Bombay High Court
Lawyers\' Forum For General Utility & ... vs The State Of Maharashtra And Anr on 11 December, 2014
Author: A.S. Oka
Bench: A.S. Oka, G.S.Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10048 OF 2012
WRIT PETITION NO.1860 OF 2014
WRIT PETITION NO.8182 OF 2012
W.P. NO.10048 OF 2012
Lawyers' Forum for General Utility
& Litigating Public, Aurangabad,
Through its President.
ig .. Petitioner
Vs
1. The State of Maharashtra ,
2. The Hon'ble the Chief Justice,
3. The Hon'ble High Court of Bombay,
Through its Registrar. .. Respondents
-
Shri Satish B. Talekar, President of the Petitioner in person.
Shri V.S. Gokhale, AGP for the State.
Shri E.P. Bharucha, Senior Advocate along with Shri Arzan Balsara and
Shri Sanjay Udeshi i/by M/s. Sanjay Udeshi & Co for the Respondent
Nos.2 and 3.
--
W.P. NO.1860 OF 2014
Lawyers' Forum for General Utility
& Litigating Public, Aurangabad,
Through its President. .. Petitioner
Vs
1. The State of Maharashtra ,
2. The High Court of Bombay,
Through its Registrar General. .. Respondents
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-
Shri Satish B. Talekar, President of the Petitioner in person.
Shri V.S. Gokhale, AGP for the State.
Shri E.P. Bharucha, Senior Advocate along with Shri Arzan Balsara and
Shri Sanjay Udeshi i/by M/s.Sanjay Udeshi & Co for the Respondent
Nos.2 and 3.
--
W.P. NO.8182 OF 2012
Lawyers' Forum for General Utility
& Litigating Public, Aurangabad,
Through its President. .. Petitioner
Vs
1. The State of Maharashtra ,
2. The Hon'ble the Chief Justice,
3. The Hon'ble High Court of Bombay,
Through its Registrar. .. Respondents
-
Shri Satish B. Talekar, President of the Petitioner in person.
Shri V.S. Gokhale, AGP for the State.
Shri E.P. Bharucha, Senior Advocate along with Shri Arzan Balsara and
Shri Sanjay Udeshi i/by M/s.Sanjay Udeshi & Co for the Respondent
Nos.2 and 3.
-
CORAM : A.S. OKA & G.S.KULKARNI, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 12TH SEPTEMBER 2014
DATE ON WHICH WRITTEN SUBMISSIONS ARE
FILED BY THE PETITIONER : 19TH SEPTEMBER 2014
DATE ON WHICH JUDGMENT IS PRONOUNCED: 11TH DECEMBER 2014
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JUDGMENT ( PER A.S. OKA, J )
. An important issue is raised in these proceedings regarding the powers of the Chief Justice of this Court to transfer a matter pending before a Bench of this Court to its principal seat by exercising administrative powers vesting in him as the Master of Roster. Another important issue involved in these Petitions is as regards the legality and validity of the Proviso to Rule 2 of Chapter XXXI of the Bombay High Court (Appellate Side) Rules, 1960 (for short "the Appellate Side Rules"). This challenge is in Writ Petition No.1860 of 2014 (which is transferred from the Bench at Aurangabad). In Writ Petition No.8182 of 2012, the challenge is to the legality and validity of the general orders dated 24th February 1993 and 6th January 2010 issued under the directions of the Hon'ble the Chief Justice of this Court on the administrative side by which he directed that certain categories of matters pending at Panaji,Aurangabad and Nagpur Benches of this Court stand transferred to the principal seat of this Court at Mumbai.
The said orders have been passed in exercise of powers under Rules 1,2 and 3 of Chapter XXXI of the Appellate Side Rules. In Writ Petition No.8182 of 2012, the challenge is also to the order dated 26 th March 2012 passed by the Hon'ble Chief Justice by which, Writ Petition No.9207 of 2011 pending before the Bench at Aurangabad was ordered to be transferred to the Principal Seat at Mumbai. As far as Writ Petition No.10048 of 2012(which is transferred from the Bench at ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 4 wp-10048,1860n8182.12 Aurangabad) is concerned, the challenge is to the order dated 29 th June 2012 passed by the Hon'ble Chief Justice of the Bombay High Court transferring Contempt Petition No.277 of 2012 pending before the Bench at Aurangabad to the Principal Seat at Mumbai. The prayer is for issuing a writ for re-transfer the matter to the Bench at Aurangabad.
FACTS:
2.
Before we go to the other factual aspects, we must note here that Rule 2 of Chapter XXXI of the Bombay High Court Appellate Side Rules,1960 (for short "Appellate Side Rules") which is a subject matter of challenge, was added on the Rule Book on 7 th August 1986. It was published in the Gazette Notification dated 28 th August 1986.
Rules 1 to 3 were substituted by the said Notification. The challenge is essentially to the Proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules. The Rule 2 of Chapter XXXI of the Appellate Side Rules reads thus:-
"2. All appeals, applications, references and petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution arising in the Judicial Districts of Ahmednagar, Aurangabad, Beed, Jalgaon, Jalna, Nanded, Osmanabad, Parbhani and Latur which lie to the high Court at Bombay shall be presented to the Additional Registrar at Aurangabad and shall be disposed of by the Judges sitting at Aurangabad:::: Downloaded on - 11/12/2014 23:47:29 :::
ash 5 wp-10048,1860n8182.12 Provided that the Chief Justice may, in his discretion, order that any case or class of cases arising in any such District shall be heard at Bombay:
Provided further that the Chief Justice may, in his discretion, order that any case presented at Bombay be heard at Aurangabad."
The Rules 1 and 3 of the Chapter-XXXI are similar which apply to the matters filed at the Benches at Nagpur and Panaji (Goa).
3. The order dated 24th February 1993 has been issued under the directions of the Hon'ble Chief Justice in exercise of powers under aforesaid Rules 1 to 3 of Chapter XXXI of the Appellate Side Rules . By the said order, it was directed that all the proceedings pending at the Benches at Nagpur, Aurangabad and Panaji (Goa) and all the proceedings filed thereafter against the Hon'ble Chief Justice, this Court and its Officers or the District Judges by the Judicial Officers and Staff Members shall stand transferred to the Principal Seat at Mumbai. The order dated 6th January 2010 modifies the earlier order dated 24 th February 1993. Relevant part of the said order dated 6 th January 2010 reads thus:
"In exercise of the powers conferred by proviso to Rules 1, 2 and 3 of Chapter-XXXI of the Bombay High Court, Appellate Side Rules, 1960 ( reprint 1981) and in partial modification of the previous order dated 24 th February 1993 (No.P.1605/93) on the subject, the Hon'ble the Acting Chief Justice is pleased to direct that all Appeals, Applications, References and ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 6 wp-10048,1860n8182.12 Petitions, including petitions for exercise of powers under Article 226 and 227 of the Constitution of India which are pending, as well as hereinafter filed at the High Court Benches at Nagpur, Aurangabad and Panaji-Goa, against the Hon'ble the Chief Justice, High Court and it's Offices and the District and Sessions Judges, by the judicial Officers in the District and Sub- ordinate judiciary and private parties arising from Judicial Districts of:-
1. Akola, Amravati, Bhandara, Buldana, Chandrapur, Nagpur, Wardha, Yavatmal and Gadchiroli ( in the High Court Bench at Nagpur.)
2. Ahmednagar, Aurangabad, Beed, Dhule, Jalgaon, Jalna, Nanded, Osmanabad, Parbhani and Latur (in the High Court Bench at Aurangabad).
3. Panaji and Sought Goa (Margao) in the State of Goa (in the High Court Bench at Panaji-Goa).
Shall stand transferred to the High Court at Bombay for being heard and finally disposed of by the appropriate Bench."
The order further clarifies that the same will not apply to the cases where the judicial orders are challenged and the judicial officers who have passed the orders have been made formal parties. It also directs that in view of the modification of the order dated 24 th February 1993, the proceedings filed by the staff members of the High Court and the District and other Courts shall be re-transferred to the respective Benches.
