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CASE NO.: Appeal (civil)  2638 of 2006

PETITIONER: M.P. Gangadharan & Anr.

RESPONDENT: State of Kerala & Ors.

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No. 25465 of 2005]

S.B. SINHA, J :                  Leave granted.

       Interpretation of  the provisions of the Family Courts Act, 1984 (for  short "the Act") in the matter of shifting of a family court from one place to  another, is  involved in this appeal which arises out of judgment and order  dated 8.4.2005 passed by the High Court of Kerala.   

       Malappuram is a district in Kerala.  The District Headquarters is  situated at Malappuram.  The District Courts, however, are situated at  Manjeri which is about 12 kms. North of the said place.  The State of Kerala  established a family court at Manjeri in the year 1999 in a tenanted premises  wherefor a sum of Rs. 6,668/- was payable by way of monthly rent.  The  litigant public, the court staff and others concerned were facing a lot of  difficulties in attending the said court.   The Bar Association of Malappuram  submitted a representation dated 03.02.2002 seeking the shifting of the  Family Court at Manjeri, to Malappuram whereupon the remarks of the  Presiding Officer of the Family Court and the District Judge, Malappuram  were sought for.  The District Judge, in his report, pointed out various  deficiencies and lack of infrastructure at Manjeri stating that the Family  Court is required to be shifted to another building.  The Presiding Officer,  Family Court also submitted a report inter alia stating that the road in front  of the building is a narrow by-lane.  The  Court is accommodated in the  upstair portion of a building.  There is only one staircase which is used by all  including the Presiding Officer, Court staff and the litigants.  On an average  500 to 750 persons remained present everyday before the Family Court,  including women with babies and kids, apart from advocates and staff of the  court and, thus, the building is clearly inadequate to accommodate all these  persons.  Family counselling, thus, cannot be conducted in such an  atmosphere.  It was reported that if the power supply is off, the court cannot  function.   

       A meeting of the Committee of the Judges, Incharge of  Administration of the Family Courts was held in the presence of the in  charge of the district administration on 29.10.2002.  In the said meeting, the  President of the Bar Association of Manjeri suggested that the Family Court  might be shifted to another building in the said town itself.  When the Bar  Association was asked to find out a building, one was shown which also did  not have the requisite facilities.  On the other hand, a Government building  was shown to be available at Malappuram, which although, was situate  within the Civil Station premises, but otherwise found suitable for the  purpose of having a Family Court.  According to the High Court, the same  satisfied the basic needs for running a family court.  

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       Upon consideration of the materials placed before the High Court, a  resolution was adopted to recommend to the Government to accord sanction  for shifting  the Family Court from Manjeri to the Civil Station at  Malappuram.  The Government of the State of Kerala although initially  requested the High Court to see whether the Family Court cannot be  continued at Manjeri itself, if a suitable building is available,  it yielded to  the request of the High Court and issued a Government Order dated 8.7.2004  directing the shifting of the Family Court from Manjeri to Malappuram.   

       A writ petition was filed by the Appellants herein before the Kerala  High Court inter alia for quashing the said order for shifting the court which  by reason of the impugned judgment has been dismissed.

       Before this Court, a constitutional question as regards the authority of  the State to direct shifting of a Family Court having been raised, this Court  sought the assistance of  the learned Solicitor General of India.

       Interpretation and application of the provisions of the Family Court  vis-‘-vis the authority of the State and the High Court was raised on the  premise that Section 3(1)(a) of the Act will have  application in the instant  case inasmuch as in the Special Leave Petition it had been averred that the  population in the town of Manjeri was more than one million.

       The Act was enacted to provide for the establishment of Family  Courts with a view to promote conciliation in, and secure speedy settlement  of disputes relating to marriage and family affairs and for matters connected  therewith.

       The expression "Judge" has been defined to mean "the Principal  Judge, Additional Principal Judge or other Judge of a Family Court".  Sub- section (1) of Section 3 of the Act is in two parts.  Whereas in terms of  Clause (a) of sub-section (1) of Section 3 it is imperative on the part of the  State to establish a Family Court for every area comprising a city or town  whose population exceeds one million, a discretionary power has been given  to the State to establish Family Courts for such other areas in the State as it  may deem fit and necessary.  Section 7 provides for the jurisdiction of the  Family Court.  Section 9 enjoins a duty on the Family Court to make efforts  for settlement.  In terms of Section 11 of the Act, proceedings are to be held  in camera.  Section 20 provides for a non-obstante clause.  Section 21  provides for a power to make rules in terms whereof the High Court may, by  notification in the Official Gazette, make such rules as it may deem  necessary for carrying out the purposes of the Act.  Clause (b) of sub-section  (2) of Section 21 inter alia empowers the High Court to make rules as  regards holding of sittings of Family Courts at places other than their  ordinary places of sitting.

