidence; while in a civil or revenue case if the claim of the plaintiff or the applicant is totally admitted by the other party, it will not be necessary for the Nyaya Panchayat to record any evidence.

2. Each party shall be allowed to cross-examine the other party except an accused and the witnesses produced just after their examination-in-chief, but the Nyaya Panchayat may, either of its own motion or on the request of any party, examine any person at any stage of the proceedings before passing final orders, and in such a case each party shall be entitled to put questions to the persons so examined.

3. Before examining any person except an accused a Nyaya Panchayat shall administer him the following oath or if the person is willing to make an oath in any other form to which peculiar sanctity is attached in the locality, then in such other form.

“I shall state the truth, and nothing but the truth. So help me God.”

Rule 100 is headed, ‘Judgment, order or decree’, and provideg that :

“After ascertaining the facts of the case by examining the parties, their witnesses and the documents produced, if any, and by any other lawful means in its power, the Nyaya Panchayat shall record a brief judgment and the final order over the signatures of the Panches. The judgment shall be read in the open court and signatures or thumb-impressions of the parties present will be taken on it as far as possible, which shall form part of the record. The judgment, and if the cage is a civil or revenue case a decree in the prescribed form (Form No. 24) shall be drawn up in terms of the judgment.”

22. Finally Section 89 of the Panchayat Act provides for the revision of the orders and judgments of the Nyaya Panchayats. According to this section, a Sub-divisional Magistrate, Munsif or Sub-Divisional Officer (according as it is a criminal, civil or revenue case) may either on his own motion or on the application of any party made within 60 dsys from the date of the order complained of or where personal service of summons had not been effected on the applicant from the date of the knowledge of the order call for the record of any case which has been decided by a Nyaya Panchayat and if it appears to him that injustice or material irregularity has occurred, he may make such order in the case as he thinks fit.

Explanation–Failure to exercise a jurisdiction vested by law or exercise of jurisdiction in excess of that vested by law. shall for purposes of this section be deemed to be a material irregularity.

2. Without prejudice to the generally of the foregoing provisions, the sub-divisional Magistrate, Munsif or Sub- divisional Officer, as the case may be, may,

(a) quash the decree or order passed by the Nyaya Panchayat,

(b) modify the order,

(c) remand the case to the Nyaya Panchayat fer retrial, with such direction as he may deem fit, or

(d) try the case himself or transfer it to another court or Officer competent to try the same.

3. If any application under Sub-section (1) is found by the Sub-Divisional Magistrate, Munsif or Sub-divisional Officer, as the case may be, to be frivolous or vexatious he may, for reasons to be recorded, make an order for the payment of the opposite party by the applicant of special costs not exceeding fifty rupees by way of compensation.

4. Except as aloresaid, a decree or order passed by a Nyaya Panchayat in any civil, criminal or revenue case shall not be open to appeal or revision in any Court.”

23. I have purposely set out the relevant sections of panchyat Raj Act, and the rules made thereunder at some length, as, in my opinion, they go to show that the five attributes which a tribunal must possess before it can be called a ‘court’, are to be found present in the case of a Nyaya Panchayat. The first requisite laid down in 1937-2 KB 309 viz., the presentation (not necessarily orally) of their case by the parties to the dispute is to be found in Section 75. The second requisite viz., the ascertainment of questions of fact by means of evidence produced by the parties and often with the assistance of argument by or on behalf of the parties on the evidence, is to be found in Section 83 and RULES 95 and 100. The thrid requisite viz., that if the dispute between them is a question of law the submission of legal arguments by the parties, is inherently implied in Section 83 and Rules 95 and 100. The fourth requisite, viz., a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed, question of law, is laid down in Rule 100. The fifth requisite laid down by the Supreme Court in the case of Brajnandan Sinha, (S) AIR 1956 SC 66 viz., that the Court should also have the power to give a decision or a definitive judgment which has finality and authoritativeness is to be found both in Rule 100 and Section 89 (4).

