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2019 DIGILAW 1056 (GAU)

Durga Bahadur Sonar v. Union Of India

2019-09-17

N.KOTISWAR SINGH

body2019
JUDGMENT : N. Kotiswar Singh, J. Heard Mr. K. Paul, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for the respondent nos.1 to 4. 2. This Court is taking up only Bench-II matters as per roster prepared by the Hon'ble Chief Justice of this Court. This Court on 12.09.2019 had released one writ petition being, WP(C) No.4009/2017 from being "Part-Heard" on the request of learned counsel for the respondents on the plea made that the matter was pending for a long time. The aforesaid order reads as follows: "It has been submitted that the matter is pending for a long time and accordingly prays that the matter is released from part heard. On the prayer of Ms. P. Choudhury, learned counsel for the respondents, the matter is released from part heard. List the matter again on 24.10.2019." 3. Today, when the present petition was taken up, though none of the parties had prayed for release from this Court, as the present petition relates to a Bench-III matter, this Court considered that it should be listed before that Bench after being released from "Part Heard" from this Court as was done in the aforesaid Writ Petition, WP(C) no.4009 of 2017. 4. It may be observed that if a matter pertaining to a particular Bench is being heard continuously and is made a part-heard matter, the question of releasing the matter from part-heard may not arise, even if the matter is pending for a long time, for the reason that after being released from the part-heard, the matter would again be listed before the same Bench and normally, in this Court, at this juncture, certain Benches are presided over by only the particular Judge/Judges for a specific duration. 5. In that particular writ petition, i.e. WP(C) No.4009/2017, which pertains to Bench-III, a specific request was made by the learned counsel for the respondents to release the matter from being a "Part-Heard" matter. Because of the very nature of the request made before this Court, now assigned to take up Bench-II matters, it was quite obvious that the matter is sought to be released from this Bench so that it can be listed before the concerned Bench, i.e. Bench-III. 6. Because of the very nature of the request made before this Court, now assigned to take up Bench-II matters, it was quite obvious that the matter is sought to be released from this Bench so that it can be listed before the concerned Bench, i.e. Bench-III. 6. As regards part-heard matters, it has been informed by learned Members of the Bar that there is a convention that, as and when a matter has been heard in part, normally it continues to be listed before the same Judge irrespective of change of roster. It was on the understanding of the prevalence of such practice that this Court continued to hear the part-heard matters belonging to the Bench-III which was earlier assigned to this Court, even though this Court has now been assigned to take up only Bench-II matters. 7. However, considering the nature of the prayer made for release of the part-heard matter [WP(C) No.4009/2017], this Court acceded to the said prayer of learned counsel for the respondent therein for releasing the matter from "Part-Heard". Accordingly WP(C) No.4009/2017 was released from being a "Part-Heard" matter from this Court. 8. This Court in the light of the prayer made for releasing Part-Heard matter belonging to Bench-III, felt in the aforesaid writ petition that, if this Court is assigned to take up only Bench-II matters, it may not be appropriate to continue hearing even a part-heard matter belonging to another Bench, for the reason that it may also amount to assuming jurisdiction, where there is none. The question therefore, before this Court was and is, whether this Court sitting in Bench-II can take up a matter belonging to Bench-III or any other Bench? Since this Court has been assigned only Bench-II matters, this Court felt that in absence of any rule to that effect, it may not be appropriate to take up any matter which is not a Bench-II matter, even if that matter is a part-heard matter. Taking up such part-head matter belonging to another Bench may amount to conferring jurisdiction suo moto by a judicial order to hear matters not pertaining to assigned Bench, which this Court felt should be avoided. 9. Accordingly, for the same reason, another writ petition, i.e. WP(C) No.5308/2018, which was a "Part-Heard" matter was also released from this Court, vide order dated 13.09.2019 as it pertains to Bench-III. 9. Accordingly, for the same reason, another writ petition, i.e. WP(C) No.5308/2018, which was a "Part-Heard" matter was also released from this Court, vide order dated 13.09.2019 as it pertains to Bench-III. This Court felt that it may not be appropriate to continue to hear a matter which is not specifically assigned to this Court. 