       The submission of learned Solicitor General as also of  Dr. Rajeev  Dhawan, learned senior counsel is that once a Family Court is established in  terms of Clause (a) of Sub-section (1) of Section 3 of the Act, the State or  the High Court would have no authority to direct shifting thereof to any  other area.  The applicability of Clause (a) or Clause (b) of Sub-section (1)  of Section 3 would arise only if the Family Court is to be shifted from a  town whose population is more than one million.   

       Although in the Special Leave Petition, the Appellants took the stand  that the population exceeds one million, before us it is categorically stated:

"The Headquarters of the District is at Malappuram  Town.  All Government Offices of the said District are  located in Malappuram Town.  Malappuram District  consists of six Taluks i.e. Eranad, Nilambur,  Perintalmanna, Tirur, Thirurangadi and Ponnani.   Malappuram Town is geographically located at the centre  of the District.  The thickly populated taluks of Tirur  (population 8,34,817), Thirurangadi (population

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6,19,635), Ernad (population 7,82,850) Perintalmanna  (population 5,28,756) and Ponnani are closer to  Malappuram whereas the only taluk of Nilambur is close  to Manjeri.  It may be stated that the major area of  Nilambur Taluk is reserved forest area and it is the least  populated (population 5,09,940) taluk of the District as  evident from the census records."

                Clause (a) of Sub-section (1) of Section 3 of the Act will, thus, have  no application in the instant case.

       Dr. Dhawan, however, submitted that the emphasis should be laid on  the expression ’every area and not the town having a city whose population  exceeds one million’.  We, with respect, cannot subscribe to the said  contention.  Clauses (a) and (b) of Sub-section (1) of Section 3 of the Act  operate in two different fields.  Whereas in the area which would attract  Clause (a), the State is bound to establish a Family Court, over areas which  are not covered by Clause (a), the State has a discretion to establish or not to  establish a Family Court.  In the case of the former,  the State may not have  any power to shift the Family Court from the city or town whose population  exceeds one million; but we do not find any reason why a Family Court  established at a place having jurisdiction over an area including more than  one town or village cannot be shifted from one place to another within that  area.   

       In terms of Section 21 of the General Clauses Act, 1897,  (corresponding to the relevant provisions in Interpretation and General  Clauses Act, 1925), the power to issue would include the power to amend,  vary or rescind, notifications and orders. If a  notification could be issued  establishing a Family Court at Manjeri, we do not see any reason why  another notification cannot be issued by the State to shift the said Court to  another place but within the same area of the Family Court.  In terms of  Section 21 of the General Clauses Act, the State Government will  indisputably have jurisdiction to abolish a Family Court and establish one at  another place.  If such an extensive jurisdiction can be exercised by the  State, we fail to comprehend as to why its jurisdiction should be held to be  limited in the matter of shifting of Court from one place to another but  within the same area, particularly, in view of the fact that in terms of sub- section (2) of Section 3 of the Act even a change in the area is permissible.

       It is no doubt true, as has been contended by Dr. Dhawan, that a  Family Court is created as a Federal Court under Federal Legislation, but the  same, in our opinion, however, would not mean that the High Court will  have no say at all in the matter of creation or shifting of the Family Courts.   

       Article 235 of the Constitution of India confers a supervisory  jurisdiction upon the High Court over all the courts subordinate to it.  Such  jurisdiction can be exercised by the High Court in respect of judicial as also  administrative matters.  Article 236 of the Constitution of India, as referred  to by Dr. Dhawan, provides for an interpretation clause.  The expression  "District Judge" would not only be an officer who has been specified in  Clause (a) of Article 236 but would also be such officer who would  otherwise be within the control of the High Court in terms of Article 235 of  the Constitution of India.

       The High Court exercises control over the subordinate courts not only  in terms of the Constitution of India as envisaged under Articles 235 and 227  thereof but also under other Acts, viz., Code of Civil Procedure and Code of  Criminal Procedure.  The officers appointed as the Judge, Family Court are  selected by the High Courts from amongst the existing cadre of the District  Judges.  The ACRs of the said Judges are recorded by the High Court.  It  remains undisputed that there is a Committee of Judges Incharge of the  Administration of the Family Courts.  It may be true that the Act is a Federal  Legislation but such Federal Legislation has been enacted by the Parliament

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for other purposes also as, for example, the Motor Vehicles Act, 1988 in  terms whereof Motor Accident Claims Tribunals are constituted.