24. on behalf of Mr. Raj Bahadur Verma, the alleged contemner, his learned counsel Mr. V. K. S. Chaudhary, contended that as Section 83 of the Panchayat Act casts upon the Nyaya Panchayat the duty of ascertaining facts, apart from the evidence adduced by the parties or called for by it, it cannot be regarded as ‘court’ properly so called. He also contended that as the Nyaya Panchayat can act on matters which are extra. neous to the evidence led before it, it cannot be held to be a ‘court’. In my opinion neither of these contentions has any merit. The duty cost upon Nyaya Panchayat of ascertaining facts, of every civil, criminal or revenue case before it, is not absolute, but is subject to its performing that duty, as the subsequent words indicate, “by every lawful means in its power”. ‘Lawful means’ clearly could not mean anything which is opposed to the rules of natural justice. Again the non-applicability of the C. P. C., the Cr. P. C., the Indian Evidence Act and the Indian Limitation Act to the cases before the Nyaya Panchayat does not make the latter arbitrary bodies in regard to matters covered by those statutes. The applicability of those statutes to cases before the Nyaya Panchayat had to be taken, away because the Panchayat Act provides for its own rules of limitation, procedure and evidence (vide the Schedule to Section 68 and Rule 99). aS the cases before the Nyaya Panchayat are of a petty nature, the rules of procedure and evidence have been simplified but nonetheless they are rules in conformity with the well-established rules and principles of natural justice. The first contention of Mr. Chaudhary must therefore fail.

25. The second contention of Mr. Chaudhry that the Nyaya Panchayat can act on matters extraneous to the evidence led by the parties, appears to be based upon a misreading of Section 83. That section nowhere lays down that in deciding cases the Nyaya Panchayat is free to act outside the record. All that it says is that it shall be the duty of the Nyaya Panchayat to ascertain the facts of the case before it by ‘every lawful means in its power’. I have alrady discussed the meaning which is to be given to this expression, and having regard to that discussion, the second (contention of Mr. Chaudhry must also fail.

For the reasons given above, I have no doubt in my mind that Nyaya Panchayatg are ‘courts’ within the meaning of Section 3 of the Act.

26. This brings me to the consideration of the second question, viz. that if Nyaya Panchyats are courts, are they courts subordinate to the High Court. The answer to the question depends upon what the word ‘subordinate’ in Section 3 of the Act means. This word has also come in for interpretation in a number of cases and, in all of them it has been construed to mean “judicial subordination,’–the test of judicial subordination being the right of ultimate appeal and revision from its judgment and orders to the High Court. This view was taken by a Full Bench of this Court in State v. Brahma Prakash, AIR 1950 All 556 (FB) where it was held that:

“Section 2, Contempt of Courts Act when it speaks of Courts subordinate to the High Court, clearly, in our opinion, refers to judicial subordination. Judicial Magistrates are Magistrates of the First Class whose judgments come before Sessions Judges and the High Court in appeal and revision and their Courts are, we think, clearly sub-ordinate to the High Court within the meaning of Section 2, Contempt of Courts Act.”

27. Long before the Full Bench case referred to above, Iqbal Ahmad, J. in Bishambhar Nath v. Achal Singh AIR 1932 All 651 took a similar though somewhat extended view on this matter. The learned Judge stated as follows:

“It appears to me, however, that a court can be said to be subordinate to another court only if the latter court has appellate or revisions jurisdiction or power of superintendence given to it by some statutory provision over the former courts…..

28. The precise question, as to whether Panchayati, Adalats are courts subordinate to the High Court, came for decision before a Division Bench of this Court in Sukhdeo Baiswar v. Brij Bhusan, AIR 1951 All 667 and on a consideration of the relevant enactments and case law it was observed by Desai, J., (as he then was), with whom Dayal, J., concurred that:-

“Panchayati Adalats as the name itself indicates are ‘Courts’ within the meaning of the Contempt of Courts Act.”

and later on the same learned Judge observed, “My finding is that this Court has now the same power of superintendence which it had upto the passing of the Government of India Act of 1935. In exercise of it, it can check the assumption or excess of jurisdiction by Panchayati Adalats or compel them to exercise their jurisdiction and do their duty. They are, therefore, judicially subordinate to this Court.”

29. In the case of AIR 1953 All 419 Waliullah, J., on difference between Raghubar Dayal and Mushtaq Ahmad, JJ., after discussing the case law agreed with Mushtaq Ahmad, J., and held that :–

“The object of the provisions of Section 2 (1) is to provide for the protection of the position of Courts subordinate to the High Court against unlawful interference with their judicial functions. For such a purpose, and in such a context, the position of an inferior Court, i. e., a subordinate Court must be considered in its totality in relation to Ithe particular Act or provision of law under which it may happen to be acting at the time when an alleged interference with its judicial activity occurs.”

