# Asok Pande (In person) v. Union of India & Anr

- **Citation:** (2016) 3 ILRA 311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-10
- **Case number:** Misc. Bench No. 4736 of 2016
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asok-pande-in-person-v-union-of-india-anr-43528
- **Pages:** 6

## Text

3 All. Asok Pande (In Person) Vs Union Of India & Anr.
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 period of two months from the date a certified copy of this order is submitted.
Consequences shall follow as per law.

10. With the aforesaid observations, the writ petition is disposed of.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. 4736 of 2016

Asok Pande (In person) ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for Petitioner:
Asok Pande (In person)

Counsel for Respondents:
A.S.G., U.N. Misra

HELD:

1. The PIL sought a mandamus restraining the 150-year celebration of the Allahabad High Court on
the ground that its origin under British rule makes such celebration improper.
2. It further sought a direction to the Union Government to change the years of British-era
enactments after the Constitution.
3. The Court held that the High Court's establishment in 1866 is a historical fact, and its continuity is
constitutionally validated under Articles 214, 225, and 372.
4. The Constitution expressly adopted pre-existing judicial institutions; therefore, the celebration does
not glorify colonial rule.
5. The argument that British‐era laws lack legitimacy was rejected, as Article 372 continues all such
laws unless repealed.
6. Past celebrations-1966 (centenary) and 1991 (125 years)-were held without challenge; objection
now raised is legally untenable.
7. The Court relied on Chief Justice Nasirullah Beg's 1966 address, emphasizing that India's judicial
traditions predate British rule by millennia.
8. The sesquicentennial celebration commemorates judicial evolution, not colonial origins.
9. The PIL rests more on sentiment than constitutional logic.
10. "Celebration" means honouring institutional achievement over 150 years, not British rule.
11. Constitutional continuity and rationality defeat petitioner's argument.
12. Request to alter years of British‐era statutes lies exclusively in the legislative domain.
13. No mandamus can compel Parliament or State Legislatures to amend laws.
14. Judicial review cannot intrude into legislative functions.
15. No constitutional or rational basis exists to restrain the celebrations.
312 INDIAN LAW REPORTS ALLAHABAD SERIES
16. The Court quoted Wayne W. Dyer: "If you change the way you look at things, the things you look
at change."
17. The High Court encouraged unity within the legal fraternity for meaningful celebrations.
18. PIL dismissed; no relief granted.

Case Law Discussed:

None. (Decision based on constitutional interpretation and historical continuity.)

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. This petition has been presented as a Public Interest Litigation by a member of the
legal profession who is a practicing Advocate of this Court for an extraordinary direction
under the extraordinary jurisdiction of Article 226 of the Constitution of India through a writ
of Mandamus to the respondents-Union of India and the Allahabad High Court, not to hold
the forthcoming sesquicentennial celebrations, primarily on the ground that the calculation
of 150 years is founded on an erroneous assumption and even otherwise, it amounts to
celebrating the subservient legacy of the British Rule.

2. The second relief prayed for is that the Government of India should be directed to
change the years of passing of different laws legislated by the British Parliament keeping in
view their adaptation under the Indian Constitution in the post-independent era.

3. The submissions raised bring within its fold the historical evolution of the High
Court of Judicature at Allahabad and its present status under the Constitution. This aspect
has to be understood in the light of Article 372 of the Constitution of India with reference to
the jurisdiction of High Courts under Article 225 of the Constitution of India.

4. At the very outset, we may observe that the arguments raised have a sentimental
overtone and at the same time, the arguments on the legal plane are of transient importance
apart from the controversy actually raised. In our opinion, logic, reason and rationality
should not become a casualty when sentiments run high while interpreting law, yet the
Courts have an obligation to decide issues raised before it. This obligation, however, has to
be discharged for the purpose of protection of the Rule of Law and certain rights and
obligations that emerge under the constitutional scheme.

5. Sri Ashok Pande contends that the High Court of Judicature at Allahabad was
established under a Charter of the British Sovereign during the reign of Queen Victoria and
therefore, its establishment in 1866 was not on account of the freewill of the people of India.
The purpose of such establishment was to serve British Foreign Rule and therefore, such
purpose cannot be celebrated as an anniversary of such an achievement. He has passionately
argued that the establishment of the High Court through the Charter of the Sovereign was an
outcome of the Indian High Courts Act, 1861 which was an act of British Parliament and not
through any Indian representation. Thus, in sum and substance, he urges that there is neither
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313
any legal nor moral or constitutional or historical basis to celebrate the occasion by Indians
of an establishment that was a creation of the Britishers. Such creation, according to him
even if required to be celebrated, would be either after Independence or after the advent of
the Constitution, when India was declared a Republic on 26th of January, 1950. The
occasion therefore to celebrate 150 years is based on an incorrect perception as such the
same should be forestalled.

