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Judgment
Mishra, J.—After we disposed of the O. S. As., petitions seeking review and modifications in the final order in the appeals, and to condone
delay in filing the review petitions, were filed, we noticed in the course of hearing the petitions, that the appeals as well as the suits can be ordered
in terms of a settlement between the parties. Accordingly, all the petitions, suits and appeals are listed. The delay in filing the review petitions are
condoned. Having heard Learned Counsel for the parties, we found that, on such understanding between the parties on which Messrs. Gea Energy
Systems (India) Private Limited, hereinafter referred to as ""Gea Systems"", would undertake to vacate the premises under their occupation by a
specified date and deliver vacant possession of the tenanted premises to Mr. K. Srinivasan, Proprietor, Messrs. 8. M. Associates, all proceedings
and controversies between the parties could be settled on terms on which both the parties might agree. Accordingly, in the process, amount due to
Gea Systems and amount payable to K. Srinivasan by Gea Systems were worked out by the parties themselves and they have each deposited in
Court such amount of money which they may be required to pay to each other. In compliance with our directions, Gea Systems have deposited
Rs. 85,000/- by Banker''s Cheque bearing No. 566464 dated 4.10.1994 drawn on State Bank of India, Teynampet, Madras-18, in favour of the
Registrar High Court, Madras. K. Srinivasan has after accounting, deposited a sum of Rs. 11,000/- by Demand Draft bearing No. 627977 dated
4.10.1994 drawn on City Union Bank Ltd. to the credit of O.S.As. 177, 178 and 265 to 268 of 1993.
An affidavit of undertaking has been filed on behalf of the Gea Systems by its Managing Director to the following effect:-
That the respondent company who has been in possession of the premises, Flats A,B & C of Second Floor in building known as R.K. Mansion
bearing Door No. 4, Third Cross Street, Raja Annamalaipuram, Madras-28, are desirous of moving out of the premises by way of settlement.
That I, B.G. Raghupathy, on behalf of the respondent company do hereby undertake to quit, vacate and deliver vacant possession of the
premises on or before 31st May, 1995.
K. Srinivasan in his affidavit of undertaking has stated as under;-
I humbly submit that on 20.9.94, the respondent/defendant agreed that they will file an affidavit of undertaking to undertake to deliver vacant
possession of the suit property forming subject matter of C.S.25 of 1992 on or before 31.6.1995. In view of that, I have been directed to file an
affidavit of undertaking that I will maintain all the amenities.
I humbly submit that the following is the dispute regarding the amenities as raised by the respondent/defendants which 1 am not admitting.
I humbly submit that the following is the dispute regarding the amenities as raised by the respondent/defendants which I am not admitting.
The complaint of the respondent/defendant was that in one of the bathrooms in Flat ""C"", there was no water supply. I humbly submit that the
water supply was not coming in the taps because the stopcock inside the bathroom had been tightly sealed and the knob of the control valve
provided inside this bathroom was found removed. By using a cutting pliers, the spindle was unscrewed and water started gushing in all the taps.
Now the fact remains that there is water supply in the said bathrooms.
Regarding the electricity, there was a complaint that in Flat ""C"", there is no power supply in one portion of the hall and in one bedroom. With the
help of an electrician brought by the defendant and by using a test lamp, the incoming, outgoing, and the fuse carriers were checked. There is
power supply in all the three phases. The defendant also confirmed that there is power supply in all the areas inside the Flat. Now, on 20.9.94, it
was represented that there was no power supply in one phase in the Flat ""C"". I am ready and willing to attend to it by taking my electrician inside
the Flat ""C"", otherwise it is open to the respondent/defendant and get it repaired in Flat ""C"" at his cost after prior notice to me.
As far as parking of vehicles, I can allow three cars and three two-wheelers to be parked upto 31.5.1995. I will give three tokens for three cars
and three tokens for three two-wheelers with registration number of the vehicles. The respondent/defendant will be given tokens for three cars and
for three two-wheelers belonging to their staff with name and registration numbers and the parking place will be available.
As for as Lift is concerned, it is in working condition and it will continue to work.
I hereby, make it clear and undertake that, all the amenities referred to above will continue to be available upto 31.5.1995. If there is any
disruption in Electricity and water supply according to the respondent/defendant, it will always be open to them to point out and the same will be
attended to within a week, for which my electrician and Plumber should be allowed to enter the Flats ""A"", ""B"" and ""C"" in the second floor namely,
the suit property. If the complaint is found to be genuine and if i do not rectify within a week, it is open to the respondents/defendants to get it set
right at his cost and deduct the same from the amounts payable to me.
I make it clear that all the amenities will be available to the respondents/defendant till 31.5.1995 on which date they shall hand over the vacant
possession of the property in good condition, without any necessity for resorting to execution.
If the respondent fails to deliver vacant possession on or before 31.5.1994, thereafter, he shall be liable to pay damages for use and
occupation at the rate of Rs. 2,000/- per day, till he complies with the undertaking and delivers vacant possession of the suit property.
