Andhra HC (Pre-Telangana)
A. Srinath And Others vs The Andhra Pradesh State Road Transport ... on 17 April, 1996
Equivalent citations: AIR1996AP309, 1996(2)ALT893, (1997)ILLJ255AP, AIR 1996 ANDHRA PRADESH 309, (1996) 2 APLJ 66, (1997) 1 LABLJ 255, (1996) 3 ANDHLD 56, (1996) 4 ICC 679, (1996) 3 CIVLJ 594, (1996) 2 ANDH LT 893
Bench: B. Subhashan Reddy, M.H.S. Ansari
ORDER P.S. Mishra, C.J.
1. The instant petition to review the final judgment in Writ Appeal No. 903 of 1994 has been occasioned for the reason that the Bench consisting of Lingaraja Rath, J. and D. Reddeppa Reddi has ordered that in view of the judgment of this Court in Kum. K. Pushpa Leela v. Labour Court, Guntur, (1991) 3 Andh LT 22 (Notes on Recent Cases) and G. Padma v. Dr. B. Vijaya Lakshmi, (1994) 3 Andh LT 318, it has to be heard by Reddeppa Reddi, J. alone because A. Lakshmana Rao, J., has since demitted the office and learned counsel for the petitioners has circulated a letter stating that the matter should not be heard by Reddeppa Reddi, J., as he was the Standing Counsel for the respondents before his elevation as a Judge. No objection, however, was taken when the writ appeal was taken up for hearing that Reddeppa Reddi, J., should not hear the appeal. The order that the matter should be heard by Reddeppa Reddi, J., was passed by a Bench, of which Reddeppa Reddi, J., was a Member,
2. Before we take up the petition for hearing, we propose to clarify the legal position. Is it correct to say that in all cases and in all circumstances a petition for reviewing the judgment delivered by a Judge or a Bench of Judges should be heard by the Judge or the Judges constituting the Bench and when one or more of the Judges constituting the Bench are not available, by the remaining Judge who is available? In Kum. K. Pushpa Leela v. Labour Court, Guntur, (1991) 3 Andh LT 22 (NRC) (supra), a Bench of this Court has stated as follows:
"Under the provisions of Order 47, Rule 5 of the Code of Civil Procedure in case one of the Judges of the Division Bench has retired from service or has been elevated to the Supreme Court and therefore cannot form a party to the Bench before whom the review application is filed, then the remaining Judge alone shall hear the application for review and the decision of the single Judge passed on that review application is deemed to be the order of the Division Bench. It is the remaining Judge alone who has to hear the review petition and no other Judge. Moreover, the remaining Judge forming part of the Division Bench along with another Judge who has not heard the matter earlier should not have the jurisdiction to hear the review application."
In G. Padma v. Dr. B. Vijaya Lakshmi, (1994 (3) Andh LT 318) (Supra), a Bench of thisCourt has expressed:
"If the original verdict was made by two Judges, and if one of them does not continue to be attached to the Court, the other Judge who continues to be attached to the Court alone shall deal with the review petition. It cannot be dealt with by any other Judge or Judges or by the same Judge sitting along with any other Judge who was not a party to the original verdict."
The Bench has further stated:
"If there is a refusal to review, the original verdict stands confirmed and is left undisturbed by the Court. If review is allowed, the reviewed verdict gets substituted in the place of the original verdict. When the original verdict is that of a Bench consisting of two Judges, merely because the review has been dealt with by one of the two Judges on account of the non-availability of the other Judge as enabled by Order XLVII, Rule 5 of the Code, the decision rendered on review will not cease to be the decision of the Bench as such."
Order XLVII, Rule 5 of the Code of Civil Procedure says, 'Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.' Section 141 of the Code of Civil Procedure provides, 'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.' The applicability of Section 141 to various types of proceedings, however, had been the subject of judicial controversy and by Amendment Act of 1976, which has come into force on and from 1-2-1977, an explanation is inserted in the said provision which reads as follows:
"In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."
The appeal, which Lakshmana Rao, J., who has since ceased to be available in the Court and Reddeppa Reddi, J., passed order in appeal, has arisen from a proceeding under Article 226 of the Constitution of India.