10. However, today, confronted with a similar situation as to whether this Court should continue to hear this part-heard matter or not, learned counsel for the petitioner, however, submitted that it is not by mere convention that the part-heard matter continues to be listed before the same Judge who had heard the matter irrespective of change in the Roster. In this regard, learned counsel for the petitioner has pointed out the guidelines for listing of cases in the Principal Seat of Gauhati High Court, issued by the Registry of this Court, which became effective from 04.10.2004 as contained in Appendix -36 of the Gauhati High Court, Para-26 of the said guidelines reads as follows: "Appendix-36 26. In case of Part-heard/Tied up cases, a Judge-wise list shall be published along with the main Hearing list. The Fixed Part-heard cases should be shown specifically with the date." 11. Accordingly, it has been submitted that the rules specifically provide that any part-heard matter would be listed "Judge wise" and not "Bench wise", thus, clearly indicating that it would continue to be heard by the same Judge irrespective of change in the Roster. It has been submitted that if Part-Heard matters were not to be heard by the same Judge, the rules would not have provided for listing it "Judge-wise" and would have provided for listing "Bench-wise". This is apart from the convention which is already is vogue as mentioned above. 12. This Court has considered the submission made by the learned counsel for the petitioner. Heard also learned counsel for the respondent. 13. The responsibility of a Judge is to take up only such matters which are specifically assigned to the Judge as per roster prepared at the direction of the Hon'ble Chief Justice. It is now well settled that the Hon'ble Chief Justice is the master of rosters who decides which Judge will take up which categories of cases. 13. The responsibility of a Judge is to take up only such matters which are specifically assigned to the Judge as per roster prepared at the direction of the Hon'ble Chief Justice. It is now well settled that the Hon'ble Chief Justice is the master of rosters who decides which Judge will take up which categories of cases. Thus, the jurisdiction of the Court qua a particular Judge would be confined to the cases as may be assigned to the particular Judge as per roster prepared by the Hon'ble Chief Justice. As a natural corollary, if a Judge takes up a matter which is not assigned to him even if it is a part-heard matter, it may amount to usurpation of jurisdiction and thus, any such order passed may amount to an exercise beyond jurisdiction, which would be legally suspect to the extent that it may be also rendered illegal. Thus even if both the contesting parties agree, such consensus plea of the parties may not endow any jurisdiction to the Court to deal with any matter which does not come within the purview of the assigned roster prepared by the Hon'ble Chief Justice of the Court. Perhaps, a mere convention, unless judicially recognized may not confer any such jurisdiction, where none exists. 14. However, in the present case, learned counsel for the petitioner has drawn attention of this Court to a guideline which provides that in case of "Part-Heard" or "Tied up" case, a Judge wise list shall be prepared. The inference is obvious. Even if a "Part-Heard" or a "Tied up" matter may not remain within the assigned roster of a Judge, it would be listed before the same Judge who had heard it, as such, list of "Part Heard" matters is to be prepared "Judge wise". Otherwise, there was no need to provide for listing "Judge Wise" in respect of "Part Heard" or "Tied up" matters. Perhaps, the reason behind such a provision is that it would save a lot of judicial time and the diligent efforts put in by the Counsel assisting the Court are not in vain. Otherwise, all the counsel have to re-submit their submission before another Judge, who, obviously has to hear the matter from the beginning again. Perhaps, the reason behind such a provision is that it would save a lot of judicial time and the diligent efforts put in by the Counsel assisting the Court are not in vain. Otherwise, all the counsel have to re-submit their submission before another Judge, who, obviously has to hear the matter from the beginning again. It was perhaps, to obviate such a situation and to save precious judicial time of the Judges and Counsel that the aforesaid guideline has been incorporated in tune with the convention. 15. For the reasons discussed above, this Court will continue to hear this part-heard matter, which could not be concluded on earlier occasion, though this matter belongs to a different Bench viz., Bench-III, in accordance with Para-26 of the Guidelines in Appendix-36 of the Gauhati High Court Rules referred to above. 16. The earlier orders passed by this Court in releasing the part-heard matters in WP(C) No.4009/2017 and WP(C) No.5308/2018 were in ignorance of the aforesaid specific provision of the Guidelines in Appendix-36 of the Gauhati High Court Rules.