Gujarat High Court
Dilip Singh Chauhan & vs Gujarat Urja Vikas Nigam on 3 April, 2013
Author: V.M.Sahai
Bench: Vijay Manohar Sahai, Ravi R.Tripathi, Jayant Patel
DILIP SINGH CHAUHANV/SGUJARAT URJA VIKAS NIGAM LTD C/SCA/18334/2011 CAV ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 18334 of 2011 With SPECIAL CIVIL APPLICATION NO. 6221 of 2011 With SPECIAL CIVIL APPLICATION NO. 871 of 2012 With SPECIAL CIVIL APPLICATION NO. 2744 of 2012 With SPECIAL CIVIL APPLICATION NO. 3768 of 2012 TO SPECIAL CIVIL APPLICATION NO. 3776 of 2012 With SPECIAL CIVIL APPLICATION NO. 3131 of 2012 ================================================================
DILIP SINGH CHAUHAN &
7....Petitioner(s) Versus GUJARAT URJA VIKAS NIGAM LTD & 3....Respondent(s) ================================================================ Appearance:
In SCA No.18334/2011, SCA No.3768 to 3776 of 2012 MR HASIT DILIP DAVE, ADVOCATE for the Petitioner(s) No. 1 8 In SCA No.2744/2012 MR K K TRIVEDI, ADVOCATE for the Petitioner(s) In SCA No.6221/2011 MR R K MISHRA, ADVOCATE for the Petitioner(s) In SCA No.3131/2012 MR DIGANT M. POPAT, ADVOCATE for the Petitioner(s) In SCA No.871/2012 MR AJ YAGNIK for Petitioner(s) MR MIHIR THAKOR, LD SR. ADVOCATE with MR K B PUJARA, ADVOCATE for the Respondent(s) MR S P HASURKAR, ADVOCATE for the Respondent(s) No. 1 - 4 NOTICE SERVED for the Respondent(s) No. 3 (in concerned petitions) ================================================================ CORAM:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE JAYANT PATEL Date : 03/04/2013 CAV ORDER (PER : HONOURABLE MR.JUSTICE JAYANT PATEL) All these matters are placed before this Bench of three Judges in view of the order dated 23.4.2012 & 24.4.2012 passed by the learned Single Judge of this Court. The concluding observations of the learned Single Judge, for ready reference, at paragraphs 29, 30 and 31 are as under:-
29.Thus in light of the aforesaid observation of the apex court one can safely conclude that so far as the point of difference between the two provisions namely provisions of section 51 of the Indian Electricity Act 1910 and provisions of section 164 of the Electricity Act 2003 there exists no deliberations, discussion or binding judicial pronouncement till date. The decision proceeding on broad similarity of section 51 and 164 without any elaborate deliberations and discussion on the absence of non obstante clause in section 164 would be of no avail as to take care of the challenge to the applicability of the provisions and it s scope. At the same time as the Division Bench has made observations upon the Transmitting Licensees authorities it would be most appropriate for this court to refer this group to the Larger Bench consisting of more than two judges for deciding the controversy once and for all.
30.On the question as to whether a Single Judge of this Court can directly refer the matter to Larger Bench or it has to be referred only to the Division Bench, the Full Bench of this Court has in case of Ram Fertilizers Pvt. Ltd and another v. State of Gujarat and another reported in 2001 (1) G.L.H. 698 held as under :
4.1 It will be seen from the provisions of of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two or more Judges or a Larger Bench. The rule does not require any reason for being recorded for the purpose and it is sufficient if in the opinion of learned Single Judge the requires to be considered by a Division Bench of two Judges or Larger Bench.
Therefore even if no reason is recorded for referring the matter there can arise no question of a Larger Bench not being able to consider the matter, because , the process of assignment of work to Benches is purely an internal matter of the High Court governed by these Rules and a matter, which could have been considered by a learned Single Judge, can always be referred for a decision to a Larger Bench.
31.In view of the aforesaid discussion this court is of the considered view that this group of matters deserves to be referred not to the Division Bench but deserves to be referred to the Larger Bench of three or more Hon'ble judges for deciding the aforesaid aspects. Hence I hereby in exercise of provisions contained in Rule 5 of the Gujarat High Court Rules 1993 hereby refer this group of matters to a larger bench, i.e. bench consisting of more than two Hon ble Judges. The Office is directed to place this matter before the Hon ble the Acting Chief Justice for appropriate orders.
It appears that thereafter, the matters were placed before the Hon'ble the Chief Justice on administrative side and in view of the aforesaid observations by the learned Single Judge on judicial side, the Hon'ble the Chief Justice has issued consequential direction on administrative side, and all the matters are placed before the present Bench (Larger Bench).
