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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: S.P. ANAND & ORS.

DATE OF JUDGMENT:       07/08/1998

BENCH: S.C. AGARWAL, A.S. ANAND, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. Agrawal :-      Leave granted.      This  appeal  arises  out  of  a  Writ  Petition  (Writ Petition  No.   500  of   1998)  filed  by  the  respondents [hereinafter referred  to as  ’the petitioners’] in the High Court of  Madhya Pradesh,  Indore Bench.  In the  said  Writ Petition the  petitioners  have  prayed  for  the  following reliefs:-      "In view  of the  submissions  made      above it is prayed that the R.No. 1      herein  be   kindly   directed   to      appoint INDORE as one of the places      where  the  Hon’ble  Supreme  Court      shall  commence   sittings   w.e.f.      first working  day after the summer      vacations are over and the R.Nos. 2      & 3 be kindly directed to grant the      needed approval  as per Art. 130 of      the constitution  & extend all such      funds as  may be  required to  meet      the     financial      requirements      recalling that  absence of funds is      no alibi in law to provide sittings      at INDORE   to  extend the benefits      of Art.  32 which  in itself  is  a      Fundamental Right guaranteed by the      Constitution makers  by placing  it      in Part  III of  the Constitution &      such costs  as deemed  fit be  also      kindly  allowed   with  such  other      reliefs  or   moulded  reliefs   as      deemed fit by this Hon’ble Court."      The said  Writ Petition was learned by a learned single Judge of  the High  Court who,  on April 3, 1998, passed the following order :-      "Heard the Petitioners in persons.      Issue notice  to  the  other  side.      P.F.   within   three   days.   The      petitioners want  a notice  also be

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    sent by  Registered  post  A.D.  to      lessen up.      The prayer is accepted.      The notice  also be  sent by  Regd.      Post A.D.  and also by humdast over      and over the normal course."      The appellants  have filed this appeal to challenge the said order passed by the High Court.      The learned  Attorney General  has urged  that the Writ Petition of  the petitioners  seeking  the  above  mentioned relief is  not maintainable  inasmuch as  in exercise of its jurisdiction under  Article 226 of the Constitution the High Court cannot  give a direction to the Chief Justice of India with regard  to place  or places  where  the  Supreme  Court should sit  since this  a  matter  which  falls  exclusively within the  discretionary power  vested in the Chief Justice of India  under Article 130 of the Constitution. It has also been urged  that since the reliefs sought by the petitioners in the  Writ Petition cannot be granted by the High Court in exercise of  its  jurisdiction  under  Article  226  of  the Constitution,  the   High  Court   should  have  refused  to entertain the  Writ Petition  and that  the learned Judge of the High  Court was  in error  in entertaining  the same and passing the impugned order.      In response  to the  notice issued  by this  Court  the petitioners have  appeared in person. S.P. Anand, petitioner No.1, has  addressed the  Court in  support of  the impugned order of  the High  Court in person and the said submissions were adopted by M.L. Bapna, petitioner No.2.      A preliminary  objection was  raised by the petitioners against the  maintainability of  this appeal.  it  has  been urged that  at the  stage of preliminary hearing of the writ petition the  High Court  has the discretion to either admit it or  dismiss it  in limine  or to  entertain the  same and before admitting  the writ  petition  issue  notice  to  the respondents.  In  the  present  case,  the  High  Court  has exercised this  discretion by  directing issue  of notice to the respondents  in the  writ petition.  The exercise of the said discretion  by the  High Court  cannot be interfered by this Court  under Article 136 of the Constitution especially when no injury or loss has been caused by the impugned order directing issue  of notice  to the  respondents in  the Writ Petition. The  submission is  that in response to the notice the  respondents   to  the  writ  petition  can  make  their submissions before  the High Court and, if the High Court is satisfied that  there is  no merit  in the writ petition, it would pass  an  appropriate  order  on  the  writ  petition. Reliance has  been placed by the petitioners on the decision of the  Constitution Bench  of this  Court in  Himansu Kumar Bose v. Jyoti Prokash Mitter & Ors. AIR 1964 SC 1636.      