The undertakings Aforequoted have the effect of finally disposing of all the proceedings between the parties in this Court by way of settlement
under which Gea Systems has accepted as tenant in possession of the premises, Flats A,B and C of II floor in R.K. Mansion, No4, III Cross
Street, Madras -28, until 31.5.1995 on or before which date Gea Systems would vacate and deliver vacant possession of the premises to K
Srinivasan. The sum of Rs. 35,000/- deposited on behalf of Gea Systems would be in full satisfaction of all the claims, i.e., rent etc., of the
premises, and would remain in deposit until 31.5.1995 or until vacant possession of the premises is delivered by Gea Systems to K. Srinivasan,
whichever is earlier. The sum of Rs. 11,000/- deposited on behalf of K. Srinivasan shall also be in deposit until 31.5.1995 or until vacant
possession is delivered by Gea Systems to K. Srinivasan. In case, possession of the premises is delivered as above, the sums in Rs. 35,000/- with
interest accrued thereon and Rs. 11,000/- with interest accrued thereon could be withdrawn by the authorised representative of Gea Systems, in
lieu of the sum of Rs. 95,000/- paid as rental advance to K. Srinivasan earlier. However, if vacant possession is not delivered on or before
31.5.1995 by Gea Systems, the suit for eviction in C.S. No. 25 of 1992 shall stand decreed and Gea Systems and B.G. Raghupathy, who has
filed the affidavit of undertaking on behalf of Gea Systems, would be liable for willful disobedience of the undertaking aforementioned; K.
Srinivasan would be entitled to withdraw Rs. 35,000/- plus interest on behalf of Gea Systems and Rs. 11,000/- deposited by him with the interest
accrued thereon, as well as be entitled to claim penal rent for the occupation of the premises by Gea Systems at a rate four times the rate and
charges as agreed between the parties and deposited in court on behalf of Gea Systems.
It is understood that Gea Systems shall not bring in any sub tenant or allow any other person to occupy the premises aforementioned and shall
not get away by leaving the premises in the occupation of any other person on the plea that it had vacated the premises before the entry of any
third party, and any person in occupation of the premises shall be treated a representative of Gea Systems, and Gea Systems shall be liable to pay
penal rate at the aforementioned rate for occupation of the premises by any third party after 31.5.1995 and for the violation of the undertaking
aforementioned. Gea Systems shall be liable for violation of the above undertaking in case any other person is found in occupation of the premises,
who is not inducted by B.M. Associates or any of its representatives. It is clarified that any employee or agent of Gea systems may stay and be in
occupation for and on behalf of Gea Systems in the premises aforementioned until 31.5.1995 but no one should be allowed to enter the premises
thereafter. Any person entering the premises before 31.5.1995 shall be deemed to have entered into the premises only at the behest of Gea
Systems. If Gea Systems do not deliver vacant possession to K. Srinivasan or B.M. Associates as above on or before 31.5.1995, any person in
occupation of the premises shall be deemed to be holding the premises for and on behalf of Gea Systems.
There has been serious complaints which, it appears, are mostly on account of suspicions entertained by either party about Gea Systems not
receiving all the amenities and/or some of the amenities always allegedly being disturbed by K. Srinivasan or B.M. Associates. It is agreed between
the parties that in case of any interference with any of the amenities, Gea Systems shall be entitled to restoration and they may without the consent
or information of or to K. Srinivasan or any other person of B.M. Associates, get such amenities restored at their cost. K. Srinivasan or any other
person of B.M. Associates will create no hindrance or disturbance in Gea Systems getting the amenity/amenities such as water, electricity, lift,
parking area, etc. restored.
Since Gea Systems have three flats in their possession, it is agreed that they shall have parking space for three motor-cars and at least eight two-
wheelers. This right of easement, Gea Systems shall enjoy and K. Srinivasan or any other person of B.M. Associates will cause no hindrance in the
said easementary right to Gea Systems.
The Registrar of the Court is directed to ensure the investments of the amounts aforementioned in any nationalised bank for a period upto
31.5.1995 at the first instance, and, if necessary, after obtaining the order of the court thereafter, so that the amount in deposit earns maximum
interest.
There is no objection regarding the maintainability or jurisdiction to entertain the suits and it is accepted by both parties that the disposal of the
three suits in terms of the compromise is final on all the issues in the suits. There shall be a decree accordingly. The above it is conceded, disposes
of not only the petitions in the O.S.As., but modifies the order in the O.S.As. and finally disposes of the suits, viz., O.S. Nos. 1077 and 1443 of
1991 and 25 of 1992. It is ordered accordingly. No costs,.
Before we part, it is necessary for us to state that the registry and the office of this Court should realise that many conventions, norms and even
rules as to the constitution of the Benches of the Court, allotment of portfolios viz. cases for disposal and observance strictly of the judicial orders
of the Court, have of late been observed in violation and unless amends are made, the Court may get a bad name and administration of justice may
suffer and would fail to achieve the desired result. Mr. Jayaraman, President, Madras High Court Advocates'' Association, and Mr. Ravindran,
President, Madras Bar Association, have informed us that they called on the Hon''ble The Chief Justice and informed him of the happenings (such
happenings which are recorded in the previous orders in this proceedings as well as other happenings), but were given no concrete or convincing
response.
