Bombay High Court
M/S. Magnum Opus It Consulting Pvt. Ltd. ... vs M/S. Artcad Systems Thr. Proprietor ... on 11 April, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4985 OF 2023
M/s. Magnum Opus IT Consulting Pvt. Ltd. .... Petitioner
versus
M/s. Artcad Systems .... Respondent
.......
• Mr. Saket Mone a/w Mr. Sangramsingh R. Bhonsle a/w Mr.
Siddharth A. Mehta a/w Mr. Abhishek Salian a/w Mr. Pushkara
A. Bhonsle i/b. Vidhii Partners, Advocate for Petitioner.
• Mr. Alankar Kirpekar a/w Sagar Kasar a/w Ms. Chaitali Bhogle
i/b. Vivekanand V. Krishnan, Advocate for Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 11th APRIL 2023
P.C. :
1. Heard Mr. Saket Mone, learned counsel for the Petitioner
and Mr. Alankar Kirpekar, learned counsel for the Respondent.
2. In this Writ Petition, the Petitioner has challenged the
order dated 26/01/2023 passed by the learned Arbitrator,
Nashik, in Arbitration Petition No.169 of 2016. This Petition is
filed under Article 227 of the Constitution of India. It involves
Nesarikar
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provisions of the Micro, Small and Medium Enterprise Development
Act 2006 and the Arbitration and Conciliation Act, 1996.
3. Learned counsel for the Respondent raised a
preliminary objection that the Petition does not lie before a
Single Judge Bench of this Court and it should be listed before a
Division Bench. In view of that objection, I had directed the
Registry to examine this issue and submit a report. The Registry
has submitted a report dated 30/03/2023 and it was mentioned
that this Writ Petition will lie before the Division Bench.
4. Learned counsel for Respondent relied on the orders
passed by two Division Benches of this Court as follows:
(i) The first is the order dated 04/01/2021 passed
in Writ Petition (ST) No.24 of 2021 in the case
of Shivaji Laxman Wadkar Vs Election Returning
Officer and Anr. There was another connected
Writ Petition which was decided by the same
order.
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(ii) The judgment in the case of Shri Hariom Krishi
Kendra Vs State of Maharashtra & Others, as
reported in 2020 (3) Mh. L. J. 118.
5. On the other hand, learned counsel for the Petitioner
relied on the judgment of Full Bench of this Court in the case of
Prakash Securities Pvt. Ltd. Vs. Life Insurance Corporation of
India, as reported in 2012 (5) Mh.L.J. 312 to contend that the
Petition lies before the Single Judge.
6. I have considered these submissions and I have perused
these judgments referred by the parties. As far as Shivaji's case
(supra) is concerned, paragraph Nos.10 to 13 are important,
which read thus:
"10. Admittedly the Maharashtra Village Panchayats
Act, 1959 is not specified as one of those Acts
prescribed in Rule 18 of Chapter XVII of the
Bombay High Court Appellate Side Rules, 1960. A
perusal of the explanation to the said rule makes
it clear that the expression 'order' appearing in
clauses 1 to 46 thereof means any order passed by
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any judicial or quasi judicial authority empowered
to adjudicate under those specified statues.
11. A conjoint reading of the aforesaid provisions
makes it clear that even if the impugned order is
passed by a quasi judicial authority, that itself
would not be the criteria to decide that the
learned Single Judge of this Court could hear the
writ petition under Article 226 or Article 227 of
the Constitution of India unless the impugned
order is passed by any judicial or quasi judicial
authority empowered to adjudicate under one of
those Acts specified in Rule 18 of Chapter XVII.
12. There is no merit in the submission of the learned
senior counsel for the petitioner that in view of
sub-Rule 3 of Rule 18 a learned Single Judge of
this Court has jurisdiction to hear the matter
arising out of the order passed under the
provisions of the Maharashtra Village Panchayats
Act. In our view, rule 3 will have to be read with
rule 18, 1st Part which specifies the number of
Acts to be read with explanation which makes it
clear that a Single Judge can exercise powers
under Article 226 or Article 227 of the
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Constitution only if the quasi judicial or judicial
order is passed under any of the Acts specified
under Rule 18 of the Bombay High Court
Appellate Side Rules.
13. In view of the fact that the Maharashtra Village
Panchayats Act does not fall under any of those
specified Acts, these writ petitions impugning
quasi judicial orders passed under Maharashtra
Village Panchayats Act pertain to the Division
Bench and not Single Judge of this court. The
objection raised by the learned senior counsel for
the petitioner is devoid of merits and is
accordingly rejected."