3. The history of the creation of this Court goes to the period of King George III of Great Britain when under the Letters Patent dated 26-12-1818 a Supreme Court of Judicature at Madras was established followed by its revocation under the Letters Patent dated 26-6-1862 under which the High Court of Judicature for the Presidency of Madras was created, and reconstituted by the Letters Patent dated 28-12-1865. On creation of the State of Andhra under the Andhra State Act, 1953 (30 of 1953) and the State of Andhra Pradesh under the States Reorganisation Act, 1956 (Act 37 of 1956), this Court has been established as a successor of the power of appeal under Clause 15 of the Letters Patent of the Madras Court. Ever since its establishment, the Madras High Court has exercised in such civil, criminal, admiralty, Vice-Admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate and all such powers and authorities for and in relation to the administration of Justice as are conferred upon it under the said Letters Patent and/or amendment thereto. This Court has also exercised all the above powers except the ordinary original jurisdiction as spelled out in Clause 12 of the Madras Letters Patent. A Letters Patent power of the Court in Clause 15, however, is common to both the Courts and exclusive to this Court for the territorial jurisdiction of the State of Andhra Pradesh. Clause 15 of the Letters Patent, subject to the provisions in the Constitution of India and as substituted by Order in Council dated 3-11-1927, reads as follows:
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sen-tence or order passed or made in the exercise of power of superintendence under the provisions of Sec. 107 of the Government of India Act, or in the exercise of criminal jurisdiction, of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything therein before provided an appeal shall lie to the said High Court from a judgment of Judge of any Division Court, pursuant to S. 108 of the Government of India Act made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our heirs or successors in our or their Privy Council, as hereinafter provided."
The appellate jurisdiction is accordingly created with respect to matters, civil and criminal hot being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915 or in the exercise of the criminal jurisdiction of one Judge of the High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act, The last part of the clause wherein appeal to the Privy Council is preserved, however, stands repealed by the Constitution of India. Section 108 of the Government of India Act, 1915, which has been continued, as we shall presently see, even after the repeal of 1915 Act by promulgation of Government of India Act, 1935 and by the Constitution of India, reads:
"(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 Judge of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts."
In other words, if rules framed by the Court provide that one or the other original or appellate jurisdiction of the Court would vest in one or more Judges, that would determine whether a certain case would be listed before a single Judge or before a Division Bench of two or more Judges. The Chief Justice 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.
4. Clauses 37 and 38 of the Letters Patent respectively provide for regulation of proceedings in civil and criminal cases. Clause 37 reads:
"Regulation of Proceedings:-- And we do further ordain that it shall be lawful for the said High Court of Judicature at Madras from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice Admiralty, testamentary, intestate and matrimonial jurisdiction, res- pectively: Provided always, that the said High Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure, being an act passed by the Government-General-in-Coun-cil, and being Act No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India."
Clause 38 reads:
"Regulation of Proceedings:-- And we do further ordain that the proceedings in all criminal cases which shall be brought before the said High Court of Judicature at Madras, in the exercise of its ordinary criminal jurisdiction, and also in all other criminal cases over which the said High Court had jurisdiction immediately before the publication of these presents, shall be regulated by the procedure and practice which was in use in the said High Court immediately before such publication, subject to any law which has been or may be made in relation thereto by competent legislative authority for India; and that the proceedings in all other criminal cases passed by the Governor-General in Council and being Act No. XXV of 1861 or by such further or other laws in relation to criminal procedure as may have been or may be made by such authority as aforesaid."
Thus, as provided under Clause 37 in its Letters Patent, this Court has been given the power to make rules and orders provided that the Court would be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure as amended or altered by the competent legislative authority in India. In criminal cases, however, it is required to conform to the procedure or laws made by the Legislature. The Constitution of India has created the extraordinary jurisdiction of the High Court under Article 226 and in Article 225 thereof provided:
"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 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."
This has not only saved the inherent jurisdiction of the High Court but also the Letters Patent including the incorporation of Section 108 of the Government of India Act, 1915 in Clause 15 of the Letters Patent aforequoted as also the rules framed by the High Court as provided under Section 108(1) of the said 1915 Act until such time when the appropriate Legislature by virtue of powers conferred by the Constitution made any law on the subject.
5. Clause 15 of the Letters Patent of the Bombay High Court, which the Pari Materia, fell for consideration in National Sewing Thread Company Limited v. James Cnadwick and Brothers Ltd., . The question in the said case before the Supreme Court was whether after the Constitution, any judgment of a learned single Judge was subject to appeal under Clause 15 of the Letters Patent of the Bombay High Court or not. The Supreme Court, after quoting subsection (1) of Section 108 of the Government of India Act, 1915, has made the following observations (at p. 360 of AIR):
"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 by 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 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, 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.
It was argued that simultaneously with the repeal of Section 108, Government of India Act, 1915 and of the enactment of its provi-sions in Section 223, Government of India Act, 1935 and later on 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 the 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 the 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.