We have before us the report of the Additional Registrar (Judicial) in which it is stated that the inconvenience to the Court is regretted; but
there is no remorse to the violation of the norms, conventions and the rules. We shall advert to the report and the proceedings on the report in
which Learned Counsel above named representing the two Associations as well as Learned Counsel representing the parties in the instant
proceedings participated, and, since the report of the Additional Registrar (Judicial) was under consideration, he and besides him the Registrar of
the Court were present.
We constituted a Bench, which heard sometimes Original Side Appeals sometimes Habeas Corpus Petitions, sometimes Special Tribunal
Appeals and sometimes other categories of cases, which were allotted to our Bench, until we separated to constitute different Benches, leaving
behind, by reason of a long period of constituting a Bench together, about 50 and odd cases of different categories as part-heard, including a case
in which we have delivered judgment in part. In several cases which were left part-heard, Learned Counsel appearing for the parties moved and
mentioned for orders by us so that their cases were finally heard and concluded, including the case in which we had delivered judgment in part.
Registry of the Court, however, took no notice of such mentioning and motions, as a result of which to one case in which the petitioner was
undergoing detention in jail, viz., H.C.P. No. 1521 of 1993, Learned Counsel sought for leave of this Court to get the case heard by some other
judges. It seems, however, that at some stage, the Registry had some conscience and a list of the part-heard cases was prepared at some level and
without seeking any order from any one of us, the Bench was notified and such part-heard cases were listed for hearing. Certain cases which were
reported to have been heard in part by us and were not included in the list, when we were called to assemble to hear the part-heard cases, were
added to the list which addition included the instant proceedings....
We have heard the instant matter first on 21.7.1994 and noticing that there was a likelihood of a settlement of the controversy between the
parties, which would not only settle the review petitions but would also settle the dispute in the main suits itself, we ordered for listing the case on
28.7.1994 and thus accommodated Learned Counsel for parties for initiating settlement of the dispute between the parties. All on a sudden, for
reasons that are now made known to us in the report of the Additional Registrar (Judicial), the instant case and several other cases which were on
the list before us, some of which were heard again, were removed from our list.
Learned Counsel for the parties in the instant case as well as some other cases desperately wanted to know the position of their cases but all
their efforts to know the position of their cases resulted in a blank. The cases, however, which were taken out of the list, reappeared after a lapse
of considerable time including the instant case and when we heard Learned Counsel for the parties complaining about their sufferings on account of
sudden disappearance of cases from the list, we called for a report from the additional Registrar (Judicial), who has reported inter alia as follows:-
Explanation submitted by the Additional Registrar (Judl.), High Court, Madras in connection with listing of C.M.P. Nos. 6695 to 6698 of 1994 in
O.S.A. Nos. 265/93 to 268/93 and C.M.P. Nos. 6966 to 6704/94 on O.S.A. Nos. 177 and 178 of 1993:
It is respectfully submitted that the then Chief Posting Clerk Thiru. M. Ramaswamy was instructed to collect all part-heard matters of Hon''ble
Division Bench consisting of the Hon''ble Mr. Justice Mishra and Hon''ble Mr. Justice S.M. Ali Mohamed to constitute the Hon''ble Division
Bench by the Hon''ble the Chief Justice and that the then Chief posting Clerk had given a list of 38 part-heard cases for constitution of the said
Hon''ble Division Bench. The above said Part-heard cases list was submitted to the Honourable the Chief Justice and orders were obtained
constituting the Hon''ble Division Bench for hearing the abovesaid 38 part-heard cases, on 19.7.94. Subsequent to the constitution of the Hon''ble
Division Bench for hearing the above said 38 part heard cases, the then chief posting clerk Thiru M. Ramaswamy had included 15 more cases in
the cause list of the above said Hon''ble Division Bench without informing either the Additional Registrar (Judl.) or obtaining orders of Hon''ble the
Chief Justice to include in the cause list, of cases for which orders of the Hon''ble The Chief Justice was already obtained.
Disciplinary action was initiated depart-mentally for the lapses on the part of the then Chief Posting Clerk and he had regretted for inclusion of
the above said cases without bringing to the notice of the Additional Registrar (Judl.) or obtaining the orders of the Hon''ble The Chief Justice
though he pleaded the circumstances under which he had included those cases. Since the Hon''ble Division Bench was constituted by the Hon''ble
the Chief Justice to hear the 38 part-heard cases given in the list by the then Chief Posting Clerk and since the above-said 15 other cases were
included in the cause list of the above said Hon''ble Division Bench without the knowledge of the Additional Registrar (Judl.), and orders of the
Hon''ble the Chief Justice, the above said 15 cases except those that are already disposed of by the Hon''ble Division Bench were removed from
the cause list after bringing to the notice of Hon''ble the Chief Justice and orders of the Hon''ble The Chief Justice was again obtained for inclusion
of the above said cases in the cause list, of the Hon''ble Division Bench by submitting an appropriate note.
As per the direction of the Hon''ble the Chief Justice, the Additional Registrar (Judicial) met the Hon''ble Mr. Justice Mishra at his Lordship''s
chamber and got instruction as to how it should be included in the list. The above said instruction was passed on to the Chief Posting Clerk, who in
turn, had consulted the Court Officer of the Hon''ble Division Bench and included the independent C.M.Ps. in question which were filed and
numbered while the main cases are pending, in the cause list of the Hon''ble Division Bench on 6.9.1994. If the Hon''ble Division Bench feels that
the Registry has caused any inconvenience, I regret very much for the inconvenience caused to the Hon''ble Division Bench.