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4. On 19th March 2012, a note was put up by the In-charge Registrar (Judicial-I) before the Hon'ble the Chief Justice seeking a direction as to whether Criminal Writ Petition No.78 of 2010 filed before the Bench at Aurangabad by the Principal District Judge, Jalna and others for getting an uninterrupted electricity supply to all Courts, should be continued before the Bench at Aurangabad or whether it should be placed at the Principal Seat at Mumbai by transfer from the Bench at Aurangabad. It was stated in the said Note that as the issue involved in the Petition concerns policy decision to provide infrastructure to the District Courts,whether the same should be placed at the Principal Seat at Mumbai. On the very date, an order was passed by the Hon'ble the Chief Justice transferring the said Petition to the Principal Seat at Mumbai. On 21 st March 2012, the In-charge Registrar (Judicial-I) submitted a note before Hon'ble the Chief Justice seeking a direction for transfer of the matters pending before the Benches at Aurangabad and Nagpur involving the issues regarding the infrastructure of the District Courts to the Principal Seat at Mumbai. A list of four cases pending before the Bench at Aurangabad and a list of five cases pending before the Bench at Nagpur were submitted along with the said note. The Hon'ble the Chief Justice by an order dated 22nd March 2012 ordered the transfer of four cases pending before the Bench at Aurangabad including the Writ Petition No.9207 of 2011 to the Principal Seat at Mumbai. Out of five matters pending before the ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 8 wp-10048,1860n8182.12 Bench at Nagpur, the Hon'ble Chief Justice directed that the four matters to be transferred to the Principal Seat at Mumbai. A Petition filed by the High Court Bar Association at Nagpur through its Secretary on the subject of maintenance and upkeep of the Nagpur Bench Building was not transferred and was retained at the Bench at Nagpur.
On 29th June 2012, the Registrar (Judicial) of the Bench at Aurangabad submitted a note before Hon'ble the Chief Justice seeking a direction for transfer of Contempt Petition No. 277 of 2012 arising out of Writ Petition No.9207 of 2011 to the Principal seat as the Writ Petition was already transferred as above. On the same day, Hon'ble the Chief Justice passed an order of transfer. These orders dated 22 nd March 2012 and 29th June 2012 are the subject matter of challenge before us.
5. The present three Petitions have been filed by the Lawyers' Forum for General Utility and Litigating Public, Aurangabad, through its President Shri S.B. Talekar, Advocate who has appeared in person.
WRIT PETITION NO.9207 OF 2011 AND CONTEMPT PETITION NO.277 OF 2012 AT AURANGABAD BENCH:
6. As far as Writ Petition No.9207 of 2011 filed at the Bench at Aurangabad is concerned, the same was filed by the Petitioner i.e. Lawyers' Forum for General Utility and Litigating Public. The subject matter of the said Writ Petition is establishing a National Law University ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 9 wp-10048,1860n8182.12 of Maharashtra. The case of the Petitioner is that the Hon'ble Chief Minister had decided to establish a National Law University at Aurangabad. The said decision was reiterated by the Council of Ministers of the Maharashtra Government on 26 th July 2009. The case is that the Council of Ministers had decided to promulgate an Ordinance for establishing the National Law University at Aurangabad.
However, on 8th September 2011, the Hon'ble Minister for Higher and Technical Education forwarded a proposal to establish the National Law University at Nagpur to the Central Government. Writ Petition No.9207 of 2011 was filed by the Petitioner seeking implementation of the decisions dated 3rd May 2007 and 26th July 2009.
7. On 31st November 2011, the said Writ Petition appeared before a Division Bench at Aurangabad when a notice on the Writ Petition was issued. Affidavits were filed in the said Writ Petition.
Affidavit-in- reply filed by the Deputy Director of Higher and Technical Education on 5th February 2012 contained a statement that the decision to set up National Law University at Aurangabad has been taken and acquisition of the land at Village Karodi will be made. It was stated that the Government is exploring possibility to make a temporary arrangement at Aurangabad for starting a National Law University. On 16th January 2012, the Deputy Director of Higher and Technical Education filed a reply to the said Petition stating that the State ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 10 wp-10048,1860n8182.12 Government has decided to establish a National Law University at Aurangabad and accordingly, a necessary bill would be presented in both the Houses of State Legislature in March 2012. As stated earlier, on 26th March 2012, an order was made by the Hon'ble the Chief Justice transferring the said Writ Petition No.9207 of 2011 to the Principal Seat at Mumbai.
8. A Contempt Petition being Contempt Petition No.277 of 2012 was filed by the Petitioner alleging breach of assurances given in the affidavits filed in the Writ Petition No.9207 of 2011. On 20 th June 2012, the said Contempt Petition came up before the learned Single Judge of this Court at the Bench at Aurangabad. The claim of the Petitioner is that the Contempt Petition was adjourned till 25 th June 2012 to enable the Government Pleader to seek instructions as to the date of establishment of the National Law University at Aurangabad.
According to the case of the Petitioner, on 25th June 2012, the Contempt Petition was adjourned to 2nd July 2012 with a clear understanding that the learned Government Pleader will positively make a statement on 2 nd July 2012 regarding the date of establishment of a National Law University at Aurangabad. As recorded earlier, on 29 th June 2012, a note was put up before the Hon'ble the Chief Justice by the Registrar (Judicial) at Aurangabad stating that the Writ Petition No.9207 of 2011 has been already transferred to the Principal Seat at Mumbai and, therefore, directions were sought as regards the Contempt Petition ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 11 wp-10048,1860n8182.12 No.277 of 2012. On 29th June 2012, the Hon'ble the Chief Justice passed an order transferring Contempt Petition No.277 of 2012 with a direction to place it before the same Bench which will hear Writ Petition No.9207 of 2011 which was already transferred to the Principal Seat at Mumbai.
SUBMISSIONS OF THE PETITIONER
9. Shri S.B. Talekar, the President of the Petitioner appearing in person has made detailed submissions. We must note here that he filed Written Submissions on 19th September 2014 in which he has stated that as an Officer of the Court, he was not desirous of pressing the allegations of mala fide against the Hon'ble the Chief Justice. His submission is that though the Hon'ble the Chief Justice enjoys the power to allocate business amongst the Judges or to fix a roster and transfer the matters from Benches to the Principal Seat at Mumbai, such powers cannot take away or override the power of judicial review conferred under Article 226 of the Constitution of India. He urged that the power to transfer the cases from Benches to the Principal Seat at Mumbai can be exercised in part-heard matters provided there was a justifiable or compelling reason. His submission is that the Bench at Aurangabad has been established to provide an easy access to justice to the litigants falling within its jurisdiction. His submission is that no attempt should be made to tinker with the judicial power of the review ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 12 wp-10048,1860n8182.12 conferred on the Judges sitting at Aurangabad by Article 226 of the Constitution of India in the garb of exercise of power of transfer by the Hon'ble the Chief Justice. He submitted that the power of judicial review under Article 226 of the Constitution of India and the independence of the judiciary are the facets of basic structure of the Constitution as held in the case of Kesavananda Bharat Sripadagalvaru v. State of Kerala1. While conceding that the Hon'ble the Chief Justice has power to transfer the cases from one Bench to another, he urged that it is necessary to consider the manner in which the said power is exercised in the present cases.
10. He invited our attention to Article 225 of the Constitution of India. He urged that the said provision does not confer a power on the High Courts to frame Rules to regulate its practice and procedure unlike Article 145 of the Constitution of India which confers the said powers on the Apex Court. He urged that Article 225 of the Constitution of India saves the existing power. Inviting our attention to the provisions of the Government of India Act, 1935 and the Government of India Act, 1915, he urged that what is saved by Article 225 of the Constitution of India is the power vested in the High Court under Section 108 of the Government of India Act, 1915 which is the power to frame Rules regarding allocation of business to the Single Judges or to a Bench consisting of more than one Judge. His 1 (1973)4 SCC 225 ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 13 wp-10048,1860n8182.12 submission is that the Rule making power exercised for framing the Appellate Side Rules was under Part X of the Code of Civil Procedure, 1908 ( for short "the said Code"). He submitted that in any event, the power to frame Rules contained in Chapter XXXI can be traced only to Part X of the said Code. He urged that the mandatory provisions in the said part X regarding referring the Rules to the Statutory Rules Committee and obtaining prior consent or approval of the Government have not been followed while issuing Gazette Notification dated 17 th August 1986 by which, a proviso was added to Rules 1, 2 and 3 of Chapter XXXI of the Appellate Side Rules.
