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on (Civil) No. 1022 of 1989.
(Under Article 32 of the Constitution of India).
Sri Ramulu, A.T.M. Sampath, A.K. Srivastava and Raju Ramchandran for the Petitioners.
Tapas Ray, R.N. Sachthey, P.S. Poti, Yogeshwar Prasad, V.C. Mahajan, U.N. Bachswat, A.S. Nambiar, Kailash Vasudev, Ms. A. Subhashini, Hemantika Wahi, Vasudata Talib, Anip Sachthey, T.T. Kunhikannan, Ms. Rachna Gupta, Mrs. section Dik shit, Ms. section Janani, Ms. Urmila Kapoor, M. Veerappa, K.H. Nobin Singh, Ashok Singh, S.K. Agnihotri, Aruneshwar Gupta, K.C. Bajaj, Ms. Renu George, K. Chaudhary, A.S. Bhasme, H.S. Munjral, G.K. Bansal, R. Mohan, P.K. Manohar, Ms. section Vasude van, B. Parthasarthy, V. Krishnamurthy, A.K. Panda, J.R. Das, D.K. Sinha, D.N. 210 Mukherjee, Gopal Singh, P. Chowdhary, Indra Makwana and K. Swamy for the Respondents.
The Judgment of the Court was delivered by/1 RANGANATH MISHRA, CJ.
This application under Article 32 of the Constitution is by the All India Judges, Association and its working President for reliefs through directions for setting up of an All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country.
Rule having been granted, notice was issued to the Union of India and all the States and Union territories.
Most of them have responded by making returns to the Rule.
A few of the States have taken the stand that they would accept whatever this Court ultimately decides while others have placed their view points and yet some others have objected to the reliefs claimed.
Mr. Sri Ramulu, Chairman of the All India Judges, Asso ciation personally appeared at the hearing.
Mr. Raju Ram chandran on our request appeared to support the petition as amicus curiae.
At the hearing the standing Counsel for the several states and Union Territories have also been heard.
The plea for setting up of an All India Judicial Service was not seriously pressed and reliefs on the following heads were claimed: 1.
Uniformity in the Judicial cadres in the different States and Un ion Territories; 2.
An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country; 3.
Uniform pay scales as far as possible to be fixed; 4.
Residential accommodation to be provided to every Judicial Officer.
Transport facility to be made available and conveyance allowance provided.
Adequate perks by way of Library Allow ance, Residential Office Allowance and Sump tuary Allowance to be provided.
Provision for inservice training to be made.
Administration of justice and orgamsation of courts was a provincial subject under the Government of India Act, 1935.
The Constitution adopted 211 the same scheme by providing in Entry 3 of List 11 of the Seventh Schedule the subject of administration of justice, constitution and organisation of all courts excepting the Supreme Court and the High Courts as a State subject.
It was only under the 42nd Amendment in 1977 that Entry 3 from List I1 was deleted and the subject as such was taken as Entry 11 A in the Concurrent List.
This had become necessary on account of the recommendation of the Law Commission that an All India Judicial Service should be set up.
Prior to independence, the District Judge used to be invariably a Member of the Indian Civil Service and his position in the district was superior to that of the Dis trict Magistrate.
This position continued until the Indian Civil Service came to be abolished around 1946 47.
This long association of the Civil Service with the judicial manning had led to service conditions of both to be tied up.
Crimi nal justice at that time was handled by Magistrates who belonged to the Executive.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating the judiciary from the executive in the public services of the State.
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
The control over the subordinate judiciary has been vested in the High Court and the administrative control has been construed to be complete and exclusive.
Yet, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained; That is why very often when any specific aspect relating to conditions of service is taken up or benefits for judicial service is considered, comparative basis between the two is adopted for review.
It is high time that this aspect is appreciated and the administrative authorities remain alive to it.
We shall first deal with the plea for setting up of an All India Judicial Service.
The Law Commission of India in its 14th Report in the year 1953 said: "If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable person.
A radical measure suggested to us was to recruit the judicial service entire ly by a competitive test or examination.
It was 212 suggested that the higher judiciary could be drawn from such competitive tests at the all India level and the lower judiciary can be recruited by similar tests held at State level.
Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the Bar should be done away with.
Such a scheme, it was urged, would result in bringing into the subordinate judiciary capa ble young men who now prefer to obtain immedi ate remunerative employment in the executive branch of Government and in private commercial firms.
The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the Slate".
The Commission proceeded to further state: "Recruitment to the higher judiciary at the all India level in the manner suggested would be a powerful unifying influence and serve to counteract the existing growing regional tendencies.
In this connection, attention may be drawn to the observations made by the States Reorganisation Commission in regard to the creation of the All India Services as a major compelling necessity for the nation.
The Commission observed:. "The raisond"etre of creating All India Services, individually or in groups, is that officers on whom the brunt of responsibility of administration will inevitably fail, may develop a wide and all India outlook .
The present emphasis on regional languages in the Universities will inevitably lead to the growth of parochial attitude, which will only be corrected by a system of training which emphasises the all India point of view . .
It has not been very easy for us to balance these consid erations, but we are definitely of the view that proportion of the higher judiciary should be recruited by competitive examination at the all India level so as to attract the best of our young graduates to the judicial service.
This measure will enlarge the field of selec tion and bring into file higher judicial service a leaven of brilliant young men who will set a higher tone and level to the subor dinate judiciary as a whole.
The personnel so recruited will be subjected to . 'm intensive training.
The rest of the higher judiciary should, in our view, be recruited in part directly from senior members of the Bar, and partly by promotion from the lower subordinate judiciary".
213 Dealing with the same subject from a different angle, the Commission proceeded to say: "The great advantage that the Indian civilian had, was the intensive and varied course of training which he had to undergo.
At the time of his first entry into service, his training was confined to matters pertaining to the revenue and criminal administration alone, but when he was taken over to the judicial side, generally an equally intensive training in civil law was given to him for a period of not less than eighteen months.
There can be no doubt that a similar intensive judicial train ing given to a judicial officer who possesses a law degree can be of the greatest value . .
Indeed, it can be claimed that a planned and systematic training such as is contemplated by us for the judicial officer selected for the Indian Judicial Service may be more effective than the uncertain and spasmodic training which may be received during the course of a few years practice at the Bar.
These and the other considerations referred to earlier have led us to the conclu sion that in the interests of the efficiency of the subordinate judiciary, it is necessary that an All India Service called the Indian Judicial Service should be established.
This will need action being taken in the manner provided by Article 312 of the Constitution".
The Law Commission has reiterated this view in subse quent reports.
It took nearly 20 years for the Government to take follow up action on the basis of the recommendation and that led to the amendment of the legislafive entries as already referred to.
This proposal of the Law Commission and the follow up governmental action led to consultation and dialogue in the Conference of Chief Justices of the High Courts but many of the High Courts were of the view that setting up of an All India Judicial Service would affect the constitutional scheme of control of the High Courts over the subordinate judiciary and in particular Article 235 of the Constitution.