Most respectfully submitted
sd./-
15.9.94
Addl. Reg (J)
What could be most obnoxious, however, of any system worth the name has been claimed as the reason in the report of the Additional
Registrar (Judl.) for withdrawal of the cases which were already part- heard and listed before us and after withdrawal, relishing them. Whim and
fiat of the Registry of the Court have affected the administration of justice blatantly and it seems even the Chief Justice of the Court has been made
to decide when we should fix the hearing of a part-heard case and when we should stop hearing, that a time has come to reiterate what should
always be remembered. We are informed that the Chief Posting Clerk was instructed to collect all part-heard matters and he gave a list of 38 part-
heard cases only, which list was submitted to the Chief Justice who ordered for constitution of the Bench, according to the Additional Registrar
(Judl.), for hearing the said 38 part-heard cases only. Subsequent to the constitution of the Bench, we are informed, the then Chief Posting Clerk
included 15 more cases, without either informing the Additional Registrar (Judl.) or obtaining orders of the Chief Justice to include in the cause list
the said cases. It was, according to the Addl. Registrar (J), a grave offence of the then Chief Posting Clerk for a disciplinary action, which was
initiated against him for the alleged lapse and in the words of the Additional Registrar (Judicial):
...and he had regretted for inclusion of the above said case without bringing to the notice of the Additional Registrar (Judicial) or obtaining the
orders of the Hon''ble the Chief Justice though he pleaded the circumstances under which he had included those cases.
The Additional Registrar (Judicial) has emphasized:
Since the Hon''ble Division Bench was constituted by the Hon''ble The Chief Justice to hear the 38 part-heard cases given in the list by the then
Chief Posting Clerk and since the abovesaid 15 other cases were included in the cause list of the abovesaid Hon''ble Division Bench without the
knowledge of the Additional Registrar (Judl.) and orders of the Hon''ble the Chief Justice, the abovesaid 15 cases except those that are already
disposed of by the Hon''ble Division Bench were removed from the cause list after bringing to the notice of Hon''ble the Chief Justice Orders of the
Hon''ble the Chief Justice was again obtained for inclusion of the above said cases in the cause list of the Hon''ble Division Bench by submitting an
appropriate note.
We shall advert to the later developments in the instant case particularly, how when after the 15 cases were taken out of our list and
representations after representations why those cases were removed from the list started coming from the parties as well as their Learned Counsel,
suddenly the Registry became conscious that, before listing any case before a Bench which is not in the ordinary circumstances hearing cases
allotted to it, permission of the Bench is necessary.
We propose at this stage to recapitulate that our Court, has played a significant role in the development of a healthy judicial system for
administration of justice in our country, ever since its establishment as Chartered Court under a Letters Patent of the year 1862 of His Majesty,
King George III of Great Britain as a Supreme Court of Judicature at Madras, followed by its re-establishment as a successor of the said Court,
under the Letters Patent for the High Court of Judicature for the Presidency of Madras dated 28.12.1865. The said Letters Patent of the Court
retained all its original moorings; and although it has undergone several amendments, most of its original and appellate powers and administrative
powers of the Judges of the Court are retained and are preserved even now under Art. 225 of the Constitution of India.
Letters Patent has declared:
Single Judges and Division Courts - And we do hereby declare that any function which is hereby directed to be performed by the said High
Court of Judicature at Madras, in the exercise of its original or appellate Jurisdiction, may be performed by any Judge, or by any Division Court
there of, appointed or constituted for such purpose, (in pursuance of Section 108 of the Government of India Act, 1915) and if such Division
Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be
decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided (they shall
state the point upon which they differ and the case shall then be heard upon mat point by one or more of the other Judges and the point shall be
decided according to the opinion of the majority of the judges who have heard the case including those who first heard it).
Section 108 of the Government of India Act, 1915, reads as follows:
(1) Each High Court may by its own Rules provide, as it thinks fit, for the exercise, by one or more Judges or by division courts constituted by two
or more Judges, of the High Court, of the original appellate Jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall determined what Judge in each case is to sit alone, and what Judges of the Court, whether with or
without the Chief Justice, are to constitute the several division courts.
While sub-section (1) of section 108 lays down that the High Court by its own rules provides for the exercise of one or more Judges or by
Division Courts constituted by two or more Judges of the High Court, of the original and appellate Jurisdiction vested in the Court, Sub section (2)
says that the Chief Justice shall determine what Judge in each case is to sit alone and what Judges of the Court, whether with or without the Chief
Justice, are to constitute the several Division Courts.
The Supreme Court first considered a similarly embedded clause, Clause 15 of the Letters Patent of the Bombay High Court and subsection
(1) of section 108 of the Government of India Act, 1915, in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P.
Coats Ltd., Assignee), and observed as follows:
It is difficult to accept the argument that the power vested in the High Court under Sub-s. (1) of S. 108, Government of India Act, 1915, was a
limited one, and could only be exercised in respect to such jurisdiction as the High Court possessed on the date when the Act of 1915 came into
force. The words of the sub-section vested in the Court'' cannot be read as meaning ''now vested in the Court''. It is a well-known rule of
construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary
intention appears.