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 the matter of history the power was not conferred for the first time by Section 108, Government of India Act, 1915. It has already been conferred by Section 13, Indian High Courts Act of 1861. We are further of the opinion that the High Court was right in the view that reference in Clause 15 to Section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution. The canon of construction of statutes enunciated in Section 38, Interpretation Act and reiterated with some modifications in Section 8, General Clauses Act is one of general application where statutes or Acts have so construed and there is no reasonable ground for holding that rule of construction should not be applied in construing the charters of the different High Courts. These charters were granted under statutory powers and or subject to the legislative power of the Indian Legislature. Assuming however but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters. For the reasons given above, we hold that the High Court was perfectly justified in overruling the preliminary objection and in holding that an appeal was competent from the judgment of Shah, J. under Clause 15 of the Letters Patent."
The Supreme Court while overruling the judgment of the Calcutta High Court in India Electric Works v. Registrar of Trade Marks, AIR 1947 Cal 49, observed:
"On the line of thought adopted in the Calcutta decision the learned Judges were forced to the conclusion which seems somewhat strange that the jurisdiction conferred by the Letters Patent on the Calcutta High Court is much more limited and restricted than has been conferred on some of the new High Courts in India, by their Letters Patent."
The said judgment of the Supreme Court has made it clear that the rule making power under Section 108 of the Government of India Act, 1915 read with the corresponding provision in the Government of India Act, 1935 and Article 225 of the Constitution of India has remained unaffected and so is the power of the Chief Justice to decide who amongst the Judges be assigned the work as a Judge sitting alone or a Judge sitting in a Division Bench of two or three Judges. We have seen already that the application of the rules of procedure in the Code to the proceedings under the Letters Patent jurisdiction of the High Court is subject to the rules of procedure of the High Court under its Letters Patent power. Before however the special provisions in Article 26 of the Constitution come to give to the High Courts power to issue writs in the nature of mandamus, certiorari and quo warranto, the High Courts in India enjoyed power to issue writs in the nature of Habeas Corpus with prescriptions therefor in the Code of Criminal Procedure and some times the special statutes framed by the competent legislature. Thus a classification existed in the matter of issuing writs with reference to the nature of the proceedings, and while applications for writs with reference to the nature of Habeas Corpus were classified as civil proceedings, other types of writ applications were classified as civil proceedings. This classification has remained in existence and has continued to be invoked although the High Court exercises the same power in dealing with a petition for a writ in the nature of Habeas Corpus or a writ in the nature of Mandamus, certiorari or quo warranto. Proceedings in the petition for a writ in the nature of Habeas Corpus thus have been regulated as provided under Clause 38 of the Letters Patent and proceedings in the other writ petitions have been regulated as provided under Clause 37 of the Letters Patent. The Madras High Court and so also this Court allowed such provisions of the Code of Civil Procedure which were not in conflict with the rules and orders made for the said purpose by the High Court, to the writ petitions other than a petition for a writ in the nature of Habeas Corpus and never hesitated in permitting the petitioners to appeal against a judgment of the single Judge before a Division Bench, which is in short, writ appeal against a judgment or order in a writ petition under Clause 15 of the Letters Patent (excluding Habeas Corpus) as under the rules of this Court. A writ petition is ordinarily heard by one Judge constituting the Court and his decision thus is treated as a decision falling under appeal in Clause 15 of the Letters Patent. On a question as to whether the power to review as envisaged under the Code of Civil Procedure can be entertained in appeals under Clause 15 of the Letters Patent or not, a Division Bench of the Madras High Court in Attyam Venkatasub-barayadu v. Sri Rajah Velugoti Govinda Krishna Yachendrulu, (1917) 32 Mad LJ 144: (AIR 1917 Mad 670) has held as follows:
". . . .Section 44 of the Letters Patent says that the provisions are subject to the Legislative powers of the Governor-General in Council. As at present advised we are in agreement with Mr. Subramania Aiyar that this provision would not enable Courts, by implication, to supplement the Letters Patent importing into them all acts, ejusdem generis, passed by the Governor-General in Council and that the provision is only intended to empower the Governor-General in Council to legislate with a view to supplement omissions in the Letters Patent. Even in this view, we think that by Section 117 of the Code of Civil Procedure (Act V of 1908) the Governor-General in Council did incorporate into the Letters the provisions relating to review. It was then argued that the review under Section 114 of the Code (Act V of 1908) cannot apply as it provides only for the review of decrees or orders passed under the Code of Civil Procedure. We are not impressed by this argument. In the first place, decrees are passed in appeals heard under the Letters Patent only under the Code of Civil Procedure. In the second place Clause (B) of Section 114 does not require that orders and decrees should have been passed under the Code. Further, the word decree or order includes a Judgment -- Krishnan Dayal v. Irshad Ali, (1915) 22 Cal LJ 525. Mr. Subramaniya Aiyar relies on Sabapathi Chetty v. Narayanaswamy Chetty, (1908) 11 Mad LJ 346 for the proposition that Section 15 of the Letters Patent is not controlled by the Code of Civil Procedure. All that was decided in that case was that as Section 15 had given an unlimited power of appeal against every judgment of a single Judge, the Governor-General in Council should not be understood to have taken away by implication that power of the litigant by making Section 540 of the Code (Act XIV of 1882) applicable to chartered High Courts. This does not contravene the principle that it is competent to the Governor-General in Council to supplement the remedy of appeal by giving an additional remedy by way of review to the litigant.