Article 233 makes provision for appointment of District Judges and requires that appointment to such posts has to be made by the Governor of the State in consultation with the appropriate High Court.
Article 234 provides for recruitment of persons other than District Judges to judicial service by prescribing that appointments shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consulting the State Public Service Com mission and the High Court exercising the jurisdiction in relation to such State.
The post of District Judge has ordinarily been equated with the senior scale status in the All India Services.
It was 214 perhaps not contemplated by the Law Commission that on appointment members of the proposed All India Judicial Service were to hold the post of District Judge.
Like all other All India Services the initial recruitment could be to a lower rank equal to civil judge and after serving in such post for a reasonable time appointment to the post of Dis trict Judge could be made.
Since the Law Commission itself was of the view that a percentage should be filled up by direct recruitment from the Bar, the scheme envisaged by the Law Commission would not require amendment of Article 233.
It is to be examined whether any alterations in Article 234 would be necessary or recruitment to All India Service could be made by appropriate amendment of the State Rules contem plated under that Article.
Control over the subordinate courts under the constitu tional mechanism is vested in the High Court.
Under Article 235, the provision is that the control over District Courts and courts subordinate thereto vests in the High Court.
The main objection against implementation of the recommendation of the Law Commission relating to the setting up of the All India Judicial Service was founded upon the basis that control contemplated under Article 235 of the Constitution would be affected if an All India Judicial Service on the pattern of All India Services Act, 1951, is created.
We are of the view that the Law Commission 's recommendation should not have been dropped lightly.
There is considerable force and merit in the view expressed by the Law Commission.
An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary.
The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.
Since the setting up of such a service might require amendment of the relevant Articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score par ticularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible.
It is in the interest of the health of the judiciary.
throughout the country that this should be done.
II The Law Commission in the 14th Report also referred to the various designations provided for judicial officers working in the different States and Union Territories It observed: 215 "In view of the more or less uniform functions performed by the judicial officers so various ly designated, it would, we think, be advisa ble to aim at a uniformity of designation.
There is, however, a fundamental difference in the general scheme of distribution of judicial business between the tower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other.
The first has limited pecuniary juris diction while the second, generally speaking, has unlimited pecuniary jurisdiction.
We would, therefore, suggest that the State Judi cial Service Class II should consist of civil judges who should be designated as civil judges of the senior and junior divisions.
Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)".
If reference is made to Article 236 of the Constitution, it would be noticed that the expression "District Judge" has been defined to include Judge of a City Civil Court, Addi tional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magis trate, Sessions Judge, Additional Sessions Judge and Assist ant Sessions Judge.
This definition in Article 236 covers the higher section of the State Judicial Service both in the civil and criminal sides.
The definition is only inclusive and in implementing the recommendations of the Law Commis sion to simplify the designations by saying that the hierarchy of subordinate judicial officers would be District Judge or Additional District Judge, below him Civil Judge (Senior Division) and below him Civil Judge (junior divi sion) does not go against the constitutional scheme nor does it require any amendment of the Constitution.
If there be any laws operating in the States, perhaps the same may have to be appropriately modified or altered if the uniformity recommended by the Law Commission has to work out.
We are inclined to adopt the view of the Law Commission.
On the civil side, the State Judicial Service, therefore, should be classified as District or Additional District Judge, Civil Judge (senior division) and Civil Judge (Junior division).
On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure.
Appropriate adjustments, if any, may be made of existing posts by indi cating their equivalence with any of these categories.
The process of bringing about such uniformity would require some time 216 and perhaps some monitoring.
We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993.
III One of the issues debated at the hearing related to the age of retirement.
The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively.
There is no constitu tional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service.
It is the claim of the petitioners that the age of retirement of the officers of the subordinate judiciary should be fixed at 60 years inasmuch as the basic qualifica tion for recruitment to the service requires every officer to have in the minimum a bachelors degree in law which is acquirable after becoming a graduate.
Thus, while for normal civil service a graduate is eligible, for recruitment to the judicial service a minimum further period of three years becomes necessary to acquire the basic qualification.
In many of the states and the Union Territories, for recruit ment to the post in the judicial service a basic period of experience at the Bar is a pre requisite.
Thus, while for the civil service the age of recruitment varies between 25 and 28 years, for judicial service at the basic level most of the States permit entry upto the age of 32.
In some of the States where direct recruitment of judicial officers for an in between stage is permitted, the age of entry is even upto 35 years.
Article 233(2) of the Constitution provides: "A person not already in service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Keeping this constitutional requirement in view in respect of direct recruitment for District judge, entrance is permitted upto a later age in many States.
Thus at the point of entry into service there is a marked distinction between civil service and the judicial service.
Notwithstanding these special features the history of the service 217 would show that no distinction has been maintained in regard to the age of retirement between officers of the civil service and the officers of the judicial service and over the years the same rule has been applied to both.
This Court in Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.; , pointed out: "In regard to the age of superannuation, it may be said prima facie that rules of superan nuation which are prescribed in respect of public service in all modern States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion.
They apply uniformity to all public servants fail ing under the category in respect of which they are framed . . " Nature of work is thus one of the considerations rele vant to fixing the age of retirement.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officers in volves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical.
Experience is an indispens able factor and subject to the basic physical fitness with growing age experience grows.
As already indicated, retirement age for High Court Judges is 62 years.
A sizable portion of the manning in the High Court is done by elevating District Judges and those who are elevated continue upto the age of 62 years like directly elevated members of the Bar to the High Court.
There are certain services in the States where retire ment is fixed at the age of 60 years taking into account the special type of work the officers are called upon to per form.
For instance, throughout the country teachers of universities are allowed to serve upto 60 years of age.
Employees under some of the corporations also go upto the age of 60.
Scientific Research Officers are also allowed in many cases the benefit of 60 years age of retirement.
Mr. Poti for the State of Kerala raised serious objection to raising 218 the age of retirement of judicial officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58.
In fact, Kerala had once experimented with the enhanced age for all and has reverted back to the age of 55.
The main ground raised by Mr. Poti to resist the proposal of enhancement is that in the State of Kerala the level of literacy is high and unem ployment is acute.
If the age of retirement is enhanced the scope of the unemployed to get employment would be adversely affected.
We are not impressed by the submission of Mr. Poti on this score.
The total number of judicial officers of every category in the State may not exceed 3,000 or so.
This certainly is not such a big number that might create unem ployment problem in the event of the age of superannuation being brought to the all India level of 58 or even enhanced to a higher limit.
The Law Commission in its 14th Report dealt with this aspect at page 2 13 of the report and said: "There is yet another reason why the question of the age of retirement of the subordinate judiciary should be treated differently from that in other State Services.
As noticed earlier a judicial officer enters service at a comparatively higher age than a recuit to the executive or administrative services.
It would, therefore, be proper that the retire ment age of a judicial officer should be relatively higher than that of an executive officer, so as to enable him to serve for the full number of years if he retains his fitness and capacity of work till he reaches such higher age.
We, therefore, recommend that the retirement age of the subordinate judiciary in all States should be raised to 58 years.