11. He submitted that the information about the transfer of Writ Petition No.9207 of 2011 and Contempt Petition No.277 of 2011 was not provided to the Petitioner even under the Right to Information Act, 2005. He pointed out that only after these Petitions were partly heard, the copies of the orders of tranfer passed by the Hon'ble the Chief Justice have been made available. Inviting our attention to the order dated 22nd March 2012, he pointed out that a note prepared by the Registry was for a transfer of the Petitions involving the issues regarding infrastructure/ facilities to be provided to the District Courts.
He pointed out that in the list of four pending matters at the Bench at Aurangabad submitted to the Hon'ble the Chief Justice, only three matters were concerning the issue of infrastructure of the District ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 14 wp-10048,1860n8182.12 Courts. In the list of four matters, the subject matter of Writ Petition No.9207 of 2011 is mentioned as "to establish a National Law University at Aurangabad". He, therefore, submitted that the order of transfer may be a mere mistake or it may have been passed due to oversight. He pointed out that a Petition involving a similar issue regarding establishment of National Law University which is pending before the Bench at Nagpur was not included in the list submitted to the Hon'ble the Chief Justice and was not transferred. He pointed out that though an Application was made by the Petitioner on 3 rd April 2012, the mistake was not corrected.
12. He urged that the part-heard matters could not have been transferred without hearing the parties to the Petition. He urged that there were no justifiable reasons for transfer and in any case, no party to the Petitions had sought transfer.
13. He pointed out that even after the impugned order dated 24th February 1993 was issued, at least 266 cases have been decided at Aurangabad Bench in which either Hon'ble the Chief Justice or this Court were parties. He submitted that there was non-application of mind while passing the impugned orders of transfer. He urged that before passing the impugned orders of transfer by the Hon'ble the Chief Justice, a notice ought to have been given to all the concerned parties ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 15 wp-10048,1860n8182.12 by following the principles of natural justice. He urged that the orders of transfer are in violation of Article 14 of the Constitution of India. He submitted that a right to have an easy access to justice is an attribute of personal liberty granted under Article 21 of the Constitution of India and, therefore, the transfer of matters from the Bench at Aurangabad to the Principal Seat at Mumbai is in violation of Article 21 of the Constitution of India. He submitted that the doctrine of Nemo Debt Esse Judex In Propria Sua Causa was applicable as the Hon'ble the Chief Justice himself was a party to the proceedings which were transferred.
In the written submissions, it was pointed out that the Hon'ble the Chief Justice was averse to the idea of establishment of a National Law University at Aurangabad. He urged that the forum conveniens is applicable in the present case. He submitted that the Bench at Aurangabad has territorial jurisdiction to hear and decide both the matters which were transferred to the Principal Seat at Mumbai and, therefore, unless there were compelling reasons, the same could not have been transferred to the Principal Seat at Mumbai. He submitted that the orders passed by Division Benches at Aurangabad transferring certain Petitions are per incuriam as the orders could be passed only by the Hon'ble the Chief Justice.
14. The Petitioner appearing in person has relied upon several decisions in support of his submissions to which we are making a ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 16 wp-10048,1860n8182.12 reference in the subsequent part of the judgment. Lastly, he submitted that the Hon'ble Judges at Aurangabad Bench can very well deal with the proceedings to which the Hon'ble the Chief Justice of the Bombay High Court or the High Court is a party and there is no necessity of passing an order of transfer.
THE SUBMISSIONS ON BEHALF OF THE HIGH COURT ADMINISTRATION:
15. The learned Senior Counsel representing the High Court Administration submitted that the Hon'ble the Chief Justice is the master of roster and he has the power not only to assign the matters, but also to transfer and withdraw the matters. He submitted that the relevant decisions relied upon by the Petitioner will have no application inasmuch as when the Hon'ble the Chief Justice transfers the matters by an order of transfer made on the administrative side, service of notice to the parties to the proceedings and hearing them is not contemplated.
He urged that inherent power of this Court to frame Rules has been saved by Article 225 of the Constitution of India and the Rules which are impugned have been framed in exercise of that power. He relied upon Section 129 of the said Code. He urged that the Section starts with a non-obstante clause. He urged that a Writ Petition filed on the Appellate Side as well as a Contempt Petition are original proceedings and, therefore, the Appellate Side Rules are within the purview of ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 17 wp-10048,1860n8182.12 Section 129 of the said Code. He submitted that the procedure contemplated by Sections 121 to 129 is required to be followed only when the Rules under the first Schedule of the said Code are sought to be altered and added to. He invited our attention to Section 41 of the Bombay Reorganisation Act, 1960 and Section 51 of the States Reorganisation Act, 1956. He urged that the powers of the Hon'ble the Chief Justice to transfer the cases flows from the said two provisions.
16. He urged that there has been a long standing practice followed for nearly 54 years of not obtaining the State Government's approval while amending the Appellate Side Rules. He urged that in the cases in which the order of transfer was passed, High Court was a party and therefore, the forum conveniens is Mumbai as the papers of the proceedings are available at the Principal Seat at Mumbai. The learned Senior Counsel also relied upon various decisions to which a reference is made in the subsequent part of the judgment. Lastly, the learned counsel submitted that there is no merit in the challenge of the orders of transfer and the Petitions deserve to be dismissed.
THE NATURE OF THE RULE MAKING POWER EXERCISED WHILE FRAMING THE IMPUGNED RULES:
17. The first question is of the nature of Rule making power exercised while incorporating the Rules 1 to 3 in Chapter XXXI of the Appellate Side Rules. The said Rules were incorporated by the ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 18 wp-10048,1860n8182.12 Notification dated 7th August 1986 published in the Maharashtra Government Gazettee dated 20th August 1986. As noted earlier, the challenge by the Petitioner is to the first Proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules. These three Rules deal with filing of Appeals, Applications, References and Petitions including the Petitions under Articles 226 and 227 of the Constitution of India in the judicial Districts which are attached to the Benches of this Court at Nagpur, Aurangabad and Goa. We must hasten to add here that after coming into force of the Goa,Daman and Diu Reorganization Act, 1987 the Bench at Goa ceased to be a Bench of the Principal Seat at Mumbai in that sense that the High Court of Judicature at Bombay has become a common High Court for the States of Maharashtra and Goa. The contention of the Petitioner is that the Rule making power for framing the said Rules on 7th August 1987 has been exercised under Section 122 of the said Code. The contention of the High Court Administration is that the Rule making power is exercised under Article 225 of the Constitution of India. It will be necessary to make a reference to the Rule making power conferred on the High Court by Chapter X of the said Code. The Sections 121 to 131 of the said Code read thus:
121. Effect of Rules in First Schedule.-
The Rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.
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122. Power of certain High Courts to make Rules--
High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make Rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may be such Rules annul, alter or add to all or any of the Rules in the First Schedule.
123. Constitution of Rule Committees in certain States-
(1) A committee to be called the Rule Committee, shall be constituted at the town which is the usual place of sitting of each of the High Courts referred to in section 122.
(2) Each such Committee shall consist of the following persons, namely--
(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or a Divisional Judge for three years,
(b) two legal practitioners enrolled in that Court
(c) a Judge of a Civil Court subordinate to the High Court (3) The members of each such Committee shall be appointed by the [High Court], which shall also nominate one of their number to be President :
(4) Each member of any such Committee shall hold office for such period as may be prescribed by the [High Court] in this behalf; and whenever any member retires, resigns, dies or ceases to reside ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 20 wp-10048,1860n8182.12 in the State in which the Committee was constituted or becomes incapable of acting as a member of the Committee, the said [High Court] may appoint another person to be a member in his stead.
(5) There shall be a secretary to each such Committee who shall be appointed by the [High Court] and shall receiver such remuneration as may be provided in this behalf by the State Government.
124. Committee to report to High Court.-- Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the Rules in the First Schedule or to make new Rules, and before making any Rules under section 122 the High Court shall take such report into consideration.
125. Power of other High Courts to make Rules-- High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions as the State government may determine:
Provided that any such High Court may, after previous publication, make a Rule extending within the local limits of its jurisdiction any Rules which have been made by any other High Court.
126. Rules to be subject to approval-- Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the Rules regulate is situate or, if that Court is not situate in any State, to the previous approval of Central Government.
127. Publication of Rules-- Rules so made and approved shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 21 wp-10048,1860n8182.12 same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.
128. Matters for which Rules may provide.-
(1) Such Rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.