We have heard Mr.Hasit Dilip Dave, Mr.K.K. Trivedi, Mr.R.K. Misra and Mr.Digant M. Popat, learned Counsel appearing for the petitioners and Mr.Mihir Thakor, learned Sr. Counsel assisted by Mr.K. B. Pujara and Mr.S.P. Hasurkar, learned Counsel appearing for the respondents.
Mr.Mihir Thakor, learned Sr. Counsel raised the preliminary objections, contending that when there is binding decision of the Division Bench on the point, whether the learned Single Judge is justified in making reference to the Larger Bench.
On behalf of the petitioners, it was submitted that the Rule permits making of such reference to the Larger Bench, even if there is binding decision of the Division Bench. Hence, there is no substance in the preliminary contentions.
We find that the preliminary contentions raised deserve consideration. The Apex Court had an occasion to consider more or less similar situation in the case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others, reported in (2002) 1 SCC, 1.
The questions arose before the Apex Court were as to whether Hon'ble two Judges of Apex Court could disagree with a judgement of three Hon'ble Judges of the Apex Court and whether, for that reason, two Hon'ble Judges could refer the matter before them directly to a Bench of five Hon'ble Judges. We find it appropriate to reproduce the judgement, for ready reference, as under:-
"The following order of the Court was delivered:
"1. These matters come to be placed before this Bench of five Judges by reason of an order passed on 24th October, 1996 by a Bench of two learned Judges. The two learned Judges stated in that order that they had been taken through the judgment of this Court (delivered by a Bench of three learned Judges) in Nityananda Kar and Anr. etc. v. State of Orissa and Anr., [1991] Suppl. 2 SCR 644 and that, "with utmost respect"., they did "not agree with the reasoning and the conclusions reached therein". The learned Judges set out four reasons why they disagreed with the said judgment. They then directed that these matters "be placed before a larger bench of five Judges of this Court. The Registry to place the papers before Hon'ble the Chief Justice for appropriate orders in this Case.".
2. The question is whether two learned Judges of this Court can disagree with a judgment of three learned Judges of this Court and whether, for that reason, they can refer the matter before them directly to a Bench of five Judges?
3. We may point out, at the outset, that in Bharat Petroleum Corporation Limited v. Mumbai Shramik Sangha and Ors., [2001] 4 SCC 448, a Bench of five Judges considered a some what similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench Judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges.
4. Learned counsel lor the appellants drew our attention to the provisions of Article 145, clauses (2) and (3) of the Constitution of India. Clause (2) empowers the making of rules to fix the minimum number of Judges of this Court to sit for any purpose. Clause (3) says that the minimum number of Judges who are to sit for the purpose of deciding any case involving any substantial question of law as to the interpretation of the Constitution or for the purpose of hearing an> reference under Article 143 shall be five. Learned counsel drew our attention to Order VII, Rules (1) and (2) of the Supreme Court Rules, 1966. Rule (1) says that every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice. Clause (2) says that where, in the course of the hearing of any cause, appeal or proceeding, a Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it. Learned counsel submitted that the Bench of two learned Judges that made the reference in this case did not over-rule the judgment of three learned Judges in the case of Nityananda Kar, as they could have, on the basis of an earlier Constitution Bench judgment (which, incidentally, is not even mentioned in the referral order), but had chosen to refer it to the Chief Justice who had constituted a Constitution Bench. In learned counsel's submission, circumstances could arise where it would be permissible for a Bench of two learned Judges directly to make a reference to-a Constitution Bench; for example, when two judgments of a Constitution Bench were in conflict with each other or a Judgment of a three-Judge Bench was per incuriam. In learned counsel's submission, the present was a case which justified the reference directly to a Constitution Bench.
5. The learned Attorney General submitted that a Constitution Bench judgment of the Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges - a proposition that learned counsel for the appellants did not dispute. The learned Attorney General drew our attention to the judgment of a Constitution Bench in Sub-Committee on Judicial Accountability v. Union of India and Ors., [1992] 4 SCC 97 where it has been said that "no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over the discretion exercised or judgment rendered in a cause or matter before another co-ordinate Bench". The learned Attorney General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar, could have referred the case to a Bench of five learned Judges.
6. In the present case of the Bench of two learned Judges has. in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five, Judges, in our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then the Bench of three Learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.
7. It is not necessary for us to go into the hypothetical cases spoken of by learned counsel for the appellants where a reference directly by a Bench of two learned Judges to a Constitution Bench would be justified. Suffice it to say that, for the present, we find it very difficult to accept the correctness of such hypothesis. The only situation when a two Judge Bench may refer a matter directly to a Constitution Bench is when the provisions of clause (3) of Article 145 are attracted.