The decisions in Babaji Bin Patloji v. Babaji Bin Mahadu, (1891) ILR 15 Bom 650; Lala Prayag Lal v. Jai Narain Singh, (1895) ILR 22 Cal 419 and Nana Bin Aba v. Sheku Bin Andu, (1908) ILR 32 Bom 337, only lay down that a self-contained-act should not be added to by the provisions of the Code of Civil Procedure. This does not affect the present question.
Mr. Ramachandra Aiyar has referred us to two reported cases and to an unreported decision in which reviews under similar cir-cumstances were entertained. Apparently the practice of this High Court has been in favour of allowing reviews to be filed in appeals under the Letters Patent.
It was pointed out by the Judicial Committee in Ravi Veeragavelu v. Venkata Nara-simha Naidu Bahadur, (1914) 27 Mad LJ 451 : (AIR 1914 PC 87), that even though a strict construction of the law may not permit the entertainment of appeals, a long standing practice of the Court should not be lightly departed from in that respect. What relates to appeals applied mutatis mutandis to reviews also. We must therefore overrule the preliminary objection."
The Bombay High Court has reiterated the above in Ratanchand v. Damji, AIR 1927 Bom 232. Judgment of the Madras High Court in Attyam Venkatasubbarayadu v. Sri Rajah Velugoti Govinda Krishna Yachen-drulu (AIR 1917 Mad 670) (supra) was challenged before the Privi Council in Ravi Veeraraghavalu v. Venkata Narasimha Naidu Bahadur, (1914) ILR 37 Mad 443 : (AIR 1914 PC 87). The Privy Council noticed that perhaps there was no appeal prescribed under the law, yet there has been a long standing practice of entertaining appeals and the Privy Council declined to interfere on this ground. In the words of the Privy Council -
"The point that a second appeal lies to the High Court in cases arising under Act VIII of 1895, has been expressly decided in Veera-samy v. Manager, Pittapur Estate, (1903) ILR 26 Mad 518 and the practice appears to have been ever since the passing of the Act for such appeals to be preferred to the High Court. Their Lordships would not be disposed to interfere with such a long-standing practice, even if they thought there was an implied rule against second appeals lying from the decisions of the District Judge with respect to adjudications under the Act by the Collector. Their Lordships must, therefore, overrule the-first objection."
6. One of us (P. S. Mishra, C. J.), sitting in the Full Bench of the Madras Court in Mayavaram Financial Corporation Limited, Maylladuturai v. The Registrar of Chits, Pondicherry, (1991) 2 Mad LW 80 had the occasion to deal with a similar question and noticed one of the earliest cases in which Section 623, C.P.C., 1882 and Clause 15 of the Letters Patent of the Calcutta Court were examined is in Aubhoy Churn Mohunt v. Shamont Lochun Moruni, (1889) ILR 16 Cal 788. The view expressed in the Calcutta judgment is so relevant that we are tempted to extract the observations in the said judgment in the judgment of the Full Bench of the Madras Court in Mayavaram Financial Corporation Limited, Mayiladuturai v. The Registrar of Chits, Pondicherry, (1991 (2) Mad LW 80) (supra), which is as follows:
"It seems to me that under the spirit of the section referred to, I and I alone, am bound to hear this rule. The section is apparently intended to refer to a High Court which is specially excepted from the rule laid down in Section 624. . . .Section 627 imposes a very reasonable and proper restriction, and that restriction is this, that when the Judges, or any one of them who made the decree can hear the application, within six months after its presentation, they or he, and they or he only, shall hear it."
