Rajasthan High Court - Jaipur
Brij Mohan Bansal vs Company Law Board And Others on 30 November, 2017
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Company Appeal No. 9 / 2011
Brij Mohan Bansal, S/o Shri H.N. Bansal, R/o Bansal Nikunj,
Chittorgarh.
----Appellant
Versus
1. Company Law Board, Shastri Bhawan, Dr. Rajendra Prasad
Road, New Delhi.
2. M/s Bansal Gems Ltd., 305, Ratan Sagar, M.S.B. Ka Rasta, Johri
Bazar, Jaipur.
3. Shri Man Mohan Bansal, R/o 108, Gomes Defence Colony,
Behind SBBJ Vaishali Nagar, Jaipur.
4. Smt. Lad Kanwar Bansal, R/o 108, Gomes Defence Colony,
Behind SBBJ Vaishali Nagar, Jaipur. (since Deceased Alongwith an
Application for Taking Her Legal Heirs on Record As Per Order
Dated 02/05/2011 Passed in S.B. Civil Writ Petition No. 2639/02
With Amended Cause Title). Through It is Legal Heirs:.
4/1. Smt. Sharda Kotahwala, W/o Shri Haridas Kotahwala, Aged
About 67 Years, Kotahwala Haveli, Tripolia Bazar, Jaipur, Presently
in New York, USA.
4/2. Shri Chandra Mohan Bansal, Aged About 62 Years, S/o Late
Shri H.N. Bansal R/o Bansal Nikunj Chittorgarh (Rajasthan)
Presently Residing in Idar Oberstein, Germany.
4/3. Shri Manmohan Bansal, S/o Late Shri H.N. Bansal, Aged
About 60 Years, R/o 108, Gomes Defence Colony, Behind of 108,
Gomes Defence Colony, Behind SBBJ, Vaishali Nagar, Jaipur
(Already Respondent No.3).
4/4. Shri Brij Mohan Bansal, S/o Late Shri H.N. Bansal, Aged About 58 Years, R/o Bansal Nikunj Chittorgarh (Rajasthan) (Already Petitioner).
5. Smt. Kamla Bansal, R/o 108, Gomes Defence Colony, Behind SBBJ, Vaishali Nagar, Jaipur.
----Respondents Connected With S.B. Company Appeal No. 3 / 2010 Bansal Gems Pvt Ltd
----Appellant 2 Versus Brij Mohan Bansal
----Respondent _____________________________________________________ For Appellant(s) : Mr. Anuroop Singhi.
Mr. Sourabh Jain.
Mr. K.J.Mehta.
For Respondent(s) : Mr. M.M.Bansal, in person. _____________________________________________________ HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment Judgment reserved on : 12.10.2017.
Judgment pronounced on : 30th November, 2017.
Reportable (1) This company appeal had been admitted for hearing vide order dated 12.04.2012. An application has been moved on behalf of the respondents under Section 10G of Company Act, 1956 raising objection regarding jurisdiction of Single Judge Bench to hear the said appeal.
(2) It is stated that the Company Law Board was heard by Principal Bench which was being presided over by Justice A.K.Banerjee, Chairman Company Law Board accompanied by Mr. Balasubramanium, Secretary Law Board. Prior to appointment as Chairman of Company Law Board, Justice A.K.Banerjee was Judge in Allahabad High Court.
3It is further submitted that the Company Law Board is not a Court but a Tribunal and appeal lies to the High Court in whose jurisdiction the registered office of the company is situated.
(3) Submission of the respondent present in person is that as the matter has been decided by Judge of the High Court, while sitting as Chairman of Company Law Board, the appeal cannot be heard by Single Bench of the High Court but by a Division Bench and has, therefore, prayed to refer the matter to Hon'ble The Chief Justice to transfer the matter before the appropriate Bench to hear and decide the appeal. He further submits that earlier the power under Sections 397 to 403 was vested with the Court and the Company Judge was examining the matters at his own level.
It is further submitted that in terms of Section 397(2)(b), the Company Law Board may pass order to wind up the Company and thus, its powers akin to Company Judge to exercise powers under the Act for winding up of a Company. Thus, the powers of Single Judge are similar to that of the Company Law Board and, therefore, appeal would not lie against an order passed by a Company Law Board to the Single Judge.