We do  not find  any merit  in this  contention. At the stage of  preliminary hearing of a writ petition filed under Article 226  of the  Constitution the High Court is required to consider  whether on the basis of the averments contained in the  writ petition  the petitioner therein is entitled to seek the relief prayed for and such relief can be granted by the court  in exercise of its jurisdiction under Article 226 of the  Constitution. If  the court is of the opinion that a prima facie  case is made out for granting the relief sought in the  writ petition,  rule nisi is issued calling upon the person or  persons against whom the relief is sought to show cause why  such relief  should not  be granted.  But if  the court finds  that no  such prima facie case is made out, the writ petition  has to be dismissed without issuing notice to the person or persons against whom the relief is sought. The

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object of  placing a  writ petition  before  the  court  for preliminary hearing  is to ensure that a writ petition which is frivolous  in nature or in which no relief can be granted by the  court in exercise of its powers under Article 226 of the Constitution is dismissed at the threshold.      In Gunwant  Kaur & Ors. v. Municipal Committee Bhatinda & Ors., AIR 1970 SC 802, this Court has laid down:-      "Rejection of  a petition in limine      will normally  be justified,  where      the high  Court is  of he view that      the  petition   is   frivolous   or      because of  the nature of the claim      made,   dispute    sought   to   be      agitated,  or   that  the  petition      against  the   party  against  whom      relief   is    claimed    is    not      maintainable or  that  the  dispute      raised  thereby  is  such  that  it      would be inappropriate to try it in      the  writ   jurisdiction,  or   for      analogous reasons." [p.805]      In Himansu  Kumar Bose  (supra) this  Court was dealing with a case involving dispute regarding the date of birth of a Judge of the High Court. On the basis of the date of birth as determined  by the Government of India, the Chief Justice of the High Court had passed on order whereby the said Judge was required to demit his office of Puisne Judge of the High Court with  effect from  a particular  date.  The  concerned Judge filed  a writ  petition challenging  the said order of the Chief  Justice of the High Court. The said Writ Petition was placed  for preliminary  hearing before a learned single Judge of the High Court who held that there was no substance in the  contentions sought to be raised in the writ petition and the  writ petition  was dismissed  in limine.  The  said order of  the learned single Judge was reversed in appeal by the High  Court. The  matter was  first heard  by a Division Bench of  two learned Judges of the High Court and there was difference of  opinion between  them, one  holding that  the learned single Judge was justified in refusing to issue rule nisi, while the other taking a contrary view. The matter was thereafter place  before a  Special Bench  of three  learned Judges of the High Court which held that the trial Judge was in error  in refusing  to issue  a rule nisi. The appeal was allowed and  it was directed that rule nisi be issued in the writ petition.  The said  order of  the Special bench of the High Court  was challenged before this Court. Dismissing the appeal, this Court said:-      "Experience  shows   that  in  writ      petitions  filed   in  High  Courts      under Art. 226 which raise arguable      issues of  much  less  significance      and  importance,   Rule   Nisi   is      usually   issued    and    speaking      broadly,  there   seems  to  be  no      justification for  holding that  in      the present  case which undoubtedly      raises  questions  of  considerable      importance, that  course should not      be adopted." [pp. 1640, 1641]      In support of the appeal before this Court it was urged by the  learned Attorney General that four questions fell to be considered  in the  appeal  and  answers  to  those  four questions would  be decisively  against the  petitioners who had filed  the writ  petition and, therefore, refusal of the learned single  Judge to issue rule nisi was Justified. This

