Jagdishlal Dhody Vs. State of Madhya Pradesh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/497331
SubjectCivil
CourtMadhya Pradesh High Court
Decided OnMar-12-1987
Case NumberMisc. Petn. No. 720 of 1986
JudgeT.N. Singh, J.
Reported inAIR1988MP4; 1987MPLJ317
ActsConstitution of India - Articles 39A, 225, 227 and 227(1); High Court Rules - Rule 4
AppellantJagdishlal Dhody
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateR.C. Lahoti, Adv.
Respondent AdvocateJ.S.L. Sinha, Govt. Adv., ;S.K. Dubey, Adv. President of Bar, ;J.P. Gupta, ;N.K. Jain and ;Arun Mishra, Advs. Members of Bar
Cases ReferredMarwa Manghani v. Sangharam Sampat
Excerpt:
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- - dubey, president, high court bar association, gwalior and indeed, the state counsel shri sinha at good length, because he forcefully voiced his strong opposition to the thess propounded albeit placing implicit reliance on the rules framed by this court under article 225 of the constitution. however, i would first like to extract a portion of observations of their lordships only from para. 90, i would be failing in my duty if i do not extract the same verbatim -we fail to see why the practice and procedure in respect of petitions under articles 226 and 227 should stand on a different footing'.9. for an objective analysis of the constitutional provisions in issue, it would be appropriate to quote also relevant portions thereof: that is clearly spelt out in the first part of article.....
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ordert.n. singh, j.1. save by constitutional amendment, powers of a single judge of a high court to act suo motu under article 227, in appending matter, of which he is in seisin, cannot he taken away.2. is that a constitutionally valid and acceptable proposition.'3. happily, the obvious importance of the constitutional issue lying in its sui generis character, has motivated gwalior's legal fraternity to serve a public cause by joining the debate. i heard petitioner's counsel shri lahoti who forcefully pressed the above thesis for acceptance, but also heard senior counsel shri j. p. gupta who volunteered to assist the court as amicus curiae. besides, i also heard shri s. k. dubey, president, high court bar association, gwalior and indeed, the state counsel shri sinha at good length,.....
Judgment:
ORDER

T.N. Singh, J.

1. Save by constitutional amendment, powers of a single Judge of a High Court to act suo motu under Article 227, in appending matter, of which he is in seisin, cannot he taken away.

2. Is that a constitutionally valid and acceptable proposition.'

3. Happily, the obvious importance of the constitutional issue lying in its sui generis character, has motivated Gwalior's legal fraternity to serve a public cause by joining the debate. I heard petitioner's counsel Shri Lahoti who forcefully pressed the above thesis for acceptance, but also heard Senior Counsel Shri J. P. Gupta who volunteered to assist the Court as amicus curiae. Besides, I also heard Shri S. K. Dubey, President, High Court Bar Association, Gwalior and indeed, the State Counsel Shri Sinha at good length, because he forcefully voiced his strong opposition to the thess propounded albeit placing implicit reliance on the Rules framed by this Court under Article 225 of the Constitution.

4. Undoubtedly inspiration to propound the thesis is drawn mainly from a recent decision of the Apex Court in Umaji v. Radhikabai, AIR 1986 SC 1272. It may not be inappropriate to add further that this Court in Anwar v. Wahidan, 1986 Jab LJ 600 : (AIR 1987 Madh Pra 140), held it permissible to allow an application, in a pending revision under Section 115, C.P.C., for suo motu exercise by the Court of its power under Article 227 of the Constitution and the instant case being also one of 'conversion'. Government Advocate Shri Sinha, appearing for the respondent/State, raised the objection that the amended Rules of this Court have robbed me of the jurisdiction to further deal with the matter. It has thus become necessary to resolve the controversy.

5. The validity of the thesis may be conveniently tested formulating two questions of which the first question may be dealt with in two parts-- (i) whether powers under Article 227 can be exercised suo motu; (ii) and by a single Judge of a High Court in pending matter of which he has seisin. The second question is -- whether Article 225 of the Constitution conferred any power on a High Court to make Rules to regulate the exercise suo mot u power by any Judge of the Court by virtue of the Constitutional entitlement of 'superintendence'?