(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such Rules may provide for all or any of the following matters, namely:-
(a) the service of summonses, notices and other ig processes by post or in any other manner either generally or in any specified areas, and the proof of such service;
(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property, and the proceeds of such sale;
(c) procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction;
(d) procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts;
(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;
(f) summary procedure-
(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-
on a contract express or implied; or on an enactment where the sum sought to be recovered is a fixed ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 22 wp-10048,1860n8182.12 sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only;
or on a trust; or
(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-
payment of rent, or against persons ig claiming under such tenant;
(g) procedure by way of originating summons;
(h) consolidation of suits, appeals and other proceedings;
(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties;
and
(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil] Courts.
129. Power of High Courts to make Rules as to their original civil procedure.-
Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.
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18. The power conferred by Section 122 is in two parts. It is a power conferred on the High Courts to make Rules regulating their own procedure and the procedure of Civil Courts subject to their superintendence. The second part of the said Section 122 confers the power to annul, alter or add to all or any of the Rules in the first schedule to the said Code. Even the said power has to be exercised by making Rules. Thus, Section 122 confers the power to amend the Rules in the first schedule to the said Code and to add to the said Rules.
It also confers the power on the High Courts to make Rules regulating the procedure applicable to them and to the Civil Courts under the superintendence of High Courts.
19. Section 123 of the said Code provides for a Committee to be constituted at the town which is usually the place of sitting of each of the High Courts referred to in Section 122. Section 122 excludes the Court of a Judicial Commissioner. Section 124 provides that every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the Rules in the First Schedule or to make new Rules. Thus, a proposal to annul, alter or add to the Rules in the First Schedule or a proposal to frame new Rules as contemplated by Section 122 is required to be placed before the Statutory Rule Committee and before making any Rules under Section 122, the High Court shall take such a report into ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 24 wp-10048,1860n8182.12 consideration. Section 125 will not have any application to this Court as it applies to the High Courts other than the Courts specified in Section 122. Section 126 provides that the Rule making in exercise of powers under foregoing provisions of Part X shall be subject to the previous approval of the Government of the State in which the Courts whose procedure the Rules regulate is situate. Section 127 provides for publication of approved Rules in the official gazette.
20. A submission was made on behalf of the High Court Administration that only to the Rules made by the High Court in exercise of powers under Section 122 of the said Code for annulling, altering or adding to all or any of the Rules in the First Schedule that the provisions of Section 124 and the provision of prior approval of the Government of the State under Section 126 will apply. On plain reading of Section 124 of the said Code, it is apparent that it applies to every category of the Rule making power under Section 122. Section 126 applies to the Rules made under the foregoing provisions viz. the Rules made under Sections 122 and 125 of the said Code. Therefore, the argument needs to be rejected at the outset.
21. The other argument of the High Court Administration was that the Applications/Petitions under Articles 226 and 227 of the Constitution of India are also the original proceedings and, therefore, ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 25 wp-10048,1860n8182.12 the Rules 1 to 3 of Chapter XXXI of the Appellate Side Rules in so far as the Applications/Petitions under Articles 226 and 227 of the Constitution of India are concerned, will be governed by Section 129 of the said Code and, therefore, none of the provisions of Sections 122 to 127 of the said Code will apply to such Rules. We must note here that the Rule 2 of the Chapter-XXXI also deals with Appeal and applications and not only the Applications/Petitions under Articles 226 and 227 of the Constitution of India. On a plain reading of Section 129 of the said Code, it is clear that the same is applicable to the Rules which are sought to be framed to regulate the own procedure of a High Court in exercise of its Original Civil Jurisdiction. The Section applies to Original Civil Jurisdiction and not to Original Jurisdiction. Original Civil Jurisdiction is the Jurisdiction exercised as a Civil Court of original jurisdiction. Thus, by no stretch of imagination, the Applications/ Petitions under Articles 226 and 227 of the Constitution of India are part of the Original Civil Jurisdiction. Therefore, Rule 2 of Chapter-XXXI is not framed in exercise of the powers under Section 129 of the said Code.
22. Another issue which arises for consideration is about the nature of the Rule making power exercised for framing the said Rules 1 to 3 of Chapter-XXXI in the context of the contention of the High Court Administration that the Rule making power under Article 225 of the ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 26 wp-10048,1860n8182.12 Constitution of India has been exercised for framing the said Rules 1 to 3. If the said contention is not accepted, it follows that the Rule 2 which is the subject matter of challenge, will be governed by Sections 124 and 126 of the said Code. Admittedly, the mandatory procedure under Section 126 of seeking previous approval of the State Government has not been followed while framing the Rules 1 to 3 as is clear from the written submissions of the High Court Administration.
The provision of the Section 126 is mandatory in nature.
23. Therefore, it is necessary to make a reference to Article 225 of the Constitution of India which reads thus:-
"225. Jurisdiction of existing High Courts.--
Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make Rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
2[Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 27 wp-10048,1860n8182.12 of this Constitution shall no longer apply to the exercise of such jurisdiction.]"
(emphasis added )
24. Article 225 saves the Rule making power of the High Courts to make Rules of the Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts which existed before the commencement of the Constitution. Article 225 by itself does not confer a Rule making power on the High Courts. It only saves the existing Rule making power before the commencement of the Constitution. Therefore, it will be necessary to ascertain what was the pre-existing Rule making power on the date of commencement of the Constitution. We may make a useful reference to the provisions of the Indian High Court Act, 1861(for short "the said Act of 1861"). This Act is also known as Charter Act which provided for establishing three chartered High Courts including this Court. Sections 13 and 14 of the said Act of 1861 read thus:
"13. Power to High Courts to provide for Exercise of Jurisdiction by Single Judges or Division Courts--
Subject to any Laws or Regulations which may be made by the Governor-General-in-Council the High Court established in any Presidency under this Act may by its own Rules provide for the Exercise, by one or more Judges, or by Division Courts constituted by two or more Judges, of the said High Court, of the original and appellate Jurisdiction vested in such Court, in such Manner as may appear to such Court to be convenient for the due Administration of Justice.::: Downloaded on - 11/12/2014 23:47:29 :::
ash 28 wp-10048,1860n8182.12
14. Chief Justice to determine what Judges shall sit alone or in the Division Courts.-
The Chief Justice of each High Court shall from Time to Time determine what Judge in each case shall sit alone, and what Judges of the Courts, whether with or without the Chief Justice, shall constitute the several Division Courts as aforesaid."
(emphasis supplied)
25. Relevant part of Clause 36 of the Letters Patent establishing this Court reads thus:-
"36. Single Judges and Division Courts.--And we do hereby declare that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of Section One hundred and eight of the Government of India Act, 1915 ...."
26. Therefore, it is necessary to make a reference to the provisions of the Government of India Act, 1915. Section 108 is the only section which deals with the Rule making power of the High Courts which reads thus:
"108. Exercise of jurisdiction by single judges or division courts.--
(1) Each High Court may by its own Rules provide, as it thinks fit, for the exercise, by one or more judges, or by division courts ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 29 wp-10048,1860n8182.12 constituted by two or more judges, of the High Court, of the original and appellate jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice, are to constitute the several division courts."
(emphasis supplied)
27. Then comes the Government of India Act,1935 (for short "the said Act of 1935"). The only section which deals with the Rule making power of this Court is Section 223 which reads thus:
"223. Jurisdiction of existing High Courts.--Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate legislature enacted by virtue of powers conferred on that legislature by this Act, the jurisdiction of and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make Rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act."
( emphasis supplied)
28. Thus, Section 223 of the said Act of 1935 does not confer any Rule making power. It only saves the existing Rule making power.
On conjoint reading of Section 13 of the said Act of 1861, Clause 36 of ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 30 wp-10048,1860n8182.12 the Letters Patent, Section 108 of the said Act of 1915 and Section 223 of the said Act of 1935, the Rule making power which is saved by Article 225 of the Constitution is the one under Sub-section (1) of Section 108 of the said Act of 1915. The Power of a High Court under Section 108 is a limited to power of framing Rules to provide for exercise of its Original and Appellate Jurisdiction by one or more Judges or by Division Courts constituted by two or more Judges of the High Court. In the case of National Sewing Thread Co. Ltd. v. James Chadwick and Bros, Ltd.,2 the Apex Court held in paragraph 8 which reads thus:
".....Section 108 of the Government of India Act, 1915, provides:
"Each High Court may by its own Rules provide as it thinks fit for the exercise, by one or more Judges, or by division courts constituted by two or more Judges of the High Court, of the original and appellate jurisdiction vested in the Court."