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Court, after  examining the  said  questions,  came  to  the conclusion that  the issues  which fell  to be considered in the Writ Petition were, in a sense, triable issues and so it would be  inappropriate to  dismiss the  petition in limine. The decision in Himansu Kumar Bose (supra) thus holds that a writ petition  cannot be  dismissed in  limine if  it raises triable issues, but if it is found that the writ petition on its face  does not  raise any triable issue, it is liable to be dismissed in limine.      The question  for consideration,  therefore, is whether the Writ Petition filed by the petitioners in the High Court raises a  triable  issue.  The  submission  of  the  learned Attorney General  is that  the Writ  Petition does not raise any triable  or arguable issue and was, therefore, liable to be dismissed  in limine  and the  High Court was in error in issuing notice on the Writ Petition to the parties impleaded as respondents  therein. The  petitioners have, on the other hand, urged  that the  Writ Petition  raises triable  issues regarding  the   interpretation  of   Article  130   of  the Constitution and  the High Court has rightly entertained the Writ Petition  and issued notice on it. These submissions of the learned  counsel show  that impugned  order of  the High Court cannot  be upheld  unless it can be said that the Writ Petition  raises   an  arguable  question  relating  to  the interpretation of  Article 130  of the  Constitution. As  to whether the Writ Petition filed by the petitioners raises an arguable issue relating to the interpretation of Article 130 of the Constitution is a matter which can be agitated before this Court by the appellants in order to assail the impugned order  under  Article  136  of  the  Constitution.  We  are, therefore, unable to accept the preliminary objection raised by the petitioners and the same is accordingly rejected.      We may  now examine  whether an  arguable issue  can be said to  have  been  raised  in  the  Writ  Petition.  After pursuing the  Writ Petition,  we are constrained to say that it suffers from the same defects as were pointed out by this Court in  S.P. Anand, Indore v. H.D. Deve Gowda & Ors., 1996 (6) SCC  734, which  arose out  of a  writ petition filed by petitioner  No.   1  herein,   under  Article   32  of   the Constitution. In that case, this Court has observed:-      "We cannot  but  observe  that  the      averments in  the petition are of a      rambling nature  and lack cohesion.      It is  regrettble that  a  petition      challenging the  appointment to the      high office  of the  Prime Minister      of this  country should  have  been      drafted in  such a cavalier fashion      betraying lack  of study,  research      and   seriousness.   The   petition      abounds in  casual  and  irrelevant      averments  ranging  from  cases  on      freedom of  speech  to  fraternity,      from   judicial   independence   to      judicial review, from civil code to      cow slaughter  and  so  on  and  so      forth." [pp.739, 740]      The  present   Writ  Petition   is  no  different.  The President was impleaded as a respondent to the Writ Petition notwithstanding the  bar contained  in Article  361  of  the Constitution since,  according to  the petitioners, the said bar does  not preclude  the President from being joined as a party. Reference  has been  made to  the decision of Special Bench of  Seven Judges  of this  Court in  Shemsher Singh v. State of Punjab & Anr. AIR 1974 SC 2192, and the correctness

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of the  said decision  has been  assailed but the reason why the said  decision should  be reviewed  is not indicated. As regards Article  130 the case of the petitioners is that the said provision  postulates that the Supreme Court should sit throughout the country and therefore at Indore also and that the omission  to provide  for sittings  of Supreme  Court at Indore or  nearby places,  viz., Dewas, Ujjain, Mahow, Dhar, is ex  facie  unconstitutional  and  discriminatory.  It  is claimed that  Article 130  contains a  binding mandate which cannot be  disregarded. The petitioners have stated that the Writ Petition  is not  in  the  nature  of  Public  Interest Litigation, but  it is  for enforcement  of  the  individual rights of  the petitioners  who have  agricultural and urban properties situate  at and  around Indore. It is stated that the omission  to  provide  sittings  at  Indore  is  causing hostile discrimination between citizens and residents of New Delhi and  those residing  in and  around  Indore  like  the petitioners on  account of  absence of  availability of  the judicial  remedy  under  Article  32  of  the  Constitution. Petitioner No.  2 is practising as an Advocate at Indore and his grievance  is that  omission to  provide sittings of the Supreme Court at Indore he is suffering loss of practice and resultant financial  loss as  compared with the Advocates at New Delhi.   