6. The decision in Umaji (AIR 1986 SC 1272) (supra) claimed much time and attention as it really ought to and at the Bar, counsel on both sides laid emphasis, in support of rival contentions, of what is to be read in paras. 27, 84, 85, 89, 90, 96-100, 102 and 105 of the Report. However, I would first like to extract a portion of observations of their Lordships only from para. 84 of the Report which, according to Shri Lahoti, indubitably supports the thesis, or rather provides the source of the thesis. In para 84, it is observed as follows :--

'Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation.'

7. Now, I quote relevant portions also of paras. 89 and 90 of the Report which have a material bearing on the scope and purport of Article 225 vis-a-vis Article 227 of the Constitution. In para. 89, it was thus stated :

'...under Article 225 the jurisdiction of the existing High Courts and the law administered by them and the powers of the High Courts to make rules and to regulate the sittings of the Court and of members thereof sitting singly or in Division Courts have been preserved and continued subject to the provisions of the Constitution and of any law made by the appropriate Legislature.'

Indeed, it may also be added that the view of the Bombay Full Bench, which was under their Lordships' consideration, concerning interpretation of the words 'subject to' occurring in Article 225, was not accepted. It was held that the expression did not create a limitation upon the jurisdiction and powers of the existing High Courts as held by the Full Bench.

8. In para. 90, the discussion is more relevant and pointed and I am tempted to quote therefrom, rather liberally :

'A law made by an appropriate Legislature can amend another law enacted by it but it cannot amend or affect the provisions of the Constitution, and as Articles 226, 227 and 228 are not made subject to any law made by Parliament or the State Legislatures, the powers conferred by these three Articles cannot be limited, abridged or taken away by any Legislature. They can only be affected by amending the Constitution. All that the qualifying phrase in Article 225 means is that if a particular jurisdiction of an existing High Court is one conferred by ordinary legislation, it can be affected, either by way of abridgement or enlargement, by a law made by the appropriate Legislature and if it is one conferred by the Constitution, it can only be so affected by a Constitutional amendment.'

Because much importance was attached by Shri Sinha to the last sentence of para. 90, I would be failing in my duty if I do not extract the same verbatim -- 'We fail to see why the practice and procedure in respect of petitions under Articles 226 and 227 should stand on a different footing'.

9. For an objective analysis of the constitutional provisions in issue, it would be appropriate to quote also relevant portions thereof:

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

'225. Jurisdiction of existing High Courts.--Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on the 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 :'

(Proviso omitted)

10. Because the second question can be disposed of without much ado, on the language of the constitutional provision itself, as also with the aid of what is stated in afore-extracted paras. 89 and 90 of Umaji's case (AIR 1986 SC 1272) (supra). I propose to do that first. It is abundantly clear on the holding of Umaji (supra) that 'respective powers of Judges' of any existing High Courts can only be altered or amended in accordance with the provisions of the Constitution and of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. That is clearly spelt out in the first part of Article 225 as also in Umaji's case (supra). It follows accordingly that the scope and ambit of the power which is envisaged under Article 227 can evidently be modified in any manner by a constitutional amendment because no State Legislature is explicitly empowered thereunder to undertake such an exercise. Indeed, entry 78 of List I of Seventh Schedule of the Constitution invests legislative competence exclusively in the Parliament in matters of 'constitution and organisation (including vacation) of High Court.'

11. In so far as the second part of Article 225 is concerned, the power to make Rules of the Court by a High Court is referable evidently to matters, among others, as may 'regulate the sittings of the Court and of members thereof sitting alone or in Division Courts'. When any Judge, sitting alone or Judges sitting in any Division Court, exercises or exercise powers suo motu, in virtue of any constitutional or statutory entitlement, the Rules framed by the Court cannot evidently regulate the exercise of the power, so as to deny them the power to do so. The Rules may merely 'regulate sittings of the Court' in order that the business of a High Court is conveniently managed and the Judges sitting alone or in Division Court deal with different types of business which are earmarked to them under the Rules. The Rules which Article 225 enable to be framed by the High Courts, cannot, in any manner, regulate suo motu exercise of power of a single Judge or of a Division Bench in a matter of which such Judge or Bench is duly seized of. If it is found that a single Judge or Division Bench can exercise powers under Article 227 suo motu, then their exercise of such power can only be curtailed necessarily by a constitutional amendment; and nothing short of that. It cannot be done by any ordinary law of any Legislature, including the Parliament; much less by any Rule framed under Article 225 of the Constitution.