Such a measure will tend to raise the tone and morale of the judicial service as a whole.
It will also be consistent with our recommendation to raise the age of retirement of High Court Judges to 65 years.
" The recommendation that superannuation should be fixed at 58 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55.
Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now en hanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala.
We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have 219 indicated the age of retirement of judicial officers should be 60 years.
We accordingly direct that appropriate altera tions shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992.
We have given a long period so that appropriate amendments may be made in the meantime.
IV We shall now deal with the claim for appropriate pay scales and on, as nearly as possible, uniform basis.
The 14th Report of the Law Commission dealt with this matter at page 163 of the report and said: "It is the matter of scales of pay and remu neration, the judiciary compares unfavourably with the executive branches of the Government.
It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States.
However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers.
The entrant to the judicial services is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar.
On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, suffi cient.
In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already ac quired a certain seniority in the service and have come to draw a higher salary.
It will thus be seen that a person joining the judi cial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier.
It has also to be noted that owing to the lesser proportion of superior posts in the judicial service promotions come less quickly to the judicial officers, and a person who has entered the service as a munsif, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector.
Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits".
220 We had called for the prevailing pay scales of the different judicial cadres in the States and the Union Terri tories and the same have been made available to us.
We found that there is wide violence in the pay structure prevailing in the various States and Union Territories and for the same nature of work performed by the judicial officers they are remunerated differently.
It is difficult for us on the data now placed to get into the exercise of fixing the appropri ate pay scales.
We suffer a handicap in the absence of full details necessary for fixing the appropriate pay scales on comparative basis.
Again, we are apprehensing that if we enter into the matter and say something in a final way, it is possible that in some States benefits which are now available may be taken away or adversely affect some offi cers.
For these reasons, we do not propose to finally exam ine the propriety of the existing pay scales nor do we direct any pay scales to be fixed.
A Pay Commission for the Central Government employees was appointed about 8 years back and on the basis of its Report the revised benefits have been given effect to from January 1, 1986.
Following that pattern, most of the States have either given the Central scales or appointed their own commissions or committees and given the revised benefits to their officers.
It appears that with an interval of 10 years or so such a commission is being appointed and pay scales are being reviewed.
Such an exercise is likely to be under taken within less than three or four years.
We are of the view that the claim on this score can be better handled when the pay commissions or committees in the States are set up to review the position.
We direct that as and when such commissions or committees are set up in the States and Union Territories hereafter, they separately examine and review the pay structure of judicial officers keeping in view all relevant aspects.
V. Under this head, however, we would like to deal with the claim for various allowances.
Unlike the administrative officer, the judicial officer is obliged to work for long hours at home.
When he reserves a judgment he has usually to prepare the same at his residence.
For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries.
Even otherwise with a view to keeping himself uptodate about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court.
He has also to read legal journals.
The judicial officer very often has no provision of an officer at his residence.
Unless a reasonable allowance is provided for maintaining an office, it became very difficult for him to undertake the various aspects 221 of the exercise referred to above.
We are of the view that a residential office allowance should be admissible to every judicial officer.
The same for the civil judge (junior division) and the civil judge (senior division) be fixed at the rate of Rs. 250 per month and officers of the higher category the monthly allowance should be Rs. 300.
Law books, Law repons and legal journals are indispens able to a judicial officer.
They are in fact his tools and in case a junior officer has to discharge his duties satis factorily he has to get acquainted with these.
His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature.
Reading habit is indispensable to a judicial officer and possession of a small library of one 's own helps generation of the proper reading habit.
Law books and Law journals have in particular become very costly these days.
One standard Law journal for the decisions of the High Court, another for the decisions of this Court and one or two Standard Law journals on the average would cost about Rs. 200 a month.
There is no existing system of providing Law books and journals to the officers of the lower judiciary.
Many of the judicial officers in the lower ranks have their working places away from the district headquarters where the seat of the district judge is located.
There is perhaps at every district headquarter a small library but the number of books is small and more than one copy of many of the books would not be available.
Therefore, whether it is at the district headquarter or in areas away therefrom, effective library facility is not available.
We are of the view that a uniform pattern of small library should be provided to every judi cial officer.
We accordingly direct that such a library shall be made available by 30.6.2992 to every judicial officer and the District Judge should have provision made in his budget for the said residential library for every judi cial officer under his control.
The High Court should moni tor this aspect effectively so that without loss of time, a handy library may be at the disposal of every judicial officer.
The District Judge is the principal judicial officer of the district.
Ordinarily every revenue district has a dis trict judge and his seat is located at the headquarter.
In heavy stations, the district judge has a team of additional district judges to assist him.
There would also be a number of judicial officers of lower categories working at the headquarters.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquaters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the 222 obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible for the efficient running of the system.
In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collec tor and district magistrate and the superintendent of po lice.
He also meets the members of the Bar.
Now and then he meets his judicial officers those at the headquarters as also the others who are in the interior.
It is desirable that the district judge devotes some time as frequently as possible and at least once a week to meet the judicial officers beyond the working hours, discusses working prob lems of his officers and forms his own opinion about now the work is being done.
A weekly assessment of such perform ance generates even temper of judicial activity and upholds the tempo being maintained at the appropriate level.
There is not yet any definite system of judicial training in most of the States and Union Territories.
A judicial officer with his first posting or until he acquires adequate experience requires guidance.
It should ultimately be the obligation of the district judge to provide the same, we are of the view that to the post of district judge a monthly allowance of Rs. 300 by way of sumptuary allowance should be available to enable him to extend small courtesies at such meetings.
The chief judicial magistrate does some of these activities in respect of the magistrates handling criminal work.
In our opinion he should be entitled to a sum of Rs. 200 per month by way of sumptuary allowance.
We are aware of the fact that under the conditions of Service Act of High Court Judges, a sumptuary allowance of Rs. 300 is payable to them every month.
Now that we have directed that Rs. 300 should be fixed for the district judges, we command that the sumptuary allowance fixed for the High Court Judges may be enhanced suitably.
These allowances shall be payable from 1.4.1992.
We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with preformance of duty and would not be considered as a perk for being included in the hands of the recipient as his income.
VI Provision of an official residence for every judicial officer should be made mandatory.
A judicial officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigations before him.
This is mostly the case in rural areas where outstation judicial courts are located.
We are aware of cases where a rural court is located in the building belong ing to a lawyer or a client.
Even the residential accom 223 modation of the judicial officer belongs to people of that category.
Such a situation often gives occasion to personal embarrassment to the judicial officer and it has to be avoided.
Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the month ly income, otherwise it becomes difficult for the person concerned to make his two ends meet.
A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation.
In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly sal ary, a situation which cannot be contenanced by any logic.
It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily.
Rendering justice is a difficult job.
It is actually a divine act.
Unless the judicial offi cer has a reasonable worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
Very often building projects are undertaken for provid ing residential accommodation to public officers but the requirement of the judicial ofricer is not taken into ac count for one reason or the other.
Control of the State purse is in the hands of the executive.