The section is an enabling enactment and confers power on the High Courts of making Rules for the exercise of their jurisdiction by Single Judges or division courts. The power conferred by the section is not circumscribed in any manner whatever and the nature of the power is such that it had to be conferred by the use of words of the widest amplitude. There could be no particular purpose or object while conferring the power in limiting it qua the jurisdiction already possessed by the High Court, when in the other provisions of the Government of India Act it was contemplated that the existing jurisdiction was subject to the legislative power of the Governor-General and the jurisdiction conferred on the High Court was liable 2 1953 SCR 1028 ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 31 wp-10048,1860n8182.12 to be enlarged, modified and curtailed by the legislature from time to time.
It is thus difficult to accept the argument that the power vested in the High Court under sub-section (1) of Section 108 was a limited one, and could only be exercised in respect to such jurisdiction as the High Court possessed on the date when the Act of 1915 came into force. The words of the sub-section "vested in the court" cannot be read as meaning "now vested in the court". It is a well-known Rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary intention appears. This Rule has been given statutory recognition in Section 32 of the Interpretation Act. The purpose of the reference to Section 108 in clause 15 of the Letters Patent was to incorporate that power in the charter of the Court itself, and not to make it moribund at that stage and make it rigid and inflexible. We are therefore of the opinion that Section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation."
(emphasis added) In paragraph 9, the Apex Court observed thus:
".....This objection also in our opinion is not well founded as it overlooks the fact that the power that was conferred on the High Court by Section 108 still subsists, and it has not been affected in any manner whatever either by the Government of India Act, 1935, or by the new Constitution. On the other hand it has been kept alive and reaffirmed with great vigour by these statutes. The High Courts still enjoy the same unfettered power as they enjoyed under Section 108 of the Government of India Act, 1915, of making Rules and providing whether an appeal has to be heard by one Judge or more Judges or by ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 32 wp-10048,1860n8182.12 Division Courts consisting of two or more Judges of the High Court.
It is immaterial by what label or nomenclature that power is described in the different statutes or in the Letters Patent. The power is there and continues to be there and can be exercised in the same manner as it could be exercised when it was originally conferred. As a matter of history the power was not conferred for the first time by Section 108 of the Government of India Act, 1915. It had already been conferred by Section 13 of the Indian High Courts Act of 1861."
(emphasis added)
29. A full bench of this Court in its decision in the case of State of Maharashtra v. Kusum3, observed thus in paragraph 89:
"Since Article 225 of the Constitution preserves the power of the High Court to make Rules and to regulate the sittings of the Court not only in respect of the existing jurisdictions but also in respect of other jurisdictions and powers which the Constitution has conferred upon it, there can be no scope for reading by implication into Article 226 or 227 any Rule-making power. Such an interpretation would be contrary to the well-established principle of interpretation, namely, expressio unius est exclusio alterius, (the express mention of one person or thing is the exclusion of another). When the power to make Rules is expressly conferred by Article 225 of the Constitution, no necessity whatever arises to seek for any implied power in that behalf in Article 226 or
227."
(emphasis added)
30. The learned Senior Counsel for the High Court relied upon the following observations of the Apex Court in the case of Kailash v.
Nanhku4 :
3 1981 Mah. LJ 93 4 (2005) 4 SCC 480 ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 33 wp-10048,1860n8182.12 "..However, the High Court is not entirely powerless in the matter of framing the rules of procedure. Article 225 of the Constitution confers powers on the High Court, inter alia, to make rules of court for the purpose of hearing, trying and deciding any matter lying within the jurisdiction of the High Court. The High Court can thus frame rules of procedure regarding the trial of election petitions under Article 225 of the Constitution. This source of power emanates from the Constitution and is, therefore, very potent. Section 129 CPC is another source of power of the High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction. This will include election petitions also as they are tried in the original civil jurisdiction of the High Court."
31. However, this decision does not specifically deal with the nature of the Rule making power saved by Article 225. This issue has been specifically dealt with in the earlier decision of a Co-ordinate Bench of the Apex Court in the case of National Saving Thread Co. Ltd.
which we have quoted above and also by another decision of a Co-
ordinate Bench of the Apex Court in the case of High Court of Judicature at Allahabad v. Raj Kishore Yadav5. The Apex Court held thus:
9. Article 216 deals with "Constitution of High Courts" and lays down that "every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint". Therefore, the High Court as a court of record would consist of a Chief Justice and other Judges who are appointed to the said court by the President from time to time. Article 225 deals with "Jurisdiction of existing High Courts" meaning thereby which were in existence at the time when the 5 (1997) 3 SCC 11 ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 34 wp-10048,1860n8182.12 Constitution of India came into force. The High Court of Allahabad is one such High Court. Therefore, its jurisdiction gets validly traced to Article 225. The said article provides as under:
"225. Jurisdiction of existing High Courts.--
Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction."
Prior to the advent of the Constitution the then existing High Courts were having jurisdiction emanating from Section 223 of the Government of India Act, 1935 which read as under:
"223. Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any order made under the Indian Independence Act, 1947, and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law ::: Downloaded on - 11/12/2014 23:47:29 ::: ash 35 wp-10048,1860n8182.12 administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the establishment of the Dominion.
226.(1) Until otherwise provided by Act of the appropriate Legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force."
As Section 223 of the Government of India Act, 1935 in its turn referred to the powers of the High Courts as were being exercised by them immediately before the establishment of the Dominion under the said Act of 1935, reference to yet earlier Government of India Act of 1915 especially Section 108 thereof becomes relevant. Section 108 of the Government of India Act, 1915 which regulated the administration of justice by the High Courts concerned prior to the establishment of Dominion read as under:
"108. (1) Each High Court may by its own rules provide, as it thinks fit, for the exercise, by one or more Judges, or by division courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the court.
(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the court, whether with or without the Chief Justice, are to constitute the several division courts."::: Downloaded on - 11/12/2014 23:47:29 :::
ash 36 wp-10048,1860n8182.12 Thus, a conjoint reading of Section 108 of the Government of India Act, 1915, Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India makes it clear that every High Court by its own rules can provide for exercise of its jurisdiction, original or appellate, by one or more Judges or by division courts consisting of two or more Judges of the High Courts and it is for the Chief Justice of each High Court to determine what Judge in each case is to sit alone or what Judges of the court whether with or without the Chief Justice are to constitute several division courts. In exercise of the aforesaid rule-
making power which inhered in all existing High Courts at the time of the advent of the Constitution of India and which was expressly saved by Article 225 of the Constitution of India, the Full Court of the High Court had framed these Rules in 1952. The impugned Rule is one of those Rules. Pursuant to the said Rule the learned Chief Justice was entitled to nominate a learned Single Judge to decide civil contempt cases arising under the Contempt of Courts Act, 1971. The aforesaid Rule, therefore, clearly falls in line with the constitutional scheme in connection with the exercise of jurisdiction of the High Court as seen earlier. Consequently it cannot be said that by enacting the impugned rule the High Court on its administrative side had encroached upon any forbidden field. The scheme of the aforesaid provisions was examined by this Court in the case of National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd. In that case a Bench of three learned Judges speaking through Mahajan, J., had to consider the question whether an order passed by a learned Single Judge of the High Court under the Trade Marks Act, 1940 could be appealed against under clause 15 of the letters patent of the Bombay High Court. It was submitted amongst others that such an appeal would not lie as clause 15 of the letters patent applicable to Bombay High Court permitted appeal from the order of a learned Single Judge delivered pursuant to Section 108, Government of India Act, 1915 which no longer survived after the advent of the Constitution of India. Repelling the said contention the following pertinent observations were made in para 9 of the Report:
::: Downloaded on - 11/12/2014 23:47:30 :::ash 37 wp-10048,1860n8182.12 "It was argued that simultaneously with the repeal of Section 108, Government of India Act, 1915 and of the enactment of its provisions in Section 223, Government of India Act of 1935 and later on in Article 225 of the Constitution of India, there had not been any corresponding amendment of clause 15 of the letters patent and the reference to Section 108 in clause 15 of the letters patent could not therefore be taken as relating to these provisions, and that being so, the High Court had no power to make rules in 1940 when the Trade Marks Act was enacted under the repealed section and the decision of Mr Justice Shah therefore could not be said to have been given pursuant to Section 108. This objection also in our opinion is not well founded as it overlooks the fact that the power that was conferred on the High Court by Section 108 still subsists, and it has not been affected in any manner whatever either by the Government of India Act, 1935 or by the new Constitution. On the other hand it has been kept alive and reaffirmed with great vigour by these statutes.
