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2015 DIGILAW 201 (CHH)

HITENDRA KUMAR SONI v. State Of Chhattisgarh

2015-08-06

SANJAY K.AGRAWAL

body2015
ORDER : 1. Appellant herein Dr. Hitendra Kumar Soni has filed this writ appeal under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (herein after called as Act of 2006) against the order passed by learned Single Judge of this Court on 28.04.2015 in W.P.(S) No.4973 of 2015 dismissing the writ petition. 2. The Registry of this Court checked the writ appeal filed by the appellant herein and on behalf of Additional Registrar (Judicial) following note was drawn on 06.06.2013 :- "The petition checked it appears to be properly drawn-up duly stamped and is accompanied necessary documents. It be registered and placed before Hon'ble Division Bench for order on admission. I.A. No.01 application for out of turn hearing/urgent hearing. I.A. No.02 application for filing the case during summer vacation. For A.R.(J) 06.06.2013" 3. As it is apparent from the above-stated note drawn by the office the matter is cognizable by the Division Bench of this Court but it appears that by virtue of Rule 41 of the Rules of 2007, this writ appeal has been listed before this Vacation Bench which is Bench sitting alone for consideration on the question of admission and hearing on application for interim relief. 4. The short question that arises for consideration as to whether Vacation Judge sitting alone while acting in the long vacation as a Vacation Judge can exercise the appellate jurisdiction expressly conferred by Act, of 2006 to a Division Bench comprising of two judges of the High Court by virtue of Rule 41 of the Rules of 2007? 5. In order to consider the question so arises it would be appropriate to notice the provisions contained in Act of 2006. 6. The Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 has been enacted to provide for an appeal from a judgment or order passed by one Judge of the High Court in exercise of the original jurisdiction, to a Division Bench of the same High Court. Sub-section (1) of Section 2 of the Act of 2006 provides for appeal to the Division Bench of the High Court from a judgment or order of the one Judge of the High Court made in exercise of original jurisdiction, which states as under : “2. Sub-section (1) of Section 2 of the Act of 2006 provides for appeal to the Division Bench of the High Court from a judgment or order of the one Judge of the High Court made in exercise of original jurisdiction, which states as under : “2. Appeal to the Division Bench of the High Court from a Judgment or order of one judge of the High Court made in exercise of original jurisdiction - (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court." 7. In sum an substance competent legislature has provided a appellate remedy to a party to the writ petition, who is aggrieved against the order of learned Single Judge, before a Division Bench of High Court comprising of two Judges of the High Court, thus writ appeal preferred under sub-section (1) of Section 2 of the Act of 2006 against the order of learned Single Judge is cognizable by Division Bench comprising of two Judges, as it is an intra court appeal provided by law made by legislature, therefore in the considered opinion of this Court, exercise of the appellate jurisdiction, even for the purpose of interim relief during vacation has to be done by a Division Bench comprising of two Judges as required by the Act of 2006 for the following reasons: Firstly : That the legislature has in its wisdom has considered the Division Bench of the High Court to be the appropriate authority to exercise the appellate jurisdiction against the order passed by learned Single Judge and reposed confidence on him, therefore in consonance with the legislative intendment, the appellate jurisdiction has to be exercised by the Division Bench of High Court to whom such an jurisdiction has been conferred by legislature, otherwise it would amount to diluting the legislative intendment conferring appellate jurisdiction to the Division Bench of the High Court. Secondly: That the provisions contained in sub-section (1) of Section 2 of the Act of 2006 empowering the Division Bench comprising of two Judges of the High Court to exercise appellate jurisdiction over the order passed by learned Single Judge is mandatory in character. Secondly: That the provisions contained in sub-section (1) of Section 2 of the Act of 2006 empowering the Division Bench comprising of two Judges of the High Court to exercise appellate jurisdiction over the order passed by learned Single Judge is mandatory in character. Thirdly : Judicial propriety and judicial decorum requires that the intra appeal against the order of learned Single Judge of the High Court should be heard by the Division Bench consisting of two Judges as provided in the Act of 2006. 