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1970 DIGILAW 24 (ALL)

Paras Nath Tewari v. Bhaiya Lal

1970-01-20

JAGDISH SAHAI, YASHODA NANDAN

body1970
JUDGMENT Jagdish Sahai, J. - By means of this application it is prayed that the petitioner Paras Nath Tewari be allowed to add the ground given below to the application under Article 133 (1) (c) of the Constitution of India made by him for a certificate that the case is fit one for appeal to the Supreme Court of India : "Because the judgment and the order dated 30th October, 1969 by the Division Bench consisting of Hon'ble Mr. Justice Jagdish Sahai and Hon'ble Mr. Justice Yashoda Nandan in the writ petition is without jurisdiction inasmuch as at the material time the work allotted to the Bench was to receive the application under Article 226 of the Constitution other than} in the nature of Habeas Corpus for admission and the work of final disposal of the said applications was allotted to another Hon'ble Judge of the Court sitting alone." This ground admittedly and clearly is not taken amongst those taken in the application under Article 133 (1) (c) of the Constitution of India nor was this plea raised before the Bench which decided the writ petition. 2. All writ petitions in this Court are moved before a Division Bench. The writ petition giving rise to this application was moved by Bhaiyya Lal before this Bench on 25th August, 1969. At that time, Mr. D. S. Sinha, the learned counsel for the petitioner Paras Nath was present in, Court. Immediately the writ petition was admitted by this Bench, Mr. D. S. Sinha accepted notice on behalf of the petitioner who was respondent No. I in the writ petition (see the order-sheet dated 25-8-1969). On the request of the learned counsel for the parties, an order was passed that the case be shown in the cause list of 1st of September, 1969. On that date, Mr. G. C. Dwivedi, the learned counsel for Bhaiyya Lal, the petitioner in the writ petition giving rise to this application and Sri D. S. Sinha and Mr. S. C. Khare, the learned counsel for Sri Paras Nath, the petitioner, in the Article 133 (1) (c) application, were present. After hearing Mr. Dwivedi and Mr. Khare, the Bench vacated the stay order which it had granted on 25th August, 1969. S. C. Khare, the learned counsel for Sri Paras Nath, the petitioner, in the Article 133 (1) (c) application, were present. After hearing Mr. Dwivedi and Mr. Khare, the Bench vacated the stay order which it had granted on 25th August, 1969. Our order reads : "In view of the joint request of the learned counsel for the parties the case has been fixed for final hearing on 15th September, 1969. As there is a conflict of authorities on the question raised in this case, the case should be listed before a Division Bench. Office snail give notices to Mr. Dwivedi to serve personally on the respondents In addition the office shall issue notices to the respondents forthwith under registered cover." The case was listed on September 18, 1969. On that elate it was found that the notices that were ordered to be issued had not been served on some of the respondents. On September 19, 1969, arguments in the case started. The next date for hearing was September 26, 1969. Arguments were continued on that date as they were continued on subsequent dates fixed for hearing, i.e., September 29 and 30. October 7, 1969, October 10, 22, 28 and 29, 1969. On the last date, i.e., October 29, 1969, the Bench started dictating judgment in the presence of the learned counsel for the parties and completed it on October 30, 1969. 3. From the very beginning, Sri S. C. Khare and Sri D. S. Sinha, the learned counsel for Paras Nath, were present and at no time objection was taken with regard to the hearing of the case by this Bench. It is only after Paras Nath has lost the case that it has occurred to him that the Bench had no jurisdiction to hear the case. In the affidavit filed in support of the application under Article 133 of the Constitution, it has been stated that objection with regard to the alleged want of jurisdiction could not be taken before, because Paras Nath was not aware of the legal position that the Bench which admits a case could not hear it. On the point whether or not the learned counsel for Paras Nath was aware of this position, there is significant silence. Admittedly the point was never taken before the Bench. 4. The matter arose in a writ petition. On the point whether or not the learned counsel for Paras Nath was aware of this position, there is significant silence. Admittedly the point was never taken before the Bench. 4. The matter arose in a writ petition. It is settled law that if a point is not taken before the authority concerned, it cannot be raised at a subsequent stage. See Messrs. Panna Lal Binjraj v. Union of India, A.I.R. 1957 S.C. 397 and Kailash Nath Halwai v. The Registrar, Co-operative Society, U. P., 1960 A.L.J. 20. That rule should be followed in applications under Article 133 of the Constitution arising out of the writ petitions. 