The respondent further submits that Rule 55 of the Rajasthan High Court Rules, 1952 lays down jurisdiction of the Single Judge which provides under Section 55 sub-section 5 jurisdiction of Single Judge to admit, hear and dispose of by a Judge sitting alone a suit or proceeding in the nature of a suit coming before the Court under the Companies Act, 1956 would not come within the ambit of jurisdiction of the Single Judge.
4Further it is submitted that the Board of Company Law Administration was constituted under Section 10E after the Companies Amendment Act, 1988 and the appeals under Section 10F of the Act of 1956 which was introduced as per the Amendment Act of 1988 which provides as under : -
"S.10F provides for "Appeals against the order of CLB"
Any person aggrieved by any decision or order of the Company Law Board [made before the commencement of the Companies [Second Amendment] Act, 2002] may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order;
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days."
(4) It is also stated that as the provisions of Section Sections 397 to 403 are alternate to the winding up of proceedings and in the manner equivalent thereto, an appeal against any order passed under Section 397 of the Companies Act would not lie to the Single Judge and as appeal lies against order of winding before the Division Bench. Similarly the appeal against order passed under 397 would also lie before the Division Bench.
In support of his submissions, respondent present in person has relied on judgment passed by Supreme Court in case of Arati Dutta Vs. M/s Eastern Tea Estate (P) Ltd.; (1988) 1 Supreme Court Cases 523.
He further relies on judgment of Supreme Court in the case of Shanta Genevience Pommerat & Anr. Vs. Sakal Paper Pvt. Ltd. & Ors. ; (AIR 1983 SC 269) to show 5 that the provisions of Sections 397, 398 and 403 of the Companies Act are infact an alternate to winding up. He also relies on judgment of Supreme Court reported in [2005] 128 Company Cases 273 (Bom) 1985; Dr. Bais Surgical and Medical Institute Pvt. Ltd. & Ors. Vs. Dhananjay Pande and Others and 1985; Calcutta Chemical Co. Ltd. Vs. Krishna Das Pal & Ors. Page 503. The merit of the judgment shall be discussed henceforth.
(5) Per contra, the Counsel for the appellant submits that the objection is absolutely frivolous, misconceived and fallacious.
It is submitted that Company Act 1956 provided different under Section 2(H) of the Act to mean the Court having jurisdiction under this Act with respect to that matter relating to that company as provided under Section 10 of the Act of 1956. Section 10 provides for jurisdiction of the Courts and Section 10(1) (a) and 10(E) lays down the territorial jurisdiction while 10(F) provides for appeal against the order of CLB. It is submitted that the appointment of Hon'ble Company Judge is being done by the Hon'ble The Chief Justice under the Companies Act of 1956 to exercise jurisdiction of the High Court under the Companies Act, 1956. Learned Counsel submits that the High Court as mentioned in Section 10F provides that appeal against an order passed by CLB lies before learned Single Judge of the Hon'ble High Court and the same would not make any difference as it does not specially mentioned of appeal to be heard by two Judges as has been provided under Section 259 of the Income Tax Act, 1961 where specific provisions is available under the Act of 1961. Nor there is 6 any verdict of the Supreme Court as laid down in L.Chandra Kumar Vs. Union of India & Ors. AIR 1997 Supreme Court 1125 where directions were issued that the orders would be subject to scrutiny before a Division Bench of their respective High Court under Article 323 A and 323 B of the Constitution while the Tribunals would act as only Courts of first instance. Learned Counsel rely on judgment passed in the case 2002 (108) Company Cases 295 (Call); Tin Plates Dealers Association Pvt. Ltd. Vs. Satish Chandra Sanwalka.
It is submitted that merely on account of the constitution of CLB firm appeal before the Division Bench cannot be found. It is further stated that an appeal against the order passed in appeal under Section 10F by the Company law Judge does not lie to the Division Bench. Counsel relies on following judgments : -
(i) [2006] 7 SCC 613 ; Kamal Kumar Dutta & Anr. Vs. Ruby General Hospital;
(ii) [2003] 117 Company Cases 643 (BOM)- Bhenoy G.Dembla Vs. Prem Kutir (P) Ltd.