8. We have quoted the relevant portion of the referral order in the present case. By a judicial order the matters before the Bench of two learned Judges were order to be placed before a Bench of five learned Judges. The Chief Justice, as master of the cause lists was required only to issue consequential administrative directions.
9. In the result, we are of the view that these matters could only have been referred to a Bench of three learned Judges. We, accordingly, order that they shall be placed before a Bench of three learned Judges. Having regard to the lapse of time, they shall be so placed in January, 2002." (Emphasis supplied) The pertinent aspect is that even in the Supreme Court Rules, it is provided that if a Bench considers that the matter should be dealt with by Larger Bench, it shall refer the matter to the Hon'ble the Chief Justice, who shall thereupon constitute such a Bench for hearing of it. Similar is Rule 5 in Gujarat High Court Rules, 1993, which provides that the learned Single Judge may refer any matter before him or question(s) arising in such matter to the Division Bench of two Judges or a Larger Bench. In the aforesaid decision, it was observed by the Apex Court that when one Bench of two Hon'ble Judges doubts the correctness of a decision of a Bench of three Hon'ble Judges, the principles of judicial discipline and propriety are required to be observed. As per the above referred view of the Apex Court, a Bench of two Hon'ble Judges should follow a decision of a Bench of three Hon'ble Judges, but if a Bench of two Hon'ble Judges concludes that the earlier judgement of three Hon'ble Judges is so incorrect that in no circumstances it could be followed, the proper course for it is to refer the matter before a Bench of Hon'ble three Judges with reasons as to why they could not agree with the earlier judgement. It is only thereafter if the Bench of three Hon'ble Judges also comes to the conclusion that the earlier judgement of the Bench of three Hon'ble Judges is incorrect, reference may be made to a Bench of five Hon'ble Judges.
Another pertinent aspect is that in the said matter, the Bench of five Hon'ble Judges of Apex Court has taken the view that the matter was, therefore, required to be placed before a Bench of three Hon'ble Judges and accordingly, the direction was issued to place the matter before a Bench of three Hon'ble Judges.
It is true that Rule 5 of Gujarat High Court Rules permits making of reference of any matter or question to a Division Bench of two Hon'ble Judges or Larger Bench. Rule 5 of Gujarat High Court Rules, for ready reference, reads as under:-
"5. (1) A Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two Judges, or a Larger Bench.
(2) A Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under sub-rule (1) above to a Larger Bench."
However, for giving effect to the above referred Rule, one has to keep in mind the principles of judicial discipline and propriety. The above referred observations made by the Apex Court lead us to hold that the judicial discipline and propriety demands that if the learned Single Judge is of the view that the judgement of a Bench of two Hon'ble Judges or the view of a Bench of two Hon'ble Judges requires reconsideration or even a fresh look, it would be expected for the learned Single Judge to refer the matter before a Bench comprising of two Hon'ble Judges. Thereafter, if the said Bench is of the view that the earlier view of the Division Bench cannot be agreed with for the reasons of disagreement, the matter thereafter may be referred by the said Division Bench to a Larger Bench. Therefore, the power under Rule 5 is required to be exercised in aforesaid manner.
One might contend that if Rule 5 is read in the manner that the learned Single Judge has to first refer the matter to a Division Bench and he cannot refer the matter to a Larger Bench, then such an interpretation may result into curtailing the operation of Rule 5. We do not find that contention has any force in it. It is hardly required to be stated that the power, if any, including that under Rule 5 with the learned Single Judge or with the Division Bench is to be exercised, keeping in view " the principles of judicial discipline and propriety". In our view, in a given case, if a Larger Bench judgement is cited before a learned Single Judge, but the learned Single Judge, for the valid reasons, finds that in view of a subsequent Supreme Court judgement or in view of other valid reasons known to law, earlier view of the Larger Bench deserves reconsideration, in those circumstances, he may refer the matter to the Larger Bench. Therefore, it cannot be said that the power under Rule 5(1) for referring the matter to the Larger Bench by the learned Single Judge would be redundant or that no meaning would be available to such power if the learned Single Judge is required to refer the matter to only a Division Bench.
If the situation is further considered and examined in context of Rule 5(2), we find that the same interpretation and the meaning would be available to the power of the Division Bench under Rule 5(2) for referring the matter or any question to a Larger Bench. The principle would remain that if a learned Single Judge or a Division Bench is of the view that any decision of a Division Bench or of a Larger Bench requires reconsideration for valid reasons, learned Single Judge or a Division Bench may refer the matter, at the first instance, to a Bench of equal number of Judges, keeping in view the principles of judicial discipline and propriety. It is only thereafter if the Bench, which has been referred the matter or the question, is of the view that it has reasons for disagreement, the matter may be referred to a Larger Bench of more number of Hon'ble Judges by the said Bench. In our view, the aforesaid appears to be a proper interpretation of Rule 5(1) as well as of Rule 5(2), if the principles of judicial discipline and propriety are taken into consideration as observed and held by the Apex Court in the above referred case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others (supra).