5. Besides it is also well established that if a point is not raised before a Bench hearing the case, the same cannot be raised for purposes of appeal to the Supreme Court. Inasmuch as the objection was not taken during the hearing of the case, Bhaiyya Lal had no opportunity to meet it. The Bench heard the case with the consent of the learned counsel for the parties and it is too late in the day now for Paras Nath to raise the objection. In our opinion this application should be dismissed on this ground alone. 6. Since Mr. D. S. Sinha, the learned counsel for the petitioner, has also argued on the merits of this question, we proceed to deal with it. The entire submission is based upon a mis-conception with regard to the jurisdiction of the Benches of this Court. Every judge represents the Court and whenever a case is presented, the Bench receiving it is fully seized of it and has complete dominion over it. It exercises all the powers of the Court over it. It can admittedly reject the application before it, and fix a date for final hearing. It is not con- tended that it. can only admit and if it wants to reject it, it has to order that the case be put up before the Chief justice for nominating a Bench to deal with the case. It is therefore difficult to conceive that even though it can dismiss the case at the time of admission or fix a date for hearing, it cannot hear the case with or without the consent of the parties. Learned counsel has placed reliance on certain rules framed by this Court relating to distribution of work. It is therefore difficult to conceive that even though it can dismiss the case at the time of admission or fix a date for hearing, it cannot hear the case with or without the consent of the parties. Learned counsel has placed reliance on certain rules framed by this Court relating to distribution of work. Those rules only regulate the hearing of cases in this Court. They are framed for convenience and proper working of the Court and do not affect the inherent jurisdiction of the Bench receiving a case, to pass such orders as it considers just and proper. It would be noticed that Article 225 of the Constitution, under which these rules have been framed, speaks of "including any power to make Rules of Court and to regulate the sittings of the Court." The rules only regulate the sittings of the Court. They are not the source from which the judges of this Court derive jurisdiction to decide cases. A judge derives jurisdiction to decide cases by virtue of his appointment as a judge, by the President, under the provisions of the Constitution. In our opinion, the learned counsel is not correct in his assumption that the jurisdiction to decide a case accrues to a judge by virtue of the allotment of work by the Chief Justice. We will deal with the legal aspect of the matter a little later. We first address ourselves to the factual position. 7. It has not been stated on behalf of the petitioner nor so far as we could see, does the order-sheet show that any order was passed by this Bench tying up the case to itself. The case was shown in the cause list of this Bench and we heard it in the normal course. In all likelihood the case was listed before this Bench because it had fixed a date of hearing on the joint request of the learned counsel for the parties. On a large number of occasions in the past, cases admitted by a Bench were heard by the same Bench, without there being an order of the Chief Justice. In all likelihood the case was listed before this Bench because it had fixed a date of hearing on the joint request of the learned counsel for the parties. On a large number of occasions in the past, cases admitted by a Bench were heard by the same Bench, without there being an order of the Chief Justice. In the present Case, however, it cannot be said that the Bench heard the case without its being assigned to it by the Chief justice for the simple reason that the assignment of cases is made to single judges or Division Benches by showing the same before them in the daily cause list. Specific orders are not passed by the Chief justice and the allotment of cases in the daily cause list have his authority. Inasmuch as the case was listed before this Bench in the cause list of the various dates referred to above, there is no substance in the submission that the case was not assigned to this Bench. 