12. The purport of Article 225 cannot be anything else than that in holding a 'sitting' a Judge sitting alone or in a Division Court is bound to follow the Rules made under Article 225. If a roster is drawn up for such a Judge or a Court according to the Rules, that must be followed. The constitutional limit of the binding effect of the Rules on a Judge or a Bench cannot extend beyond that inasmuch as Article 225 itself does not envisage that any such Rule can touch the 'powers' also of a Judge or Court derived from the Constitution or any Statute. When a matter has come up before such a Judge or a Court in accordance with the roster or cause list, such a Judge or Court is free to exercise suo motu any power in the manner he thinks best for the ends of justice if such Judge or Court possesses constitutional or a statutory entitlement to exercise suo motu power in that behalf. Any other view of Article 225 would, according to me, be violative of the Directive Principles solemnly inscribed in Article 39A which has a primal relevance to the societal compulsions of poverty and ignorance in the Indian context. Indeed, the judicial effort to secure 'justice' to the citizen must not suffer any handicap because of economic or any other disability of the litigants. If Article 39A cannot be denied its due importance as inhering the concept of access to justice, then, a different conclusion is evidently impossible. If legal or constitutional fetters are not explicitly contemplated on suo motu exercise of power by a Court; whether constituted with a single Judge or a Division Bench, it would be impermissible to read such fetters in the provision of Article 227. Indeed, a reference to Article 145 would make the position further clear. Clause (2) thereof expressly provides for Rules to be made by the Supreme Court to deal with 'powers of single Judge and Division Courts' unlike Article 225. Clause (3) of Article 145 itself fixes the minimum number of Judges at five who may constitute a Bench to hear 'any case involving a substantial question of law as to interpretation of the Constitution or a reference under Article 143.'

13. Turning now to Shri Sinha's reliance on the afore-quoted last sentence of para. 90 of Umaji's case (AIR 1986 SC 1272) I may point out that their Lordships clearly and explicitly speak of 'practice and procedure in respect of petitions'; and do not speak anything more than that. The question which has come up before me for decision was never mooted before their Lordships and it may not be presumptuous to say that in the entire body of their Lordship's judgment, it is difficult to read any indication that it is their view that Rules framed under Article 225 may also 'regulate suo motu exercise of power under Article 227 by any Judge or a Bench of a High Court in any matter which does not come up before such a Judge or a Bench in the form of a petition under Articles 226 and 227.

14. Even on referring to the Rules on which strong reliance is placed by Shri Sinha, I am not convinced if factually those Rules deal with anything more than practice and procedure for disposal of a petition made under Article 227(1) of the Constitution. This Court has admittedly inherited, in virtue of the provisions of the States Reorganisation Act, the Rules framed by the Nagpur High Court. For the first time, on 15-1-1952, in exercise of powers conferred under Article 225 of the Constitution and Clause 27 of the Letters Patent, Rules were framed in Chapter 16 of the Rules of the Court, providing the procedure for disposal, according to Rule l(a) of 'an application under Article 227(1)' contemplating that such an application shall comply with the provisions of Rules 2 and 3 of Chap. IV of the Rules of the High Court in addition to the other requirements stated therein. Rule 4 of the same Rules (of Chap. 16) provides that 'such petition shall be heard by a Division Bench, provided that during summer vacation or when no Division Bench is sitting, they may be heard by a single Bench....' However, what is also to be noted is Rule 6(a) which enabled a Court 'of its own motion' to requisition any record of a case or proceeding in possession of any Court or Tribunal over which superintendence is claimed. Evidently this is recognition of the constitutional position that power of superintendence envisaged under Article 227 can be exercised suo motu even by a single Judge in circumstances contemplated under Rule 4.

15. It is not necessary to trace minutely the vicissitudes suffered by these Rules, but it is still necessary to state merely that since 13th of June, 1986, the Rules of this Court are amended and the position which since obtains is that a petition under Article 227 or 226 comes up for admission as also for final hearing before the Division Court What has, however, not changed is that even the amended Rules deal merely with petitions made under Article 227 of the Constitution and that even the amended Rules do not contain any provision to circumscribe in any manner suo motu exercise of power of a single Judge of the Court under Article 227 in a pending matter of which he is in seisin. Reliance of State Counsel on the Rules of this Court does not, therefore, avail him in any manner.