(6) Heard. (7) A look of the High Court Rules, 1952 shows that Rule 55 reads as under :
"55. Jurisdiction of a single Judge. - Except as provided by these Rules or other law, the following cases shall ordinarily be admitted, heard and disposed of by a Judge sitting alone, namely; (i) a motion for the admission of a memorandum of appeal or cross-
objection or an application for exparte interim order;
(ii) a civil appeal;
(iii) an execution appeal;
7(iv) a civil revision;
(v) a Suit or proceeding in the nature of a suit coming before the Court in the exercise of its original or extraordinary civil, testamentary or matrimonial jurisdiction including a proceeding under The Indian Trusts Act, 1882 (Act No. II of 1882), The Companies Act, 1956 (Act No. I of 1956), The Designs Act, 1911 (Act No. II of 1911) or The Patents Act, 1970 (Act No. 39 of 1970);
(vi) a reference under section 243 of the Rajasthan Tenancy Act, 1955 (Act No. III of 1955);
(vii) a case or proceeding under section 30 of the Rajasthan High Court Ordinance, 1949 (Ordinance No. XV of 1949);
(viii) a criminal appeal, application or reference under the Code of Criminal Procedure, 1973 or any other law except an appeal, application or reference in a case in which a sentence of death or imprisonment for life has been passed and in criminal matters against acquittal arising out of offences punishable only with death or imprisonment for life;
(ix) a case coming before the Court in the exercise of its ordinary or extra-ordinary original criminal jurisdiction *5 (deleted Semicolon) *6 except the application for releasing the accused on parole in pending Division Bench appeals.
(x) an appeal or revision from an order passed under sections 340, 341 and 343 of the Code of Criminal Procedure, 1973;
(xi) the writ petitions under Article 226 and 227 of the Constitution of India, except
(a) the Writ Petitions challenging the vires of the provisions of any Act
(b) writ petitions filed by Judicial Officers relating to their services; (c) Civil writ Petitions arising out of and relating to Central Excise and Salt Act, 1944 and Customs Act, 1962;
(d) Challenging the decisions of any Tribunal Constituted under Article 323-A and 323-B of the Constitution of India."
(xii) an application under Article 228 of the Constitution of India and the case withdrawn under the said Article :
Provided that -
(a) the Chief Justice may, from time to time direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges;
(b) a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting alone on any 8 question or questions of law arising therein for decision to a Bench of two Judges; and
(c) a Judge before whom any proceedings under The Indian Trusts Act, 1882 (Act No. II of 1882), The Companies Act, 1956 (Act No. I of 1956), The Designs Act, 1911 (Act No. II of 1911) or the Patents Act, 1970 (Act No. 39 of 1970) is pending, may with the sanction of the Chief Justice, obtain the assistance of one or more other Judges for the hearing and determination of such proceedings or of any question or questions arising therein.
Rule 61 of the Raj. High Court Rules, 1952 provides as under : -
"61. Cases to be heard by two Judges- Save as otherwise provided by these Rules or other law or by any general or special order of the Chief Justice, every other case shall be heard and disposed of by a Bench of two Judges, provided that, on on day when thee is only one Judge sitting on the Bench, such Judge may exercise jurisdiction which may be exercised by a vacation Judge during the vacation."
In AIR 1994 Bombay page 39, the question relating to appeal under Section 10F came before the Bombay High Court in Mr. Minoo H. Mody Vs. Hemant D. Vakil and others wherein it has been held as under : -
"14. We are informed by the parties that such Appeals are heard in Bombay, Gujarat and Madras High Courts by a single Bench and in Delhi and Calcutta High Courts by a Division Bench. We are further informed that Delhi as well as Calcutta High Courts are treating these Appeals on par with Appeals under Section 483 of the Act. There was some debate before us as to whether the Appeals under Sections 10F and 483 could be equated. We refuse to be drawn in that controversy in this reference.
15. To conclude, we answer the reference as under:--
Question No. 1 : This Appeal can be entertained by the High Court only on the Original Side and not on the Appellate Side.
Question No. 2: Such Appeals cannot be presented in the form of a Petition. They will have to be presented in the form of Memo- random of Appeal formulating questions of law arising out of the Order impugned. The practice followed so far is not in accordance with law. But the pending matters cannot be dismissed for this defect in the form in view of the prevailing practice and the parties can 9 be allowed to make appropriate amendments.
