R.C. Patnaik, J.
1. The High Court, the apex Court of the State, is not a mere lifeless edifice of bricks and mortar standing on a parcel of land. It is a living entity--the Bar being its heart and soul; the other adjuncts are its limbs assisting in dispensation of justice.
2. High Court is a temple; its presiding deity is justice. Lawyers are its priests. Rest are votaries discharging their assigned role. Entertaining ah idea of shifting a temple is considered a sacrilege except in exceptional circumstance and when it is unavoidable. Only compelling, cogent and convincing grounds may justify shifting of a temple. But entertaining a desire to shift a temple in a cavaliar fashion or on whim or caprice or to please a group of people is neither wholesome nor desirable. If there be deficiency, cure the same; if it needs improvement or beautification, carry out the same, but desist from acting thoughtlessly.
3. The Bar is not a mere conglomerate of Law Graduates. Its glory is its tradition which is not acquired but grows in course of time, over the ages by the consecrated and dedicated service rendered to the cause of justice by the members by their sweat, toil and tears.
4. Tradition of the Cuttack Bar rolls back to ancient times growing and gathering strength from generation to generation of lawyers, its interaction with the High Court having commenced with the functioning of the Circuit Bench of the Patna High Court at Cuttack.
The aforesaid would be the answer of a lay man to the questions of locus standi and shifting of the seat of the High Court involved in this case.
5. But what is the position in law
6. The petitioner an advocate practising ordinarily in this Court and a member of the Cuttack Bar, has filed this writ application in his individual capacity, as well as in the nature of public interest litigation for a declaration that neither the State Legislature has competence to enact a law for the shifting of the seat of the High Court from Cuttack to Bhubaneswar nor has the executive power to direct shifting and for an order restraining the executive from taking any decision in the matter of shifting. He has alleged that the shifting of the High Court from Cuttack to Bhubaneswar would not only affect his livelihood but the livelihood of hundreds of lawyers ordinarily practising in Cuttack and the litigant public. The aforesaid allegations have been made with a view to giving him a standing to maintain the application.
7. The immediate cause of action, as alleged in the petition, was the statement of the Law Minister on the floor of the Assembly that the Government had taken a decision to shift the High Court from Cuttack to Bhubaneswar. The statement was reiterated by a Press-Note and was given wide publicity over the television and newspapers. A news item published in the daily Samaj dated 9-3-1991 has been annexed as Annexure-1. He has alleged that under the Orissa High Court Order, 1948, it is the Chief Justice who is to take a decision regarding the seat of the High Court. Until the provision contained in the Order is abrogated by law enacted by a competent legislature, the executive has no locus standi and having regard to the subject. Constitution and Organisation' of the High Courts under Entry 78 of List I of Schedule VII of the Constitution of India, the State Legislature has no competence to enact the law. Hence, the decision which was given wide publicity was capricious, ma/a fide and arbitrary. Since an authority incompetent under the law to take a decision or give a direction has given threats, was justification to move this Court for an appropriate writ and/or order.
8. In the return submitted by the State-opp. party No. 1, it has been averred that various Bar Associations of the State had taken recourse to agitational activities for establishment of Circuit Benches of the High Court. When the Bar Council of Orissa did not take any initiative and the High Court remained silent, the State Government had to intervene in public interest. At the meeting convened at Bhubaneswar for the purpose of ascertaining the views of the various Bar Associations of the State as regards the setting up of circuit benches of the High Court, the representatives of the Bhubaneswar Bar Association made a demand for shifting of the High Court from Cuttack to Bhubaneswar Almost all the representatives of the Bar Associations supported the said demand. Acting on the views expressed by the majority of the representatives with a view to curbing the agitational activities of some of the Bar Associations, the State Government decided to shift the High Court from Cuttack to Bhubaneswar but the decision was a preliminary one and final decision would be taken in accordance with law. The application, therefore, was not maintainable being premature. Opp. party No. 1 has made reference to the proposals made in 1960 and 1967 by two former Chief Justices of the High Court for the shifting of the High Court from Cuttack to Bhubaneswar.
9. It has been averred that the State Legislature is competent to make law under Entry 11-A of List III of the Seventh Schedule providing for the seat of the High Court including the shifting of the High Court The subject is not covered by Entry 78 of List I. Shifting of the High Court from one building to another is neither constitution nor organisation of the High Court. It has further been averred that inasmuch as the State Government bears the expenditure for the provision of infrastructure and the functioning of the High Court and inasmuch as under Article 10 of the Orissa High Court Order, the approval of the Governor who acts on the aid and advice of the Council of Ministers is a condition precedent, the executive is competent to take a decision regarding the place of principal seat of the High Court as well as place of sitting of the Judges, and the Division Courts thereof.