8. At this stage for convenient reference, the Rule 41 has to be noticed which states as under : "41. Powers of Vacation Judge - A Vacation Judge sitting alone shall also be entitled to take up the urgent matters of a Division Bench for the purpose of interim relief where circumstances require urgent hearing in the interest of justice." A meaningful reading of the above-stated rule would show that such a provision in the rule has been enacted empowering the Vacation Judge sitting alone to take up the urgent matter for the purpose of interim relief to achieve expediency in hearing the cases during the long vacation but in case of connect between judicial expediency and the legislative enactment the later will prevail over the former. Their Lordships of the Supreme Court in the matter of R.Rathinam Vs. State by DSP, (2000) 2 SCC 391 pertinently observed as under : “9.......But it must be pointed out that all matters which can be heard and decided by a Single Judge, can as well be heard and decided by a Division Bench but not vice versa, subject to statutory restrictions passed by the legislature........” 9. It is well settled law that the Rule has to be consistent with the provisions of the Act and if rule goes beyond the Act, the rule must yield to the Act. The Constitution Bench of the Supreme Court in the matter of Central Bank of India and others Vs. Their Workmen etc., AIR 1960 SC 12 has held as under :- "20........if a rule goes beyond what the section contemplates, the rule must yield to the statute........." Similarly, their Lordships of the Supreme Court in the matter of Baba Ji Konda Ji Garad Vs. Their Workmen etc., AIR 1960 SC 12 has held as under :- "20........if a rule goes beyond what the section contemplates, the rule must yield to the statute........." Similarly, their Lordships of the Supreme Court in the matter of Baba Ji Konda Ji Garad Vs. Nasik Merchant Co-operative Bank Limited, Nasik, (1984) 2 SCC 50 has held that in case of conflict between legislative enactment, and the Rule the former will prevail over the later by holding as under : “15........Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the byelaw if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with.........." 10. In light of principles of law laid down by their Lordships of the Supreme Court. if the facts of the case are examined it would appear that the Act of 2006 expressly provides appeal under Section 2(1) of the Act has to be heard by a Division Bench comprising of two Judges of the High Court. It is stated at the bar that only during long vacation by virtue of Rule 41 of Rules, 2007, the writ appeals are placed for consideration before the Vacation Bench sitting alone only for the purpose of interim relief. In my considered opinion, Rule 41 of the Rules of 2007 has to be construed and to be read down in manner to give reasonable meaning to it and to secure the purpose for which it has been enacted. Said rule cannot be read empowering the Vacation Judge sitting alone to exercise the appellate jurisdiction conferred to a Division Bench. Reading down the rule otherwise would bring Rule 41 of Rules, 2007 in serious conflict with Section 2(1) of the Act of 2006, therefore reading down the Rule 41 reasonably and in consistent with the purpose for which It has been enacted based on expediency, it is held that where matter is required by virtue of "any law" to be heard by a Division Bench of two or more Judges for example the appeals under Section 2(1) of the Act of 2006, appeals preferred under Section 19(1) of the Family Courts Act. 1984 etc. 1984 etc. the matter has necessarily to be heard by a Division Bench comprising of two Judges also during vacation even for limited purpose and Vacation Judge sitting alone in long vacation cannot exercise that jurisdiction vested in a Division Bench of High Court. 11. Rule 32(2) of the High Court of Chhattisgarh Rules, 2007 lays down the procedure for referring any proceeding if it involves substantial question of law as to interpretation of constitution or any statutory enactment. Since issue in hand involves substantial question of law with regard to interpretation of Rule 41 of the Chhattisgarh High Court Rules, 2007, and it is a question of public importance and in order to have authoritative pronouncement on the question, in exercise of power conferred by Rule 32 sub-rule (2)(i) read with Rule 32(4) of Rules of 2007, it is hereby recommended that papers of this proceeding (Writ Appeal No. 309 of 2015 - Dr. Hitendra Kumar Soni Vs. State of Chhattisgarh and others) be placed before Hon'ble the Chief Justice for consideration and appropriate orders for constituting and placing it before the Larger Bench on following "stated question" : “Whether the Vacation Judge sitting alone during vacation is empowered to exercise the appellate jurisdiction conferred to a Division Bench comprising of two judges of High Court under sub-section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 by virtue of Rule 41 of the High Court of Chhattisgarh Rules, 2007 ?"