Chief Justice Alone Can Allot Roster & Transfer Case From One Bench To Another; Puisne Judge Can't : Karnataka High Court

The bench comprising of Justice Satish Chandra Sharma, Justice R Devdas and Justice S Sunil Dutt Yadav said,

"Every judge of the High Court does not have the power, whether he is sitting singly or whether it is a Division Bench or whether it is a Full Bench, to transfer a case from one Bench to another Bench or from the main Seat to Benches or vice versa."

Further, it held that: "The Registry can always raise an objection regarding the maintainability of a case if it is filed at Principal Seat/Benches not having territorial jurisdiction and the learned Single Judge before whom the matter is placed shall certainly be free to pass an order in respect of jurisdiction keeping in view the notifications relating to jurisdiction in accordance with the law."

The bench passed the order while deciding a reference made by the Single Judge bench on a petition filed by Karnataka Power Corporation Limited, challenging an order dated 27.10.2016 passed by the Senior Civil Judge, Sirsi, in Execution proceedings initiated for land acquisition.

The respondent Gopalkrishna submitted an application to the Registrar General, High Court of Karnataka on 29.7.2018 stating that he is aged about 69 years, the dispute relates to land acquisition and his land was acquired in 1993. It was stated categorically by him that the Court at Sirsi comes within the territorial jurisdiction of Dharwad Bench of the Karnataka High Court and the petition under Article 227 of the Constitution of India could not have been filed in the Principal Seat at Bengaluru.

The single judge had referred to the judgment delivered by the Division Bench of this Court in the case of Abdul Wajid v. State of Karnataka, reported in ILR 2014 KAR 5805 and his contention is that the ratio laid down in the aforesaid case is prima facie per incuriam.

The Division Bench Judgment:

In the case of Abdul Wajid v. State of Karnataka, it was held that neither the Chief Justice nor the Full Bench of the High Court has the jurisdiction to decide whether any particular Bench in the High Court of Karnataka has the jurisdiction to entertain the writ petition or not. As per the judgement, the issue has to be decided in an individual case by the Judge or the Judges hearing the matter and therefore, the High Court Registry cannot raise an objection in respect of the maintainability of a case on the ground of territorial jurisdiction.

Background of the Benches At Dharwad and Kalaburagi:

Benches at Dharwad and Kalaburagi were inaugurated on 4th and 5th July 2008. The Circuit Bench at Dharwad became permanent Bench w.e.f., 25.8.2013 and the Circuit Bench at Kalaburagi became permanent Bench on 31.8.2013. After the Circuit Benches were established at Dharwad and Gulbarga (Kalaburagi) pursuant to a resolution passed by the Full Court, in respect of the matters to be heard by the Circuit Benches, a notification was issued on 4.6.2008. In respect of certain Districts, Dharwad Bench is having territorial jurisdiction and in respect of certain Districts, the Gulbarga (Kalaburagi) Bench is having territorial jurisdiction.

Court findings:

The bench referred to the judgment of the apex court in the case of State of Rajasthan v. Prakash Chand, reported in (1998) 1 SCC 1, which defines the powers of the Chief Justice; the Chief Justice is the master of the roster. Also, it cited Rule 6 of the High Court of Karnataka Rules, 1959 and said,

"The aforesaid rule makes it very clear that Constitution of Benches and allotment of judicial work/distribution of judicial work has to be done only and only by Hon'ble The Chief Justice. The same view has been expressed by the Hon'ble Supreme Court in the case of State of Rajasthan v. Prakash Chand."

The court then noted the present petition has been filed under Article 227 of the Constitution of India. As per the court, it should have been filed at Dharwad Bench and not the Principal seat at Bengaluru. It observed as follows:

"At the first place, the petition was not maintainable at the Principal Seat. However, now as the issue is in respect of transfer of the case from Principal Seat to Dharwad Bench, it is only and only Hon'ble The Chief Justice, who can pass an order of transfer from Principal Seat to Dharwad Bench."

The bench then opined that "It is a settled proposition of law that "forum convenience" is not a fundamental right similar to 'access to justice'. 'Access to Justice' is recognized as a fundamental right (see Manohar Joshi v. State of Maharashtra, reported in (2012) 3 SCC 619; Roger Mathew v. South Indian Bank Limited, reported in 2020 6 SCC 1). However, 'forum convenience' cannot be claimed as a fundamental right and the right to choose the jurisdiction of the court is again subject to the powers of the Chief Justice."

It added that "forum convenience cannot become 'forum shopping'."

Further, the court made an important observation;

"Forum convenience is a double-edged sword. It applies to both the petitioner/appellant and respondent. If a litigant from Kalaburagi approaches the Principal Seat at Bengaluru, he drags even the private respondents to the Principal Seat, their inconvenience notwithstanding. There may be cases where the same judgment or order is challenged by both the parties before the High Court. In such an eventuality, if the judgment of this High Court in Abdul Wajid's case (supra) is accepted, one party can file an appeal in Kalaburagi Bench and the other at the Principal Seat. Because of this, in the words of the Hon'ble Supreme Court, "some sort of judicial anarchy shall come into play".

Accordingly, the court clarified "the judgment delivered in the case of Abdul Wajid (supra), deserves to be clarified. Every judge of the High Court, keeping in view the judgment delivered by the Hon'ble Supreme Court in the case of State of Rajasthan v. Prakash Chand (supra), does not enjoy the power to transfer cases from one Bench to another Bench or from Principal Seat to Benches and vice versa."

Case Title: Karnataka Power Corporation Limited and Gopal Krishna

Case No: Writ Petition No.7320/2017

Date of Order: 06th Day of August 2021

Coram: Justice Satish Chandra Sharma, Justice R Devdas, Justice S Sunil Dutt Yadav

Appearance:

Advocate Pramod Nair for petitioner.

Advocate Vishwanath Hegde for respondent.

Advocate S.S Mahendra, AGA for R2

Advocate S. Basavaraj, Amicus Curiae

Click Here To Read/ Download The Order