10. An application, was filed on 22-3-1991 on behalf of the Bhubaneswar Bar Association for intervention which was allowed. Another application was filed on 3-4-1991 by the said Bar Association seeking an adjournment for engaging an advocate from outside the State as no advocate of the High Court Bar Association competent to handle matters involving important questions of law was willing to accept the brief on behalf of the said Bar Association and the case was adjourned to 16-4-1991. A further application was made on 22-4-1991 which was rejected on the ground that the intervenor had already had two weeks time and having regard to the urgency of the matter, no further adjournment could be given.
11. The intervenor in its counter affidavit while supporting the decision of the Government has assailed the maintainability of the writ application by the petitioner questioning his locus standi and alleging that the application is premature. It has pleaded that Entry 95 of List I and Entry 65 of List II enable the Parliament and the State Legislature respectively to enact law fixing the place of sitting of the High Court.
12. Mr. J. Das, the learned counsel for the petitioner, has contended that so long as Article 10 of the Orissa High Court Order has not been superseded by a law enacted by the competent legislature, which having regard to Entry 73 of List I is Parliament, it is the Chief Justice who can take a decision with the approval of the Governor as to the seat or seats of the High Court. The place of sitting of the High Court is a matter covered by the subject 'Constitution and Organisation' under Entry 78 of List I. The subject 'Administration of Justice' under Entry 11 -A of List III does not authorise the State Legislature to enact a law as regards the seat/seats of the High Court. The subject is relatable to management of the High Court. The subjects 'Jurisdiction and powers' under Entry 65 of List II and Entry 46 of List III authorise the State Legislature to confer on or to take away jurisdiction from the High Court in regard to matters in the respective lists. He has contended that if the subject 'Administration of Justice' and 'Jurisdiction and power' would be construed as authorising the State Legislature to make law relating to the seat or seats of the High Court, the subject 'Constitution and Organisation' in Entry 78 of List I would lose its content and be rendered nugatory. Fixing or refixing of the seat of the High Court or fixing additional seats of the High Court being matters covered by the subject 'Constitution or Organisation' in Entry 78 of List I, the decision of the State Government is arbitrary, being a threat by an incompetent authority in relation to the apex Court of the State and hence the petitioner a member of the Cuttack Bar has sufficient interest personally as well as in the nature of public interest litigation to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
13. Learned Advocate-General and Mr. Basu for the intervenor, have urged that the State Legislature is competent to enact law regarding the seat or seats of the High Court which would include shifting of the seat of the High Court under the subject 'Administration of Justice' under Entry 11-A of List III. Mr. Basu has further urged that Entry 65 of List II confers authority on the State Legislature to make law for the shifting of the seat of the High Court from Cuttack to Bhubaneswar.
14. Before we consider whether the Parliament or the State Legislature has competence to enact law relating to the fixing the seat or seats of the High Court or as regards refixing the seat of the High Court, it is worthwhile to say that pursuant to an address made in the Orissa Legislative Assembly on the 3rd day of March, 1948, to the Governor of Orissa for submission of a proposal to the Governor-General of India for constitution of a High Court for the province of Orissa, the Governor-General in exercise of powers conferred on him by Sub-section (1) of Section 229 of the Government of India Act, 1935, as adopted by the India Provisional Constitution (Amendment) Order, 1948, made the Orissa High Court Order, 1948, constituting the High Court of Orissa for the Province of Orissa with effect from 5-7-1948.
Article 10 thereof reads as under:
'10. The High Court of Orissa and the Judges and division Courts thereof shall sit at such places in the Province of Orissa as the Chief Justice may with the approval of the Governor of Orissa appoint.'
In exercise of the said powers vested in him, the Chief Justice appointed Cuttack as the seat of the High Court and the High Court of Orissa was constituted and established at Cuttack.
15. Article 10 of the Order, 1948, is saved by Article 225 of the Constitution of India, which so far as relevant reads as under:
'225, Subject to the provisions of this Constitution and to the provision of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution : xx xx xx '
Since the provision contained in Article 10 is not repugnant to any provision of the Constitution, until overridden by any law made by the appropriate Legislature by virtue of powers conferred in the Seventh Schedule, it has the force of law. Until the same is superseded of abrogated by law framed by competent Legislature, the seat or seats or change in the seat of the High Court can be appointed only by the Chief Justice, of course with the prior approval of the Governor. It is not the other way round. The requirement of approval under Article 10 does not authorise the Government to take a decision regarding shifting of the seat of the High Court or fix places of sitting of the High Court. Proposals may be forwarded, recommendations may be made, suggestions may be given by the Government and for that matter any person to the Chief Justice for additional places of sitting of the High Court or for shifting the seat of the High Court, but authority has been vested exclusively in him as regards taking a decision.
