The Judicial Merry-go-round

In my first year of practice I got a chance to appear in the Federal Court in early 1949. At that time the Federal Court used to hold Court in the Parliament House.

The case in which I came to the Federal Court was itself an interesting case.There was a muslim Deputy Collector in UP. He was tried in a corruption case by a magistrate in Bareily and was convicted and sentenced. His appeal before the Sessions Judge was argued by the top counsel of Allahabad High Court,Shri Gopal Swarup Pathak. The appeal was dismissed. He came to me and got a criminal revision filed in the High Court.The revision was admitted for final hearing. In those days some good judges, if they felt that even a finding on question of fact may not be correct were prepared to examine the evidence also. The client therefore wanted a top lawyer to argue the revision but did not enough money to engage one.Through some relative of his he was able to contact Sir Iqbal Ahmed who was now practising in Lucknow. He saw the papers and agreed to argue the case free.

But there was a catch. Sir Iqbal had been a Chief Justice of the Allahabad High Court and had retired from there in 1946. He could not appear in Allahabad High Court. After retirement in 1946 he had started his practice before the Oudh Chief Court at Lucknow which was at that time a separate High Court for the 12 Districts of Oudh. UP which is now Uttar Pradesh was then called The United Provinces of Agra and Oudh.Two years after Sir Iqbal Ahmed had started practice before the Chief Court of Oudh at Lucknow, the UP Govt decided to amalgamate the two High Courts in the State in exercise of a provision in The Government Of India Act ,1935 ,which permitted this to be done. Oudh Chief Court having become part of the Allahabad High Court, a question arose whether Sir Iqbal could now appear even in Lucknow. Fortunately for Sir Iqbal even after the amalgamation of the two High Court the Amalgamation Order of 1948 had decided to retain a bench at Lucknow even though as a part of the Allahabad High Court. The High Court therefore decided that Sir Iqbal could practice before the Lucknow Bench.

So my client the Deputy Collector could get the free services of Sir Iqbal if the revision could be heard at Lucknow. A Chief Justice has the power to transfer any case from one bench to another.However, the question, was whether this power could be exercised to transfer a case from a bench at Allahabad to a bench at Lucknow. On a careful consideration of the Amalgamation Order i was of the view that it was permissible. So it was decided to move to the Chief Justice.

The Governor of UP Sarojini Naidu had just died and the Chief Justice of Allahabad High Court Bidhu Bhushan Malik had been appointed Governor and the senior most judge Justice Waliullah had become Acting Chief Justice.

I drafted an application for which my client paid me a small fee and immediately after Court hours when the judges rose from the Courts and went to their Chambers, I went to the Chief Justices' Chamber and sent word that I wanted to see the Chief Justice for an important application. I was called immediately and politely asked to take a seat. I presented the application and explained the reasons for the prayer.The Chief Justice was sympathetic and asked me whether he had the power to do so. On my saying that in my opinion he had the power. He asked his secretary to send his "Salaam" to the Administrative Judge. "Salaam"meant a request to come. KN Wanchoo was the administrative judge.He was from the ICS and later rose to become the Chief Justice of India.

Wanchoo promptly came and stood at the door and said " May I come in Sir" He was greeted with a smile and asked to come in and take his seat.The Chief Justice explained to him my application and requested him to carefully consider whether under the Amalgamation Order he can transfer the case to Lucknow and send his opinion the next day. I was also told to come the next day when he would pass orders.

When I reached the next day Justice Wanchoo's opinion had been received that the case could be transferred to Lucknow.

The Acting Chief Justice promptly passed an order transferring the case to the Lucknow Bench. My client was so happy with me that he brought a beautiful present for me. It was a large glass Vase which I treasured for long.

By the time the case was listed at Lucknow, Chief Justice Malik had returned to the High Court. He was of the view that while a case could be transferred from Lucknow to Allahabad it could not be transferred from Allahabad to Lucknow. So a preliminary objection was raised at Lucknow that the Chief Justices' order was without jurisdiction and had therefore to be disregarded and the case should be sent back to Allahabad. The point was heard at some length and finally a Two Judge bench in a detailed judgment upheld the objection and directed the case to be sent back to Allahabad for hearing. However,keeping in mind that two views were possible on the issue, they certified that the case was fit for an appeal to the Federal Court. This certificate was granted under Sec 205 of the Govt of India Act 1935. Without such a certificate no party could appeal to the Federal Court.

An appeal was filed and this gave me an opportunity to appear in the Federal Court in 1949. Of course this was only to assist a senior and not to argue myself. It was even then a great experience. The senior was  Mr A.P. Pandey from Allahabad. He spoke chaste english with some accent.

The Federal Court which had only 5 judges and one Courtroom. All judges sat together. The function of the Court was confined to deciding questions relating to the interpretation of the Govt of India Act 1935 only and that is why even  Sec 205 contemplated an appeal to the Federal Court if the High Court certified that the case involved a question of interpretation of the Govt of India Act. All other appeals involving other important points even after the creation of the Federal Court in 1937 had to go only to the Privy Council in England.

As the case was called out in the Federal Court. Even before Mr A P Pandey could open his mouth we heard the booming voice of Justice Mahajan "Why is a litigant being shunted from Allahabad to Lucknow and then from Lucknow to Allahabad." He was clearly highly critical of the Lucknow Bench in sending the case back to Allahabad.

However the Chief Justice Kania said that before going into the merits of the appeal the Court had to consider the maintainability of the appeal itself. He pointed out that while the case indeed involved a question about the interpretation of the Amalgamation Order and an important question at that, it did not involve any question involving the interpretation of the Govt of India Act and therefore the certificate granted by the High Court itself was liable to be revoked. Mr A P Pandey made a valiant effort but could not succeed.The certificate was revoked, the appeal became non maintainable and was dismissed.

Before the revision could come up for hearing at Allahabad, we got news of the sudden death of my client the Deputy Collector whom I still fondly remember for reposing so much confidence in me as a young man of only 23 years and giving me my only opportunity to appear in the Federal Court. I can never forget his handsome and kindly face. May his soul rest in peace.

     

      SHANTI BHUSHAN

     FORMER UNION LAW MINISTER & SENIOR ADVOCATE
     SUPREME COURT OF INDIA