16. Indeed, I am not even inclined to accept the argument advanced by Shri Sinha that after a single Judge has accepted the prayer of a litigant to invoke suo motu its power under Article 227 and has on that footing 'converted' a pending lis of any form into one under Article 227, he must stop there and refuse to render final decision in the converted lis and follow Rules of the Court. In other words, the matter must again come up for admission and final hearing before the Division Court. The proposition canvassed bears no scrutiny at all because, as I have earlier said, the manner of exercise of a power of a Court under Article 227, including suo motu exercise of the power, cannot be regulated in any manner by the Rules framed under Article 225 of the Constitution, Indeed, when a Judge is in seisin of a pending matter and decides to act suo motu to exercise his jurisdiction under Article 227 of the Constitution, the moment the decision is taken, he assumes jurisdiction in respect of the matter under Article 227 and is possessed of powers to render final decision in the lis in exercise of the power. His jurisdiction cannot be limited to any stage of the proceeding, to be exercised merely for assumption of power only for a limited or particular purpose, to deny him the effective exercise of the power. Indeed, the mere fact that the decision to act suo motu is taken on an oral prayer or a written application made in that regard, would not deprive the Judge of the jurisdiction and power to act suo motu on the footing that such a prayer-- written or oral -- would be deemed to be a petition made under Article 227(1) of the Constitution. Even when a written application for conversion is made such an application would not evidently comply with the requirements of the Rules of the Court for filing petitions under Article 227. Because, it would not be an independent and self-contained petition stating factual and legal contentions for the relief claimed on merits in the pending matter on which any judicial decision earlier rendered could be challenged.

17. To the first part of the first question, I turn now. On a survey of authorities, in Anwar's case (AIR 1987 Madh Pra 140) (supra), I took the view that the power under Article 227 can even be suo motu exercised because the power is inherent in the authority of the Court which could not only quash a decision under Article 227 but also issue further direction in the matter suo motu. Support was derived for this view from the decision of the Apex Court in Hari Vishnu, AIR 1955 SC 223 as also two decisions of Allahabad High Court in cases respectively of Deepika v. Gabrie, AIR 1978 All 27 (SB), and S. Barrow v. State of U.P. AIR 1958 All 154. However, in the course of hearing of this matter, several other decisions were also cited only to show that the view taken in Anwar's case (AIR 1987 Madh Pra 154) (supra) was a sound view in that many other High Courts have taken consistently the same view. Although Shri Sinha has reled on one or two decisions, I am not convinced to hold that in those cases, a contrary view was taken. Whatever that may be, I will have occasion to refer to those decisions cited by Shri Sinha as also some other decisions cited at the Bar. Indeed, I will also have occasion to refer once more to Umaji's case (AIR 1986 SC 1272) (supra) wherein the legislative history of Article 227 has been traced in some detail which throws considerable light on the true scope, ambit and purport of the constitutional provision and source of 'power of superintendence' of a High Court.

18. What I propose to do first is to expose the fallacy of Shri Sinha's argument that Article 227, in terms does not authorise the High Court to exercise the power suo motu and such a power cannot be read into the provision. Counsel took pains to invite my attention to Section 50 of Madhya Pradesh Land Revenue Code, 1959, for short, the Code, wherein, in express terms, exercise of suo motu power is contemplated. But, the moot question is, while vesting in a High Court under Article 227(1), the power of 'superintendence', what was intended by the Legislature? It is the nature of the power that has to be properly analysed and divined because, in its very nature if the power invests the Court jurisdiction to act suo motu in any matter, the mere omission of the words 'suo motu' would not be conclusive of legislative intent.