       The jurisdiction to establish courts is again governed by a State Act.   In the State of Kerala, establishment of courts is governed by the Kerala  Civil Courts Act, 1957.  Section 2 of the 1957 Act provides that in addition  to the courts’ establishments under any other law for the time being in force,  there shall be classes of civil courts in the State as specified therein.  The  qualification of the courts as specified in the said Section, therefore, is not  exhaustive but inclusive of other courts.  Section 3 of the Act provides for  establishment of District Courts.  Section 7 of the said Act reads as under:

"7. Court’s Location \026 (1) The place or places which any  court referred to in Section 2 shall be held, may be fixed,  any may from time to time be altered by the Government  in consultation with the High Court. (2) The High Court may, with the approval of the  Government, direct by notification in the Gazette that all  or any class of proceedings arising in a specified local  area in a district which would ordinarily be instituted in  the District Court, may be instituted before an Additional  District Judge of that court sitting in a place other than  the place where the District Judge sits."

       Submission of Dr. Dhawan, however, is that the State could have  created courts under the State Acts but not under a Federal Legislation  which was permissible in terms of Entry 1 of List II of the Seventh Schedule  of the Constitution of India.  Under Entry 1 of List II of the Seventh  Schedule of the Constitution of India indisputably the State had the  exclusive jurisdiction but the situation has not materially changed by shifting  the said provision to List III of the Seventh Schedule of the Constitution of  India.  Administration of justice, constitution and organisation of courts  although now is in the Concurrent List, but only because the Act is a federal  legislation, in absence of a clear provision  overriding the provisions of the  1957 Act, the machinery provisions contained therein would remain  operative.  There is no conflict between the provisions of the two Acts; there  is no repugnancy.  The constitutional power of the High Court to exercise its  control over the subordinate courts, has also not been and could not have  been taken away by reason of the provisions of the said Act.

       In The State of Bombay v. Narottamdas Jethabhai and another [AIR  1951 SC 69], this Court has categorically held:

"\005In other words, the argument was that the Provincial  Government could create a court of general jurisdiction  legislating under Entry 1 of List II and that it was then  open to both the Central and the Provincial Legislatures  to confer special jurisdiction on courts in respect to  particular matters that were covered by the respective  lists. In my opinion, the contention of the learned  Attorney-General that the Act is intra vires the Bombay  Legislature under Entry 1 of List II is sound and I am in  respectful agreement with the view expressed by the  Chief Justice of Bombay on this point in Mulchand  Kundanmal v. Raman Hiralal, 51 Bom. L.R. 86\005"

       Mahajan, J. further opined:

"I am therefore of the opinion that under Item 1 of List II  the Provincial Legislature has complete competence not  only to establish courts for the administration of justice  but to confer on them jurisdiction to hear all causes of a  civil nature, and that this power is not curtailed or limited

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by power of legislation conferred on the two legislatures  under Items 53, 2 and 15 of the three lists. On the other  hand, these three items confer on the respective  legislatures power to legislate when dealing with  particular subjects within their exclusive legislative field  to make laws in respect of jurisdiction and powers of  courts that will be competent to hear causes relating to  those subjects; in other words, this is a power of creating  special jurisdictions only."

       In Jamshed N. Guzdar v. State of Maharashtra and Others [(2005) 2  SCC 591], a Constitution Bench of this Court held:

"42. The general jurisdiction of the High Courts is  dealt with in Entry 11-A under the caption  "administration of justice", which has a wide meaning  and includes administration of civil as well as criminal  justice. The expression "administration of justice" has  been used without any qualification or limitation wide  enough to include the "powers" and "jurisdiction" of all  the courts except the Supreme Court. The semicolon (;)  after the words "administration of justice" in Entry 11-A  has significance and meaning. The other words in the  same entry after "administration of justice" only speak in  relation to "constitution" and "organisation" of all the  courts except the Supreme Court and High Courts. It  follows that under Entry 11-A the State Legislature has  no power to constitute and organise the Supreme Court  and High Courts. It is an accepted principle of  construction of a Constitution that everything necessary  for the exercise of powers is included in the grant of  power. The State Legislature being an appropriate body  to legislate in respect of "administration of justice" and to  invest all courts within the State including the High Court  with general jurisdiction and powers in all matters, civil  and criminal, it must follow that it can invest the High  Court with such general jurisdiction and powers  including the territorial and pecuniary jurisdiction and  also to take away such jurisdiction and powers from the  High Court except those, which are specifically conferred  under the Constitution on the High Courts. It is not  possible to say that investing the City Civil Court with  unlimited jurisdiction, taking away the same from the  High Court, amounts to dealing with "constitution" and  "organisation" of the High Court. Under Entry 11-A of  List III the State Legislature is empowered to constitute  and organise City Civil Court and while constituting such  court the State Legislature is also empowered to confer  jurisdiction and powers upon such courts inasmuch as  "administration of justice" of all the courts including the  High Court is covered by Entry 11-A of List III, so long  as Parliament does not enact law in that regard under  Entry 11-A. Entry 46 of the Concurrent List speaks of the  special jurisdiction in respect of the matters in List III.  Entry 13 in List III is "... Code of Civil Procedure at the  commencement of this Constitution ...". From Entry 13 it  follows that in respect of the matters included in the  Code of Civil Procedure and generally in the matter of  civil procedure Parliament or the State Legislature, as  provided by Article 246(2) of the Constitution, acquire  the concurrent legislative competence. The 1987 Act  deals with pecuniary jurisdiction of the courts as  envisaged in the Code of Civil Procedure and as such the  State Legislature was competent to legislate under Entry