Question No. 3 : Appeal under Section 10F is liable to be heard by the Company Court on the Original Side as a "Company Matter" till the appropriate rules are made. We direct that copy of this judgment be placed before the Honourable Chief Justice for taking steps to frame Rules pertaining to practice and procedure concerning an Appeal under Section 10F. Copy be sent also to the Prothonotary and Senior Master for compliance in future."
As noticed above, the appeal is to be heard on the original side as a company matter.
It is true that before Section 10F had come into force. The Supreme Court in Shanta Genevienve Pommerat and Anr. Vs. Sakal Papers Pvt. Ltd. & Ors. held in para 5 & 6 as under : -
"5. Now an Order under Sections 397, 398 and 403 of the Companies Act, on the face of it, cannot be said to be an Order made or decision given, in the matter of the winding up of a company. Relief, undoubtedly under Section 397 and/or 398 is in fact an alternative to winding up. No direst order under Section 397, or 398 could be an order made or decision given by the High Court having jurisdiction under the Companies Act and therefore, an appeal will lie to the Division Bench of the same High Court. This is not disputed.
6. Chapter XLII of the Bombay High Court Rules provides for appeals to appellate court. The Rules make provision for certain type of appeals to be placed in the first instance, for admission before a bench of the High Court to be appointed by the Chief Justice. It is not in dispute that the appeal preferred by the present appellants was not one such appeal which can be placed for admission under Rule 966 A and it follows from this Rule that the appeal other than those mentioned in that Rule are not to be placed for admission. This point is no more res integra in view of the decision of this Court in M/s. Golcha Investment (P) Ltd. v. Shanti Chandra Bafna (1) AIR 1978 SC 1350 wherein after considering the provision contained in Rule 966-A, it was held that appeals, other than those set out in the Rule are not to be placed for admission and they were entitled to be admitted as a matter of course. This Court accordingly quashed the order dismissing the appeal in limine observing that the appellate court erred in summarily dismissing the appeal because it was bound to entertain the same and dispose it of on merits. This observation will mutatis mutandis apply to the present appeal."
Thus, appeal would lie to Division Bench was not disputed in that case. In the case of Arati Dutta (supra) the Court examined the issue whether appeal would lie against an order of Company 10 Judge under Section 397, 398 to the Division Bench under Section 483 of the Act of and observed as under : -
"In our opinion this position is clear from the observation of this Court in Shankar Lal Aggarwal & Ors. v. Shankar Lal Poddar & Ors., (supra) that the appeal lies to the same High Court irrespective of the powers under the Letters Patent. Sections 397 and 398 read with section 483 indicate that the appeal would lie in the same manner to the same court and naturally and logically an appeal from the decision of the Single Judge would lie to the Division Bench.
This in our opinion follows logically from the ratio of decision of this Court in Shankarlal Aggarwal & Ors. v. Shankarlal Poddar & Ors. (supra) as well as other decisions referred hereinbefore. It is true that there is perhaps no procedure to file an appeal from the decision of the learned Single Judge of the Gauhati High Court. If that is so rules should be framed by the High Court in its jurisdiction of Rule-making power for filing and disposal of such appeals. But absence of the procedural rules do not take away a litigant's right to file such appeals when the statute confers such a right specifically and the jurisdiction of the High Court to dispose of such an appeal if so filed. "
In Calcutta Chemical Co. Ltd. (supra) the High Court has held that appeal would lie as a letters patent appeal to the Division Bench against an order passed under Sections 397 & 398.
(8) The aforesaid cases related to the position as it existed before the amendment made in the Companies Act, 1956 after 1988, when Section 10E and 10F were incorporated in the Act of 1956, the issue again came up before the Supreme Court in the case of Stridewell Leathers (P) Ltd. & Ors. Vs. Bhankerpur Simbhaoli Beverages (P) Ltd. & Ors. ; (1994) 1 Supreme Court Cases 34. The core question for determination before the Supreme Court was meaning of expression striking Section 10F of the Companies Act in Certain Company amendment Act of 1998 w.e.f. 31.5.1991 and it was observed in para 6, 8, 10, 11, 13 and 17 as under : -
"6. The Companies (Amendment) Act, 1988 which has inserted Section 10- F with effect from May 31, 1991 and has also made some simultaneous changes in Section 10-E brings about the establishment of an independent 11 Company Law Board to exercise the judicial functions exercised earlier by the courts or the Central Government while providing an appeal to the High Court under Section 10-F against such orders of the Company Law Board. The power under Sections 397 and 398 of the Companies Act, exercised earlier by the court is one such power now exercised by the Company Law Board so constituted. In short, the original jurisdiction of the High Courts in respect of the matters under Sections 397 and 398 of the Companies Act is now transferred to the Company Law Board.