19. The Constitution being an organic document reflecting the aspirations of the people of the country, its interpretation should not be subjected to pedantic rules, but informed by a wide vision. Indeed the socio-economic and political ethos of the Basic Law is to be found in the Preamble, the Directive Principles as also other like provisions as permits progressive evolution of law for dispensation of justice in the social, economic and political context of the destiny of a progressive people. In several monumental decisions, their Lordships of the Apex Court have stressed the duty of those entrusted with the task of interpreting constitutional provisions to see that the provision receives a fair, liberal and progressive construction. Indeed, as the basic document of the nation, the Constitution must have the basic claim to be construed at res magis valeat quam pereat. The Court must look at the functioning of the Constitution as a whole and ho single provision of it should be read in isolation to eschew a narrow construction, as that may defeat the primal objectives of the basic document. It has been held that constitutional concepts are couched in elastic terms and the Basic Statute grows by its inherent source. See -- Ranjan Dwivedi v. Union of India, AIR 1983 SC 624; Golak Nath v. State of Punjab, AIR 1967 SC 1643; Motiram Deka v. General Manager, AIR 1964 SC 600; Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232.

20. Chapter V of Part VI of the Constitution contains provisions for establishment of a High Court for each State of Union of India. Article 215 provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 218 secures the tenure of Office of a Judge of a High Court and ensures him full independence in discharge of his judicial duties. Indeed, Article 219 and the form of oath which a Judge is required to make and superscribe before he enters upon his office speak of his constitutional responsibilities as also independence. The oath is '..... I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws.' Article 226 confers power on a High Court to issue writs and directions throughout the territories in relation to which it exercises jurisdiction for redressal of any grievance emanating from infringement of any fundamental right or for any other purpose. Sub-clause (2) of Article 227 as also Article 235 portray abundantly the ample ambit of the administrative powers of the High Court over the subordinate courts within its jurisdiction. A High Court is empowered by Article 228 to withdraw a case pending in a subordinate court to determine any substantial question of law as to interpretation of the Constitution and to dispose of the same itself.

21. Being designated as 'court of record', the decisions of a High Court are invested with 'high and super-eminent authority' and it is constituted as an organised judicial tribunal exercising independent functions (see 21 CJS Courts, Section 5). A High Court is a 'superior' court of general jurisdiction not only because it is the court of record, but also because limits of its jurisdiction (except territorial) are not drawn in the Constitution. In Halsbury's Laws of England, Fourth Edition, Vol. 10 at para 713, it is stated, 'Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so.' In Corpus Juris Secundum, General Jurisdiction is defined to be such 'as extends to all controversies, which are to be brought before a court within the legal bounds of rights and remedies'. (See 21 CJS Court, Section 16). Courts of general jurisdiction, it has been recognised, possess certain inherent powers and certain implied powers in addition to those expressly conferred on them. (See ibid, Section 31). Such a Court has inherent power to maintain its jurisdiction and to render it effective. The power extends to control of its own proceedings at least so long as they are pending before it. (See ibid, Section 86). At this stage, it may also be noted what the term 'Court' generally implies. Every court has at least three constituent parts -- the actor (plaintiff/complainant), reus (defendant) and judex or judicial power. In other words, without a Judge exercising judicial power, there can be no court (see ibid. Section 1). The term 'superintend', according to Black's Law Dictionary means -- 'to have charge and direction of : to direct the course and oversee the details; to regulate with authority; to manage; to oversee with the power of direction; to take care of with authority'. It will not be incorrect to say, therefore, that when the power of superintendence is vested in any authority, the power can be exercised suo motu for discharge of the duty which goes with the power in order to discharge the trust reposed in the authority. Indeed, it is the inherent nature of the power inscribed in Article 227(1) which charges each and every Judge of a High Court with the duty to fulfil his constitutional obligation in terms of his oath of upholding the Constitution and the laws by ensuring that the inferior courts and tribunals within the jurisdiction of the High Court act 'within the bounds of their authority' and that 'they do what their duty requires and they do it in the legal manner' (see Waryam v. Amarnath, AIR 1954 SC 215: Nilkanth v. State of Bihar, AIR 1962 SC 1135).