8. With regard to the legal position, we are of the opinion that the allotment of work by the Chief justice is a purely administrative function and has nothing to do with the jurisdiction of a Bench or the judges of this Court. In Messrs. Pannalal Binjraj v. Union of India. the learned judges of the Supreme Court, while dealing with the question of the place of assessment of an assessee, had occasion to consider the powers of transfer vested in the Commissioner of Income Tax. Their Lordships held that the power of transfer or to make arrangements of the sitting of the place where assessment is to be made is more administrative than judicial. That was the view taken by the Federal Court in Wallace Brothers and C. Ltd. v. Commissioner of Income-tax, Bombay, Sind and Baluchistan, A.I.R. 1945 F.C. 9 where it was observed as follows : "Clause (3) of Section 64 provides that any question as to the place of assessment shall be determined by the Commissioner or by the Central Board of Revenue. Proviso 3 to the clause enacts that if the place of assessment is called in question by the assessee, the Income Tax Officer, shall, if not satisfied with the correctness of the claim, refer the matter for determination under this sub- section before assessment is made. Proviso 3 to the clause enacts that if the place of assessment is called in question by the assessee, the Income Tax Officer, shall, if not satisfied with the correctness of the claim, refer the matter for determination under this sub- section before assessment is made. These provisions clearly indicate that the matter is more one of administrative convenience than of jurisdiction and that in any event it is not one for adjudication by the Court." The Supreme Court has referred to this case in Messrs. Pannalal Binjraj v. The Union of India'. These decisions support the view we are taking. We are of the opinion that the regulation of the sittings of the judges of the Court is not a judicial function that the Chief justice performs. It is only an administrative power discharged to facilitate the performance of the judicial functions of the Court by the various judges who constitute it. Once the case is before a Bench, it has full jurisdiction to decide it and is not only fully seized of it but has complete dominion over it to fix dates and decide it in accordance with its views and the law on the subject. The administrative powers of the Chief justice do not destroy this inherent jurisdiction possessed by the Bench receiving a case and must be read subject to it. 9. In the present case, the objection seems to be to the method of exercise of jurisdiction by this Bench. Admittedly, the Bench had the jurisdiction to decide the case as any other in the Court. What in substance is contended is that the jurisdiction will remain unexercisable (as if it were latent) without an order by the Chief justice assigning the case to the Bench and that once that order is there, the jurisdiction to decide the case becomes patent. It was observed in Rajwant Prasad Pande v. Ram Ratan Gir, A.I.R. 1915 P.C. 99 as follows : "Their Lordships think it is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a court can never in law justify a denial of the existence of such jurisdiction." 10. We would like to add that even if there were no implied or express order of the Chief justice assigning this case to this Bench, the judgment dated October 30, 1969 would not be bad. We would like to add that even if there were no implied or express order of the Chief justice assigning this case to this Bench, the judgment dated October 30, 1969 would not be bad. We derive support for this view from certain decisions recorded under sub-sec. (2) of Section 13 of the Bengal, Agra and Assam Civil Courts Act which reads : "13. (1) ........................................................... (2) If the same local jurisdiction is assigned to two or more Civil judges, or to two or more Munsifs, the District judge may assign to each of them, such civil business cognizable by the Civil judge or Munsif, as the case may be, as, subject to any general or special orders of the High Court, he thinks fit. ......................................." Certain cases were decided by the Munsifs and the Civil judges, without .there being an order by the District judge under sub-sec. (2) of Section 13 of the Bengal, Agra and Assam Civil Courts Act and the jurisdiction of those Munsifs and Civil judges was challenged before the High Courts concerned. The decisions ate that in such cases there is no want of jurisdiction and the judgments and the decree passed by those courts were perfectly valid. See Jagabandhu Nandi V. Sava Prasad Bhattacharya, 53 C.W.N. 629, Masrab Khan v. Debnath Mali, A.I.R. 1942 Calcutta 321, Jitendra Nath Pal v. Birendta Krishan Roy, A.I.R. 1938 Calcutta 193, Suban Rai v. Kesho Prasad Singh, A.I.R. 1930 Patna 230 and Raja Jaganath Prasad Singh v. Sheonandan Sahay, A.I.R. 1921 Patna 152. It is not necessary to multiply authorities because it has not been stated before us that a contrary view has been taken by any Court. 11. There are no merits in this application. It is accordingly rejected.