8. Section 10-F gives no indication of substitution of the earlier forum of appeal by a new forum unless the expression "the High Court" means only one High Court in all matters notwithstanding the fact that earlier the original jurisdiction was in different High Courts instead of in one forum now. Ordinarily, substitution of a new forum for the existing forum of appeal should not be readily inferred in the absence of a clear provision to that effect or at least any incongruity resulting from that view. There does not appear to be any incongruity in the view that forum of appeal remains unaltered even though the forum of original jurisdiction is now centralised by transfer of the same from the different High Courts to the Company Law Board alone. It is now to be seen whether this impression on first principles is negatived by the relevant statutory provisions. It is also significant that neither Section 10- E nor Section 10-F indicates any territorial nexus by providing the location of the Company Law Board, or otherwise.
10. There can be no doubt that in case the forum of appeal was indicated in Section 10-F by use of the expression "the Court" instead of "the High Court" then by virtue of the definition of the expression "the Court"
in Section 2(1 1), the court concerned would have to be determined as provided in Section 10 but there may have been some ambiguity whether that expression means "the High Court" or "the District Court" mentioned in clause (a) or clause (b) of sub-section (1) of Section 10. This ambiguity is removed by use of the expression "the High Court" in Section 10-F which unmistakably points to clause (a) of sub-section (1) ofSection 10 and this appears to be the reason for use of the expression "the High Court" instead of "the Court" in Section 10-F. There is nothing in any of these provisions to exclude the application of Section 10(1)(a) for construing the meaning of the expression "the High Court" in Section 10-F since the context does not require otherwise and such a construction prevents a hiatus. Care was taken to define the expression "the Court" in Section 2(l 1) of the Act providing clearly that the meaning is as provided in Section 10 unless the context otherwise requires; and Section 10 providing for the jurisdiction of courts then says that the court having jurisdiction under the Act would be the High Court or the District Court indicated therein. It is unlikely that with such care taken in the principal Act to define "the Court" and also specify the court having jurisdiction under the Act, any ambiguity would be left while amending the principal Act in this manner for any doubt about the forum of appeal if it was intended to be different from the existing appellate forum indicated by Section 10(1)(a). We have no doubt that express provision would have been made in the amendment to indicate a different or substituted appellate forum than the existing appellate forum if that was the intention of the amendment or jurisdiction of the court for the purpose of appeal had been altered in any manner. The absence of any indication in the amendment to suggest any change or substitution in the appellate forum is a pointer in the direction that the same continued unaltered and the expression "the High Court" instead of "the Court" was used for the reason indicated by providing that the High Court concerned continued to be the forum of appeal notwithstanding transfer of the original jurisdiction from the High Court concerned to the Company Law Board. It does appear to us that substitution of a new forum of appeal in place of the existing forum in the High Court concerned, as contended by the respondents cannot be inferred merely from the transfer of the original jurisdiction to the Company Law Board in the absence of clear provision to that effect.
1211. Use of the word 'the' before High Court is clearly intended to specify a particular High Court identified by Section 10-F itself and, therefore, it cannot be a High Court indicated by the subsequent act of the Company Law Board choosing the place of its sitting for making the order under appeal. It is also indicative of the clear intention of the legislature that the indication of the particular High Court has to be found in the existing provisions of the enactment and not by inference from any outside provision or any subsequent act of the Company Law Board or any other authority. It further lends assurance to the view that it excludes the possibility of any ambiguity in the expression and refers to a particular High Court envisaged by other provisions of the Act.
13. It may be mentioned that the original jurisdiction to try a petition for winding up of a company continues to remain in the High Court concerned even though the original jurisdiction in respect of a petition under Sections 397 and 398 is transferred to the Company Law Board. It is obvious that the appeal against an order made by the Company Judge of the High Court in a winding-up petition continues to lie before a Division Bench in the same High Court. If the construction suggested on behalf of the respondents be correct then that High Court would have no jurisdiction to entertain an appeal against the Company Law Board's order while appeal from the Company Judge's order in a winding-up petition in respect of the same company would lie there. This appears to be incongruous. A possible anomaly of this kind would be prevented by taking the view which we have indicated.