The Calcutta High Court reiterated the above in a subsequent judgment in Maksud Mabi v. Secretary of State, (1911) 9 Ind Cas 532, a Full Bench of the Madras High Court was faced with an objection that an order of reference to a Full Bench made by the Travancore Cochin High Court before the States Reorganisation Act after transfer of the case to Madras High Court as a result of the reorganisation was required to be heard by a Full Bench. A learned single Judge of the Court, after taking notice of the various authorities on the subject, held that the procedure of the Court in the matter of reference to a Full Bench was not governed by any statutory provisions, but by prevailing practice and it was not permissible to any litigant to claim as a matter of right, in the absence of a statutory provision, to have his case decided by any particular Judge or Judges of the Court. After taking notice of the scheme of the Letters Patent and other relevant provi-sions and the fact that there is an essential distinction between a substantive right of appeal and the procedure prescribed for disposing of that appeal, it is observed by the Full Bench of the Madras Court in Mayavaram Financial Corporation Limited v. The Registrar of Chits, Pondicherry, (1991 (2) Mad LW 80) (supra) that, "The same thing can undoubtedly be said with respect to the right to make a review application and the procedure for disposing of the same."
7. The practice of the Madras High Court, which we have no reason to ignore as the practice of this Court and accept and say we accept, is the practice of this Court. If the Code of Civil Procedure applies perforce, a review petition has to be heard by a Judge or Judges or any of them who had passed the decree or made the order, a review of which is applied for, and no other Judge or Judges of the Court shall hear the same. If, however, it is applied as a rule of convenience or constructively as respects exercise of the Letters Patent power, the Court has to make its own rules. Code of Civil Procedure is applied only constructively. There is no mandate of law that review must be done by the Judge or Judges whose order is sought to be reviewed. In Pitambar Mallik v. Ramachandra Prasad, , an objection was taken to the hearing of the review petition by a learned single Judge of the Patna High Court on the ground that the application for review was placed for admission before R. K. Chou-dhary, J., who had issued notice, but the Chief Justice administratively ordered for placing the review petition for final hearing before Tarkeshwar Nath, J. Facts in short, which formed the basis of the said objection, were that the application for review was presented before Ahmad, J., (as he then was), but by the time the application became ready to be put up for admission, Ahmad, J., was no more a Judge of the Patna High Court. The office took the order of Honourable the Chief Justice and Honourable the Chief Justice ordered that it should be placed before R. K. Choudhary, J., for admission. R. K. Chou-dhary, J., admitted the review petition. Subsequently when the application became ready for hearing, the office sought for instructions from the Chief Justice as to before which Bench the review application should be put up for hearing. The Chief Justice directed that the review application should be put up before Tarkeshwar Nath J., for hearing. The objection taken was that R. K. Choudhary, J., was still a member of the Bench of the High Court and as such the provisions of 0. XLV1I, Rule 5, Code of Civil Procedure were applicable to the facts and circumstances of Civil Review. The preliminary objection was however overruled in these words (at pp. 322 and 323 of AIR) :--
"This application has to be put up for admission first and for limited purpose, meaning thereby that for purposes of admission it was placed before R. K. Chowdhary, J. The question of hearing this application finally at that stage did not and could not arise inasmuch as the application could have even been dismissed. The question of hearing it finally arose only after'it was admitted. For the purpose of hearing this application, there is a separate order, as indicated above and in compliance with that order the office has placed this application before me for hearing. It will not thus be right to say, as has been urged by the learned counsel for the petitioners, that his application ought to have been placed before R. K. Choudhary, J. ........I have thus no hesitation in overruling the preliminary objection raised by the learned counsel for the petitioners about my hearing this application for review".
In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, the Supreme Court, on a limited question whether a Division Bench of the Court could refer the case to the Chief Justice for the Constitution of a larger Bench or not, has held that the constitution of a Bench is a matter for the Chief Justice and that it was open to the Chief Justice on a reference by the Division Bench to constitute a larger Bench to consider the matter. S. K. Das, J., while expressing his agreement with the above in a very apt phraseology to describe the jurisdiction of the Chief Justice in such matter, has observed in these words (at p. 883 of AIR):
"I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to Rule 9 in Chapter II corresponding to the proviso to R. 1 does not take away the inherent power of the Chief Justice to refer any matter to a Bench of three Judges. ....... I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of the Division Bench feels, for a sufficient and good reason, that he should not hear the case. It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice, I think must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case".
In State of Maharashta v. Narayan, a similar observation has been made in these words (at p. 1200 of AIR) :
"The Chief Justice as the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in subsection (3) of Section 51 of the Act, but inheres in him in the very nature of things".