7. In the case of Shri Hariom Krishi Kendra (supra)
paragraph No.16 is important which reads thus:
"16. Two tests are required to be satisfied by the
Single Judge to hear and dispose of the writ
petitions under Articles 226 and 227 of the
Constitution of India and those are - (i) that it
challenges the judicial or quasi judicial orders,
and (ii) that such orders are passed in exercise of
the statutory power conferred under the
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enactments specified in Items (1) to (46). Thus,
the nature of the order and the enactment
covered by Rule 18; are the two tests. Any
decision by the Single Judge travelling beyond
the scope of Rule 18 would be void. Therefore,
the provision of Rule 18 will have to be construed
strictly. The Single Judge cannot travel beyond
the restrictions imposed therein."
These observations are quite strong and it was
observed that any decision by the Single Judge travelling beyond
the scope of Rule 18 would be void.
8. In view of these observations, it is necessary to be very
sure whether a Single Judge has jurisdiction to decide such Writ
Petitions. The view taken by both these Division Benches
appears that unless the Acts concerned are mentioned in the list
provided under Rule 18 of Chapter XVII of the Bombay High
Court Appellate Side Rules, 1960, the Petition under Article 226
or Article 227 will not lie before the Single Judge Bench.
9. In Shivaji Wadkar's case (supra) Division Bench took
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into consideration sub-rule 3 of Rule 18 of the Chapter XVII
which appears to be quite wide.
10. Exactly this rule fell for consideration before the Full
Bench which is reflected in the judgment in Prakash Securities's
case (supra). Paragraph No.5 of that judgment is important,
which reads thus;
"5. Having heard the learned Counsel appearing for
parties, we find that Clause (3) of Rule 18 of
Chapter XVII of the Bombay High Court Appellate
Side Rules, 1960, is wide enough to include the
orders passed by any quasi-judicial authority
under any enactment, even it such explanation is
not covered by clauses 1, 2 and 4 to 43 of Rule
18. It is necessary to note that the original Rule
18 had 5 clauses providing that the orders passed
under the Rules and legislations specified therein
may be challenged in the writ petition before the
Single Judge. It appears that subsequently several
clauses came to be added to Rule 18. In the year
1997 by Notification dated 16-10-1997, the
Explanation came to be added. It was thereafter
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by Notification dated 15-7-1999 that Clause (3)
of Rule 18 came to be amended to insert the
words "or by any quasi-Judicial Authority". It
appears to us that this amendment to clause (3)
of Rule 18 was made in the year 199 to cover
orders of any quasi-Judicial Authority under any
other legislation which may not have been
specified in Clause (1) to (43). Hence, the order
passed by the quasi-Judicial Authority under the
Public Premises Act, 1971 is also covered by Rule
18(3) so as to indicate that the petitions under
Articles 226 or 227 of the Constitution
challenging the order of quasi-Judicial Authority
under the Public Premises Act, 1971 is to be
heard and decided by the learned Single Judge of
this Court."
11. Thus, it appears that there is divergent view in the Full
Bench judgment and the Division Bench judgments referred to
hereinabove.
12. Both the learned counsel fairly submitted that though
the Full Bench judgment would be binding in such situation, the
matter still requires consideration by a Larger Bench instead of
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being decided by a Single Judge Bench. In my opinion also,
when there is Division Bench judgment taking a particular view,
then propriety requires that the matter is referred to a Larger
Bench rather than expressing any opinion on either of these
views. There is one more submission advanced by learned
counsel for the Respondent in respect of the Full Bench
judgment. He submitted that after the Full Bench Judgment was
delivered, the said rule was further amended and three more
Acts were added in the list. He submitted that if sub-rule 3 was
in operation, then there was no necessity to add further Acts in
the list. He submitted that it was a subsequent development
which occurred after passing of the judgment by the Full Bench
and therefore it would also be a relevant consideration.
13. Since these issues keep coming up in many matters, it
is necessary that they are finally decided by authoritative
pronouncement. Considering the importance of the issue, I am
invoking the provisions of Rule 8 of Chapter I of the Bombay
High Court Appellate Side Rules, 1960, which reads thus:
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"8. Reference to two more Judges -
If it shall appear to any Judge, either on the
application of a party or otherwise, that an
appeal or matter can be more advantageously
heard by a Bench of two or more Judges, he may
report to that effect to the Chief Justice who shall
make such order thereon as he shall think fit."
14. Considering this discussion, the following order is passed :
ORDER
(i) The Registry is directed to place this matter before the Hon'ble the Chief Justice for consideration of constituting an appropriate larger Bench to decide the issue which is framed as follows -:
"Whether the Single Judge's powers to finally dispose of applications under Article 226 or 227 as provided under Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, are applicable to the specific Acts mentioned under sub-::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 23:24:31 :::
11 / 11 905-WP-4985-23.odt Rule 6 to 46 of the said Rule in relation to judicial or quasi-judicial orders or these powers extend to any judicial or quasi- judicial orders under any statute that is not mentioned under sub-Rule 6 to 46 of the said Rule."
(ii) In the interest of justice, ad-interim relief granted earlier, shall continue till 12/06/2023.
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