16. In order to understand the contentions raised, it is necessary to apprise ourselves also what was the position under the Government of India Act, 1935, as regards the subjects and the division thereof between the Federal Government and the Provincial Government.
List I--Federal Legislative List
53. Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appellate jurisdiction of the Federal Court, and the conferring thereon of supplemental powers.
List II--Provincial Legislative List.
1. xx xx xx the administration of justice; constitution and organisation of all Courts, except the Federal Court, and fees taken therein ; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.
2. Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
List III--Concurrent Legislative List
15. Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list.
17. A combined reading of Entries 1 and 2 of List II under the Government of India Act, 1935, shows that constitution an I organisation, jurisdiction and power of all Courts, except the Federal Court; administration of justice were State subjects and it was within the competency of the State Legislature to make laws.
18. While framing the Constitution of India, the subject 'constitution and organisation' of High Courts was taken out of the State List and included in List I. The relevant entries under the Constitution, as amended by the 42nd Amendment, are of follows :
List I--Union List.
77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.
78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.
95. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction.
List II--State List.
3. Officers and servants of the High Court; procedure in rent and revenue Courts; fees taken in all Courts except the Supreme Court.
65. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.
List III--Concurrent List.
11-A. Administration of Justice; constitution and organisation of all Courts, except the Supreme Court and the High Courts.
46. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.
Prior to the 42nd Amendment, the subjects 'Administration of justice' and 'constitution and organisation of all Courts, except the Supreme Court and the High Courts' were under Entry, 3 of List II. Those were deleted by the amendment and Entry 11-A was inserted in List-Ill.
19. The Constitution has made provisions relating to constitution and organisation of High Court. Article 214 provides that there shall be a High Court for each State and Article 216 lays down that every High Court shall be a Court of record and shall have alt the powers of such a Court including the power to punish for contempt of itself. Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 217 lays down the qualifications and procedure for appointment of Judges of High Courts and their conditions of service. Article 220 places restriction on a permanent Judge of a High Court on practice after ceasing to be a Judge. Article 221 provides for salaries and allowances of Judges and Article 222 deals with transfer of Judge from one High Court to other. Article 223 deals with appointment of Acting Chief Justice and Article 224 provides for appointment of Additional and Acting Judges and Article 224A deals with appointment of retired Judges. Article 225 has already been referred to. Article 226 deals with the powers of the High Courts to issue certain writs and Article 227 deals with the power of superintendence of the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
20. The word 'organise' in Black's Law Dictionary is defined to mean 'to establish', 'to arrange in order for the normal exercise of its appropriate functions'. The word 'constitute' also conveys the meaning 'to establish'. In Pramatha Nath Mitter and Ors. v. Hon'ble the Chief Justice of the High Court at Calcutta in the State of West Bengal and Ors., AIR 1961 Calcutta 545, it is held :
'...The matter of organisation of the High Court includes primarily things like the appointment of the Judges, the division into department, making provision and arrangements for the housing of the Courts or in other words matters connected with the giving of final shape to the Court so that it may start functioning. But the matter of its running and management and its actual functioning is entrusted to the State legislature under the power to legislate with respect to Administration of Justice. ...'
and it is further observed :
'...'Constitution' and 'Organisation' as appearing in Entry 78 of List I are no doubt two concepts which are included in the concepts which are included in the concept of 'Administration of Justice' but when these two matters are specifically mentioned in the Union List I it is reasonable to hold that the connotation of the expression 'Administration of Justice' is restricted to that extent in Entry 3 of List II and the matters of Constitution and Organisation of the High Courts have been taken out of the legislative power of the State Legislature,......'
21. It is worthwhile to quote from the speech of Dr. B. R. Ambedkar in the Constituent Assembly Debates, which throws some light:
'...the only matter that is left to the provincial Legislature is to fix jurisdiction of the High Courts in a pecuniary way or with regard to the subject-matter. The rest of the High Court is placed within the jurisdiction of the Centre. Obviously when considering entries in the Union List which are meant to give complete power to the Centre, we were bound to make good this lacuna and to bring in the High Courts which, as I said by virtue of these Articles excepting for two cases have been completely placed within the purview of the Parliament.'