A Division Bench of the Calcutta High Court in Sohanlal v. State, has considered a similar question and proceeded to observe (at p. 174 of AIR) :
"The cardinal position cannot be overlooked that before jurisdiction over the subject matter is exercised, the case must be legally brought before the concerned Court for the hearing and determination and that a judgment pronounced by Court without investment of jurisdiction is void."
It will not thus be difficult to conclude that this Court's appellate jurisdiction under clause 15 of the Letters Patent is substantially free from the general application of the Code of Civil Procedure. We are of the opinion that the Madras Full Bench has rightly stated the law in these words:
"A statement of law in the authorities aforementioned as well as in the scheme of the Letters Patent of this Court read with Article 225 of the Constitution of India leaves no manner of doubt that what matters should be placed before a particular Judge of this Court, who should sit alone and who should constitute a Division Bench has been preserved for and vested in the Hon'ble the Chief Justice. No Judge of this Court would exercise jurisdiction with respect to any case, which does not fall in the class or type of cases, which are allotted to him and which case has not been earmarked or listed before him."
The Madras Full Bench has thereafter proceeded to examine two questions, viz., (1) In the absence of any specific provision in the rules framed by this Court with respect to its procedure, whether a review petition will be processed in accordance with Order XLVII of the Code of Civil Procedure or not and particularly Rule 5 thereof, if the requirements thereof appear to exist would exclude the jurisdiction of the Hon'ble the Chief Justice in the matter and the case will have to be listed before the remaining Judge or Judges, whose order is sought to be reviewed; (2) Whether the rule in Order XLVII particularly 5 thereof will apply to a review of an order passed in exercise of the power under Articles 226 and 227 of the Constitution of India or not including the order passed in the appeal arising out of a writ proceeding? We do not want to encumber this judgment by a detailed discussion of our own and propose to extract the opinion of the Madras Full Bench in this behalf which is in these words :
"We have alredy noticed the express exclusion of the application of the Code of Civil Procedure to a proceeding under Article 226 of the Constitution of India, The Explanation of the provision in S. 141 of the Code of Civil Procedure introduced by Amendment Act, 1976 has only recognised the law judicially stated by the Courts including the Supreme Court that a writ proceeding being an extraordinary proceeding was neither a civil proceeding as contemplated under the Code of Civil Procedure nor a criminal proceeding as contemplated under the Code of Criminal Procedure. The Explanation in particular therefore says, "In this section, the expression 'proceedings', include proceedings under O. 9, but does not include any proceeding under Art. 226 of the Constitution".
Yet, Courts in India have recognised for their guidance that in the matters that appear to be akin to civil proceedings, the procedural law as found in the Code of Civil Procedure may be constructively applied and similarly in the petitions seeking a writ of Habeas Corpus, the provisions as in the Code of Criminal Procedure may be constructively applied. No party to a writ proceeding however can insist that the proceeding must conform to the procedure as prescribed under the Code of Civil Procedure or the Code of Criminal Procedure, as the case may be, in a proceeding under Article 226 of the Constitution of India. It is not possible to recognise that while the original proceeding under Article 226 of the Constitution need not conform to the rule of procedure in the Code, but in case of an appeal arising out of such a proceeding in this Court under its Letters Patent, will as a rule, be subjected to the provisions under the Code. If this be recognised as a rule of procedure, the result will be that the original proceeding under Article 226 will be free from any inhibition of the rules in the Code, but the appeal arising out of such a proceeding will be inhibited by the rules of procedure in the Code. The appeal being a continuation of the original proceeding, the rule of procedure which is applied to the original proceeding has to be continued and applied to the proceeding in the appeal also except such special provisions, which are made specifically applicable to appeal proceedings. A glance to the rule in Order 47 is enough to convince that the review provisions therein do not make any distinction in the matter of review of an order of the Court of original jurisdiction and the court of appeal. Any person considering himself aggrieved by a decree or order from which no appeal had been preferred, or by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence, which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. This right to make an application for review has been recognised besides what is stated in O. 47 of the Code as the inherent right in a party to a proceeding and similarly a right to grant a review has been recognised as the inherent power of the Court. In the matter of review of an order passed in an appeal arising out of a writ proceeding, therefore, it can be safely said, that no provision in the Code of Civil Procedure can be claimed to apply as a matter of course. Likewise, in a civil proceeding as well, no person can claim that his matter should be heard by a single Judge much less a particular Judge or a particular Division Bench of the Court. The business of the Court will be determined by the Hon'ble the Chief Justice alone, who in his discretion may decide what Judge is to sit alone and what Judges are to constitute different benches and allotted business of the Court. The Letters Patent aforequoted recognises this power of the Hon'ble the Chief Justice of the Court and as held by the Supreme Court even in the absence of a specific provision, this is an inherent power of the Hon'ble the Chief Justice.