At this stage, we may refer to two decisions of Full Bench of this Court; one was in the case of Rama Fertilizers Pvt. Ltd. & Anr. Vs. State of Gujarat & Anr., reported in 2001(1) GLH, 698; and another is in the case of Jayendrasinh Bhupatsinh Diama -(2) v. State of Gujarat Through Additional Secretary (Inquiry) & Ors., reported in 2012 (2) GLR, 1096. In the case of Rama Fertilizers Pvt. Ltd. & Anr. Vs. State of Gujarat & Anr. (supra), when the Full Bench of this Court considered and decided the matter on 13.10.2000 for giving interpretation to Gujarat High Court Rules, the above referred decision of the Apex Court in the case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others (supra) was not there, inasmuch as the decision of the five Hon'ble Judges' Bench of the Apex Court has been delivered on 4.12.2001 i.e. subsequent to the decision of the Full Bench of this Court in the case of Rama Fertilizers Pvt. Ltd. & Anr. Vs. State of Gujarat & Anr. (supra). Therefore, in view of the subsequent decision of the Apex Court for making observations for principles of judicial discipline and propriety, we find that the view taken by the Full Bench of this Court would stand diluted to that extent, inasmuch as, at the first instance, the learned Single Judge or the Division Bench, as the case may be, under Rule 5(1) or under Rule 5(2) when finds that the decision of the earlier Bench, may be of the Division Bench or of the Larger Bench requires reconsideration or a fresh look, the matter shall be referred, at the first instance, by the learned Single Judge or the Division Bench, as the case may be, to the Bench of equal number of Hon'ble Judges and it is only thereafter if Coordinate Bench takes the view that the earlier view cannot be agreed with or there are reasons for disagreement, the said Bench may refer the matter to the Larger Bench. In the case of Jayendrasinh Bhupatsinh Diama -(2) v. State of Gujarat Through Additional Secretary (Inquiry) & Ors. (supra), the Full Bench of this Court (wherein one of us - Jayant Patel, J. - was Member), instead of referring the matter to the Bench of equal strength, adopted the course for deciding the matter by itself, since it was referred to it. But then this, in our view, does not lay down a proposition of law to the effect that, 'when a matter is referred to a Larger Bench, in all cases, the Larger Bench must decide the same, once it is so assigned by the Hon'ble the Chief Justice on administrative side, after referral order of the learned Single Judge or Division Bench under Rule 5 of Rules'.
Be it noted that the matter is not referred to by the Hon'ble the Chief Justice in exercise of power under Rule 6 of the Gujarat High Court Rules independently, but is referred to the present Bench in view of the observation made by the learned Single Judge of this Court on judicial side and consequential directions are issued by the Hon'ble the Chief Justice on administrative side. Further, the Full Bench of this Court, in the case of Jayendrasinh Bhupatsinh Diama -(2) v. State of Gujarat Through Additional Secretary (Inquiry) & Ors. (supra) had not considered the question about the mode and manner of exercise of power under Rule 5(1) or (2) in light of the principles of judicial discipline and propriety. Therefore, it appears to us that merely because one Full Bench adopted the course for deciding the matter referred to it, that would not come in the way of considering the matter by us, keeping in view the principles of judicial discipline and propriety as observed by the Apex Court in the above referred decision in the case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others (supra).
In view of the aforesaid observations and discussion, we find that all the matters are required to be placed before a Bench of two Hon'ble Judges (Division Bench), because there is already earlier view of the Division Bench of this Court in the case of Himmatbhai Vallabhbhai Patel v. Chief Engineer (Project) Gujarat Ennergy Transmission and Ors., reported in 2011 (2) GLH, 781, which is also referred by the learned Single Judge in the referral order.
In view of the aforesaid observations and discussions, we are inclined to adopt the same course as was adopted by the Hon'ble Apex Court in the above referred decision in the case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others (supra). Hence, we are of the view that all the matters could only have been referred to a Bench of two Hon'ble Judges (Division Bench). We accordingly order that the matters shall be placed before the Division Bench, as may be ordered by the Hon'ble the Chief Justice on administrative side, preferably on 15.4.2013.
(V.M.SAHAI, J.) (RAVI R.TRIPATHI, J.) (JAYANT PATEL, J.) vinod Page 19 of 19