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PETITIONER: KANUBHAI BRAHMBHATT

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT18/02/1987

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR 1159            1987 SCR  (2) 314  JT 1987 (1)   475        1987 SCALE  (1)366

ACT:     Constitution   of   India,   1950,   Article    32--Writ Petition--Filing of--Sometimes reasons good and  substantial exist  to direct writ petitioner to approach High  Court  in First  instance--Faith  to be inspired in the  hierarchy  of courts.     Practice     &    Procedure,     Supreme     Court--Writ petition--Filing  of--Litigant  to be directed  to  approach High  Court if good and substantial reasons exist--Faith  to be inspired in the hierarchy of courts.

HEADNOTE:     In a writ petition filed under Article 32 of the Consti- tution  of India, the Court found that good and  substantial reasons existed for directing the petitioner to approach the concerned High Court in the first instance instead of knock- ing at the doors of this Court straightaway. While directing so, this Court,     HELD: 1. If Supreme Court takes upon itself to do every- thing which even the High Court can do, this Court will  not be able to do what this Court alone can do under Art. 136 of the  Constitution of India, and other provisions  conferring exclusive jurisdiction on this Court. There is no reason  to assume that the concerned High Court will not do justice. Or that  this Court alone can do justice. If this Court  enter- tains Writ Petitions at the instance of parties who approach this  Court  directly instead of approaching  the  concerned High Court in the first instance, tens of thousands of  Writ Petitions  would  in course of time be  instituted  in  this Court  directly.  The  inevitable result will  be  that  the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions. [316B-D]     2. It is as important to do justice at this level, as to inspire  confidence  in the litigants that justice  will  be meted out to them at the High Court level, and other levels. Faith  must be inspired in the hierarchy of Courts  and  the institution  as a whole. Not only in this Court  alone.  And this  objective can be achieved only by this  Court  showing trust  in  the  High Courts by directing  the  litigants  to approach the High Courts in 315

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the first instance. Besides, as a matter of fact, if matters like  the  present one are instituted in  the  High  Courts, there  is  a likelihood of the same being disposed  of  much more  quickly,  and equally effectively, on account  of  the decentralisation  of the process of  administering  justice. [316E-G]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 1669 of 1986. (Under Article 32 of the Constitution of India). By post. The Judgment of the Court was delivered by     THAKKAR,  J.  Reasons, good and substantial,  exist  for directing  the  petitioner to approach  the  concerned  High Court in the first instance instead of knocking at the doors of  this  Court straightaway. And these need to  be  spelled out.     An  illustration may tell more effectively, what  other- wise may not be told as effectively, and perhaps, only  with some  embarrassment.  Suppose  there is  only  one  National Hospital  established especially for  performing  open-heart surgery  which cannot be performed elsewhere in any  of  the eighteen  Regional  Hospitals. What will happen to  the  pa- tients needing such surgery, if the National Hospital  which alone is specially equipped for this type of surgery, throws its  doors wide open also for patients suffering from  other ailments  who  can be treated by any and every  one  of  the eighteen  Regional  Hospitals? More  particularly  when  the patients  already admitted for such surgery by the  National Hospital are already lying unattended to on its floors,  and in  its corridors, for an unconscionably long time?  Showing sympathy  for a patient with other than a heart problem  who can  also be treated equally effectively, and  perhaps  much more  quickly,  may  well constitute cruelty  to  the  heart patients  who can be treated only by the  National  Hospital established especially and exclusively for the treatment  of such patients. Will it not be more merciful to all concerned (by  being firm enough) to tell those suffering  from  other than heart problems to go to Regional Hospitals, instead  of insisting  on being treated at the National Hospital,  which also  can  of  course treat them, but only at  the  cost  of neglecting the heart patients who have nowhere else to  go’? More  so as the patients going to the Regional Hospital  may well  benefit  much more by securing more  personalized  and urgent  attention thereat. On the other hand, not to  do  so many  well amount to being engaged in trying to relieve  the distress of those whose distress can be 316 removed  by  any one else at the cost of refusing  to  treat those who cannot be treated by any one else.     If  this Court takes upon itself to do everything  which even the High Courts can do, this Court will not be able  to do  what this Court alone can do under Art. 136 of the  Con- stitution  of India, and other provisions conferring  exclu- sive  jurisdiction  on  this Court. There is  no  reason  to assume that the concerned High Court will not do justice. Or that  this Court alone can do justice. If this Court  enter- tains Writ Petitions at the instance of parties who approach this  Court  directly instead of approaching  the  concerned High Court in the first instance, tens of thousands of  Writ Petitions  would  in course of time be  instituted  in  this Court  directly.   The inevitable result will  be  that  the arrears pertaining to matters in respect of which this Court

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exercises exclusive jurisdiction under the Constitution will assume  more alarming proportions. As it is, more  than  ten years old Civil Appeals and Criminal Appeals are sobbing for attention.  It will occasion great misery and immense  hard- ship to tens of thousands of litigants if the seriousness of this  aspect  is not sufficiently realized. And this  is  no imaginary phobia. A dismissed government servant has to wait for nearly ten years for redress in this Court.’ A  litigant whose  appeal  has  been dismissed by  wrongly  refusing  to condone  delay has to wait for 14 years before his wrong  is righted  by this Court.2 The time for  imposing  self-disci- pline has already come, even if it involves shedding of some amount  of institutional-ego, or raising of some  eye-brows. Again, it is as important to do justice at this level, as to inspire  confidence  in the litigants that justice  will  be meted out to them at the High Court level, and other levels. Faith  must be inspired in the hierarchy of Courts  and  the institution  as a whole. Not only in this Court  alone.  And this  objective can be achieved only by this  Court  showing trust  in the High Court by directing the litigants  to  ap- proach  the High Court in the first instance. Besides, as  a matter  of fact, if matters like the present one are  insti- tuted  in the High Court, there is a likelihood of the  same being disposed of much more quickly, and equally  effective- ly,  on  account of the decentralisation of the  process  of administering justice. We are of the opinion that the  peti- tioner should be directed to adopt this course and  approach the High Court. * More than 9000 are already pending now. 1. Kashinath Dikshita v. Union of India and others (SCC 1986 Vol. 3 p. 229) 2. Shankarrao v. Chandrasenkunwar (Civil Appeal No.  1355(N) of 1973 decided on January 29, 1987. 317     It  needs  to be clarified that it will be open  to  the High Court to call upon the petitioner to present a properly framed Writ Petition without obliging him to incur the legal and  other incidental expenditure if the  petitioner  cannot afford the same. The matter may in such an event be assigned to  a learned Advocate practicing in the High Court  through the  State  Legal Aid and Assistance Board, or  through  the High  Court Legal Aid Committee which can provide  him  with the requisite funds to enable him to do the needful. It will also  be open to the High Court to request the learned  Dis- trict  Judge  of Vadodara to look into the matter  from  the point of view of the complaints made in the letter in  ques- tion,  and  make an appropriate report to  enable  the  High Court  to pass such suitable orders as may be called for  in the  facts and circumstances of the case in order to  secure ends of justice.     These  are  the  reasons which we  ’now’  articulate  in support of the order we passed ’then’. M.L.A. 318