At the stage of arguments petitioner No. 1 also submitted written submissions.      Article 130 of the constitution reads as follows:-      "130. Seat  of Supreme  Court.- The      Supreme Court shall sit in Delhi or      in such  other place  or place,  as      the Chief  Justice  of  India  may,      with the approval of the President,      from time to time, appoint."      The submission of the petitioners is that under Article 130 a  mandatory duty  has been cast on the Chief Justice of India to  appoint a  place or  places other  than  Delhi  in various parts  of the  country for  the seat  of the Supreme Court and  that failure  on the part of the Chief Justice of India to  carry out  this mandatory  duty can be enforced by seeking appropriate  direction from  the  High  Court  under Article 226  of the Constitution. It has been urged that the said power  conferred on  the Chief  Justice of  India under Article 130 is justiciable and is subject to judicial review by the  courts. reliance has been placed on the observations in the  majority judgment  of Verma J. [as the learned Chief Justice then  was] and in the concurring judgment of Pandian J. made in the context of Article 216 of the constitution in Supreme Court  Advocates-on-Record  Association  &  Ors.  v. Union of India, 1993 (4) SCC 441. It has been submitted that language used  in Article  216 of  the Constitution  is very similar  to   that  used   in  Article   130  and  the  said observations are, therefore, applicable in the present case. This contention,  in  our  opinion,  is  without  substance. Article 130  makes provision  for seat  of the Supreme Court and lays  down that  the Supreme Court shall sit in Delhi or in such  other place or place, as the Chief Justice of India may, with  the Approval of the President, from time to time, appoint. It  is in the nature of an enabling provision which empowers the  Chief Justice  of India,  with the approval of the President,  to appoint  place or places other than Delhi as the  seat of  the Supreme  Court. Article  130 cannot  be construed as  casting a  mandatory obligation  on the  Chief Justice of India to appoint place or places other than Delhi as seat  of the  Supreme Court.  The question  as to whether Supreme Court  should  sit  at  a  place  other  than  Delhi involves taking  a policy  decision by  the Chief Justice of

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India which  must receive  the approval  of the President of India. If  after  taking  into  consideration  the  relevant factors the Chief Justice of India forms an opinion that the Supreme Court  should sit  at a  particular place  or places other than  Delhi, he  has  to  seek  the  approval  of  the President for  the proposal  and, if  the President approves the proposal,  an order appointing the place or places where the Supreme Court shall sit is passed. Exercise of the power under Article  130 thus  postulates (i)  a decision  by  the Chief Justice  of India  as to  whether  the  Supreme  Court should sit at a particular place or places other than Delhi; and (ii)  approval of  the President to the proposal made by the Chief  Justice of  India for  appointing the  particular place or  places for  the sitting of the Supreme Court. Thus making of  an order  under Article  130 of  the Constitution providing     for      sitting      of      the      Supreme court at  a place  other than  Delhi requires  in the  first place a  decision by  the Chief  Justice of  India  in  that regard and  thereafter the  approval of  the proposal of the Chief Justice of India by the President on the advice of the Council of  Ministers. No  court can give a direction either to the  Chief Justice  of India or the President to exercise the power  conferred under  Article 130 and to pass an order appointing Indore  and/or any other place or places in India as the  seat/seats for  the sitting  of the Supreme Court as sought by the petitioners in the Writ Petition.      In this  context, it  may be  mentioned that a question regarding justifiability  can arise  only an  respect of  an action  that  has  been  taken  under  a  provision  of  the Constitution or a law. Since no action has been taken in the present case  under Article  130 of  the  Constitution,  the question of  justifiability of such action does not arise in the  present   case.  