As appropriate share of construction expenses is not being provided towards accommodation of judicial officers, they do not have any quota in the building projects.
As a result of this over the years at several places throughout the country residential accommodation for judicial officers has turned out to be scanty.
Many judicial officers dread postings in Metropoli tan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accom modation.
The cost of living also becomes heavy.
We take judicial notice of the fact that the Planning Commission of the Central Government is considering accept ance of the subordinate judiciary as a plan subject.
Provid ing adequate residential accommodation should be considered as a priority.
Until adequate government accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommo dation for every judicial officer according to his entitle ment and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer.
We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take into account this feature.
As a long term measure, Govern ment accommodation should be constructed to meet the 224 need of the judicial officers at their respective stations.
This should be a matter for the Planning Commission to review and the State Governments to cooperate and undertake construction activity.
The Governments of the States and the Union Territories would take some time to implement this pan of the direction.
In case for some reason, the Planning Commission does not come forward to take up the matter before January, 1992, the Chief Justice of every High Court should set up a committee with him as Chairman where two senior Judges of the Court and the Secretaries of Finance, Law and Works should be members and annual planning of construction of residences should be made.
We accordingly fix the outer limit of December 31,1992 when this part of the direction would become fully operative.
VII We shall now deal with the claim for transport.
In most of the States the district judge has been provided a motor car and in some of the States the chief judicial magistrate is also provided with such transport, be it a car or a jeep.
There are still some States like Rajasthan, Haryana and Madhya Pradesh where provision of a car for every district judge has not yet been made.
We direct that every district judge should be provided with a car by March 31, 1992, and it shall be the obligation of the other States where such facility has not open provided to ensure the same within the time limit.
The chief judicial magistrate is a touring officer apart from doing trial work as a magistrate.
Mandate of the Code of Criminal Procedure requires him to undertake some tout ing.
The quality of criminal justice administration would very much depend upon the mobility of the chief judicial magistrate.
We, therefore, direct that in such States and Union Territories where provision of independent transport for the chief judicial magistrate has not been made, the same should be done by September 30, 1992.
We are.
further of the view that in stations with more than four judicial officers a common transport should be provided for the purpose of taking them from the residence to the court and back and meeting their other official purposes and such vehicle should be placed under the control of the seniormost officer in the pool.
The arrangement should be that for every five officers, there should be a vehicle.
Provision for this aspect should be made by March 31, 1993.
This direction has become necessary as judicial officers should not be forced to travel along with litigants and lawyers.
In many sensitive cases, records are carried by them.
Often judgments to be pronounced are also taken by them.
In some disturbed areas, instances of harassment to judicial offi cers taking advantage of their using 225 common transport have come to light.
We direct that every State and Union Territory would file a compliance report in the Registry of this Court in respect of these three aspects within one month from the expiry of the outer limit indicat ed for each of them.
There are several outlying courts where the number of officers would not be more than five.
We do not intend to provide any independent transport for them but such officers who ask for loan for purchase of a two wheeler automobile should immediately be provided the same.
Appropriate funds should be made available for such purpose.
A pool car should have 60 litres of petrol per month and a judicial officer owing a scooter would be entitled to an allowance of Rs. 200 per month.
We are alive to the fact that our directions involve a burden on the State Exchequer.
Perhaps some justification as to why these expenses should not be grudged must now be indicated.
Professor Pannick in his book entitled "Judges" has observed: "Judges do not have an easy job.
They repeat edly do what the rest of us seek to avoid; make decisions".
He further added: "Judges are mere mortals but they are asked to perform a function that is utterly divine".
Professor Harold Laski once wrote to Justice Oliver Holmes that 'he wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence '.
The Trial Judge ' is the kingpin in the hierachical system of administration of Justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the court 's functioning successful.
Krishna Iyer, J. described the scene very graphically thus: "Law is a means to an end and justice is that end.
But in actuality, Law and Justice are distant neighbours; sometimes even strange hostiles.
If law shoots down justice, the people shoot down law and lawlessness paraly ses development, dis 226 rupts order and retards progress.
This is the current scene".
It calls for serious introspection.
The Law Commission in its 14th Report said: "If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.
It appears to us that not only for the performance of his duties but outside the court as well a Judge has to maintain an aloofness amounting almost to self imposed isolation".
The Commission quoted Sir Winston Churchill who had said: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten has been most strictly observed.
They are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct".
These prescriptions for a Judicial Officer, therefore, result in a restricted life.
Austerity is a quality to be practised by every Judge personally as also in his public functioning.
This necessarily gives rise to a situation where the Judge must have patience, perseverance and pains taking habits.
In order that a Judge may be able to put in these aspects into his public functioning it is absolutely necessary that the Judge enjoys freedom from personal wor ries.
A reasonable salary, appropriate allowances and man ageable living conditions are, therefore, required to be provided.
For quite a few years the conditions of service of Judges of the superior Courts and those of the public offi cers in the Executive side had been put at par excepting such provisions as were contained in the Government of India Act, 1935 or under the Constitution.
For the first time it was accepted that separate Conditions of Service should be provided and Conditions of Service Acts for the High Court and Supreme Court Judges were separately enacted in 1954.
Those statutes and the Schedules therein even now contain provisions to the effect that matters for which provisions have not been made by the statutes are to continue to be the same as provided for the officers in the Executive wing as named.
In a democratic polity the role of the judiciary is indispensable.
The efficient functioning of the Rule of Law under the aegis of which our democratic society can thrive requires an efficient, strong and enlightened judiciary.
And to have it that way the Nation has to pay to the price.
There was a time when a 227 Judge enjoyed a high status in Society.
Very often a suc cessful Member of the Bar earning a high income favourably responded to the invitation of the Chief Justice to accept Judgeship.
Thai no more is the position.
The sense of pro fessional obligation has died down for reasons more than one; but perhaps the most eloquent one is loss of social status of the judge.
The effect of this position in respect of the higher judiciary has its impact on the subordinate judiciary too.
Half a century back a Judicial officer even of the lowest category enjoyed great social status.
He was looked upon with a sense of reverence.
He led a life in tune with the recommendations of the Law Commission in its 14th Report.
He had the training of limiting his wants and man aged to live a contented life by making his two ends meet with limited resources of small salary.
That philosophy of life has vanished or is fast vanishing.
A great social change has over taken today 's society.
Life has become competitive; demands of life have increased; and aptitudes have changed.
Therefore, today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendoulsy swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
As early as 1958 the Law Commission said: "As we shall point out, later the problem has since grown in dimension because there is unmistakable testimony that the standards of the judicial officers recruited from the Bar and other sources have during recent years fallen in a substantial degree for various reasons.
This has been almost the unique view expressed by the witnesses .before us.
It is thus obvious that no scheme of review of judicial administration will be effective or worthwhile unless the basic problem of provid ing a trained and capable judicial personnel is satisfactorily solved" This was adequate and timely notice to the Government and its people.
Instead of attending to the problem then, 33 long years have been allowed to roll by and what was then said as a growing dimension has grown to devalue the system.
