M. Ranka vs State of Tamil Nadu and Others

Nainar Sundaram, J.—At the threshold itself we must say that we have been asked to consider only the question of ordering ""Notice of

Motion"" in a Writ Petition before the same is admitted. We are not going into the merits of the case. This Writ Petition projects the following

prayers:

For the reasons stated in the accompanying affidavit, the Petitioner prays that this Hon''ble Court may be pleased to issue a Writ of Mandamus to:

a) direct Respondents No.1 to place the entire records concerning the arrest, torture and release of the Senior Advocate Sri R. Krishnaswamy by

the concerned Police Officials in question on 14/15.10.1989.

(b) to direct the 1st Respondent to place the entire records concerning the arrest, torture, escape and death of the under-trial prisoner in Police

Custody at Alanganallur in Madurai District on 21.10.1989, including the Custody Report;

(c) To direct the arrest and prosecution of the concerned Police Officials responsible for the above incidents under appropriate provisions of law;

(d) to direct the 2nd Respondent to produce a copy of his F.I.R. filed against the senior Advocate Sri R. Krishnaswamy in the Central Crime

Branch, Madras;

(e) to direct the Registrar, High Court, Madras, to place records pertaining to arrest of Sri R. Krishnaswamy, Advocate by the Police and the

action taken by him in this behalf as assured by the then Officiating Chief Justice, High Court, Madras, before this Hon''ble Court, and pass such

further or other orders as this Hon''ble Court may deem fit and proper in the circumstances of the case and thus render Justice.

K.S. Bakthavatsalam, J., deemed fit to order notice of motion returnable by two weeks and the learned Judge also permitted private notice. This

order was made by the learned Judge on 31.10.1989. Thereafter the matter has been coming up before the learned Judge, and on 23.1.1990 the

learned Judge took note of certain submissions made by Mr. M. Rank, the petitioner-in-pension, including the one relating to the propriety of

ordering notice of motion in a Writ Petition at the admission stage and directed the Office to place the papers before the Hon''ble the Chief Justice

for being posted before some other learned Judge. Pursuant to the direction given by the Hon''ble the Chief Justice, the papers were circulated to

M. Srinivasan, J., On 5.2.1990, M. Srinivasan, J., directed as follows:

I have no objection to hear the matter. But the petitioner has prayed in W.M.P.SR. No.5273/90 for posting the matter before a Division Bench.

Vide Para 9 of the affidavit filed in support of the said petition. For quite some time in this Court, a practice has grown to order ''notice of motion''

in W.Ps., before admission. There is no specific rule warranting the procedure. Hence, in my view, it is better if a Division Bench, or Full Bench

considers the question and decides the proper procedure. It is a matter pertaining to the entire Bar. Several Advocates themselves pray for

''Notice of Motion'' instead of ''Rule Nisi'' in many matters. The papers may be placed before the Hon''ble the Chief Justice for considering this

aspect of the matter and for orders.

M. Srinivasan, J., has made it clear that the question of ordering notice of motion in a writ petition before admission must be considered by an

appropriate Bench. The Learned Judge has not felt and expressed that the entire controversy in the writ petition must be decided and settled by an

appropriate Bench. In fact, the learned Judge has not passed any such order in W.M.P.S.R.No.5273/90 taken out by the petitioner. Taking note

of the request of Mr. Srinivasan, J., the Honourable the Chief Justice has directed the matter to be listed before us.

Mr. M. Ranka, the petitioner in person, would submit that this Court has formulated rules pursuant to Article 225 of the Constitution of India to

regulate the proceedings under Article 226 of the Constitution of India which rules shall hereinafter be referred to as the Rules, and they do not

contemplate and set down any such procedure as ordering notice of motion in a writ petition before admitting it and in the absence of any such

rule, it is not in order for this Court to resort to the above procedure of ordering notice of motion in a writ petition before admitting it. Mr. Ranka

would also contend that the discretion or power to admit and issue rule nisi or reject the writ petition is that of this Court and at that stage there is

no warrant for calling upon any of the opposite parties to make his say in the matter by ordering notice of motion.

As against this, Mr. V. Sridevan, Special Government Pleader, representing the State of Tamil Nadu, would submit that the power and

jurisdiction to issue writs under. Article 226 of the Constitution of India are those of this Court and the said power and jurisdiction cans be

exercised in any appropriate manner considering the nature and facts of each case and the rules formulated pursuant to powers under Article 226

of the constitution of India regulate proceedings in the Article 226 of the Constitution of India cannot over-ride or circumscribe or limit the highly

prerogative power and jurisdiction of this Court under Article 226 of the Constitution of India.