The High Courts still enjoy the same unfettered power as they enjoyed under Section 108 of the Government of India Act, 1915 of making rules and providing whether an appeal has to be heard by one Judge or more Judges or by Division Courts consisting of two or more Judges of the High Court."
Thus enactment of the impugned Rule squarely falls within the administrative power of the High Court well preserved by the aforesaid provisions."
(emphasis added)
32. Thus, the aforesaid decision of the Apex Court in the case of the High Court of Judicature at Allahabad lays down the scope and extent of the Rule making power saved by Article 225 of the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 38 wp-10048,1860n8182.12 Constitution. Hence to conclude, the power of the existing High Courts saved by Article 225 of the Constitution is the Power to make Rules providing for "exercise of its jurisdiction, original or appellate, by one or more Judges or by division courts consisting of two or more Judges of the High Court" not only in respect of the existing jurisdictions but also in respect of other jurisdictions and powers which the Constitution has conferred upon it. Article 225 does not save or confer power to frame Rules dealing with filing of matters at Benches and transfer of matters from the Benches to the principal seat at Mumbai. The said Rule making power is available only under Section 122 of the said Code.
THE SOURCE OF RULE MAKING POWER EXERCISED FOR FRAMING RULE 2 OF CHAPTER XXXI
33. In the Petitions in hand, the challenge is to the validity of the first and second proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules. Rules 1, 2 and 3 of the said Chapter deal with filing of the cases at the Benches at Aurangabad, Nagpur and Panaji (Goa) respectively. What is challenged is only the first and second proviso to Rule 2. The first proviso empowers Hon'ble the Chief Justice to order that any matter which is required to be filed at the Bench at Aurangabad shall be heard at the Principal Seat at Mumbai. The power to make such a Rule cannot be traced to Section 108 of the said Act of 1915. It can be said that the Rules in Chapter I which deal with the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 39 wp-10048,1860n8182.12 jurisdiction of Single Judges and Benches of this Court could be framed in exercise of Rule making power saved by Article 225 of the Constitution of India. The power exercised for framing Rule 2 is obviously under Section 122 of the said Code. Therefore, in absence of compliance with Section 126 which requires previous approval of the State Government, the first and second proviso to Rule 2 of the Appellate Side Rules cannot be valid in law as the same are ultra vires the provisions of Section 126 of the said Code in as much as it is conceded in the written submissions that there is no previous approval obtained under Section 126 of the said Code. As far of breach of Section 123 is concerned, it will be unfair to expect the High Court administration to trace out the record of the proceeding of Rule Committee after 27 years for ascertaining whether compliance was made with the requirement of Section 123 of the said Code. Therefore, we are not recording any finding on this aspect.
34. It is well settled law that the Hon'ble the Chief Justice of a High Court is always the master of roster. It is the prerogative of the Hon'ble the Chief Justice to allocate the judicial work to the Judges of the Court. Hon'ble the Chief Justice decides which Judge shall sit Single and which Judge shall sit in a Division Bench. A Judge or a Bench of the High Court can take up any particular case provided it is assigned by the Hon'ble the Chief Justice. It is axiomatic that when the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 40 wp-10048,1860n8182.12 Hon'ble the Chief Justice has power to allocate judicial work to the Judges and different Benches, he has a power to withdraw the matters assigned to the Judges or Benches. The said power is implicit as the Hon'ble the Chief Justice is the master of roster. Therefore, the power to transfer the matters filed at the Benches to the Principal Seat at Mumbai and vice versa always vests in the Hon'ble the Chief Justice.
Hon'ble the Chief Justice of this Court in exercise of his power as the master of roster can always direct that a particular category of cases pending before its Benches at Nagpur, Aurangabad and Goa shall be heard at the Principal seat. This Power can be exercised even in relation to the cases which are partly heard at Benches. Similarly, Hon'ble the Chief Justice of this Court in exercise of his power as the master of roster can always direct that a particular category of cases which ought to be filed before its Benches at Nagpur, Aurangabad and Goa shall be filed and heard at the Principal seat. Therefore, even if the first and second proviso to Rules 1, 2 and 3 of Chapter XXXI of the Appellate Side Rules do not exist on the Rule Book, the Hon'ble the Chief Justice always has the power which is sought to be conferred by the first and second proviso to the aforesaid Rules. Therefore, even if we have come to the conclusion that the first and second proviso to Rule 2 of the Appellate Side Rules are not valid, Hon'ble the Chief Justice always retains the power which is merely reiterated by the said proviso.
::: Downloaded on - 11/12/2014 23:47:30 :::ash 41 wp-10048,1860n8182.12
35. The Petitioner appearing in person is right when he contends that the Benches at Nagpur, Aurangabad and Panaji (Goa) are not inferior or sub-ordinate to the Principal Seat at Mumbai. But we must note that the Judge occupying the august office of the Chief Justice always exercises his prerogative in the larger interests of administration of Justice. The prerogative power of transfer of cases or a class of cases from Benches to the Principal Seat is conducive to the larger interests of administration of justice. The contention on behalf of the Petitioner that exercise of such power by the Hon'ble the Chief Justice would defeat the very object of setting up a Bench at Aurangabad cannot be countenanced.
THE LEGALITY AND VALIDITY OF THE ORDERS DATED 24TH FEBRUARY 1993 AND 6TH JANUARY 2010:
36. The Hon'ble the Chief Justice has issued orders which are impugned in these Petitions which lay down that the Petitions filed by the Judicial Officers at Benches to which the High Court or the Hon'ble the Chief Justice is a party should be transferred to the Principal Seat at Mumbai. Considering the fact that the Hon'ble the Chief Justice is the master of roster, he is well within the power to issue the orders of transfer of a class of cases even in absence of power conferred by the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 42 wp-10048,1860n8182.12 proviso to Rules 1, 2 and 3 of Chapter XXXI. The Registry cannot justify the circulars on the ground that the record of the cases against this Court is available at the Principal Seat at Mumbai. By that logic, all the Writ Petitions filed at the Benches challenging the orders or decisions of the State of Maharashtra will have to be transfered to the Principal Seat at Mumbai. We see no reason to disturb the orders passed by the Hon'ble the Chief Justice dated 24th February 1993 and 6th January 2010 which are impugned in these Petitions. These orders cannot be stricto sensu justified as the orders made in exercise of powers under the Appellate Side Rules as in exercise of the powers as the master of roster, the Hon'ble the Chief Justice can always issue such orders. As the Hon'ble the Chief Justice could have always issued the impugned orders as the Master of Roster, it is not necessary to set aside the said orders.
37. It is obvious that the said orders have not been made for treating the Benches as sub-ordinate or inferior to the Principal Seat at Mumbai. All the Judges of this Court whether they sit at Principal Seat or Benches exercise the same jurisdiction subject to the exercise of the power of allocation of work by the Hon'ble the Chief Justice. The Petitioner appearing in person may be right in expressing a sentiment that a Bench at Aurangabad has been established to cater the need of the litigants of Marathwada Region and, therefore, it should be ensured that the litigants of Marathwada Region should have a forum available ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 43 wp-10048,1860n8182.12 at Aurangabad. The orders which are impugned do not defeat the very object of establishing the Bench at Aurangabad. We are sure that Hon'ble the Chief Justice will never allow the object to be defeated.
WHETHER THE HON'BLE CHIEF JUSTICE WAS BOUND TO FOLLOW THE PRINCIPLES OF NATURAL JUSTICE WHILE PASSING IMPUGNED ORDERS OF TRANSFER:
38. Now the other issue which survives for consideration is whether the Hon'ble the Chief Justice in exercise of his powers as the master of roster can transfer a pending proceeding before one Bench to another without notice to the parties to the proceedings and without hearing them. The question is when the Hon'ble the Chief Justice transfers the pending matters on the administrative ground, whether he is bound to hear the parties to the matters.
39. A distinction has to be made between a transfer sought to be made on the prayer made by the parties to the proceedings on the grounds which are not administrative in nature and a transfer sought to be made by the Hon'ble the Chief Justice on the administrative grounds.