The power that is conferred on the High Court by S. 108, Government of India Act, 1915, still subsists, and it has not been affected in any manner
whatever either by the Government of India Act, 1935 or by the Constitution of India. On the other hand it has been kept alive and reaffirmed with
great vigour by those statutes. The High Courts still enjoy the same unfettered power as they enjoyed under S. 108, Government of India Act,
1915 of making rules and providing whether an appeal has to be heard by one Judge or more Judges or by Division Courts consisting of two or
more Judges of the High Court. Further, the references in Cl. 15 to S. 108 should be read as a reference to the corresponding provisions of the
1935 Act and the Constitution.
In State of Maharashtra Vs. Narayan Shamrao Puranik and Others, , the Supreme Court considered how to understand the role of the Chief
Justice as well as puisne Judges of the Court in discharging their judicial as well as administrative functions and observed:
The Chief Justice is the Master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court
which flows not only from the provision contained in sub-s.(3) of S. 51 of the Act, but inheres in him in the very nature of things....
Well and good thus, what is the role of a Chief Justice as the Master of the roaster. Can this give to the Chief Justice authority to shuffle, shift, re-
allocate, vest and divest Judges with portfolios as he likes?
In Mayavaram Financial Corporation Limited, Mayiladuthurai v. The Registrar of Chits, Pondicherry (1991-2 L.W.80), a Full Bench of this
Court has adverted to this subject and, after considering the several provisions on the subject observed as follows:-
Art. 285 of the Constitution has not only saved the inherent Jurisdiction of the High Court but also the Letters Patent including the incorporation of
S. 108 of the Government of India Act. 1915 in Cl. 15 of the Letters Patent as also the Rules framed by the High Court as provided under S. 108
(1) of the said 1915 Act until such time when the appropriate Legislature by virtue of powers conferred by the Constitution made any law on the
subject.
The Full Bench has then proceeded to discuss the authorities on the subject and referred to the decision in National Sewing Thread Co. Ltd. Vs.
James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), referred to above, and India Electric Works Ltd. Vs. Registrar of Trade
Marks, and thereafter observed thus:
It is thus clear from the judgment of the Supreme Court''s rule making power under S. 108 of Government of India Act, 1915 read with the
corresponding provision in the Government of India Act, 1935 and under Art. 225 of the Constitution of India remained unaffected and so is the
power of the Hon''ble the Chief Justice to decide who amongst the Judges be assigned the work as a Judge sitting alone or a Judge sitting in a
Division Bench of two or three Judges.
In Ranka, M. v. Hon''ble the Chief Justice of Tamil Nadu (1991 2 L.W.225), a Division Bench of this Court posed the above question and
answered as follows:
This however cannot mean that a Chief Justice can just shuffle, shift, reallocate vest and divest judges with the portfolios as he likes, In Review
C.M.P. No. 186 of 1989 in W.A. No. 613 of 1987 (order dated 7.11.1990) (since reported in Mayavaram Financial Corporation Limited v. The
Registrar of Chits 1991 2 L.W.80) a Full Bench of this Court said:
We think, we should remind ourselves that the jurisdiction of the Court may be qualified or restricted by a variety of circumstances. The power of
the Court may be exercised within such limits as in such manner that it ensures a fair-hearing, unbiased determination of the dispute and no Judge
should be in a hurry or be concerned with any particular case, because, as observed in the judgment of the Calcutta High Court (supra):
The cardinal position cannot be overlooked that before jurisdiction over the subject matter is exercised the case must be legally brought before the
concerned court for the hearing and determination and that a judgment pronounced by Court without investment of jurisdiction is void.
The Full Bench has also cautioned:
No person can claim that his matter should be heard by a single judge much less a particular judge or a particular Division Bench of the Court. The
business of the Court will be determined by the Hon''ble the Chief Justice alone, who in his discretion may decide what judge is to sit alone and
what Judges are to constitute Benches and allotted business of the Court. The Letters Patent Aforequoted recognises this power of the Hon''ble
the Chief Justice of the Court, and as held by the Supreme Court even in the absence of a specific provision, this is an inherent power of the
Hon''ble the Chief Justice.
It only means, in our view, that (1) the portfolio decision of the Chief Justice is binding on all concerned, but once the portfolio is decided, no one
gets the right to ask for a change in it, whether it is a litigant or a counsel (2) for the portfolio concerned, the Bench or the Judge sitting alone shall
be the Master, who shall not in any manner be under the whip of the Chief Justice in all such cases which are of his/their portfolio S. Ramalingam J.
