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Report No. 176

2.8.10 Is it advantageous if the Chief Justice of India or Chief Justice of High Court is to be statutorily deemed to be 'persona designata'?

The question then is whether even so, we can make a provision "deeming" the Chief Justice of India and the Chief Justices as 'persona designata' by adding an Explanation in Sec. 11. The Commission feels that this is indeed difficult. In the General Talkies case, the Supreme Court approved the judgment of the Full Bench of the Madras High Court in Parthasaradhi Naidu vs. Koteswara Rao(AIR 1924 Mad 369). That case concerned the vesting of powers on the District Judge as an Election Commissioner.

The High Court held that the District Judge was not acting as a persona designata. It is revealed from a latter decision of a Division Bench of the same High Court in Mahabaleswarappa vs. Gopalaswami Mudaliar (AIR 1935 Madras p. 673), that, after the 1924 decision, the Government of Madras made a deeming provision in Rule 1 (3) in the concerned Election Rules deeming the District Judge as a 'persona designata' and not acting in his official capacity. The new Rule was as follows:

"An Election Commission exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a Judge or other officer of government as the case may be".

In spite of deeming provision, the Division Bench of the High Court held in Mahabaleswarappa's case that this provision cannot help and that if by virtue of the functions exercisable by the District Judge under the Act, he was acting in a judicial capacity and not as a 'persona designata', he could validly make a complaint for purpose of Sections 195 and 476 of the Criminal Procedure Code (1898) and he would still be acting in a judicial capacity.

A similar view was taken by a Full Bench of Patna High Court in Dirji vs. Goabh, (AIR 1941 Pat. 65) where Chief Justice and Justices, Harries Fazl Ali, Manohar Lal and Fazl Ali observed that it was the functional aspect of a personal designata that was important and 'where an officer of the court, say a District Judge, is called upon to decide a certain matter not as a District Judge, but as a 'persona designata', he may still be a court by reason of some special provision in the statute authorising him to decide the matter'.

Section 11 of the 1996 Act here uses the word 'decide' in sub-section (7). Therefore, on the same analogy, even if we make a deeming provision stating that the Judges in Sec. 11 are to be deemed 'persona designata' their orders will still be amenable to Art. 226, as decided in the Konkan Railway case No. I. That difficulty cannot be by-passed by merely describing an administrative authority as a 'persona designata'.

If a 'judicial authority' cannot be treated as a 'persona designata' by way of a deeming provision, then likewise, an administrative authority cannot also be converted into a person acting in a purely private capacity by making a deeming provision. Even after the said designation, the functional activity makes him to remain as an administrative authority (as per the principle decided in Konkan Railway No.I and as per the decision in Mahabaleshwarappa).

In addition, if the Chief Justice of India or the Chief Justice of the High Court is to decide certain preliminary issues under sec. 11 as is being done by the ICC Court under Art. 6 of the ICC Rules, 1998, then the question arises whether the Chief Justice can still be said to be acting in a purely personal capacity as a 'persona designata'. Further, under the schemes framed by the Chief Justices of various High Courts in several States, the persons designated by the Chief Justices include judges of the High Court or the District Judges, depending upon the pecuniary value of the claims concerned.

In these circumstances, it is difficult for the Commission to accept the plea that the Chief Justice of India or the Chief Justices of the High Court can, by statute, be deemed to be a persona designata, i.e., acting in a private capacity to keep him out of purview of Art. 226 altogether, when they appoint arbitrators or refer matters to another person or authority for such appointment.

There is a distinction between cases where under the arbitration agreement, the parties straightaway agree to move the International Chamber of Commerce (ICC) or International Centre for Alternate Dispute Resolution (ICADR) or a Chamber of Commerce to appoint an arbitrator and cases under Sec. 11 where the statute empowers the Chief Justice of India or the Chief Justice of a High Court to appoint arbitrators and authorizes him further to designate another person or authority to appoint arbitrators.

Thus if the statute has referred to these high constitutional functionaries to exercise these powers by virtue of their office as Judges of superior courts, it is difficult to accept the plea that they are persona designata. For the aforesaid reasons, we have to accept that the Chief justice of India or the Chief Justices of High Courts in Sec. 11 cannot be treated as 'persona designata' and that even if a statutory fiction is created by deeming them to be 'persona designata', it will be difficult to take them out of their status as constitutional functionaries exercising administrative powers in view of what has been decided by Konkan Railway case No. I and, therefore, they cannot be kept out of the purview of Art. 226 of the Constitution.

Coming back to the main point, as already referred to, the position is that by changing the jurisdiction from purely administrative to judicial, a three level hierarchy of remedies can be avoided so far as international arbitration in India is concerned and Art. 226 will be totally avoided. So far as purely domestic arbitration between Indian nationals is concerned, from three levels of litigation, it will be reduced because of Sec. 5 and the Explanation proposed in Sec. 5 to a single level remedy under Art. 136. Thus the suggestion to retain these functionaries as administrative authorities or as persona designata is not advantageous to the litigant.

The Arbitration and Conciliation (Amendment) Bill, 2001 Back

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