17.We are also not impressed by the argument of Shri Shanti Bhushan based on clause 11 of the Letters Patent of the Lahore High Court. In the first place any general provision for appeal must give way to the special provision made in the Companies Act. The provision of appeal by insertion of Section 10-F is in substitution of the provision in the Letters Patent or similar enactment providing for appeal against orders of the Company Judge when the original jurisdiction was in the High Courts. If the construction made by us of Section 10-F and the other relevant provisions of the Companies Act is correct, the provision in the Letters Patent of the Lahore High Court would not be material for deciding which High Court has jurisdiction to entertain the appeal since the appeal would lie by virtue of the specific provision in Section 10-F of the Companies Act. In this context, any further discussion of the provision in the Letters Patent of any High Court cannot have any significance. "
(9) Thus, a look at above paras shows that the Supreme Court was dealing with the issue different from the present one.
(10) In order to examine the present issue the relevant rule which governs the sitting of the Single Bench and Division Bench in the High Court of Rajasthan will have to be looked into. As noted above the Chief Justice is empowered to mark cases which are to be heard by Bench of two Judges. Rule 61 provides that save and otherwise provided all the other cases shall be heard and disposed by Bench of two Judges except those which are directed 13 by these rules, or by any other law or by any general or special order of the Chief Justice to be placed before Single Judge. The Chief Justice has by special order directed the Company Judge to hear all matters relating to the Company Act, 1956 and, therefore, in terms of Rule 61 read with Rule 55 of the Rajasthan High Court Rules jurisdiction to hear the appeal lies before the Single Bench.
(11) In 1998 (1) SCC 1; State of Rajasthan & Ors. Vs. Prakash Chand & Ors. it has been held by Supreme Court as under:-
"59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment :
(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.
(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.
(6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to 14 the directions given by the Chief Justice.
(8) That Shethna, J. had no authority or jurisdiction to send for the record of the disposed of writ petition and make comments on the manner of transfer of the writ petition to the Division Bench or on the merits of that writ petition.
(9) That all comments, observations and findings recorded by the learned Judge in relation to the disposed of writ petition were not only unjustified and unwarranted but also without jurisdiction and make the Judge coram-non-judice.
(10) That the "allegations" and "comments" made by the learned Judge against the Chief Justice of the High Court, the Advocate of the petitioner in the writ petition and the learned Judges constituting the Division Bench which disposed of Writ Petition No. 2949 of 1996 were uncalled for, baseless and without any legal sanction.
(11) That the observations of the learned Judge against the former Chief Justices of the High Court of Rajasthan to the effect that they had "illegally" drawn full daily allowance while sitting at Jaipur to which they were not entitled, is factually incorrect, procedurally untenable and legally unsustainable.
(12) That the "finding" recorded by the learned Judge against the present Chief Justice of India Mr. Justice J.S. Verma, that till his elevation to the Supreme Court, he had, as Chief Justice of the Rajasthan High Court, "illegally" drawn a daily allowance of Rs. 250 while sitting at Jaipur and had thereby committed "criminal misappropriation of public funds" lacks procedural propriety, factual accuracy and legal authenticity. The finding is wholly incorrect and legally unsound and makes the motive of the author not above personal pique so wholly taking away dignity of the judicial process.
(13) That the disparaging and derogatory comments made in most intemperate language in the order under appeal do no credit to the high office of a High Court Judge.
(14) That the direction of Shethna, J. to issue notice to the Chief Justice of the High Court to show cause why contempt proceedings be not initiated against him, for transferring a part-heard writ petition from his Bench to the Division Bench for disposal, is not only subversive of judicial discipline and illegal but is also wholly misconceived and without jurisdiction."
(12) Following the same, the Constitution Bench has recently held again that the Chief Justice is the master of the roster. It is his prerogative to constitute Benches of the High Court and allocated cases to the Benches so constituted.
15(13) Thus, the application is misconceived. It is noted that appeal had already been admitted after hearing both the parties and the respondent has preferred this application again which appears to be a delaying tactics.
(14) In view of the above the application filed by the respondents is dismissed with cost of Rs. 20,000/- to be deposited with the Official Liquidator attached to this Court.
(SANJEEV PRAKASH SHARMA)J. N.Gandhi/