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13 of List III for enacting the 1987 Act."

       In view of the aforementioned authoritative pronouncements, we  cannot accept the submission of Dr. Dhawan that the Family Courts should  be equated with courts constituted under the Consumer Protection Act.  The  Family Courts being courts within the meaning of Article 235 of the  Constitution of India as also the 1957 Act would be under the supervisory  jurisdiction of the High Court and they cannot be treated to be a class by  themselves although their working and functions to some extent are  circumscribed by the provisions of the Act and the Rules thereunder.   Even in relation to the courts under the Consumer Protection Act, in  terms of Section 16 of the Act,  the Chief Justice of the High Court has a  role to play.

       In State of Haryana and Another v. National Consumer Awareness  Group and Others [(2005) 5 SCC 284], this Court has laid down that the  manner and initiation of proposal of consultation with the Chief Justice in  terms of Section 16(1)(a) of the Consumer Protection Act must take place in  the manner as laid down by this Court in Ashish Handa v. Chief Justice of  High Court of Punjab & Haryana [(1996) 3 SCC 145].

       The learned senior counsel contends that the expression  "consultation" used in Section 3 of the Act would not mean a primacy.  The  meaning of the said expression has been considered by this Court in  Chandramouleshwar Prasad v. Patna High Court and Others[(1969) 3 SCC  56], para 7, State of U.P. v. Johri Mal [(2004) 4 SCC 714], para 55, L & T  Mcneil Ltd.v. Govt. of TN, [(2001) 3 SCC 170], paras 4 and 6 and Prakash  Chandra Maheshwari v. Zila Parishad [(1971) 2 SCC 489], para 20.

       The word "consultation" may not mean "concurrence" as has been  held by this Court in Supreme Court Advocates-On-Record Association and  Others v. Union of India [(1993) 4 SCC 441] but this Court is not called  upon to go into the said question in view of the fact that the State of Kerala  has agreed to the suggestion of the High Court and had issued a notification.

       Dr. Dhawan then contends that the High Court in making the said  recommendations took into account irrelevant circumstances.  The doctrine  of proportionality, according to Dr. Dhawan, would apply in the instant case.

       The power to shift a court from one place to another involves a  jurisdictional question.  The State Government exercised the said  jurisdiction in consultation with the High Court. It agreed to the suggestion  of the High Court for shifting of the Family Court from one place to the  other.    For the aforementioned purpose, the High Court can make its  recommendations having regard to its control over the subordinate courts on  the administrative side.   

The Courts are meant for imparting justice.  The interest of the  litigants should be uppermost in the mind the court while making such  a  recommendation..  The High Court emphasized the need for having a proper  building.  It emphasised the requirement for shifting of the court building in  the interest of the litigant public.  The High Court has taken all possible  steps to retain the court at Manjeri.  It had not only sought for reports from  the Judge, Family Court but also from the District Judge.  It has considered  the existing infrastructure at Manjeri.  Before making the recommendation,  not only all relevant factors were taken into consideration, but the Appellant  \026 Association was also given an opportunity to furnish full details of other  suitable buildings available at Manjeri, for the proposed shifting.  They  could suggest only one building.  As per the report of the  District Judge,  that building was situated at a distance of 2 furlongs south of District Court  Building at Manjeri and was quite inconvenient to accommodate the Family  Court.

       The High Court for the aforementioned purpose noticed the report of

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the District Judge as regard travelling facilities for the litigant public to both  the places, viz., Manjeri and Malappuram.  It also looked at the geographic  situation of the two towns.  It took into consideration the representations of  both the Bar Associations.  We have been shown several photographs to  highlight the absence of even the bare minimum requirements to run a court.   There is no place for counselling.  Even the records are kept in a toilet.   