6. Responding to the said submissions of the petitioner, learned counsel for the Union
of India Sri Lalit Mohan Joshi has very aptly reproduced the extract of the welcome address
delivered by Hon'ble Mr. Justice Nasiruallah Beg, the then Chief Justice of the Allahabad
High Court on 25th November, 1966 in the presence of the then President of India Dr.
Radha Krishnan on the occasion of the centenary celebrations of the High Court, and has
urged that the said speech is a complete answer to the storm raised by Sri Pande. He
therefore contends that the petition deserves a decent departure by consigning it to records.

7. Sri Upendra Nath Misra, learned counsel for the High Court has very lucidly traced
the constitutional provisions and the statutory enactments beginning from the Indian High
Courts Act, 1861 onwards to urge that the continuity of the institution, even though
established during British Rule, was acknowledged as a part of the continuing judicial
system of our country and therefore, its celebration of its 150 years of establishment is not to
glorify the British Rule but to rejoice a democratic system of dispensation of justice
underlined with judicial values that has survived for long. He therefore contends that the
issues raised on none of the planes as argued by Sri Pande do survive the scrutiny of any law
or any legal principle or any moral principle or for that matter, any rationale principle that
would justify the filing of such a petition.

8. Having considered the submissions raised, the question of establishment of the High
Court is a historical fact. However, the exercise of its powers, authority and jurisdiction has
seen transition during the British Rule and to a vast extent after independence under the
Constitution. It is no doubt true that what has been adopted under the Constitution is defined
under Article 372 of the Constitution of the India but at the same time, it will be appropriate
to remember the first line and the entire Preamble which clearly states that "WE, THE
PEOPLE OF INDIA, ..... HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION." The argument of Sri Pande therefore on the legal plane that the
celebrations are for glorifying an institution established by British Laws has no legs to stand
as our Constitution has adopted the existence of such High Courts that were created prior to
Independence, and it is the people of India who have acknowledged such adoption. To say
that the people of India had not voted or their representatives had not passed any enactment
which was made law by the British Parliament is a fallacious argument and stands negatived
by virtue of what has been indicated above.

9. The Constitution under Article 214 acknowledges the system of High Courts and its
establishment for each province. The Constitution envisages a separate High Court for every
province and if there is no such High Court, then it has to be established subject to Article
231 and further subject to the powers of the Parliament to make a law to extend the
314 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of a High Court to a Union Territory. Thus, when the Constitution came into
force the scheme of the State Judiciary contained a provision for High Court for each State.

10. The State of U.P. already had a High Court as well as other provinces throughout
the country. In this State, the Constitution of the High Court has a peculiar history as the
Chief Court of Oudh at Lucknow came to be amalgamated with the Allahabad High Court in
1948. It is not necessary to delve into the history of such amalgamation as it has been dealt
with in several decisions of this Court and the Apex Court. But at the same time, it is
necessary to mention that the same High court continued to exist at the time of the advent of
the Constitution and is still a living structure with the exception of the carving out of the
jurisdiction of that area which now falls within the State of Uttaranchal (now Uttarakhand)
with a separate High Court of the State of Uttarakhand at Nainital. Thus, historically and
genetically, the physical existence of the High Court together with its customs, traditions
and contribution to the development of law has been continued since long and has very aptly
expressed by the then Chief Justice Nasirullah Beg in 1966.

11. Thus, the mathematical calculation and the argument of an erroneous assumption
on that count looses its significance.

12. On the issue of celebration, we find from records that in 1966, the High Court
celebrated its centenary and in 1991, celebrated the 125th year of its establishment.
Fortunately, to the best of records available, no writ petition appears to have been filed for
forestalling those celebrations, but it appears that some voice had been raised in this regard
in 1966 and for that reason, a response came from the then Chief Justice of this Court in his
welcome address that has been aptly placed before us by the learned counsel for the Union
of India Sri Lalit Mohan Joshi. We have verified the said contents of the speech of Chief
Justice Nasirullah Beg from the compilation of the commemorative volume of the centenary
celebrations in 1966 and we are extracting that portion of the speech which rightly answers
the sentiment that has upsurged in the mind of the petitioner. The same is extracted
hereunder:-

"Although we are, at this time, celebrating the completion of 100 years'
existence of this Court, which was established much after the advent of the British in
India, the roots of our judicial traditions go back into antiquity to a period long
before the British appeared on the scene. We cannot, therefore, forget, on this
occasion, the fact that this event is only a milestone in the judicial annals of our
civilisation.