On a survey of the decisions referred to above, it would appear that the uniform view of our High Court has been to regard “judicial subordination” in Section 3 of the Act as meaning the maintainability of the right of ultimate appeal or revision to it from the judgments or orders of the subordinate court and in two of them viz. Bishambhar Nath, AIR 1932 All 651 and Sukhdeo Baiswar, AIR 1951 All 667, the supervisory jurisdiction of the High Court was also held to be a test for deciding that question.

30. In 1956 and again in 1957, a differed view was expressed by Desai J. in (S) AIR 1956 All 258 and Phul Kumari v. The State, (S) AIR 1957 All 495. As Desai J, was a party to the judgment in Sukhdeo Baiswar, AIR .1951 All 667 it would be appropriate to set out his reasons for taking a different view in his own words. Said the learned Judge in (S) AIR 1956 All 258 :

“It may be that under English Law the power of a superior Court to punish contempt of an inferior Court is derived from the superior Court’s having superintendence over the inferior Court. But in Section 3 of the Act the Legislature did not use the words ‘the Courts over which the High Court has superintendence’ or the words the Courts within the territories in relation to which the High Court exercises jurisdiction’, to describe the Courts the contempt of which can be punish ed by it.

There is, therefore, some force in the contention that the Legislature by using the word ‘subordinate’ in the Act did not mean subject to the supervisory jurisdiction’. Chapter VI of the Constitution deals with ‘subordinate Courts’ and although that chapter may not give an exhaustive list of Counts subordinate to a High Court, it can hardly be disputed that some guidance can be had from the nature of the Courts mentioned in the Chapter about the meaning of subordination.

Article 227 has used a word ‘superintendence’ while the next article expressly uses the words ‘a Court subordinate to it’ thereby suggesting that the Constitution distinguished between subordination to the High Court and being under its superintendence. If it were otherwise and every Court mentioned in Article 227. were subordinate to the High Court, the High Court would be obliged to withdraw cases from a large number of Courts, and it was not the intention of the Constitution makers that it should do so.

In view of the provisions of Article 226 there is much to be said for restricting superintendence to administrative superintendence and it is doubtful if a Court over which the High Court has only administrative superintendence can be said to be subordinate to it.”

These observations were reiterated by him in Phul Kumari’s case, (S) AIR 1957 All 495.

31. The divergent note thus struck by Desai, J. makes it necessary for me to re-examine the entire position in this regard. It is an undisputed fact that in relation to Nyaya Panchayats, the High Court does not possess any appellate or revisional jurisdiction, so that if the latter were the sole test for determining that question there could be no manner of doubt that Nyaya Panchayats could not be held to be courts “judicially subordinate” to the High Court. But the question is whether there is anything to justify this limited interpretation being put upon that expression. In my opinion there is no warrant for taking that restricted view, for reasons which I shall proceed to indicate.

32. Now, under Article 226 of the Constitution, every High Court has been given the power to issue directions, orders or writs to any person, or authority including in appropriate cases any government within the territories in relation to which it exercises jurisdiction, for the enforcement of any of the rights conferred by Part III or for any other purpose.

33. One of the writs which the High Court is authorised to issue is the writ of certiorari. The true nature and ambit of this writ is to be found laid down in the leading case of T C. Basappa v. T. Nagappa, MR 1954 S.C 440 in the following terms :

“One op the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression ‘judicial acts’ includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacitiy. In granting a writ of certiorari the superior count does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The supervision of the superior court exercised through writs of certiorari goes on two points. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded. Certiorari may and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the count itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances . When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess.

A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignoranca or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”

34. The aforesaid observations make it clear that the power which the High Court exercises under Article 226 is not ‘in an appellate but supervisory capacity’ and further that while it demolishes the order which it considers to be without jurisdiction or palpably erroneous, it ‘does not substitute its own views for those of the inferior tribunal’. In other words, the power of the High Court under Article 226 of the Constitution is a somewhat limited power, and is not conterminous with the power which it possesses on the appellate and the revisional side. But the fact that the said power is not co-extensive with the power which it possesses on the appellate and revisional side does not, in my opinion militate against the basic fact that the High Court possesses the power to correct certain types of errors of the Nyaya Panchayats. This power, in my view, is sufficient to establish the necessary judicial kinship between the High. Court and the Nyaya Panehayats, so as to make the latter judicially subordinate to the former. For the reasons indicated above, I find myself unable to subscribe to the view expressed by Desai, J. in (S) AIR 1956 SC 258 and in Phul Kumari (S) AIR 1957 All 495 and, with the greatest respect, beg to disagree with it.