Its resurrection has, therefore, become more costly.
It is perhaps useful to recall here the prophetic warn ing sounded by Robert Ingersoll: "A government founded on anything except liberty and justice cannot stand.
All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that 228 have passed away all are a warning that no nation founded upon injustice can stand.
From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen or crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded on injustice can permanently stand".
Society, therefore, must understand the problem.
Solu tion to the problem would depend upon realisation of the fact that the more capable people at the Bar are not willing to accept offers of judicial appointments.
The plea that the other wings, in the States would demand inprovement in their scales of pay is not a relevant feature at all when the problem is viewed from this angle.
We hope and trust that society would generate the appropriate understanding of the matter and no Government would come forward to take the stand that if the pay scales and perks of the Judicial officers are improved similar demands would come from other wings of Government.
Even in the existing system there are some posts which carry special pay that is on account of the fact that there is more of basic equipment demanded and the nature of work is different and judicial service satisfies both and, there fore, Government can always prescribe a higher pay scale for Judicial Officers.
In 1986 there was a Conference of the Chief Justices of the High Courts, Chief Ministers and the Law Ministers of the States called by the then learned Chief Justice of India and the Ministry of Law and Justice.
The then Chief Justice of India and the Law Minister of the Central Government tried their best to make the State Governments and the Union Territories understand the basic problem.
While some improvements came as a result of the Conference for the higher judiciary, the claim of the subor dinate judiciary remained unattended.
We would like to point out that dispensation of justice is an inevitable feature in any civilised society.
Mainte nance of law and order require the presence of an efficient system of administration of criminal justice.
Under the Civil Code, Court fee is realised under the Court Fee Act.
For some time demand to abolish it has been made but the States have abandoned the idea on account of the demand by the States of compensation from the Centre in case of aboli tion of Court fee.
Court fee is not a tax and is a fee as has been ' held by a Constitution Bench of this Court in Secretary, Government of Madras, Home Department and another vs Zenith Lamps and Electrical Ltd., ; In Paragraph 29 of this 229 Judgment Sikri, CJ speaking for this Court pointed out: "It seems to us that the separate mention of 'fees taken in Court ' in the Entries referred to above has no other significance than that they logically come under Entries dealing with administration of Justice and courts.
The draftsman has followed the scheme designed in the Court Fees Act, 1870 or dealing with fees taken in court at one place.
If it was the intention to distinguish them from fees in List II Entry 66, surely some indication would have been given by the language employed.
If these words had not been separately mentioned in List I, Entry 77 and List II . . .
It seems plain that 'fees taken in court ' are not taxes, for if it were so, the word 'taxes ' would have been used or some other indication given.
It seems to us that this conclusion is strengthened by two considerations.
First, taxes that can be levied by the Union are mentioned in List I from Entry 82; mentioned in List II taxes that can be imposed start from Entry 45.
Secondly, the very use of the words 'not including fees taken in any court ' in Entry 95 List 1, and Entry 66 List II, shows that they would otherwise have fallen within these Entries.
It follows that 'fees taken in court ' cannot be equated to "Taxes".
If this is so, is there any essential differ ence between fees taken in court and other fees ? We are unable to appreciate why the word 'fees, bears a different meaning in Entry 77, List I and Entry 96 List I or Entry 3 List II and Entry 66 List II.
All these relevant cases on the nature of 'fees ' were reviewed in India Mica and Micanite Industries Ltd. vs The State of Bihar.
; at page 1186, by Hegde J. and he observed: "From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co relationship with the services rendered by the Government.
In other words, the levy must be proved to be a quid pro quo for the serv ices rendered.
But in these matters it will be impossible to have an exact co relationship.
The correlationship expected is one of a general character and not as of arithmetical exactitude".
It is not our intention to raise a dispute on this aspect.
We adverted to these authorities and the views of this Court to bring support for the view that what is col lected as Court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue 230 of the States.
Undobutedly the income from court fees is more than the expenditure on the administration of Justice.
This is conspicuously noticeable from the figures available in the publication in the Ministry of Law and Justice.
What we have said above should be adequate justification for making provision with a view to making judicial func tioning viable.
We would like to recall a part of the funeral oration on Mr. Justice Story delivered some 150 years back by Daniel Webster: "Justice, Sir, is the greatest interest of man on earth.
It is the ligament which holds civilised beings and civilised nations togeth er.
Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progress of our race.
And whoever labours on this edifice with useful ness and distinction.
whoever clears its foundations, strengthens its pillars, adorns its entaplateures, or contributes to raise its august dome still higher in the skies, con nects himself in name and frame and character with that which is and must be as durable as the frame of human society".
To those who control the purse what Webster said should provide the direction.
VIII One of the claims advanced before us was for provision of inservice training for judicial officers.
This we consid er as a must.
In fact, the Law Commision in one of its recent reports has advised that inservice institutes should be immediately set up.
About a year back the Union Govern ment had proposed the setting up of an All India Inservice Institute but nothing more has been done about it.
In some of the States like Uttar Pardesh and Andhra Pradesh, such inservice institutes are functioning.
We are of the view mat in service institutes are indispensable for the upkeep of the efficiency of judicial service.
We direct that an All India institute of Inservice Training for higher officers of the judiciary including the district judges and a State level institute for training of the other member, of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate nor later than December 31, 1992.
This has to be orgainised by respective High Courts.
231 Before we part, we must indicate with all the emphasis at our command that the system has to be saved as for a civilised society an enlightened independent judiciary is totally indispensable.
The High Court must take greater interest in the proper functioning of the subordinate judi ciary.
Inspection should not be a matter of casual atten tion.
The Constitution has vested the control of the subor dinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
We may point out that that in what Lord Aktins said in Devi Prasad Sharma and others vs The King Emperor, 70 IA 216.
And it has been approved by a Constitution Bench in Baradakanta Misra vs The Registrar of Orissa High Court and Another, ; It should be remembered by all Judges of the High Coart viz., that the administrative control of the subordinate courts of the states vest nor in the Chief Justice alone but in the Court over which the Chief Justice presides.
Surger, CJ of the American Supreme Court once said: "A sense of confidence in ,he Courts is essen tial to maintain the fabric of ordered liberty for a free people and it is for the subordi nate Judiciary by its action and the High Court by its appropriate control to ensure it".
It is useful to remember what President Lin coln often said: "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem".
It is time we mention about society 's expectation from the Judicial Officers.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be courageous enough to acknowledge his errors The conduct of every judicial officer should be above reproach.
He should be conscientious, studious, thorough, courteous, 'patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
232 We would like to part with the matter by recalling a statement of Edmund Burke: "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society".
We would now briefly indicate the direc tions we have given in the judgment: (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designation officers both in civil and the criminal side by 31.3.1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12.
(iv) As and when the Pay Commissions/Commit tees are set up in the States and Union Terri tories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992.
In providing residential accommodation, avail ability of an office room should be kept m view.
(vii) Every District Judge and Chief Judi cial Magistrate should have a State Vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automo biles within different time limits as speci fied.