took rather a simplistic view in W.P.S.R. No. 60735 of 1990 in dismissing the petition as not maintainable on the ground that the Chief Justice was
not made a party to the petition. The order in the said case does not give to us any guidance in understanding why he thought that no writ could
issue in the absence of the Chief Justice, but it could issue when he was made a party. The Chief Justice or in that view of the matter any other
Judge in the Court, when they did not act in their individual capacity, act as the court only. For a writ against the Chief Justice or in that matter
against any other Judge of this Court, it is necessary that it is shown by the petitioner that if the Chief Justice or any other Judge had any legal
obligation or a duty under any particular law otherwise to act, which duty was not performed by him or that in performance of that duty, he
committed any error of law or Jurisdiction. No case cited before us by the appellant is relevant to know how the Chief Justice of the Court has/had
jurisdiction to transfer a case which is already before a Bench or a learned Judge of the Court, except by change of the portfolio, or recall a
particular case from a particular Bench or a particular learned Judge of the Court should not hear the case of a particular client or counsel. We do
not say as it is already settled by several pronouncements of the Supreme Court, that a Chief Justice or a Judge of the Court as such cannot be
called under Art. 226 of the Constitution to answer for their administrative acts under challenge. S. Ramalingam, J. in W.P.S.R. No. 60735 of
1990 has observed:
When work is so assigned, it is for the learned Judge to decide whether, for some reasons, they should not hear the cases so assigned to them and
if they decide so, they may direct the papers to be placed before my Lord The Chief Justice for posting such cases before some other Bench. In
the extraordinary circumstances the counsel himself may make a special request that his case may not be heard by a particular Bench and if that
request is made bonafide, the learned Judges themselves direct the papers to be placed before My Lord the Chief Justice for orders regarding the
posting of the matter before some other Bench. It is also open to a party or a counsel to make a special mention before My Lord the Chief Justice
so that the cases pending before one Bench may be posted before another Bench and it is for My Lord the Chief Justice to satisfy about the
reasons given for such postings.
With respect we disagree with the last observation of S. Ramalingam, J. that a party or a counsel may make a special mention before the Chief
Justice so that the case pending before one Bench may be posted before another Bench. So far as other two observations are concerned, we think
it right to say that if for some reasons, the learned Judges assigned with a case or cases, find that they should not hear the case or the cases, they
may direct the papers to be placed before the Chief Justice for posting such case or cases before some other Bench and in some extraordinary
circumstances, the counsel appearing in a case may make a special request that a particular case or cases may not be heard by a particular Bench
for reason none other than the reasons that are spelt out in the principle that no one shall be a Judge in his own cause (Nemo debut causa judosa
propria causa). So far as the first rule is concerned, if the Judge himself or the Judges themselves say that a particular case or cases assigned to
him/them may be taken out of his/their list, there should be no difficulty. So far as the second rule is concerned in which it is said that a counsel may
bring to the notice of the Court that a particular case or cases may not be heard by a particular Bench or a Judge of the Court it means only that
the counsel would bring a fact to the notice of the Court and no more. He cannot be allowed to insist or ask the Court not to hear a case. It will be
again for the Judge or the Judges hearing the case to decide whether he/they should say that the cases be listed before another Judge or Bench or
not. Judges of the Court including the Chief Justice are equals and exercise the same judicial power except such powers that are specifically
assigned to the Chief Justice. There is no reason to concede a power in the Chief Justice to transfer a case from one Bench to another Bench of
the court or from one Judge to another Judge of the Court. Act of allocating business or portfolio or assigning case or cases is different from the
act of recalling the case from the file of a particular Judge or a Bench of the Court and from transferring a case from the file of a particular Judge or
a Bench of the Court, to another Judge or a Bench of the Court, because any decision about it would partake the character of a judicial order. The
appellant cited a number of cases before Bakthavatsalam, J. and also before us. We catalogue the cases cited before us only to observe that they
do not in any manner meet the objections as to the maintainability of the instant petition. xx xx
We are in agreement with the view expressed by learned single Judge except that part of his judgment in which he has approved the
observation of S. Ramalingam, J. about any party or counsel making a special mention before the Chief Justice so that the case pending before one
Bench of the Court may be posted before another Bench of the Court. Unless it is found that there is any such jurisdiction to recall a pending file
from the portfolio Judge or Judges, such special mention will not be permissible. It this procedure is to be allowed to come in vogue, it would
create serious consequences. It is easy to concede that the Hon''ble the Chief Justice shall not yield to prayers which are unreasonable and shall
not easily transfer a case from one Bench to another. But it will not be easy for the Hon''ble the Chief Justice to sit in decision on requests from the
litigants and their counsel to transfer their cases from one Bench/Judge to another Bench/Judge. We have given a full length of hearing to the
appellant to satisfy'' us where and how the Chief Justice gets any administrative jurisdiction over the judicial work of the Judges of the High Court
because once cases are brought before a Judge or a Bench of the Court, it is so brought for judicial determination by him it. The appellant has not
been able to show any authority to this effect.
It has been for the above reasons that the Chief Justices of the Letters Patent Courts, as Masters of the roaster, have exercised the power that
is spelt out from Section 108(1) of the Government of India Act, 1915, and decided to allot business to himself either sitting alone or constituting a
Bench with any other Judge of this Court as well as for other Judges sitting alone or sitting in Division Bench, but, as held, on such allocation of
business or portfolio or assignment of case or cases, always ceased to have any control upon the case which is before a Judge or a Bench, other
than himself and exercised no power at all to recall any case from a particular Judge or Bench or to transfer the case from the file of a particular
Bench or Court to any other Judge or Bench of the Court.