35. Mr. V. K. S. Chaudhary, however, contended that the decisions referred to above except the decision in Phul Kumari, (S) AIR 1957 All 495 can no longer be regarded as laying down good law in view of the observations made by the Supreme Cour.fi in Brajnandan Sinha, (S) AIR 1956 SC 66 to the effect that :

“The word ”Court” is not defined in the Contempt of Courts Act and the expression “Courts subordinate to the High Courts” would prima facie mean the courts of law subordinate to the High Court in the hierarchy of Courts established for the purpose of administration of justice through out India.”

36. The aforesaid observation, according to Mr. Chaudhry, confines the meaning of the expression “Courts subordinate to the High Courts” in Section 3 of the Act, to Courts which are subordinate to them in the ‘hierarchy of courts established for administration of justice throughout the Union: and as Nyaya Panchayats fall outside that hierarchy they cannot be held to be courts subordinate to the High Court for the purposes of the Act. In my opinion, the aforesaid conteation has no merit, for the simple reason that the Supreme Court has nowhero laid down as to what courts are to be regarded as falling within the expression in the hierarchy of courts subordinate to the High Courts’. That expression must, therefore, be givien its primary meaning of courts which are judicially subordinate to the High Courts, under some valid law. I have already given my reasons for holding that Nyaya Panchayats are courts which are established by the Panchayat Act for administering justice. The judgments, decrees and orders of those courts are open to revision under Section 89 of the Panchayat Act by a Sub-Divisional Magistrate, Munsif or Sub-Divisional Officer according to whether they are given in criminal, civil or revenue cases and the orders of line latter Courts are in their turn amenable to the writ jurisdiction of the High Court. The Panchayat Act thus creates a new hierarchy of courts subordinate to the High Court. As such the Nyaya Panchayats also fall within the scope and ambit of the aforesaid expression relied on by Mr. Chaudhry.

37. For the reasons stated above, I would answer the question referred to this Bench in the affirmative.

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46. A stereoscopic reading of Sections 224 and 231 (2) would show that the expression ‘subordinate courts’ in the latter provision refers to courts, which are subject to superintendence of a High Court. The underlying object of that provision is to preserve the autonomy of every Provincial Executive and the independence of the Federal Executive, and it should be so construed as to achieve its object.

47. To sum up, I am of opinion that the expressions ‘inferior court’ and ‘subordinate courts’ in the Government of India Act meant courts which were subject to the administrative superintendence of a High Court. Thus all courts subjecs to its appellate jurisdiction were subordinate courts.

48. We now move on to Articles 227 and 228. Article 227 reads :

“227–(1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers’ of any euch Courts.

(3) The High Court may also settle, tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or table’s settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.” Article 228 reads’:-

“228–If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may-

(a) either dispose of the case itself, or

(b) determine the said question or law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.” Here one may also set out the material portion of Article 231 :–

“231. (1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more Statics or for two or more States and a Union territory.

(2) In relation to any such High Court-

(b) the reference in Article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate Courts be construed as a reference to the Governor of the State in which the subordinate courts are situate; and