(viii)Inservice Institute should be set up within one year at the Central and State or Union Territory level.
V.P.R. Petition disposed of.

Output:
The petitioners All India Judges ' Association filed an application under Article 32 of the Constitution of India for directions of this Court for setting up of an All India Judicial Service, for bringing about uniform conditions of service for members of the subordinate judiciary, provision of residential accommodation, transport facility; library and in service training for judicial officers.
Disposing of the writ petition, this Court, HELD: 1.
For a civilised society an enlightened inde pendent judiciary is totally indispensable.
1231 A] 2.
Rendering justice is a difficult job.
Unless the judi cial officer 207 has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
[223 C] 3.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be coura geous enough to acknowledge his errors.
The conduct of every judicial officer should be above reproach.
He should be coscientious, studious, thorough, courteous, patient, punc tual, just, impartial fearless of public clamour, regardless of public praise and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
[231 F H] 4.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating "the judiciary from the executive in the public services of the State".
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
[211 D] 5.
The Trial Judge is the kingpin in the hierarchical system of administration of justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the courts ' functioning successful.
[225 F G] 6.
The District Judge is the principal judicial officer of the district.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquarters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible 1or the efficient running of the system.
[221 G 222 A] 7.
The High Courts must take greater interest in the proper functioning of the subordinate judiciary.
Inspection should not be a matter of casual attention.
The Constitution has vested the control of 208 the subordinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
The administrative control of the subordinate courts of the State vests not in the Chief Justice alone but in the Court over which the Chief Justice presides.
[231 A C] 8.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officer involves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of mental activity than physical.
Experience is an indispensable factor and subject to the basic physical fitness with grow ing age experience grows.
[217 D E] 9.
Today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendously swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
[227 D] 10.
It is absolutely necessary that the Judge enjoys freedom from personal worries.
A reasonable salary appropri ate allowances and manageable living conditions are, there fore, required to be provided.
[226 E] 11.
An All India Judical Service should be set up and the Union of India should take appropriate steps in this regard.
[232 C] 12.
Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by 31.3.1993.
[232 C] 13.
Retirement age of judicial officers be raised to 60 years and appropriate steps be taken by 31.12.1992.
[232 C] 14.
As and when the Pay Commissions/Committees are set up in the States and Union Territories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
[232 D] 209 15.
A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance has to be made.
[232 D] 16.
Residential accommodation to every judicial officer has to be provided and until State accommodation is avail able.
Government should provide requisitioned accommodation for them by 31.12.1992.
In providing residential accommoda tion, availability of an office room should be kept in view.
[232 E] 17.
Every District Judge and Chief Judicial Magistrate should have a State vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits.
[232 F] 18.
In service Insititute should be set up within one year at the Central and State or Union Territory level.
[232 G] The Law Commission of India 14th Report, 1958 Judges: by Professor Pannick; Law Commission of India, 1 Ith Report referred to.
Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.
; , ; Secretary, Government of Madras, Home Department and ,Anoth er vs Zenith Lamps and Electrical Ltd., ; ; Devi Prasad Sharma and Others vs The King Emperor, 70 IA 216; Baradakanta Mishra The Registrar of Orissa, High Court and Another, ; , referred to.


Input:
Civil Appeal No. 1538 of 1988.
From the Judgment and Order dated 8.9.86 of the High Court of Bombay in Nagpur Bench at Nagpur in C.R.A. No. 100/86.
Y.S. Dharmadhikari, Dr. N.M. Ghatate and S.V. Deshpande for the Petitioners.
S.S. Khanduja, Y.P. Dhingra and B.K. Saluja for the Respondents.
(Not Present).
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
In this case notice had been issued indicating that the matter would be disposed of at the notice stage.
The respondents have not appeared.
Special leave granted and the appeal is disposed as hereunder.
The only question involved in this appeal is whether the High Court of Bombay, Nagpur Bench, was right in rejecting the revision application summarily when the learned Civil Judge had held that the award was wrongly presented in his Court and he had no jurisdiction to go into the question of validity of the award.
The facts are that there was a reference to an arbitrator.
The award was filed in the Civil Court at Nagpur and objection was filed against the said award.
The short question upon which the learned District Judge dismissed the application was that Nagpur was not the Court which had jurisdiction to entertain application.
He held in his order, inter alia, as follows: "Most of the parties to the agreement of reference are the residents of Warora in the District of Chandrapur.
On the careful scrutiny of agreement of reference, the place of execution of the said agreement seems to have been omitted.
I am quite unable to understand as to how the glaring mistake in respect of omission of place of execution of the agreement has been committed.
It seems that the place of 687 execution of the agreement is deliberately omitted with intend to file the award in the Civil Court at Nagpur as the arbitrator is the resident of Nagpur.
For his convenience to file the award in the Civil Court at Nagpur, the place of execution of the agreement seems to have been omitted.
Moreover, it appears that the agreement for reference appears to have been prepared and drafted at Nagpur as stamp paper was purchased at Nagpur.
It does not mean that the parties executed agreement for reference at Nagpur as the most of the parties are the residents of Warora and most of the property except the house on plot No. 94, at Shiwaji Nagar, Nagpur, is situated at Warora in Chandrapur District.
An adverse inference can be drawn that the agreement of reference was executed at Warora in Chandrapur District which comes within the local jurisdiction of the Civil Judge, Senior Division, Chandrapur.
" The learned Civil Judge held that the award passed by the arbitrator ought to have been filed in the court of Civil Judge, Senior Division, Chandrapur.
The learned Civil Judge held that only a bit of property situated at Nagpur and the residence of arbitrator at Nagpur did not give local jurisdiction to the Court at Nagpur.
He accordingly dismissed the application with the order that award be returned for presentation to the proper Court having legal jurisdiction.
We are of the opinion that the learned Civil Judge was in error in view of the provisions of Sections 17 and 20 of the Code of Civil Procedure, in holding as he did.
In view of the facts mentioned undoubtedly part of the dispute which was the subject matter of dispute was within the jurisdiction of the Nagpur Court.
This view is further corroborated by the Section 2(c) of the .
The Court at Nagpur had undoubtedly part of the jurisdiction to entertain the suit.
The High Court had summarily rejected the revision application against the said order of the learned Civil Judge.
The High Court, in our opinion, also was in error in not entertaining the application and in not setting aside the order of the learned Civil Judge.
In the premises and in the facts of this, we are of the opinion, that the High Court and the learned Civil Judge were in error.
Their orders are therefore set aside.
688 The appeal is allowed.
Let the learned Civil Judge proceed with the objection to the award filed in his Court at Nagpur.
The said objection may be disposed of as quickly as possible.
There will be no order as to costs.
G.N. Appeal allowed.

Output:
An Award of an Arbitrator in respect of properties situated mostly at Warora, Chandrapur and only a bit of property situated at Nagpur, did not mention the place of execution.
The arbitrator was resident of Nagpur.
The award was filed in the Civil Court at Nagpur.