Review of judgment or order has to be made by the Court, which passed the decree or made by the Court, which passed the decree made the order If a Division Bench of two or more Judges passed the decree or made the order, the review should invariably be made by the Bench of two or more Judges, who passed the decree or made the order. There is no need to specify this in any rule of procedure for review of a judgment or order the Court, which passed the decree or made the order must in the context of a Court consisting of more than one Judge mean the Judge or Judges, who passed the decree or made the order. This is significant because in case a Judge decided the matter against which appeal could be filed before a Superior Court and no appeal was filed but a review was sought for and the review petition was placed before another Judge of the same Court, who though otherwise on the merits of the case than the view expressed by the Judge, who passed the decree or made the order, he may grant a review which under the rule followed hitherto will be undesirable. That is why it is said that a review of a Bench order (as provided in R. 6 of O. 47 of the Code) has to be allowed only in a case of a majority opinion in favour of the review and in the case of a Bench of equal strength, in the event of equal division, the application for review must be rejected. This rule of prudence has been followed more as a practice than as a command of the Legislature in almost every Court in India and constructively applied to the writ proceeding as well. But it will still not be open to any party to insist that his case must be heard by the Judge or Judges, who had passed the decree or made the order. There may be cases where after passing the decree or making the order, one or all of the Judges constituting the Bench may feel embarrassed in hearing the review petition. They may in such a situation, order for the case being placed before some other Judge. They need not for this purpose make an open pronouncement except indicating their disinclination to hear the matter to the Hon'ble the Chief Justice. What would be done in such a case if the Hon'ble the Chief Justice did not exercise his inherent power to constitute a new Bench to hear the review petition. There may be many other circumstances and situations in which the Hon'ble the Chief Justice exercising his inherent power to constitute a new Bench to hear the review petition. There may be many other circumstances and situations in which the Hon'ble the Chief Justice exercising his Inherent power, may not think it desirable to place the review petition before the Bench, which passed the decree or made the order. As this is a rule of procedure and not a substantive right, it is not for the litigant to suggest who should hear the review petition. A prudent exercise of discretion by the Hon'ble the Chief Justice in this matter, and since this power has been held to inhere and vest with the Hon'ble the Chief Justice, in our view, by itself is a sufficient safeguard to ensure its prudential exercise, should be more than enough for the parties to accept the constitution of the Bench or allotment of the case to a Judge or Judges for the hearing of the review petition.
There shall be nothing wrong if in a situation like one contemplated in R. 5 of O.47 of the Code of Civil Procedure, the review application is listed before such Judge or Judges or any of them, who are available and who had passed the decree or made the order. There shall also be nothing wrong if the case is listed before a Bench of equal strength, which passed the decree or made the order under review provided the remaining Judge or Judges of the original Bench except the Judge or Judges who are no more available, are members of the new Bench. In exceptional case, there shall also be no infringement of any vested right of any party if the review petition is not placed before any of the Judges of the original Bench but instead placed before a Bench constituted by the Hon'ble the Chief Justice for the said purpose.
In the instant case, Mohan J., has ceased to be a Judge of this Court. The review petition was placed before the remaining Judge, viz., Bakthavatsalam J., who issued notice of motion. Bakthavatsalam, J., was a member of a Division Bench constituted to hear the review petition with Mishara J., and accordingly the case was listed before him under the order of the Hon'ble the Chief Justice who has the inherent power to make such an order.
To sum up :
(1) Code of Civil Procedure does not apply to a writ proceeding under Article 226 of the Constitution of India. Courts, however, sometimes constructively apply certain basic principles enshrined therein to the writ proceedings, on grounds of public policy or dictates of reason or necessity whenever it is found to be essential for the effective administration of justice.
(2) A writ appeal is the continuation of the writ petition. Merely because it is an appeal under the Letters Patent of the Court, it does not change its character from being a writ proceeding to an ordinary civil proceeding.
(3) The Hon'ble the Chief Justice has the inherent power to allocate the judicial business of the High Court including who of the Judges should sit alone and who should constitute the Bench of two or more Judges. No litigant shall, upon such constitution of a Bench or allotment of a case to a particular Judge of the Court will have a right to question the jurisdiction of the Judges or the Judge hearing the case. No person can claim as a matter of right that this petition be heard by a single Judge or a Division Bench or a particular single Jude or a particular Division Bench. No Judge or a Bench of Judges will assume jurisdiction unless the case is allotted to him or them under the orders of the Hon'ble the Chief Justice.