After assessing the submissions made by Mr. Ranka and Mr. V. Sridevan, learned Special Counsel Government Pleader appearing for the State

of Tamil Nadu, we express our opinion on this question as hereunder:

Article 226 of the Constitution of India confers on this Court very wide powers in the merits of issuing writs, which it never possessed before. The

limitations therefor are set down in the Article itself. But at the same time, no party can as of right insist for the admission of a writ petition and

issuance of a rule nisi. This Court exercising powers under Article 226 of the Constitution of India, is not supposed to admit any writ petition

mechanically without adverting to and assessing the nature and the facts of the case and the points raised therein. When the writ petition raises an

arguable issue, rule nisi should normally be issued. In the process of considering and assessing the question of issuing a rule nisi or otherwise, this

Court''s power cannot be stated to have been curtailed by any procedural law. The Rules framed by this Court for regulating its own procedure

under Article 226 of the Constitution of India are only self imposed limitations and they can by no means override this Court''s power and

jurisdiction under that Article. This Court will be in order and well within its rights to get at all information, particulars and details regarding the

case, placed for its consideration for admission; even if it be so from the parties arrayed on the opposite side. We do not think that the above

proposition could be taken exception to. If done so, we are inclined to repel it. The rules framed pursuant to powers under Article 225 of the

Constitution of India cannot override or control the substantive and highly prerogative power and jurisdiction of this Court under Article 226 of the

Constitution of India. The Rules are only regulatory. If the Rules are to be viewed as taking away or restricting the power and jurisdiction of this

Court under Article 226 of the Constitution of India, they will stand legitimately ignored and this Court is bound to act unfettered by the Rules. The

Rules cannot also be taken to be exhaustive. The absence of any specific provision in the Rules enabling this Court while exercising powers under

Article 226 of the Constitution of India to order notice of motion depending on the nature and the facts of the case and the points put forth, cannot

denude this Court of such a power, to issue the notice of motion to get at the relevant details and facts for assessing the question of admission of

the writ petition and the issuing of rule nisi. The said jurisdiction and power of this Court are derived from and are referable to Article 226 of the

Constitution of India itself and they cannot be taken to have been circumscribed or limited by any regulatory or procedural rules framed under

Article 225 of the Constitution of India. The said rules do have a place, but their place and ambit of play cannot be widened to the up the hands of

this court in appropriate cases to get at the factual data before this court deems fit to issue rule nisi after admitting the writ petition. The substantive

power and jurisdiction to issue writs are to be gleaned from Article 226 of the Constitution of India and if at all, procedural aspect alone could be

settled by the Rules. But the procedure can never abrogate the substantive power and jurisdiction of this Court with regard to issue of notice of

motion in appropriate cases before admitting the writ petition. The practice of ordering; notice of motion prevalent in this Court is a salutary one

and it cannot be frowned upon as lacking in power or sanction for it. The sanction for it is found in Article 226 of the Constitution of India and the

said practice need not have the sanction of the Rules. The above discussion provides a sufficient answer to the question we are called upon to

answer.

Even when we advert to the Rules, it is not possible to say that an ordering of notice of motion is totally outside the purview of the Rules and not

contemplated by them. In this connection, we can refer to rules 3, 3A and 6 of the Rules and they stand extracted as follows:

Rule 3. Every petition shall, soon after it is numbered, be posted for orders of court as to issue of notice to the respondents. The Court may, upon

hearing the petitioner or his advocate, either direct notice to issue and pass such interim order as it may deem necessary or reject the petition.

Rule A. Any respondent who intends to file a counter-affidavit, shall unless otherwise ordered, file it within three months from the date of service

on him of notice of rule nisi.

Rule 6. At the hearing of the petition any person who desires to be heard in opposition to the Petition and appears to the court to be a proper

person to be heard, shall be heard, notwithstanding that he has not been served with notice and subject to such conditions as to costs as the court

may deem fit to impose.

The simple expressions used in rule 3 are ""issue of notice to the respondents"". Soon after the writ petition is numbered, it is directed to be posted

for orders of court as to issue of notice to the respondents. It cannot be asserted on the plain language of the rule that this contingency will arise

only after the writ petition is admitted and rule nisi is issued. There could be issue of notice to the respondents even before the writ petition is

admitted and rule nisi is issued. Such a construction cannot be ruled out as totally untenable. That the above construction is possible and is a

workable one can be gathered when we look into Rule 6. Rule 6 speaks about any person who desires to be heard in opposition to the writ

petition appearing before the court and who appears to the court to be a proper person to be heard, bearing heard in opposition to the writ

petition even though he has not been served with notice. This stage could be even before the admission of the writ petition and the issuing of rule

nisi ultimately the discretion to admit or not to admit a writ petition is that of this court. Our above observations should not be taken to be our

conclusive construction of the Rules. We are only pointing out that the Rule could be liberally construed also. After all, the rules are only intended

to regulate the proceedings, and this Court while exercising the power and the jurisdiction under Article 226 of the Constitution of India, from the

time when a writ petition is filed with a specific prayer, until it is disposed of is entitled to exercise that power in any appropriate manner unbridled

by procedural hurdles. The Rules themselves are viable of generous construction and there is no need to put on them a stringent construction so as

to defeat the purpose behind the Rules, which will have the effect of nullifying the very exercise of power and jurisdiction under Art. 226 of the

Constitution of India, which certainly should not and could not be the result. For all the above reasons, we hold that this Court is well within its

powers and jurisdiction under Art. 226 of the Constitution of India to order notice of motion in a writ petition in appropriate cases before it is

admitted.

Now that we have answered the question in the above manner, the matter may go before the learned Judge, Srinivasan, J. for rather consideration

of the matter on merits. Mr. Ranka request that the posting may be done expeditiously. This the office shall do.