22. The nature of the power contemplated under Article 227(1) also engaged their Lordships' attention in Umaji (AIR 1986 SC 1272) (supra) wherein at para 99, they observed that the difference in scope and effect of powers conferred by Articles 226 and 227 must not be misunderstood, as the Bombay Full Bench had done. They further observed that two Articles stand on 'entirely different footing' because of their 'source and origin and the models on which they are patterned'. The law staled in State of Gujarat v. Vakhatsinghji, AIR 1968 SC 1481 as also in Ahmedabad Manufacturing v. Ramtahel Ramanand, AIR 1972 SC 1598 was cited with approval. The duty aspect as also the inherent nature of the power is spelt out clearly by the Constitution Bench in Vakhatsinghji (supra), saying 'the power of superintendence over all courts and tribunals which the High Court had under Article 227 of the Constitution cannot be limited by any Act of Legislature'. Although the statutory provision in that case made the tribunal's decision 'final and conclusive', it was held, 'to prevent miscarriage of justice it is necessary for the High Court to lay down general principles on which compensation be awarded'. It was held that High Court cannot only quash the decision of the Revenue Tribunal regarding compensation but also direct the tribunal to make further enquiry after taking evidence before rendering fresh decision. In para 12 of the report in Ahmedabad Manufacturing (AIR 1972 SC 1598) (supra), their Lordships were also required to consider the scope of Article 227 and indeed how the power was exercised by High Courts. Indeed, the holding of their Lordships that 'such power under Article 227 can also be exercised suo motu' is in a sense decisive of the major premise of the present controversy. The decision is evidently a precursor of State of U.P. v. District Judge, Unnao (AIR 1984 SC 1401) wherein it was held that 'Article 226 or 227 was devised to advance justice and not to thwart it'. While their Lordships in Ahmedabad Manufacturing (supra) cautioned against use of Article 227 as a substitute for Article 226 for seeking a direction in nature of writ or quashing order of a subordinate tribunal, the objection on that ground to the validity of High Court's order was negatived holding that the order was 'legally correct and is also eminently just and fair.'

23. In the face of the supreme judicial dictum in Ahmedabad Manufacturing (supra), I do feel the necessity of making any further research on the question as to whether power under Article 227 can be exercised suo motu except looking at two decisions cited by Shri Sinha. The decision in Devi Prasad 1975 Jab LJ 155 is not on Article 227, though it was decision rendered in a petition under Article 227 of the Constitution. Indeed, an order passed under Section 50 of the Code was successfully challenged in that case, the Court holding that when a revision petition was filed as contemplated under Section 50, it cannot, by any stretch of imagination, be said that Board of Revenue had acted suo motu under Section 50, though it was so authorised to do, in passing the impugned order. I need not reiterate the distinction between the statutory jurisdiction of Board of Revenue, created under Section 50 of the Code and the constitutional jurisdiction vested in the High Court under Article 227, once again. However, I reiterate once again that when a petition is filed under Article 227 in accordance with the procedure prescribed under the Rules framed by the High Court, then there will be no scope for the High Court to exercise power suo motu in such matters. But the mere fact that an application is made in a pending matter (wherein the decision of a subordinate court had not been impugned under Article 227 of the Constitution) with the avowed object of invoking court's powers to act suo motu in the matter under Article 227, in such a case, it would be a travesty of justice to hold such an application to be an application made under Article 227 of the Constitution. By filing such an application the High Court is not deprived of its power to act suo motu under Article 227 because the power is exercised independently, dehors the application.

24. To two other cases cited by the State Counsel, it is necessary to direct my attention to say a few words. In Puran Chand's case AIR 1938 All 606, the question only was of interpretation of Rule 3 of the Rules of that Court framed under Section 223 of Government of India Act, 1915. The said Rule empowered the Chief Justice to constitute a Full Bench to decide any question or questions of law and in that case, the Full Bench having refused to decide the question referred on the footing that the question ought to have been referred to a still Larger Bench, it was held that the direction of the Full Bench was ultra vires the said Rule in that their jurisdiction had come to an end when they refused to decide the question referred to them. The decision in Zikar v. M.P. State Government, AIR 1951 Nag 11, similarly, is besides the point. It was held that though the litigant has a right to invoke the jurisdiction of the High Court, he does not have the right to have his case decided by any particular Judge or Judges. Still, the holding in that case which has some bearing to the instant lis need be noticed. It was held that when a Court was in seisin of a matter, the Chief Justice of the High Court had no power under the Constitution or the Letters Patent or the Rules of the Court to withdraw or transfer the case for decision by another Bench. In construing the provision of Section 108(2) of the Government of India Act, 1915, it was held that the provision merely empowered the Chief Justice to regulate the sittings of the Court as first sub-section authorised the Court just as a whole to frame Rules for the exercise of jurisdiction possessed by the High Court.