We,  therefore,  do  not  consider  it necessary to  go into  the question  whether an order passed under Article 130 of the Constitution would be justiciable.      In Supreme Court Advocates-on-Record Association & Ors. (supra)  this   Court,  while   dealing  with  the  question regarding fixation  of Judges’  strength in the High Courts, has referred  to  the  provisions  of  Article  216  of  the constitution and,  having regard to need for speedy disposal of cases  and to  secure that  the operation  of  the  legal system promotes  justice,  it  was  held  that  fixation  of Judges’ strength  is justiciable  and that,  if it  is shown that the  existing strength  is inadequate to provide speedy justice to  people in spite of the optimum efficiency of the existing strength,  a direction  can be issued to assess the left need  and fix  the strength  of the Judges commensurate with the  need to  fulfil the  State obligation of providing speedy justice.  The observations  made in  the  context  of Article 216 have, however, no bearing on the construction of Article 130 of the constitution.      The petitioners  have also invited our attention to the answer given  by Dr. B.R. Ambedkar to a query by Shri Jaspat Roy Kapoor  during the  course of debates in the Constituent Assembly. The  said query and the answer to it, as contained in the  report of  the Constitutional Assembly Debates dated May 27, 1949, are reproduced as under:-      "Query:   My   I   seek   a   small      clarification  from  Dr.  Ambedkar?      Will it  be  open  to  the  Supreme      Court so  long as  it is sitting in      Delhi,  to  have  a  circuit  Court      anywhere   else   in   this   Court      simultaneously?      Answer: Yes,  certainly. A  circuit

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    court is only a Bench."      We are  unable to  appreciate how  the aforesaid answer given by  Dr. Ambedkar  lends support  to the submissions of the petitioners.  In the  said answer  De. Ambedkar has only stated that  it would  be open to the Supreme Court, so long as it  is sitting in Delhi, to have a circuit Court anywhere else in  the country  simultaneously and  that such  circuit court would  only be  a Bench.  There is nothing in the said answer of  Dr. Ambedkar  which may  suggest that a mandatory obligation has  been cast  on the Chief Justice of India and the President  to set  up Benches  of the Supreme Court at a place other than Delhi.      On this  view of  Article 130  of the  Constitution the whole edifice  of the  case set up by the petitioners in the Writ Petition  falls to the ground. We, therefore, arrive at the conclusion  that the relief sought by the petitioners in the Writ Petition filed by the petitioners in the High Court could not  be granted  by the  High Court in exercise of its jurisdiction under  Article 226  of the Constitution and the said Writ  Petition could not be entertained. The issuing of a notice to the respondents in the Writ Petition would serve no useful  purpose and  would only  distract the respondents from performing  their other  important  functions.  In  our opinion, this was a case which should have been dismissed in limine and  the High  Court was in error in issuing a notice to the respondents to defend the Writ Petition.      Deprecating the  growing tendency  to make  use of  the court as  a forum  to seek  some cheap publicity, this Court has said:-      "We regret to say that seeing one’s      name  in  newspapers  everyday  has      lately become  the worst intoxicant      and the  number of  people who have      become victims  of it is increasing      day be day".      [see:   Mithilesh   Kumar   v.   R.      Venkataraman &  Ors., 1988  (1) SCR      525]      At the  stage of preliminary hearing of a writ petition the High  Court, before  issuing a notice to the respondent, has to  guard against  the court  being used  as a forum for gaining publicity  by the  person or persons moving the writ petition. The need for such caution is greater when a person holding a  high constitutional  office  is  impleaded  as  a respondent in  the writ  petition or  when matters of policy are involved. In the instant case, we are constrained to say that in  passing the  impugned order  issuing notice  on the Writ Petition the learned Judge of the High Court has failed to bestow  the requisite  care and  circumspection. We  are, therefore, unable to uphold the impugned order.      The appeal  is accordingly  allowed, the impugned order dated April  13, 1998  is set  aside and  the Writ  Petition filed by the petitioners is dismissed. No order as to costs.