As my learned brother, Mr. Justice Dhavan, has shown in his erudite article on the
"Indian Judicial System", published in the Centenary Commemoration Volume I, India
has the oldest judiciary in the world, and no other judicial system has a more ancient
or exalted pedigree. He has demonstrated that ancient India had the highest standard
in antiquity as regards the ability, learning, integrity, impartiality, and independence of
the judiciary, and these standards have not been surpassed till today, that (in the words
of one of the great jurists of ancient India, Katyayana) "the Judges were independent
3 All. Asok Pande (In Person) Vs Union Of India & Anr.
315
and subject only to law", that the fundamental duty of the Court was to do justice
without fear or favour, and that the Indian judiciary consisted of a hierarchy of Judges
with the Court of the Chief Justice (Praad-Vivaaka) at the top. In the words of an
Englishman, Dr. Spellman, "in some respects the judicial system of ancient India was
theoretically in advance of the English system of today". Therefore, it would be wrong
to think that we are merely celebrating the Centenary of a Court established by the
British Government in India. This is really an occasion to remember and ponder over
our own judicial traditions, which are much older than those of the British or any other
judicial system in existence today."

13. To celebrate is to perform publicly with solemnity. It is a ceremonious honour to
commemorate an achievement in civilization, particularly an event that marks the beginning
of an era. It is a ceremony of keeping in remembrance and in this case, what has been
achieved in the field of law and dispensation of justice in the past 150 years.

14. Long cherished fundamental principles of law and customs for effective
dispensation of justice that have been evolved with passage of time and have received
acceptance in modern times is a testimony to the principle, "Time consecrates and what is
gray with age becomes religion". The passage of 150 years is being celebrated for such
achievements and not to remember alien rule. It is not the antiquity of British Sovereignty or
suzerainty over natives that calls for rejoicing but the growth of social development and
wider human approach through an effective Judicial System that deserves celebration.

15. This is not an astrological festival but it celebrates the true essentials of a judicial
journey and progress in law. It is a steady gain and not a painful loss. Harsh and brutal
systems generally give way to gentle ones.

16. Let us add that we are celebrating time refinement and exposition of law, better
than those of our erstwhile rulers. We should not turn our celebrations to recall the
unimportant part of history that dismays us.

17. Having said so, we would like to emphasize and advice the petitioner that it is true
that the right to reason and think is a natural right and a person has a right to think freely and
express himself which also includes a right to dissent or have an opposite opinion which
may be different and diverse. But at the same time, we would like to mention, what a
contemporary religious Philosopher Wayne W. Dyer has said -

"if you change the way you look at things The things you look at, change"

18. We, as Judges, when we judge others, we do not define them but we define
ourselves and the laws that we administer.

19. Having given a thoughtful consideration to the issue raised, we have been unable to
find any reasonable or rationale ground to entertain this Public Interest Litigation on the
issue of celebrations. The prayer made has therefore to be declined.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The second relief claimed by the petitioner is for a direction to the Government of
India to change the year of passing of different laws legislated by the British Parliament
after the advent of the Constitution. This entirely falls within the realm of legislative
function, as laws made by the Parliament and State Legislatures, even if require the change
of the year, would require a legislative process to be undergone. We cannot issue any such
direction to the Government and it is open to the petitioner to approach the Members of
Parliament and State Legislatures, if he so desires for any such amendment, which cannot be
directed by us to be performed by the Parliament or a State Legislature.

21. The petition having failed to stand the scrutiny of law in the extraordinary
jurisdiction of Article 226 of the Constitution of India, is hereby rejected with an earnest
request to all members of the legal fraternity, particularly those who have nurtured the High
Court with their toil and blood including the petitioner, to make the forthcoming events of
celebrations a memorable success notwithstanding their diverse opinions.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2016

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE RAGHVENDRA KUMAR, J.

First Appeal From Order No. - 2590 of 2015

M/S Sri Niwas Agarwal ...Appellant
Versus
G.M. Bharat Sanchar Nigam Ltd. ...Respondent

Counsel for the Appellant:
Suresh Chandra Verma, Devesh Kumar Verma

Arbitration Act, 1940 - Arbitration clause - Sole arbitrator - Authority of General Manager
(Telecom) or nominee only - Unilateral appointment by party impermissible - Section 9(b) not
applicable where agreement specifies sole arbitrator - Party cannot bypass agreed procedure -
Section 8 proceedings earlier dismissed; no jurisdiction thereafter - Any appointment made
unilaterally void ab initio. (Paras 8-11)

Jurisdiction, Maintainability --Arbitration Act, 1940 - Sections 8, 9 and 20 - Distinction - When
agreed procedure fails or is not invoked, proper remedy under Section 20, not self-appointment -
Court required to intervene for constitution of tribunal - Invocation of Section 34 of 1996 Act
misconceived but not fatal where foundation of appointment itself illegal - Lack of jurisdiction in
arbitrator goes to root; entire proceedings vitiated. (Paras 12-15)

Arbitration - Ex parte award - Arbitrator lacking authority - Award non est - Court below justified in
setting aside award - No waiver or acquiescence where jurisdictional defect persists - Illegality not
curable by participation - Arbitrator's appointment invalid → award automatically collapses. (Paras
16-17)