We had a wishful thinking that the above pronouncements and clear provisions of law, in accordance with which alone several conventions are
developed in this Court, were enough for the Registry of this Court to sustain for any number of years, a well controlled and well guided procedure
for administration of justice. Alas, it seems we have been amongst dreamers and not amongst the visionaries/who would have seen that sometimes
willfully and sometimes in ignorance, all norms, conventions and rules are thrown to the winds and in such situations, deteriorations and declines are
so sharp and so steep that even for the mightiest of the mighty, it becomes a difficult situation to save the good name of the past.
We can understand that judges and Officers who have been functioning in the Courts which are constituted after the Constitution of India has
come into force, may not be aware of the special powers and jurisdiction which Letters Patent Courts exercised and which they exercise even
today in terms as above and as held by the Full Bench of this Court in Vidya Charan Shukla Vs. Tamil Nadu Olympic Association and another, ,
this Court exercise the power of a Division of the court of the King''s or Queen''s Bench of England and Judges of this Court exercise such powers
as the King''s or Queen''s Bench Division Court exercised. If they should come from such Courts where Judges never realised the special power
and jurisdiction they possessed and are unaware, and they come to sit as the Chief Justice or Judges of this Court, it is better they are informed
and made aware of such special laws and conventions. Those, however, who have remained associated with the Administration of justice of this
Court, owe a responsibility to inform all such persons who come unaware of the conventions, rules and powers of this Court, and should ensure
that there are no unwitting violations in ignorance. We have reasons to think, we shall presently demonstrate, that the Additional Registrar (Judl.)
cannot plead ignorance and if there is a situation of embarrassment in which this proceeding has fallen, he is the main player. We have extracted
section 108 of the Government of India Act, 1915, referred to the Letters Patent powers and the authorities only to reiterate that there is no reason
for any person associated with the administration of Justice in this Court, an Officer in the Registry of the Court, or others associated including the
members of the Bar to think that the Chief Justice can have anything to do with a case or cases which are allotted to a Division Court or to a single
Judge, once such allocation is made by the Chief Justice as the Master of the roster. Any act thereafter by any person to interfere with the case in
the portfolio of a Division Court or a Single Judge, is an interference in the administration of Justice. There are various rules framed by the Court
and where there are no Rules occupying the field, this Court in its existence for more than a century, has developed very healthy norms and
conventions and it will be reminding a naive if we say that conventions of a Court have the force of law.
The well known convention has been that when a Bench is constituted and it is functioning and an addition to its portfolio is sought to be made,
the Bench is informed in advance and Learned Counsel for the parties approach the Bench for a date of convenience of the Bench. When a case is
heard in part and adjourned to another date by a Judge or a Bench consisting of more than one Judge, the adjournment is ordered judicially; none
except the judge or judges making the order of adjournment can interfere with either by extending the date or by reducing the period of
adjournment. If, for the reason of administration, as a case has remained part heard and has not been finally concluded by the Bench hearing it and
the judge or judges constituting the Division Bench are assigned a new portfolio. part- heard cases do not become automatically de-part-heard and
they continue to be tied up with the judge or the judges until it is ordered by the judge or judges that the cases should not be treated as part-heard.
It is the judge or judges constituting the Bench alone who decide that it; would be convenient for him or them and the parties to hear a particular
part-heard case. If it us left for any other person to decide, he may not know the exigencies at all and may interfere as we shall presently
demonstrate, at some very crucial stage of the case and grave injustice may follow on account of such interference.
It is neither possible nor proper to collect all the Rules, conventions and practices of the Court at one place in this order, but some of the Rules
and conventions which have been practiced all the while in more than a century''s existence of this great institution of ours, are indicated by us. It
should be clear to all concerned that the Chief Justice is the Master of the roster and exerciser such powers as inheres in him in the said capacity to
allot a case or cases to a judge sitting alone or to more than one judge sitting together and in this behalf he can issue orders to the Registry and the
Registry shall in turn notify to all concerned. Be fore affecting any change in the portfolio, the Chief Justice is expected to know from the Registry,
the position of the case heard in part and postponed for further hearing, and about reports on actions taken pursuant to the orders passed by the
Court, and then change the portfolio in such a way that the Judges including that of the Chief Justice are not disturbed and all tied up matters are
taken care of.
