Kanubhai
Brahmbhatt Vs. State of Gujarat [1987] INSC 51 (18 February 1987)
Thakkar,
M.P. (J) Thakkar, M.P. (J) Ray, B.C. (J)
CITATION:
1987 AIR 1159 1987 SCR (2) 314 JT 1987 (1) 475 1987 SCALE (1)366
ACT:
Constitution
of India, 1950, Article 32--Writ Petition--Filing
of--Sometimes reasons good and substantial exist to direct writ petitioner to
approach High Court in First instance--Faith to be inspired in the hierarchy of
courts.
Practice
& Procedure, Supreme Court--Writ petition--Filing of--Litigant to be
directed to approach High Court if good and substantial reasons exist--Faith to
be inspired in the hierarchy of courts.
HEAD NOTE:
In a
writ petition filed under Article 32 of the Constitution of India, the Court
found that good and substantial reasons existed for directing the petitioner to
approach the concerned High Court in the first instance instead of knocking at
the doors of this Court straightaway. While directing so, this Court,
HELD:
1. If Supreme Court takes upon itself to do everything which even the High
Court can do, this Court will not be able to do what this Court alone can do
under Art. 136 of the Constitution of India, and other provisions conferring
exclusive jurisdiction on this Court. There is no reason to assume that the
concerned High Court will not do justice. Or that this Court alone can do
justice. If this Court entertains Writ Petitions at the instance of parties who
approach this Court directly instead of approaching the concerned High Court in
the first instance, tens of thousands of Writ Petitions would in course of time
be instituted in this Court directly. The inevitable result will be that the
arrears pertaining to matters in respect of which this Court exercises
exclusive jurisdiction under the Constitution will assume more alarming
proportions. [316B-D]
2. It
is as important to do justice at this level, as to inspire confidence in the
litigants that justice will be meted out to them at the High Court level, and
other levels.
Faith
must be inspired in the hierarchy of Courts and the institution as a whole. Not
only in this Court alone. And this objective can be achieved only by this Court
showing trust in the High Courts by directing the litigants to approach the
High Courts in 315 the first instance. Besides, as a matter of fact, if matters
like the present one are instituted in the High Courts, there is a likelihood
of the same being disposed of much more quickly, and equally effectively, on
account of the decentralisation of the process of administering justice. [316E-G]
ORIGINAL
JURISDICTION: Writ Petition No. 1669 of 1986.
(Under
Article 32 of the Constitution of India).
By
post.
The
Judgment of the Court was delivered by THAKKAR, J. Reasons, good and substantial,
exist for directing the petitioner to approach the concerned High Court in the
first instance instead of knocking at the doors of this Court straightaway. And
these need to be spelled out.
An
illustration may tell more effectively, what otherwise may not be told as
effectively, and perhaps, only with some embarrassment. Suppose there is only
one National Hospital established especially for performing open-heart surgery
which cannot be performed elsewhere in any of the eighteen Regional Hospitals.
What will happen to the patients needing such surgery, if the National Hospital which alone is specially equipped for this type of surgery,
throws its doors wide open also for patients suffering from other ailments who
can be treated by any and every one of the eighteen Regional Hospitals? More
particularly when the patients already admitted for such surgery by the National Hospital are already lying unattended to on its floors, and in its
corridors, for an unconscionably long time? Showing sympathy for a patient with
other than a heart problem who can also be treated equally effectively, and
perhaps much more quickly, may well constitute cruelty to the heart patients
who can be treated only by the National Hospital established especially and
exclusively for the treatment of such patients. Will it not be more merciful to
all concerned (by being firm enough) to tell those suffering from other than
heart problems to go to Regional Hospitals, instead of insisting on being
treated at the National Hospital, which also can of course treat them, but only
at the cost of neglecting the heart patients who have nowhere else to go'? More
so as the patients going to the Regional Hospital may well benefit much more by
securing more personalized and urgent attention thereat. On the other hand, not
to do so many well amount to being engaged in trying to relieve the distress of
those whose distress can be 316 removed by any one else at the cost of refusing
to treat those who cannot be treated by any one else.
If
this Court takes upon itself to do everything which even the High Courts can
do, this Court will not be able to do what this Court alone can do under Art. 136
of the Constitution of India, and other provisions conferring
exclusive jurisdiction on this Court. There is no reason to assume that the
concerned High Court will not do justice. Or that this Court alone can do
justice. If this Court entertains Writ Petitions at the instance of parties who
approach this Court directly instead of approaching the concerned High Court in
the first instance, tens of thousands of Writ Petitions would in course of time
be instituted in this Court directly. The inevitable result will be that the
arrears pertaining to matters in respect of which this Court exercises
exclusive jurisdiction under the Constitution will assume more alarming proportions.
As it is, more than ten years old Civil Appeals and Criminal Appeals are
sobbing for attention. It will occasion great misery and immense hardship to
tens of thousands of litigants if the seriousness of this aspect is not
sufficiently realized. And this is no imaginary phobia. A dismissed government
servant has to wait for nearly ten years for redress in this Court.' A litigant
whose appeal has been dismissed by wrongly refusing to condone delay has to
wait for 14 years before his wrong is righted by this Court.2 The time for
imposing self-discipline has already come, even if it involves shedding of some
amount of institutional-ego, or raising of some eye-brows.
Again,
it is as important to do justice at this level, as to inspire confidence in the
litigants that justice will be meted out to them at the High Court level, and
other levels.
Faith
must be inspired in the hierarchy of Courts and the institution as a whole. Not
only in this Court alone. And this objective can be achieved only by this Court
showing trust in the High Court by directing the litigants to approach the High
Court in the first instance. Besides, as a matter of fact, if matters like the
present one are instituted in the High Court, there is a likelihood of the same
being disposed of much more quickly, and equally effectively, on account of the
decentralisation of the process of administering justice. We are of the opinion
that the petitioner should be directed to adopt this course and approach the
High Court.
* More
than 9000 are already pending now.
1. Kashinath
Dikshita v. Union of India and others (SCC 1986 Vol. 3 p. 229)
2. Shankarrao
v. Chandrasenkunwar (Civil Appeal No. 1355(N) of 1973 decided on January 29, 1987.
317 It
needs to be clarified that it will be open to the High Court to call upon the
petitioner to present a properly framed Writ Petition without obliging him to
incur the legal and other incidental expenditure if the petitioner cannot
afford the same. The matter may in such an event be assigned to a learned Advocate
practicing in the High Court through the State Legal Aid and Assistance Board,
or through the High Court Legal Aid Committee which can provide him with the
requisite funds to enable him to do the needful. It will also be open to the
High Court to request the learned District Judge of Vadodara to look into the
matter from the point of view of the complaints made in the letter in question,
and make an appropriate report to enable the High Court to pass such suitable
orders as may be called for in the facts and circumstances of the case in order
to secure ends of justice.
These
are the reasons which we 'now' articulate in support of the order we passed
'then'.
M.L.A.
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