22. Having regard to the meaning of the words 'constitution and organisation', namely, to establish, the Parliament alone has power to enact law as to where the High Court shall be established. A Court is not established in vacuum. It is established at a place which is its seat where Judges Assemble to discharge their function. Hence while the State Legislature has competence to enact law as to how the High Court shall function, i.e., its internal management. Jurisdiction, the Parliament alone has the legislative authority to make law as to where the High Court shall function. Any other interpretation would render the subject 'constitution and organisation' under Entry 78 of List I nugatory. We are, therefore, of the view that it is not open to the State Legislature to make any law as to where the seat of the High Court shall be, as to where the Judges shall sit to discharge their function. That field of legislation has been exclusively assigned to the Parliament.
23. Various decisions cited by the learned Advocate General related to general jurisdiction or pecuniary jurisdiction of the High Court or its internal management. None of them related to the seat of the High Court, i.e.' organisation of High Court, additional seats or setting up of additional seats of High Court or changing the seat of the High Court. On the contrary, the learned counsel for the petitioner has drawn our attention to certain Central Acts, namely, the High Court at Patna (Establishment of a Permanent Bench at Ranchi) Act, 1976, the High Court of Bombay (Extension of Jurisdiction to Goa, Daman, Due) Act. 1981 etc., as fortifying his contention that it is the Parliament which alone has the competence as regards the seat of the High Court.
24. Though no law has been enacted shifting the seat of the High Court and in that view of the matter, the application is premature, the counsel for the parties, especially the learned Advocate-General urged that we should record our opinion and as a precedent Pramatha Nath Mitter's case (supra) was cited.
25. The next question is locus standi of the petitioner to maintain this application. The petitioner is a member of the Bar practising in this Court. He is not opposing opening of additional Courts. He challenges the threat of the Government to shift the seat of the High Court from Cuttack to Bhubaneswar. He has alleged that the shifting would affect thousands of lawyers who make their livelihood by practising in this Court. Threat to shift by an authority not vested with power under the law clothes him with sufficient interest to maintain this application. The seat of the High Court having been fixed by competent authority, it can only be changed by a competent authority. The State Government is an intermeddler according to the petitioner.
By the shifting livelihood of about a thousand lawyers would be affected. The litigants would be deprived of the service, assistance and expertise of lawers conversant with the practice in the High Court and deft in handling matters in the High Court. An advocate has the right to practise before any Court including the apex Court but a competent handling requires expertise and experience. These are considerations which must enter the decision of the competent authority while making a law relating to the shifting of the seat of the High Court. But it is a different matter where an authority not competent to do so proposes or threatens to shift the seat of the High Court. In such eventuality any member of the public, a fortiorari, a lawyer has the right to invoke the jurisdiction of this Court for appropriate declaration and order.
26. The petitioner is not a busy body. He has sufficient interest in the matter. It was said by Lord Denning in Rex v. Greater London Council, ex parte Blackburn, in 3A 11 All ER 184 :
'I regard it as a matter of high constitutional principle that, if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the Courts of law and seek to have the law enforced, and the Courts in their discretion can grant whatever remedy is appropriate.'
In S.P. Gupta v. President of India and Ors., AIR 1982 SC 149. it has been said :
'We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of constitutional objective.'
27. Locus standi of a lawyer to challenge law enacted byParliament reducing the vacation of the High Court was challenged in Pramatha Nath Mitter's case (supra). It was held :
'...I feel the legal professions are-entitled to move for Mandamus on the ground that the institution in which their members have enrolled themselves, be run according to law. Certainly their legal right to practise according to law is affected. It is needless to add that Advocates and Solicitors are regarded as officers of the Court...'
Hence a lawyer in his own interest and in the interest of other lawyers and the litigant public has a right to see that the law is observed and authorities in whom power is not vested to take a decision as regards shifting of the seat of the High Court are restrained from committing violation of the law. The law as to locus standi has been very much broadened by the Supreme Court. In this connection, we would refer to the case of Chaitanya Kumar v. The State of Karnataka and Ors., AIR 1936 SC 825, the case of Dr. D. C. Wadhwa and Ors. v. State of Bihar and Ors., AIR 1937 SC 579. We, therefore, hold that Article 10 of the Orissa High Court Order vests authority exclusively in the Chief Justice to appoint the seat or seats of the High Court including change of the seat of the High Court with the approval of the Governor. Such power can be sub-planted by law enacted by the Parliament. The State Legislature has no authority to enact law as regards the seat or seats of the High Court or to change the seat of the High Court.
28. Since no law has been enacted and, as the learned Advocate-General has said it was a mere 'passing thought' a mere wish of the Government, we are of the view that the writ application is premature and we dispose of the same accordingly. There would be no order as to costs.
D.M. Patnaik, J.
29. I agree.