It is really a matter of concern and we are pained to notice that an Officer of this Court has been punished because he has adhered to the age-
old convention of this Court and acted only in accordance with the well settled norms of administration of justice, only because someone in the
Registry has chosen to find fault with him that he failed to bring the matter to his notice or that under some unknown system of law he was required
to obtain the orders of the Chief Justice. The Additional Registrar (Judl.) can hardly take any pride in what he has done in getting an Officer
punished who at least is one who adhered to the conventions and followed what was always done and should always be done and posted part-
heard cases before the appropriate Bench. The Court cannot take credit for punishing a person who obeyed the law on the complaint of a person
who either in ignorance or deliberately had already broken the convention by not taking orders from the Bench which had heard the case in part
and whose orders to list some cases on a particular day were not complied with. Since we do not have the portfolio today and we do not also
have all the materials to see how in the circumstances as above, the Officer has been unnecessarily and very wrongly punished, we do not make
any order as regards the punishment imposed upon the said Chief Posting Clerk, but we see every reason to record that the Court on its
administrative side will only undo the injustice done to him and enhance its prestige and demonstrate its adherence to the norms of justice by
revoking the punishment imposed upon the said Officer. We are inclined to think, but only for the purpose of a general appreciation, that on the
facts of this case, when part-heard cases were listed before us, there was no one else authorised to remove those cases from out list except under
our orders. Even if some cases were wrongly listed and they had been heard in part, they could not have been delisted except under our orders. It
is indeed, a serious act of indiscretion and disrespect to the Court that some cases are listed for hearing and orders before them without permission
and withdrawn without even informing them. All judicial orders passed in such cases are flouted. In case such things are done knowingly, it is
obviously a willful disobedience. When a case is before a Judge of the Court or a Bench consisting of more than one Judge of the Court, the Court
has assumed jurisdiction upon such case or cases, and the mistake, if any, in listing the case before the Judge or the Bench can be rectified by the
order of the Judge or the Bench alone and not by any other person. We record, accordingly, our strong disapproval of the attitude adopted by the
Additional Registrar (Judicial).
We have reports at the instance of the members of the Bar that in quite a few cases, wherein judicial orders have been made, the Registry has
not followed the directions of the Court, but somehow under one or the other administrative pretext avoided implementation thereof. We think it
appropriate to record and, accordingly, to direct the Additional Registrar (Judl.) that a list of all such cases should immediately be prepared and all
judicial orders obeyed. Members of the Bar who are represented before us can always bring to the notice of the Additional Registrar (Judl.) any
such omissions and in case they have any grievance, they may mention their matters before the appropriate Bench.
We would have been saved of this exercise, had there been some agency of the court at some level which would have heard the representation
of the President of the Advocates Association and the President of the Bar Association, and at least cared to examine and ensured that such
mistakes are avoided and not repeated. They have reported to us a failure. We record, however, our observations and directions may also fail to
achieve the desired result. If at all they fail, it will be difficult to save the decline in the administration of justice.
By way of a belated realisation in Chambers, the Additional Registrar (Judicial) has expressed that before any part-heard case is listed before
a Judge or a Bench of more than one Judge, permission of the Judge or the Bench should be taken. This has always been the convention of the
Court, and we think, Additional Registrar (Judicial) should have known it more than any one else. If such conventions are not followed, the blame
will be on the Registry of the Court alone. Since there is however a realisation we hope this convention at least will not be violated and in future
followed in all cases.
We have generally dealt with all aspects of the matter pertaining to the functioning of the Court on the Administrative side with regard to
posting of cases which for some time in the past has fallen in shambles. In the matter of either posting of cases or any other aspect of the
administration, when there is a judicial order or direction, the same has to be obeyed at any cost, for, by not obeying judicial orders and showing
defiance to judicial orders, the court on its administrative side will only give encouragement to others as well not to obey the judicial orders. There
are many instances when judicial orders have not been obeyed by the Registry and if suitable action has not been initiated by any Judge of this
Court or Bench consisting of more than one Judge, it is only because he or it has exercised discretion, for, initiation of any action would have
caused defame not to any individual but to the Court and its system.
We have deliberately avoided any reference or mention of the statements that the Additional Registrar (Judicial) has been making when we
were hearing the matter in our Chambers, in course of giving his explanations as to why he decided to withdraw the cases, particularly the instant
case in which we have judicially passed an order for posting it on a particular date, and not posted the case as ordered by us because he has not
included any such statement in the report submitted by him and also because any reference to the statements by him in our view will require
investigation of more delicate issues then the issues we have chosen to resolve by our present order.
We are most reluctant to think that an Additional Registrar of this Court is ignorant or unaware of such conventions, rules and provisions under
the Letters Patent of this Court which are known almost to all sections of the members of the Judicial service of the State, persons belonging to
legal profession as well as the staff of this Court including the Chief Posting Clerk, who in the instant case has somehow fallen a victim to the anger
of the Additional Registrar (Judicial) Sometimes, however, people with great wisdom also commit follies. We do not, however, propose to
attribute to the Additional Registrar (Judicial) any deliberate violation. We have, as our reason, information which we have derived from the record
of his service and found that he is a good judicial Officer barring a few patches here and there. Since our attempt is to restore what should always
be the practice and followed by the Registry of the Court, we do not propose to take an action for his failings, although fall-outs of his failings are
tremendous. We, however, record that if there is any report that he has disobeyed any judicial order and instead preferred an administrative order,
that he has chosen to violate any of the well known norms, conventions and rules which have to be strictly adhered to, or that he has shown skills
which are only to derail the well respected system of this Court, the same shall be taken as a misconduct and suitable entry in this behalf shall be
made in his Service Register. It goes without saying that in case the present Additional Registrar (Judicial) is replaced by any other Officer, (sic)
even otherwise, if any Officer is found doing things which are not in accordance with what we have indicated above, he will suffer the same con
sequences as indicated above.
We, accordingly, propose that extract of such parts of the judgment where we have spoken about the norms, conventions, rules, etc., be
circulated to all concerned. We order accordingly. The appeal and the suits aforementioned are disposed of as ordered above but with out costs.