The second category will also include the cases where concerned Benches opine that the matters pending at different Benches need to be clubbed together and to be heard by one and the same Bench. As far as the first category is concerned, the transfers are normally sought on the ground of convenience of the parties to the litigations or on the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 44 wp-10048,1860n8182.12 ground that a party to the litigation is of the view that the matter should not be heard by a particular Judge or by a particular Division Bench. In the first category of cases, it is obvious that the Hon'ble the Chief Justice will have to hear the contesting parties before passing an order of transfer. As far as the second category is concerned, when the Hon'ble the Chief Justice transfers the cases on administrative grounds, he exercises his plenary power being the master of roster.
40. The Petitioner appearing in person has relied upon a large number of decisions in support of his contention that even in cases of administrative actions when civil rights of the parties are affected, the principles of natural justice will have to be followed. We need not reproduce the well settled law on the subject in catena of decisions relied upon by the Petitioner. We do not see as to how the principles of natural justice will apply to the exercise of prerogative powers of the Hon'ble the Chief Justice as the master of roster. Therefore, the contention that the principles of natural justice will have to be followed by the Hon'ble the Chief Justice while exercising such powers deserves to be rejected.
41. The Petitioner appearing in person relied upon a decision of the Apex Court in the case of Manju Varma (Dr.) v. State of U.P. And ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 45 wp-10048,1860n8182.12 Others6. Relying upon the said decision, he urged that the Hon'ble the Chief Justice ought to have given hearing to the parties before passing an order of transfer especially when both the Writ Petition No.9207 of 2011 and the Contempt Petition No.277 of 2012 were partly heard.
42. Before we deal with the aforesaid submissions, we must note here that both the Writ Petition and the Contempt Petition were pending at the pre-admission stage and there were no orders passed by the concerned Benches recording that the matters deserved to be treated as part-heard. In fact, in both the matters, there were no specific orders on merits even on consideration of prima facie case.
43. In the case of Manju Varma (Dr.), an order was passed by the Hon'ble the Chief Justice of Allahabad High Court transferring a Petition from Lucknow Bench to the main seat at Allahabad for hearing.
A Special Leave Petition filed for challenging the said order was opposed by the Respondent by contending that the same was not maintainable as there was no order passed by a Court or a Tribunal.
The argument before the Apex Court was that the power exercised by the Hon'ble the Chief Justice for passing an order of transfer was under
Clause 14 of the 1948 Order and that the said power was akin to the power conferred by Section 24 of the said Code. The Petitioner 6 (2005)1 SCC 73 ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 46 wp-10048,1860n8182.12 appearing in person has placed reliance on this decision as the Apex Court was dealing with the interpretation of the proviso to Clause 14 of the 1948 Order which reads thus:
"14. The new High Court, and the Judges and Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint:
Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit a Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:
Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad".
44. It will be necessary to make a reference to the Paragraph 15 of the said decision, In Paragraph 15 of the decision in the case of Manju Varma (Dr.), the Apex Court observed thus:-
"15. There was nothing executive in the procedure followed in this case. The respondent had applied to the Chief Justice under para 14 for a transfer of the appellant's writ petition from Lucknow to Allahabad. The Chief Justice heard the parties and by a detailed and reasoned order directed such transfer. There can in the circumstances be no doubt that the order of the Chief Justice was, if not judicial, at least quasi- judicial."::: Downloaded on - 11/12/2014 23:47:30 :::
ash 47 wp-10048,1860n8182.12 In Paragraph 19, the Apex Court held thus:-
"19. He was, therefore, acting as an adjudicating body empowered by the Constitution to discharge judicial functions. We would accordingly hold that the Chief Justice while exercising jurisdiction under para 14 of the 1948 Order, acts as a judicial authority with all the attributes of a Court and his order is, therefore, amenable to correction under Article 136."
45. Thus, it is clear that the Apex Court was dealing with a case where a regular Application for transfer of a case from Lucknow Bench to Allahabad was made to which an objection was raised by the Petitioner before the Apex Court. The Apex Court in the context of the fact that the Hon'ble the Chief Justice had passed an order after hearing the parties observed that there was nothing executive in the procedure followed in the case. Considering the procedure followed in the case by the Hon'ble the Chief Justice that the Apex Court held that the Hon'ble the Chief Justice was acting as a judicial authority with all the attributes of a Court.
46. Independently of the proviso to the said Rule, as we have held earlier, there is a plenary power vesting in the Hon'ble the Chief Justice to withdraw a matter pending before a Bench and transfer it to an another Bench. The case before the Apex Court was of a regular transfer application moved before the Hon'ble the Chief Justice by a party to the proceedings by invoking Clause 14 of the 1948 Order which ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 48 wp-10048,1860n8182.12 was objected by the Respondent. At this stage, it will be necessary to make a reference to another decision of the Apex Court in the case of Vivekanand Nidhi & Others v. Asheema Goswami (Smt.)4. In the said case, the Apex Court accepted the submission made before it that if an order was passed suo motu by the learned District Judge in exercise of powers under Section 24 of the said Code, there was no occasion to issue a notice to the Respondent. The learned senior counsel appearing for the High Court Administration relied upon another decision in the case of Jitendra Singh v. Bhanu Kumari & Others5. In Paragraph 9 of the said decision, the Apex Court held thus:-
"9. The purpose of Section 24 CPC is merely to confer on the Court a discretionary power. A Court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the Court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for transfer."
(emphasis added)
47. The Apex Court thus observed that in certain cases, a suo motu order of transfer can be passed for administrative reasons. Even in this decision, the Apex Court held that when the Court is to order 4 (2000)10 SCC 23 5 (2009)1 SCC 130 ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 49 wp-10048,1860n8182.12 transfer on the basis of an Application made by a party, the Court must act judicially.
48. The learned senior counsel representing the High Court Administration relied upon Section 41 of the Bombay Reorganisation Act, 1960 and urged that the powers exercised by the Hon'ble the Chief Justice originate from the said Section. Section 41 of the Bombay Reorganisation Act, 1960 reads thus:-
"41. Without prejudice to the provisions of Section 51 of the States Reorganisation Act, 1956, such Judges of the high Court at Bombay being not less than three in number, as the Chief Justice may from time to time nominate, shall sit at Nagpur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda and Rajura:
Provided that the Chief Justice may, in his discretion, order that any case arising in any such district shall be heard at Bombay."
The proviso to Section 41 which confers discretion on the Hon'ble the Chief Justice merely reiterates the existing power of the Hon'ble the Chief Justice to pass suo motu orders of transfer on the administrative grounds.
49. In the present case, there is nothing on record to show that the orders for transfer were passed by the Hon'ble the Chief Justice by exercising the power under the proviso to Rule 2 of Chapter XXXI of the ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 50 wp-10048,1860n8182.12 Appellate Side Rules. There was no application made by any party for transfer. The note dated 21st March 2012 submitted by the In-charge Registrar (Judicial-I) and the order passed thereon by the Hon'ble the Chief Justice read thus:
"This is regarding placing of matters in which the issue regarding infrastructure facilities to be provided to the District Courts.
In this respect it is submitted that Your Lordship has been pleased to place the Criminal Writ Petition No.78 of 2011 before the Principal Seat at Bombay. The Cri. W.P. No.78 of 2011 is filed for taking up policy decision in respect of infrastructure facilities to be provided to the district Court.
In view of the above, Your Lordship's directions are solicited for:
A) Placing of matters in which the issue regarding infrastructure facilities to be provided to the District Courts before the Principal Seat at Bombay.
AND B) Calling of record and proceedings from the concerned Benches, for being placed before the Principal Seat at Bombay.
AND/OR
C) Giving any other direction.
21st March 2012 Sd/-
(D.R.Shirasao)
I/c.Registrar (Judl-I)
Approved A & B Sr. Nos.1 to 4. Aurangabad Bench 2 to 5 Nagpur Bench Sd/-
Chief Justice 22/3/12"
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50. The Note dated 29th June 2012 put up by the Registry and the Order passed thereon by the Hon'ble the Chief Justice read thus:-
"1. It is respectfully submitted that, Lawyers' Forum for General Utility & Litigating Public, Aurangabad, filed Writ Petition No.9207/2011 seeking directions against respondent for adopting necessary steps so as to establish National Law University at Aurangabad, wherein, Your Lordship has been arrayed as party respondent no.4.
