Wholly avoidable hurdles created by the department of the registry of the High Court dealing with the writ jurisdiction (civil) – Request for intervention.

Mathews J Nedumpara

President

National Lawyers Campaign For Judicial Transparency and Reforms, NLC

98205 35428

09.02.2024

To,

Hon’ble Mr. Justice S. V. Gangapurwala

The Chief Justice of the High Court of Judicature at Madras

May it please your Lordship,

Sub: Wholly avoidable hurdles created by the department of the registry of the High Court dealing with the writ jurisdiction (civil) – Request for intervention.

1. The Madras High Court being one of the oldest chartered high courts of this country, has all throughout been a role model to all high courts and has produced a galaxy of eminent lawyers and judges. Any outstation lawyer who visits the Madras High Court would only look with awe at the majesty, humility, citizen friendly approach and courtesy of the judges, lawyers and court staff. Hailing from the neighboring state of Kerala, I have had the good fortune to occasionally appear before the Madras High Court for over four decades.

2. Having said so, what pains and compels me to pen these few lines seeking your Lordship’s most kind and gracious consideration, is the indescribable difficulty my juniors and clients are having to face in filing a petition under Article 226 seeking benefits under the MSMED Act and the notifications issued thereunder. The prayers which I sought was primarily a declaration that no recovery action against an MSME can be initiated and continued without following mandate of the notification and a consequential writ in the nature of certiorari or certiorarified mandamus.

3. The aforesaid remedies in the nature of a declaration and writs in the nature of certiorari cannot be sought without  the Secretaries to the Ministries of MSME and Finance of the Government of India, Governor of the Reserve Bank of India, Chief Secretary to the Government of Tamil Nadu being brought on the party array. The Registry on a mistaken assumption that the protection which the President and Governors enjoy under Article 361 of the Constitution of India is applicable to the Governor of the Reserve Bank of India, insisted that the Governor be removed and be substituted by another officer of the Reserve Bank of India. For reasons difficult to be fathomed, even the Chief Secretary to the Government of Tamil Nadu was not allowed to be brought on the party array. The registry insisted that some other official of the Government of Tamil Nadu be arrayed.

4. Declaratory remedy is one which is sui generis in nature. With the Judicature Act of 1852, the Common law courts as well as the Chancery courts, both, were empowered to grant all sorts of remedies, declaratory, equitable and common law remedies. With the Judicature Act of 1873/1875, both streams of administration of justice came to be merged. The civil courts in India, following common law, granted common law, equitable and declaratory remedies. The chartered high courts before independence, and all high courts subsequent to the constitution coming into existence, had been granting various writ remedies in the nature of certiorari, prohibition, mandamus, etc. so too, declaratory remedies. The remedy of declaration and the remedies in the nature of writ are two different categories of remedies. Therefore, my first prayer was to declare that the Petitioner being an MSME entitled to the protection under the notification dated 29.5.2015 issued under the MSMED Act, no recovery proceedings shall be initiated or continued against him. The Registry wanted the prayer to be changed to “grant a writ of declaration to declare that…”

5. The notification referred above is a public document and it is part of the bare act. The Registry has insisted that the original notification ought to be produced. I have never faced such an obstruction before any of the High Courts and Supreme Court where the same notification has been produced.

6. For the purpose of filing the writ petitions, I had sent a junior of mine to Madras in the month of November, 2023. Even with the help of local lawyers, he could not execute the same. After spending almost a week on the job, he said in exasperation that it is easier for a camel to pass through the eye of a needle than to get a writ petition numbered.

7. As your Lordship may recollect, I had even mentioned the same before your Lordship. I met the Registrar, Judicial, who was sympathetic and considerate of the grievance which I put across.

8. I am sure your lordship would certainly be surprised to hear of the hardship a litigant and lawyer is made to face in just filing a writ petition, which ought to be much simpler task. Your lordship would, had the difficulty I have explained above been brought to your Lordship’s notice before, certainly have done everything possible to redress the grievance.

9.The simple solution is to follow the laudable system which is in practice in the Bombay High Court, which your lordship is quite familiar to. In the Bombay High Court, litigants faced with great calamities, nay, inequities, can move the court and plead that he/she may be heard in view of the extreme urgency, though the petition may not be finally numbered and the curing of defects is pending, the Registry not having scrutinised the petition.

I am sure your Lordship will not take my letter as an amiss, but with most gracious and sympathetic consideration.

With respectful regards,

Yours Sincerely,

MATHEWS J. NEDUMPARA