Writ Petition No. 5098 of 2012. Case: Partur Advocates Bar Association Through Its President Vijaykumar S/O Ganpatrao Kulkarni Vs State of Maharashtra & Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 5098 of 2012 |
| Counsel | Case No |
| Judges | A. S. Oka & C. V. Bhadang, JJ. |
| Issue | Maharashtra Civil Courts Act, 1869 - Sections 14, 15, 19, 21; Code of Civil Procedure, 1908; Constitution of India - Articles 226, 233 235 |
| Judgement Date | May 05, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
A. S. Oka, J.
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The issue involved in this Petition under Article 226 of the Constitution of India is as regards the establishment of the Courts of the District and Additional Sessions Judge as well as the Civil Judge, Senior Division at Partur, Taluka Partur, District Jalna. The issue which arises for consideration is for establishing the said Courts, which is the decision making authority, the State Government or the High Court Administration.
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With a view to appreciate the submissions canvassed across the Bar, a brief reference to the facts of the case will be necessary. The Petitioner is a Bar Association of the Advocates at Partur. At Partur, which is a Taluka Headquarter, there is a Court of Civil Judge (Junior Division) and the Judicial Magistrate First Class. The Petitioner Association has been espousing the cause of the people living in Talukas of Partur, Mantha and Ghansawangi in District Jalna and have taken up their demand for establishing the Courts of Additional District Judge, Additional Sessions Judge (for short "the ADJ ") and the Court of Civil Judge, Senior Division (for short "the CJSD ") at Partur for the aforesaid three Talukas. The Petitioner has pointed out that in similar situations, the Courts of ADJ and CJSD have been established at various Taluka places in the Districts of Hingoli, Parbhani and Ahmednagar. Reliance is placed on various resolutions passed by the Petitioner Bar Association. The challenge in the Petition is to the stand taken by this Court as well as the Government of Maharashtra that the State Government has no power to establish the Courts of ADJ and CJSD without prior approval of this Court. On 30th March 1998, the State Government declined to consider the request of the Petitioner on the ground that there was no approval of this Court. After the High Court Administration by its communication dated 13th August, 2009 declined to grant approval to a proposal to establish the Courts of ADJ and CJSD at Partur, the Petitioner Association made an application on 28th October, 2009 for seeking review of the decision dated 13th August, 2009. The prayer in this Petition under Article 226 of the Constitution of India is for quashing the decision dated 13th August, 2009 refusing to grant approval to the proposal of establishing the Courts of ADJ and CJSD at Partur. Another prayer is for directing the State of Maharashtra to decide the proposal regarding establishment of the said Courts at Partur without being influenced by the decision of the High Court Administration dated 13th August, 2009. By carrying out amendment, a challenge was incorporated to the order of this Court dated 24th February 1993. By the said administrative order, it was directed that the Petitions under Article 226 filed at the Benches at Nagpur, Aurangabad and Panaji against the Hon'ble Chief Justice of this Court and Officers of this Court stand transferred to the principal seat at Bombay. A challenge is also to similar order issued by the Hon'ble the Chief Justice on 6th January 2010. No submissions are canvassed in this Petition on these two prayers.
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The learned counsel appearing for the Petitioner urged that there cannot be any doubt about the proposition that the citizens must have a fair access to the justice. He invited our attention to the powers of the High Court under Articles 233 and 235 of the Constitution of India. The submission is that even as per the provisions of the Constitution of India, the power to establish the Courts as prayed for by the Petitioner is not vested in the High Court Administration but it continues to vest in the State Government. He invited our attention to the provisions of Sections 14 and 15 of the Maharashtra Civil Courts, 1869 (for short "the Civil Courts Act"). He submitted that the State Government is empowered to appoint one or more Additional District Judges who shall ordinarily hold their Court at the same place as the Principle District Judge. However, when the Principle District Judge directs an Additional District Judge to hold his Court elsewhere in the District, previous sanction of the High Court is required. He relied upon Section 19 of the Civil Courts Act which confers power on the State Government to invest any Additional District Judge with all or any of the powers of the District Judge in a particular part of the District. He pointed out that under Section 21 of the Civil Courts Act, which provides that there shall be in each District so many Civil Courts subordinate to the District Court as may be directed by the State Government from time to time. He urged that under the Civil Courts Act, the power to establish the Courts of ADJ and CJSD at Taluka places in a judicial District is of the State Government and the consent or concurrence of the High Court is not required. His submission is that the provisions of the Civil Courts Act have undergone many amendments after the coming into force the Constitution of India, but the aforesaid powers of the State Government are retained.
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The learned counsel appearing for the Petitioner invited our attention to the provisions of the Civil Courts Act as well as the Code of Criminal Procedure, 1973 (for short "the CrPC."). He urged that the State Government under Section 3 of the Civil Courts Act has a power to create judicial District, to alter the limits of a judicial District and to create new Districts. He emphasized on Section 19 of the Civil Courts Act which confers power on the State Government to invest Additional District Judge with all the powers of the District Judge within a particular part of a District and from time to time determine and alter the limits of such part. He pointed out that third part of Section 19 specifically provides that every such Additional District Judge who is invested with the powers by the State Government shall ordinarily hold his Court at such place within the local limits of his jurisdiction as may be determined by the State Government, and may, with the previous sanction of the High Court hold it at any other place within such limits. His submission is that power to establish a Court of ADJ having powers of the District judge confined to particular area is only of the State Government. He pointed out that even Section 23 confers power on the State Government to decide at which place or places the Civil Judges shall hold their Courts. He pointed out that the State Government has a power to order that a Civil Judge shall hold his Court at a place outside the local limits of his jurisdiction. His submission is that thus the power to establish the Courts of ADJ and CJSD at a place other than the District place is vesting in the State Government. He submitted that the said power remains unaffected by the Constitution of India. He invited our attention to various affidavits on record and the figures of pendency of cases in various Taluka Courts.
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He invited our attention to the decision of this...
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