2. It is further respectfully submitted that, as per the order of Your Lordship, as informed to this office vide letter dt. 26/3/2012 by the Registrar (Judicial-I), Bombay high Court (AS), Mumbai, the above Writ Petition has already been transferred to the Principal Seat at Bombay.
3. It is further respectfully submitted that, now, in the above matter, the petitioner has filed Contempt Petition No.277/2012, alleging therein that, the four respondents, as arrayed in the Contempt Petition at Sr.Nos.2 to 5, have breached undertaking furnished before the Hon'ble Court.
In view of the above, further directions are solicited.
Sd/-
Date: 29/6/2012 Registrar (Judicial ) The Hon'ble the Chief Justice Contempt Petition No.277/2012 be also transferred to the Principal Seat of the High Court at Bombay so that it will be placed before the same Bench which will hear WP No.9207/2011 already transferred to Bombay.
Sd/-
Chief Justice 29-6-2012"::: Downloaded on - 11/12/2014 23:47:30 :::
ash 52 wp-10048,1860n8182.12
51. As stated earlier, there is nothing on record to indicate that the power was exercised by the Hon'ble the Chief Justice under the proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules.
Moreover, the cases cannot be said to be part-heard in the sense that both the cases were at a pre-admission stage. There were no orders passed on both the matters recording findings on merits. Therefore, the submission of the Petitioner appearing in person that the Hon'ble the Chief Justice ought to have followed the principles of natural justice deserves to be rejected.
52. As far as transfer of Writ Petition No.9207 of 2011 is concerned, it is true that the Note dated 21 st March 2012 put up by the Incharge Registrar (Judicial-I) before the Hon'ble the Chief Justice indicates that the orders of the Hon'ble the Chief Justice were sought as regards placing of matters in which the issue regarding infrastructure/ facilities to be provided to the District Courts is involved before the Principal Seat at Mumbai. Before the said Note was put up, one Petition (Criminal Writ Petition No.78 of 2011) in the same category was already transferred from the Bench at Aurangabad to the Principal seat at Mumbai. We have perused the chart appended to the said Note.
In the last column, it was disclosed that the subject of the Writ Petition No.9207 of 2011 was regarding establishing a National Law University ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 53 wp-10048,1860n8182.12 at Aurangabad. The Petitioner appearing in person has given up the allegations of mala fide against the Hon'ble the Chief Justice. It is true that in the Note put up by the In-charge Registrar (Judicial-I), the subject of the Writ Petition No.9207 of 2011 was not set out, but in the chart annexed to it, the subject was specifically disclosed. There is no reason to believe that Hon'ble the Chief Justice did not apply his mind to the subject mentioned in the chart. In the list of cases pending before the Nagpur Bench, a Petition regarding the infrastructure at Nagpur Bench was included at Sr.No.1. The said case was not transferred to the Principal Seat. As far as Contempt Petition No.277 of 2012 is concerned, a Note was put up by the Registrar Judicial on 29 th June 2012 before the Hon'ble the Chief Justice by pointing out that the Writ Petition No.9207 of 2011 was already transferred to the Principal Seat and the contempt alleged is of the assurances given in the said Writ Petition. Therefore, on 29 th June 2012, the Hon'ble the Chief Justice passed an order directing transfer of the Contempt Petition to be heard along with the Writ Petition No.9207 of 2011 which was already ordered to be transferred. We find nothing wrong with the said order as it is based on the order of transfer of the main Writ Petition being Writ Petition no.9207 of 2011.
53. The Petitioner appearing in person has relied upon various decisions of the Apex Court as well as this Court. He has relied upon a ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 54 wp-10048,1860n8182.12 decision of the Apex Court in the case of Monnet Ispat and Energy Limited v. Jan Chetna and Others 6 holding that every Bench must scrupulously follow the relevant Rules and statutory provisions specifying its jurisdiction. He relied upon a decision of the Apex Court in the case of Nasiruddin v. State Transport Appellate Tribunal7 by contending that the jurisdiction vests in the Bench within whose territorial jurisdiction, a cause of action for filing a case arises. He relied upon a decision of this Court in the case of Damodar S/o Jagannath Lokhande & Another v. Central Bureau of Investigation & Others8 by contending that the Principal Seat cannot exercise territorial jurisdiction over the areas falling within the jurisdiction of the Benches.
There are various decisions dealing with the malice in law and arbitrariness as well as personal bias. In view of the statement made in Paragraph XVI of the Written Submissions of the Petitioner, it is not necessary to go into the aspect of mala fides.
54. To summarize, our conclusions are as under:-
(a) The power of the existing High Courts saved by Article 225 of the Constitution is the Power to make Rules providing for "exercise of its 6 (2013)10 SCC 574 7 (1975)2 SCC 671 8 2008 ALL MR (Cri) 999 ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 55 wp-10048,1860n8182.12 jurisdiction, original or appellate, by one or more Judges or by division courts consisting of two or more Judges of the High Court" not only in respect of the existing jurisdictions but also in respect of other jurisdictions and powers which the Constitution has conferred upon it. Article 225 does not save or confer power to frame Rules dealing with filing of matters at Benches and transfer of matters from the Benches to the principal seat at Mumbai. The said Rule making power is available only under Section 122 of the said Code;
(b) The proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules is illegal and invalid as the same is in contravention of Section 126 of the Code of Civil Procedure, 1908;
(c) It is well settled law that Hon'ble the Chief Justice of a High Court is always the master of roster. It is the prerogative of the Hon'ble the Chief Justice to allocate the judicial work to the Judges of the Court.
Hon'ble the Chief Justice decides which Judge shall ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 56 wp-10048,1860n8182.12 sit Single and which Judge shall sit in a Division Bench. A Judge or a Bench of the High Court can take up any particular case provided it is assigned by the Hon'ble the Chief Justice. It is axiomatic that when the Hon'ble the Chief Justice has power to allocate judicial work to the Judges and different Benches, he has a power to withdraw the matters assigned to the Judges or Benches. The said power is implicit as the Hon'ble the Chief Justice is the master of roster. Therefore, the power to transfer the matters filed at the Benches to the Principal Seat at Mumbai and vice versa always vests in the Hon'ble the Chief Justice. Hon'ble the Chief Justice of this Court in exercise of his power as the master of roster can always direct that a particular category of cases pending before its Benches at Nagpur, Aurangabad and Goa shall be heard at the Principal seat.
Similarly, Hon'ble the Chief Justice of this Court in exercise of his power as the master of roster can always direct that a particular category of cases which ought to be filed before its Benches at Nagpur, Aurangabad and Goa shall be filed and heard at the Principal seat. While exercising the said ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 57 wp-10048,1860n8182.12 plenary power of transfer, the Hon'ble the Chief Justice is under no obligation to hear the parties to the proceedings;
(d) As regards the orders dated 24th February 1993 and 6th January 2010, even assuming that the powers could not have been exercised under the proviso to Rules 1, 2 and 3 of Chapter XXXI of the Appellate Side Rules to issue the orders, the Hon'ble the Chief Justice possesses the powers to direct that a particular category of matters shall stand transferred to the Principal Seat at Mumbai on the ground of administrative convenience. Though the said orders could not have been issued stricto sensu in exercise of powers under the proviso to Rules 1, 2 and 3 of the Appellate Side Rules, it is not necessary to set aside the said orders as even otherwise the Hon'ble the Chief Justice has power to issue directions which he has issued under the said orders;
(e) The orders of transfer of the Writ Petition No.9207 of 2011 and the Contempt Petition No.277 of 2012 ::: Downloaded on - 11/12/2014 23:47:30 ::: ash 58 wp-10048,1860n8182.12 have been passed in exercise of the power of the Hon'ble the Chief Justice as the master of roster, and therefore, the said orders cannot be interfered with.
55. Hence, we pass the following order:
(i) Writ Petition No.10048 of 2012 is rejected;
(ii) Writ Petition No.1860 of 2014 is made absolute in terms of prayer clause (B) subject to what is held in the Judgment;
(iii) Writ Petition No.8182 of 2012 is hereby rejected;
(iv) There will be no orders as to costs.
(v) Writ Petition No.5097 of 2012, Writ Petition
No.5098 of 2012, Contempt Petition No.234 of 2012, Review Petition No.60 of 2014 in Writ Petition No.4529 of 2014 shall be listed before the appropriate Court on 19th January 2015.
( G.S.KULKARNI, J ) ( A.S. OKA, J )
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