25. Let the focus of discussion now shift to the sole surviving question of crucial importance, the second part of the first question. A reference to legislative history of Article 227, which also received the attention of their Lordships in para 83 of the report in Umaji (supra), is warranted in this connection. Indeed, it cannot be disputed that the pedigree of Article 227 of the Constitution can be traced to the Charters of the British King under which the colonial rulers set up three 'Supreme Courts' at Calcutta, Madras and Bombay in 1779, 1801 and 1823 respectively. The provisions not noted in Umaji's case (AIR 1986 SC 1272) may, however, be herein noticed, particularly Article 4 of the Charter of 1774 under which the First Supreme Court at Calcutta was established. It invested the Judges of that Court 'with such jurisdiction and authority as our justices of our Court of King's Bench may lawfully exercise within that part of Great Britain called England'. In the Charters of the other two Supreme Courts, the same language is used. In this context, what Blackstone in his Commentaries at para 110 has said about the Court of King's Bench in England may also be appropriately recalled -- 'It is the peculiar business of the Court of the King's Bench to superintend all inferior Tribunals and thereunder to enforce the due exercise of those judicial and ministerial powers with which the Crown or Legislature invested them, and those not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice.'

26. The Indian High Courts Act, 1861 abolished the Supreme Courts, but care was taken even then to provide in Section 15 that 'each of the High Courts established under this Act shall have superintendence over all courts which may be subject to its appellate jurisdiction.....'. In Section 107 of Government of India Act, 1915, the power of High Courts of 'superintendence over all courts for the time being subject to their appellate jurisdiction' was preserved. In Section 224 of the Government of India Act, 1935 though the power of 'superintendence' was preserved, it was somewhat restricted by Sub-section (2) thereof, which restriction was removed by Article 227, as noted in Hari Vishnu (AIR 1955 SC 233) (supra). It was held therein that Article 227 had restored the position that obtained under Section 107 of 1915 Act in that while under Article 226 a High Court can only annul a decision by a writ of certiorari, it can act under Article 227 to issue further directions in the matter. It may be noted that Charter of 1774 invested the power of superintendence in 'each of the Justices of the Court of King's Bench', which power came to be exercised accordingly by each of the Judges of the High Courts which took the place of Supreme Courts on the strength of Section 9 of the High Courts Act, 1861 which provided that the High Courts established thereunder 'shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under the Act'. Therefore, the mere fact that Article 227 speaks of 'High Court' and not of a Judge or Judges of a High Court, would not mean that a single Judge of a High Court is not empowered to exercise power of superintendence contemplated thereunder.

27. What only needs to be emphasised is that single Judges in different High Courts have been exercising the power under Article 227 and hearing petitions made thereunder. Indeed, in Umaji (AIR 1986 SC 1272) (supra), the question was, as earlier alluded, whether a decision rendered by single Judge of a High Court under Article 227 could be appealable to a Division Court under the provisions of the Letters Patent of that High Court. Article 214(2), it may be further noticed, made a deeming provision and in pursuance thereof, the Judicial Commissioner's Courts (Declarations as High Courts) Act, 1950 came to be enacted. As a result a Judicial Commissioner sitting singly was enabled to exercise the powers under Article 227 of the Constitution. What is also pertinent to be noted is that Article 216 speaks of High Court in terms of a 'Chief Justice and other Judges' though the President has been given the power to fix the maximum number of Judges that may be appointed in any particular High Court. Therefore, not only a Court of Judicial Commissioner (which was a deemed High Court), even a High Court within the meaning of Article 216 would consist even of a single Judge in the person of the Chief Justice. Indeed, Article 216 does not contemplate that a Chief Justice of a High Court cannot discharge judicial functions till other Judge or Judges are appointed. If the Chief Justice sitting singly could constitute a High Court and exercise powers under Article 227, there can be no logic to hold that any other Judge of a High Court, sitting singly, would not be able to do so because judicial power vested in a High Court is exercised severally and equally by all Judges of the Court including the Chief Justice. There is no provision in the Constitution which makes any difference in the judicial power exercisable by a Judge and a Chief Justice of a High Court. Indeed, when the Office of the Chief Justice falls vacant, one of the Judges of the same Court is appointed as Acting Chief Justice in accordance with Article 227 so that there is no vacuum in the institution of the High Court which can continue to exist and function even if there is no other Judge except the Chief Justice in that High Court at any particular time.