Owing to lack of space, it had become very inconvenient to house the  Family Court in the said building.  The building was constructed for  commercial purposes.  There was a lodge (hotel) in the ground floor.  A  Cooperative Bank is also situated therein.  There is only one staircase and it  has only one approach through which the Judge, Family Court, litigants,  advocates, staff and policemen enter the first floor.  The court room is so  small that even 15 advocates cannot sit in it.  Advocates and litigants have to  wait on the verandah or the staircase when the cases are called.  The building  lacked adequate ventilation.  Lady lawyers have no separate area.  Even the  area earmarked for counselling is used by advocates to change dresses.   There is no privacy at all even for the said purpose.

       We may now consider the number of cases pending before the Family  Court from the local area of  Manjeri  and of Malappuram :

Case Type                       Manjeri Area            Malappuram Area MC                                      265                             470 OP                                      197                             353

       The constitutional requirement for judging the question of  reasonableness and fairness on the part of the statutory authority must be  considered having regard to the factual matrix obtaining in each case.  It  cannot be put in a straight-jacket formula.  It must be considered keeping in  view,  the doctrine of flexibility.  Before an action is struck down, the court  must be satisfied that a case has been made out for exercise of power of  judicial review.  We are not unmindful of the development of the law that  from the doctrine of Wednesbury Unreasonableness, the court is leaning   towards the doctrine of proportionality.  But in a case of this nature, the  doctrine of proportionality must also be applied having regard to the purport  and object for which the Act was enacted.  The Family Court, even  according to Dr. Dhawan, requires  special attention.  It serves a social  purpose.  It is a social welfare legislation.  The procedures required to be  followed in the Family Court are different from the procedures which  ordinarily are required to be followed.  It must have sufficient space.  It must  have a counselling centre.  The Family Court must house a room for the  family counsellors.  There has to be sufficient space for conciliation.  The  atmosphere in a Family Court should be different from an ordinary court.   We are informed that by and large the existing state of affairs in the Family  Courts situated in the State of Kerala is similar.  Adequate facilities and  infrastructure are not available.  The State of Kerala is enjoined with a duty  to establish Family Courts. It is imperative on its part to establish a Family  Court where Clause (a) of Sub-section (1) of Section 3 of the Act is attracted  but a court can be established also in cases where Clause (b) thereof is  attracted.  While constituting a Family Court the State must provide for all  requisite infrastructure so as to meet the objects for which the Family Courts  are required to be established.  A court should not be established only  because it is provided for under the Act.  The State must be alive to the  situation that it has a duty to see that the dispute resolution fora are provided  with adequate infrastructure.   

       If, according to the High Court, the present building is not suitable so  as to meet the requirements of the litigants and because of  it, it  had taken  the decision to shift the court to a better place, no fault can be found with the  said decision only because the proposed site is situated at a distance of 12  kms. from the existing court building.  We have been shown a map.  From a  perusal thereof, it appears that Malappuram is ideally situated  geographically for having a court.  It is the district headquarters.  Number of  cases from Malappuram is also more than the cases of Manjeri.  The

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representations of the Bar Associations, although are relevant, cannot be the  sole criterion.  We have noticed hereinbefore that representations of the  Malappuram Bar Assocation was not the only consideration which weighed  with the High Court for making its recommendations.  It may be true, as has  been submitted by Dr. Dhawan that the State of Kerala in its counter- affidavit has categorically stated that the shift is temporary.  As and when a  proposed building is made available by the State, steps will be taken to shift  the Family Court to that building.  We have no doubt that the State would  make an endeavour to make available an exclusive court complex for the  Family Court and the High Court will then take steps to have the court  located therein.  

       There is another aspect of the matter which cannot be lost sight of.   The Appellant as affirmed an incorrect affidavit as regards the population of  the town.   

       After the decision of the High Court, according to Mr. T.L.V. Iyer,  learned senior counsel appearing on behalf of the Respondent, about a sum  of Rs. 10 lakhs had been spent for making the court room ready.  The  Special Leave Petition was filed after a period of seven months from the date  of the judgment of the High Court.  The building is ready for housing the  Family Court.  It may be that it is within the Civil Station premises, but then  we are sure that as and when the State Government is in a position to  provide an appropriate site where a Family Court can be constituted, the  Court will be shifted to that location.  Until then, the present building may  be used for holding the courts.

       For the reasons aforementioned, we do not find any merit in this  appeal.  It  is dismissed.  No costs.