The Civil Judge held that only a bit of property situated at Nagpur and the residence of arbitrator at Nagpur did not give local jurisdiction to the Court at Nagpur and dismissed the application saying that the award ought to have been filed in the Court of Civil Judge, Chandrapur.
The revision application was summarily rejected by the Bombay High Court.
The appeal by special leave is against the judgment of the Bombay High Court.
Allowing the appeal, this Court, ^ HELD: 1.
The Court at Nagpur had undoubtedly part of the jurisdiction to entertain the suit, as part of the dispute which was the subject matter of the dispute was within the jurisdiction of the Nagpur Court.
This view is further corroborated by Section 2(c) of the .
[687F] 1.2 In view of the provisions of Sections 17 and 20 of the Code of Civil procedure, the order of the Civil Judge that the award be returned for presentation to the proper Court is erroneous.
The High Court was also in error in not entertaining the application and in not setting aside the order of the Civil Judge.
[687F, G H] 686 [The Court set aside the orders of both the Civil Judge and the High Court and directed the Civil Judge to proceed with the objection to the award filed in his Court at Nagpur and dispose it of as quickly as possible.] [688A B]


Input:
Appeal No. 95 of 1953.
On appeal from the Judgment and decree dated the 29th day of June 1951 of the Bombay High Court in Appeal No. 93 of 1949 arising out of the order dated the 16th September 1949 of the Court of Bombay City Civil Court at Bombay in Award No. 45 of 1949.
M.C. Setalvad, Attorney General of India (H. J. Umrigar, Sri Narain Andley, Rameshwar Nath and Rajinder Narain, with him), for the appellant.
H.R. Mehervaid and R. N. Sachthey, for the respondent.
October 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant is a share broker carrying on business in the City of Bombay, and a member of the Native Share and Stock Brokers ' Association, Bombay.
The respondent, Mrs. Goolbai Hormusji, employed him for effecting sales and purchases of shares on her behalf, and on 6 8 1947 there was due from her to the appellant on account of these dealings a sum of Rs. 6,321 12 0.
On that date, the respondent had outstanding for the next clearance, sales of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills.
On 11 8 1947, the appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the respondent, and sent the relative contract notes therefor Nos. 2438 and 2439 (Exhibit A) to her.
She sent a reply repudiating the contracts on the ground that the appellant had not been authorised to close the transactions on 11 8 1947, and instructed him to square them on 14 8 1947.
The appellant, however, declined to do so, maintaining that the transactions had been closed on 11 8 1947 under the 109 860 instructions of the respondent.
After some correspondence which it is needless to refer to, the appellant applied on 21 8 1947 to the Native Share, and Stock Brokers Association, Bombay for arbitration in pursuance of a clause in the contract notes, which runs as follows: "In event of any dispute arising between you and me/us of this transaction the matter shall be referred to arbitration as provided by the Rules and Regulations of the Native Share and Stock Brokers ' Association".
The Association gave notice of arbitration to the respondent, and called upon her to nominate her arbitrator, to which she replied that the contract notes were void, and that in consequence, no arbitration proceedings could be taken thereunder.
The arbitrators, however, fixed a day for the hearing of the dispute, and gave notice thereof to her, but she declined to take any part in the proceedings.
On 10 10 1947 they made an award in which, on the basis of the purchases made by the appellant on 11 8 1947 which were accepted by them, they gave credit to the respondent for Rs. 1,847, and directed her to pay him the balance of Rs. 4,474 12 0.
The respondent then filed the application out of which the present appeal arises, for setting aside the award on the ground, inter alia, that the contracts in question were forward contracts which were void under section 6 of the Bombay Securities Contracts Control Act VIII of 1925, that consequently the arbitration clause was also void and inoperative, and that the proceedings before the arbitrators were accordingly without jurisdiction and the award a nullity.
Section 6 of the Act is as follows: "Every contract for the purchase or sale of securities, other than a ready delivery contract, entered into after a date to be notified in this behalf by the Provincial Government shall be void, unless the same is made subject to and in accordance with the rules duly sanctioned under section 5 and every such contract shall be void unless the same is made between members or through a member of a recognised stock 861 exchange; and no claim shall be allowed in any Civil Court for the recovery of any commission, brokerage, fee or reward in respect of any such contract".
Section 3(1) defines 'securities ' as including shares, and therefore, contracts for the sale or purchase of shares would be void under, section 6, unless they were made in accordance with the rules sanctioned by the Provincial Government under section 5.
The appellant sought to avoid the application of section 6 on the ground that the contracts in question were 'ready delivery contracts ', and fell outside the operation of that section.
Section 3(4) of Act VIII of 1925 defines 'ready delivery contract ' as meaning "a contract for the purchase or sale of securities for performance of which no time is specified and which is to be performed immediately or within a reasonable time", and there is an Explanation that "the question what is a reasonable time is in each particular case a question of fact".
The contention of the appellant was that contracts Nos.
2438 and 2439 were ready delivery contracts as defined in section 3(4), as no time was specified therein for performance.
The learned City Civil Judge, who heard the application agreed with this contention, and holding that the contracts were not void under section 6 of Act VIII of 1925, dismissed the application.
The respondent took the matter in appeal to the High Court of Bombay, and that was beard by Chagla, C.J. and Tendolkar, J. They were of the opinion that the con ' tracts in question were not ready delivery contracts as defined in section 3(4) of the Act, because though no time for performance was specified therein, they had to be performed within the period specified in the Rules and Regulations of the Association, which were incorporated therein by reference, and not "immediately or within a reasonable time" as provided in section 3(4), that they were accordingly void under section 6, and that consequently, the arbitration clause and the proceedings taken thereunder culminating in the award were also void.
They accordingly set aside the award as invalid and without jurisdiction.
Against this judgment, the appellant has preferred this appeal 862 on a certificate under article 133(1) (c).
It was argued by the learned Attorney General in support of the appeal that even apart from the question whether the contracts in question were for ready delivery or not, they would be outside the purview of section 6, because they were not contracts for sale and purchase of securities.
This contention was not raised in the courts below, and learned counsel for the respondent objects to its being entertained for the first time in this Court, as that would involve investigation of facts, which has not been made.
But in view of the terms of the contract notes and the admission of the respondent in her petition, we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on that point.
The dispute between the parties is as to whether the appellant was acting within the scope of his authority when he purchased 25 shares of Tata Deferred and 350 shares of Swadeshi Mills on 11 8 1947.
If he was acting within his authority, then the respondent was entitled only to a credit of Rs. 1,847 on the basis of the said purchases. ' But if these purchases were unauthorised, the appellant was liable to the respondent in damages.
In either case, the dispute was one which arose out of the contract of employment of the Appellant by the respondent as broker and not out of any contract of sale or purchase of securities.
The question of sale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant.
But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser.
The contract of employment is no doubt connected, and intimately, with sales and purchases of securities; but it is not itself a contract of sale or purchase.
It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.
Vide the decision of this Court in Kishan Lal and another vs Bhanwar Lal(1) The legis (1) (1955] 1 S.C.R. 439.