49. I think that the expression ‘court subordinate’ in Article 228 and the expression ‘subordinate courts’ in Article 231(2)(b) are used in the same sense. In what sense then is the second expression used in Article 231(2)(b)? Now, Clause (.1) of Article 227 subjects all courts situate within the territorial jurisdiction of the High Court to its superintendence. Clause (1) is couched in general language and Clauses (2) and (3) are only illustrative of the wide sweep of the undefined superintending power Under that power a High Court may call for returns from courts, frame rules for regulating their practice and procedure, prescribe forms regulating their practice and procedure, prescribe forms for their use and fix fees to be allowed to the officials of courts and lawyers practising therein. These powers are permissive. A High Court may not exercises these powers or may exercise only one or more or all of them. Further, the exercise of these powers is subject to two conditions, namely, (1) rules, forms and table of fees must not be inconsistent with any law, and (2) must receive the previous approval of the Governor. Article 231(2)(b) is of an explanatory nature, and makes clear that approval of the rules, forms and scale of fees should be obtained from the Governor of the State in which the subordinate court is situate. I have little doubt in my mind that the expression ‘suibordinate court’ in Article 231(2)(b) refers to courts in Article 227(2). In other words, it means courts which are subject to the superintendence of the High Court. It cannot be interpreted to mean courts which are both subject to tthe superintendence of the High Court as well as subordinate to it. Such an interpretation is in disaccord with the nature and purpose of Clause (b). The provision is explanatory of Sub-section (2) of Article 227, and is designed to preserve the autonomy of the State in internal administration

50. I think my view derives support from the constitutional history of Articles 227, 228 and 231(2)(b). The Government of India Act, 1935 made a significant improvement over the Government of India Act, 1919; it abolished dyarchy. But strangely enough, it retained a sort of dyarchy in the administration of justice in the provinces. It contemplated the existence and creation of courts, at once independent of, and uncontrollable by the High Court, Section 224 shows that the High Court had no control over all courts situate within its jurisdiction. The High Court appears to be called as high in Section 224 in an euphemistic sense. The makers of the Constitution, it seems to me, saw this patent defect, and decided not to perpetuate it. By Article 227 they made the High Court high over all the courts situate within its jurisdiction in the real sense of that term. They made all the courts subject to the superintendence of the High Court. They firmly secured the hegemony of the High Court in the administration of justice. Under the Constitution the principal organs of the State power are the State Legislature, the State Executive and the High Court.

51. Coming to Chap. VI of Part VI of the Constitution it does not profess to give an exhaustive list of subordinate courts. It deals only with a certain class of stipendiary judicial officers. For instance, it says nothing about honorary magistrates and Munsifs or officers presiding over revenue courts. Its scope and purpose is different from the scheme and vision of Article 227. While it seeks to secure judicial independence and regulate conditions of service of certain judicial officers, Article 227 ensures judicial superiority of the High Court. In the Government of India Act, 1935, the provisions dealing with the High Court are to be found in Chapter II of Part IX, and the provisions corresponding to Chapter VI of Part VI of the Constitution are grouped together under Chapter II of Part X. The heading of Chapter II of Part X is ‘civil services’, and the sub-heading under which the coresposding provisions are placed is ‘Special Provisions as to Judicial Officers’.

52. The object underlying Chapter II of Part X is expressed by the Joint Parliamentary Committee thus :–

“We have been impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed to pressure from members of a popularly elected Legislature. Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister …… It is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important , perhaps indeed even more important, that their independence should be placed beyond question than in the case of superior Judges…..” (See J. p. C. Rep.

(H. C. I., part I) paragraph 337, page 200).

53. Thus the scope and purpose of the two provisions are different, and Chapter VI would dimly illumine the implications of Article 227.

54. In Ratan Shukla’s case, (S) AIR 1956 All 258 Beg, J., expressed no opinion as to the meaning of the expression ‘courts subordinate’. Desai, J., interpreted ‘the expression in the light of Article 228 and Chapter VI. It does not appear that he was referred to Article 232(b) the predecessor of Article 231(2)(b) and the constitutional history, which has been traced by me.

55. In view of the foregoing discussion my opinion is that the expression ‘courts subordinate’ in the 1952 Act means courts which are subject to superintendence of the High Court under Article 227 of the Constitution. I am supported in my view by decisions of the Punjab, Bombay and Madhya Pradesh High Courts (see Kapur Singh v. Jagat Narain, AIR 1951. Punj 49, Lakhama Pesha v. Venkatrao Swamirao, AIR 1955 Bom 103, and AIR 1960 Madh Pra 115.

56. I would respectfully adopt the view taken in Sukhdeo’s case (AIR 1951 All 667).

57. My answer to the question referred to us, therefore, is in the affirmative.

BY COURT:

58. In view of opinion of the majority of us, we answer the question referred to us in the affirmative.

Citation: Allahabad High Court in Ram Saran Tewari vs Raj Bahadur Varma And Ors. ( AIR 1962 All 315)


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