28. The upshot of the above discussion in the context of the legislative history of Article 227 is that the power of 'superintendence' of a High Court, and for that matter of any Judge of the High Court is so deeply entrenched constitutionally in the legal system of the country that it has acquired the character of inherent power of the High Court exercisable by any Judge of the High Court for discharging his judicial duties in accordance with his constitutional oath. The ambit of the power and jurisdiction of a Judge of a High Court under Article 227(1) constitutionally vested in him to act suo motu under Article 227 cannot, therefore, be curtailed in any manner : neither by any law enacted by Legislature, nor by Rules framed even under Article 225 of the Constitution. I am inclined to agree with the view expressed by Falshaw, J. in Shyam Krishen v. State of Punjab AIR 1952 Punj 70, that Article 226 is a self-contained Code, and would add further that Article 227 shares the same character. The question whether the power and jurisdiction vested in a High Court under Arts, 226 and 227 can be whittled down by the Industrial Disputes Act was considered by the Apex Court in State of Haryana v. Haryana Cooperative Transport, AIR 1977 SC 237. Answering the question in the negative, it was held, 'to strike down usurpation of Office is a function and duty of High Courts in exercise of their constitutional powers under Articles 226 and 227'. To the same effect is the decision in Chandrashekhar Singh v. Siya Ram Singh, AIR 1979 SC 1, wherein it was held that powers of the High Court under Article 227 cannot be curtailed under Section 146 of the Code of Criminal Procedure. P. N. Bhagwati, J. as his Lordship then was speaking for the Division Bench of Gujarat High Court in S.J. Jhala v. Chief Electoral Officer, AIR 1969 Guj 292, expressed the view that the constitutional remedy envisaged under Articles 226 and 227 cannot be tinkered in any manner by any infra-constitutional enactment.

29. Indeed, if independence of judiciary in the true sense of the term is to be really considered as a Basic Structure of the Constitution, following the holding in Keshavananda Bharati, AIR 1973 SC 1641, then the power of 'a Judge' of a High Court to act suo motu in a situation which appeals to his reason must not be restricted. In a pending matter of which a Judge of a High Court is in seisin if he has to lose control of proceedings before him because power to act on a petition under Article 227 is denied to him, it would be a clear defiance of the salutary message of Article 39A and of its underlying concept of access to justice.

30. This view taken by me receives support from few decisions cited at the Bar. Speaking for the Court in Indian Pan Works v. Chief Commissioner, Delhi, AIR 1969 Delhi 1, the learned Chief Justice Hon'ble I. D. Dua, as he then was, not only observed that exercise of power suo motu under Article 227 was not questioned, but observed further that, where cause of justice is seriously jeopardised, the exercise of this power may take the shape of constitutional obligation. The same learned Judge, speaking in Marwa Manghani v. Sangharam Sampat, AIR 1960 Punj 35, observed that the Constitution had sought to secure justice to the citizens on a top priority and for that purpose vested in the High Courts very wide power of judicial supervision and superintendence which enabled that Court to act suo motu in the interest of justice. Because the power is derived directly from the Constitution which is the fountain source and parent of all laws and statutes in the Republic, the power imposed on the High Court grave and sacred responsibilities for the administration of justice and the Court is invested with unlimited and unfathomable reserve of judicial power of supervision under Article 227.

31. The last word may now be said. It is amply borne out by the detailed analysis of the case law and constitutional provisions and history that validity of the thesis set out in the beginning is established beyond dispute. A High Court can exercise powers under Article 227 suo motu and this power can be exercised by each and every Judge of the Court. Because the power is inherent in the jurisdiction vested in the Judge under Article 227, he can exercise that power in a pending matter of which he is in seisin unfettered by any Rules framed under Article 225, which cannot indeed, in any manner, curtail the amplitude of his power.

32. For the foregoing reasons, the objection of State Counsel Shri Sinha, who appears for the State-respondent, fails and I have no hesitation to hold that my jurisdiction to continue to deal with this matter has not ceased because of the amendment of Rules of this Court made on 13th June, 1986. Hearing of the matter on merits has now to be taken up to finally decide and dispose of the case.

33. Let the matter be pasted after two weeks for further hearing and disposal of the case on merits.