(4) A Judge or the Judges constituting the Bench will not decide whether to entertain a review petition or not unless the same is placed before him or them under the orders of the Hon'ble the Chief Justice.
(5) Unless it is on account of exceptional circumstances or to meet an extraordinary situation the Hon'ble the Chief Justice decides to allot the work to some other Judge or Judges, as the case may be, we consider it to be prudent as well as desirable that the Judge or Judges who passed the judgment/decree or made the order sought to be renewed, hear the review petition and in the case of the judgment, decree or order of a Bench the Judge or the Judges who are available are associated as members of the Bench".
8. We are in complete agreement with the above view. The Bench, to which the review petition was posted under the orders of the Chief Justice, comprising of Lingaraja Rath J., and Reddeppa Reddi, J., have thus ignored the fact that the Chief Justice exercised the power which inhere in him when the review petition was assigned to them for hearing and disposal and they have commited error of jurisdiction in pronouncing that the matter should be placed only before Reddeppa Reddi, J. The earlier judgments of this Court in Kum. K. Pushpa Leela v. Labour Court, Guntur (1991 (3) Andh LT 22 (NRC) (supra) and G. Padma v. Dr. B. Vijaya Lakshmi (1994 (3) Andh LT 3I8) (supra) have not taken notice of the scheme of the letters Patent of this Court and the provisions, which take care of the Lettes Patent jurisdiction and the extraordinary jurisdiction under Article 226 of the Constitution of India cannot find approval of the Court as laying down the correct law. A litigant's attempt to choose his Judge or to see that a particular Judge or Judges do not hear the case is deprecated on the sound principle that no litigant can choose his Judge. No Judge who has any interest in the cause will sit to judge the cause. He shall himself decline and say he shall not hear the matter. No one however can say that a counsel representing a statutory authority or a State has some interest of his own in all causes of the statutory authority or the State and thus he shall have no competence to sit as a Judge in matters in which such statutory authority or State is a party. It will be stretching the princile of natural justice i.e., no one shall be a Judge in his own cause, or the doctrine of bias, as the case may be, if that is allowed to be used by a litigant or a counsel appearing for him seeking seclusion of the Judge from hearing. The matter, however, will be different if it is a case of a private litigant and the acquaintance of the Judge with the litigant is more normal. Learned counsel for the petitioner should have known that in a system where a Court is made to regulate the proceedings by self-imposed controls and regulations, any outside interference is unauthorised and uncalled for. Litigant has to learn that it is his option and right in certain situations to seek justice and move the Court, but he has no choice of the Judge. He has to learn to accept the verdict of the Court if he has chosen to move the Court. A counsel is not expected only to represent the cause of the client but to take the burden of an Officer of the Court. While he has a duty to respond to the trust that his client has put in him, he has also a duty to protect the majesty of the Court. His indulging in making vague insinuations on the role of a Judge of this Court as a member of the Bench who finally disposed of the appeal with a view to embarrass him so that he desists from hearing the review petition, is one that must receive severest of the reprimands.
9. The only ground for review, for which a petition has been filed, is that while disposing of the appeal the Court ignored quite a few citations at the Bar and did not take notice of a specific contention that the instructions issued by the State Government for treating the persons appointed in a service as appointed in the basic scale of pay. What is canvassed in short on behalf of the petitioners is that although the offer was to join as trainees on a fixed emolument, the petitioners accepted the said offer. Since the Government has issued instructions, they are entitled to receive emoluments as any regular employee in the scale of pay for their category of employees is receiving. The above, in our opinion, cannot form a ground for the review of the judgment. Apart from certain basic fallacies in the contention, one fact is gloringly evident that the respondent-employer is a statutory authority and the field including the area as to the service conditions of employees is occupied by Act called The Road Transport Corporation Act, 1950'. State's executive power is coextensive with that of its Legislative power. Once Legislature has exercised its power, the executive has ceased to have any power. This Court in a well considered Full Bench judgment in A. P. State Backward Class Welfare Association v. A. P. State Backward Class Welfare Department, has examined this aspect of the law in some details and we need not elaborate it further than saying that if there is a statutory rule or an Act occupying the field, the executive is bound to abide by that Act or the Rule. It cannot extent its executive tentacles to enter into such a field. The judgment in appeal has stated this rule candidly and declined to enter into the effect of the executive instruction.
10. There is no merit in the review petition. The review petition is dismissed.
11. Petition dismissed.