863 lature might, of course, enact that not merely the contract of sale or purchase but even contracts collateral thereto shall be void, in which case the contracts of employment with reference to those contracts would also be void.
But that is not what Act VIII of 1925 has done.
Section 6 expressly provides that no claim shall be maintained in a civil court for the recovery of any commission, brokerage, fee or reward in respect of any contract for the purchase or sale of securities.
That is to say, the bar is to the broker claiming remuneration in any form for having brought about the contract.
But the contract of employment is not itself declared void, and a claim for indemnity will not be within the prohibition.
The question whether contract notes sent by brokers to their constituents are contracts for the sale and purchase of securities within section 6 of Act VIII of 1925, came up for consideration before the Bombay High Court in Promatha Nath vs Batliwalla & Karani (1) and it was held therein that they were not themselves contracts for sale or purchase but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
We agree with this decision.
It may be argued that if the contract note is only intimation of a sale or purchase on behalf of the con stituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act.
But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
Though the respondent alleged in her petition that she had not accepted the contract notes, Exhibit A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Exhibit A constituted the sole repository of the contracts, and as they were void, there was no arbi (1) I.L.R. [1942] Bom. 655; A.I.R. 1942 Bom.
864 tration clause in force between the parties.
We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of section 6 of Act VIII of 1925, that the arbitration proceedings are accordingly competent, and that the award made therein is not open to objection on the ground that Exhibit A is void.
It was next contended for the respondent that the contract notes were void under Rule 167 of the Native Share and Stock Brokers ' Association, and that on that ground also, the arbitration proceedings and the award were void.
Rule 167 so far as it is material is as follows: "167.
(a) Members shall render contract notes to non Members in respect of every bargain made for such non Member 's account, stating the price at which the bargain has been made.
Such contract notes shall contain a charge for brokerage at rates not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of rules 168 and 170(b).
Such contract notes shall show brokerage separately and shall be in Form A prescribed in Appendix annexed to these Rules.
. . . . . . . . (c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.
. . . . . . . . (g) A contract note referred to in this rule or any other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".
Form A in Appendix H referred to in Rule 167(a) contains two columns, one showing the rate at which the securities are purchased or sold and the other, the brokerage.
The contract notes sent to the respondent are not in this form.
They are in accordance with Form A in Appendix A, and show the rates at which the securities are sold or purchased, the brokerage not being separately shown.
At the foot of the document, there is the following note; 865 "This is net contract.
Brokerage is included in the price".
The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under Rule 167(c).
Now, Rule 167 applies only to forward contracts, and the basis of the contention of the respondent is that inasmuch as the contract notes, Exhibit A, have been held by the learned Judges of the High Court not to be ready delivery contracts but forward contracts, they would be void under Rule 167(c), even if they were not hit by section 6 of Act VIII of 1925.
The assumption underlying this argument is that what is not a ready delivery contract under the definition in section 3(4) of Act VIII of 1925 must necessarily be a forward contract for purposes of Rule 167.
But that is not correct.
The definition of a ready delivery contract in section 3(4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under section 6 of that Act.
But when the question is whether the contract is void under Rule 167, what has to be seen is whether it is a forward contract as defined or contemplated by the Rules.
The definition in section 3(4) of Act VIII of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of Rule 167, the decision of which question must depend entirely on the construction of the Rules.
The relevant Rules are Nos. 359 to 363.
Rule 359 provides that "contracts other than ready delivery contracts shall not be made or transacted within or without the ring".
Rule 361 confers on the Board power to specify which securities shall be settled by the system of Clearance Sheets and which, by the process of Tickets.
Rules 362 and 363 prescribe the modus operandi to be followed in effecting the settlement.
It was with reference to these rules which under the contract notes were to be read as part of the con tract, that the learned Judges held that the contracts were not ready delivery contracts as defined in sec 866 tion 3(4) of Act VIII of 1925.
But reading the above Rules with Rule 359, there can be no doubt that the contract notes, Exhibit A, would for the purpose of the Rules be ready delivery contracts.
Indeed, the form of the contract notes, Exhibit A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts.
Thus, contracts which are regulated by Rules 359 to 363 cannot be forward contracts contemplated by Rule 167, and they cannot be held to be void under that Rule.
The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other.
The rules framed by the Association form a code complete in itself, and any question arising with reference to those rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act VIII of 1925.
In this view, the contract notes, Exhibit A, cannot be held to be void under rule 167.
In the result, we must hold, differing from the learned Judges of the court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.
The respondent contested the validity of the award on several other grounds.
They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under section 6 of Act VIII of 1925, they did not deal with them.
Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.
We accordingly set aside the order of the court below, and direct that the appeal be reheard in the light of the observations contained herein.
As the appeal succeeds on a point not taken in the courts below, the parties will bear their own costs throughout.
The costs of the further hearing after remand will be dealt with by the High Court.

Output:
The appellants share broker carrying on business in the City of Bombay and a member of the Native Share and Stock Brokers ' 858 Association was employed by the respondent for effecting sales and purchases of shares on her behalf.
The appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the same number of shares standing in her name and sent the relative contract notes therefor to her.
She repudiated the contracts on the ground that the appellant had not been authorised to close the transactions on the date mentioned by him and asked him to square them at a later date.
The appellant maintained that the transactions had been closed in accordance with her instructions.
The appellant referred the dispute for arbitration to the Native Share and Stock Brokers ' Association in pursuance of an arbitration clause in the contract notes.
The respondent refused to submit to arbitration of the association on the ground that the contract notes were void and therefore no arbitration proceedings could be taken thereunder.
The arbitrators made an award in favour of the appellant in the absence of the respondent who declined to take part in the proceedings.
The respondent filed an application for setting aside the award.
The Bombay High Court held that the contracts in question were not ready delivery contracts as defined in section 3(4) of the Bombay Securities Contracts Control Act VIII of 1925 and that they were accordingly void under section 6 of the Act and therefore the arbitration clause and the proceeding taken thereunder culminating in the award were also void.
Held that apart from the question whether the contracts in question were for ready delivery or not, they were outside the purview of section 6 of Bombay Act VIII of 1925 because they were not contracts for sale and purchase of securities.
The dispute between the parties was as to whether the appellant was acting within the scope of his authority when he purchased the shares.
If he was acting within his authority, the respondent was liable to him.
If those purchases were unauthorised, the appellant was liable to the respondent for damages.
In either case the dispute was one which arose out of the contract of employment of the appellant by the respondent as a broker and not out of any contract of sale or purchase of securities.
The relationship between the respondent and the appellant was that of principal and agent, and not that of seller and purchaser.
The contract notes sent by brokers to their constituents are not themselves contracts for sale or purchase of securities within section 6 of the Bombay Act VIII of 1925 but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
It is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
The Rules framed by the Native Share and Stock Brokers ' Association, Bombay form a code complete in itself and any question 859 arising with reference to those Rules must be determined on their construction and it would be a mistake to read into them the statutory provisions enacted in the Bombay Act VIII of 1925 and therefore the contract notes cannot be held to be void under Rule 167.