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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4985 OF 2023
M/s. Magnum Opus IT Consulting Pvt. Ltd., Through its General Manager, Mr. Amit Ghorpade, Having Office at : Office No.6, Bandhan Apartment, Paud Phata, Kothrud, Pune – 411 038, Maharashtra, Currently at : Prasanna, 2nd
Floor, Kamudi Housing Society, Erandwane, Pune – 411 004, Maharashtra. … Petitioner
R/at : Flat No.5, Suryaprakash Apartment, Parijat Nagar, Near Shete Hospital, Nashik – 422 005, Maharashtra. ... Respondent
Mr. Siddharth A. Mehta with Ms. Pushkara A. Bhonsle for the
Petitioner
Mr. Alankar Kirpekar with Sagar Kasar, Shekhar Bhagat, Ayush
Tiwari, Rajas Panandikar and Chaitali Bhogle i/b. Vivekanand V.
Krishnan for the Respondent
SANDEEP V. MARNE, JJJ.
JUDGMENT
2. The issue formulated by the learned Single Judge is 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-Rule 6 to 46 of the said Rule in relation to judicial or quasi-judicial orders or these powers extend to any judicial or quasijudicial orders under any statute that is not mentioned under sub-Rule 6 to 46 of the said Rule.”
3. In this Writ Petition the Petitioner has challenged the order passed by the Arbitrator in Arbitration Petition No. 169 of
2016. The Petition is filed under Article 227 of the Constitution of India, which involves provisions of the Micro, Small and Medium Enterprise Development Act, 2006 and Arbitration and Conciliation Act, 1996. The Respondent raised a preliminary objection before the learned Single Judge that the Petition does not lie before the Single Judge and it should be listed before the Division Bench. The Respondent relied on two judgments and orders passed by the Division Benches in Writ Petition (St.) No. 24 of 2021 in the case of Shivaji Laxman Wadkar and Ors. v/s. Election Returning Officer and Anr.[1] and in Writ Petition Nos. 7056, 4268 and 7056 of 2018 (Nagpur Bench) in the case of Shri Hariom Krishi Kendra and Ors. v/s. State of Maharashtra and Ors.[2] The Petitioner, on the other hand, relied on the decision of the Full Bench of this Court in the case of Prakash Securities Pvt. Ltd. v/s. Life Insurance Corporation of India[3] dated 26 April 2021 to contend that the Petition would pertain to the Single Judge. The learned Single Judge, noticing a divergence of opinions on the subject, by order dated 11 April 2023, made a reference on the issue, reproduced above.
4. The Bombay High Court Appellate Side Rules, 1960, deals with various procedural aspects, as regards which writ petitions under Articles 226 and 227 of the Constitution of India are to be placed before the Division Bench and which are to be placed before the Single Judge. Having framed the Rules, the High Court can and has, from time to time, modified these Rules. Part 1 of the Rules deals with the conduct of business. Part 2 deals with Practice and Procedure. Chapter XVII of Part 2 of the Rules of 1960 regulates the filing of Petitions under Articles 226 and 227 of the Constitution of 1 WP(St.) No.24/2021 dated 4/01/2021 2 2020(3) Mh. L.J. 118 3 2012(5) Mh.L.J. 312 India. Rule 18, which is the subject matter of debate, reads thus:-
5. The Explanation to Rule 18 is under consideration. Rule 18 had five clauses providing that the orders passed under the Rules and legislations specified therein may be challenged in the writ petition before the Single Judge. Subsequently several clauses came to be added to Rule 18. By Notification dated 16 October 1997, the Explanation came to be added. It was thereafter by notification dated 15 July 1999 that Clause (3) of Rule 18 came to be amended to insert the words "or by any quasi-Judicial Authority”.
6. The ambit of amended Explanation to Rule 18, was considered by the Full Bench of this Court (M.S. Shah, C.J., A.A. Sayed and N.M. Jamdar, JJ.) in the case of Prakash Securities. Division Bench had made a reference to larger bench by the order dated 15 November 2011 on the question as to whether a writ petition arising from an order passed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 should be placed before the Single Judge of this Court in accordance with Rule 18(3) of Chapter XVII of the Rules of 1960 or should it be placed before the Division Bench. Reference was made by the Division Bench on account of the view expressed by another Division Bench of this Court in Nusli Neville Wadia v/s. New India Assurance Company Ltd.[4] that the Act of 1971 deals with a subject that is covered by Article 323-B(2)(h) of the Constitution of India and, therefore, directions of the Hon’ble Supreme Court in the case of L. Chandra Kumar v/s. Union of India and Ors.[5] will apply. Supporting the view taken by the Division Bench in Nusli Neville Wadia, the respondents therein urged before the Full Bench that since the Public Premises Act is not covered by any of these Acts prescribed in Rule 18 of Chapter XVII; this Petition will have to be heard by the Division Bench.
7. It was contended before the Full Bench in Prakash Securities, that the orders passed by only those quasi-judicial authorities under the enactments specifically mentioned in Clauses 1 to 43 of sub-Rule 18 in Chapter XVII will only be governed by Rule 18, and the Explanation will not cover the orders passed by any other quasi-judicial authority. It was submitted that any other interpretation would make Clauses 4 to 18 of Rule 18 of the Rules, 1960 otiose and nugatory. This contention was specifically negatived by the Full Bench in the case of Prakash Securities, observing thus:- 4 2010(2) Mh.LJ 928 5 1997(3) SCC 261
The Full Bench, therefore, clearly held that the amendment to Rule 18 made in the year 1999 was made to cover orders of any quasijudicial authority under any legislation which may not have been specified in Clauses 1 to 43, and therefore the effect cannot restricted to the clauses added.
8. The learned Single Judge in the referral order has noted the decision of the Division Bench (R.D. Dhanuka and Madhav J. Jamdar, JJ.) in the case of Shivaji Laxman Wadkar. The Bench was considering the challenge to the order passed by the Election Returning Officer of Gram Panchayat rejecting written objections filed by the petitioner in respect of a nomination form of a candidate. The issue arose before the Division Bench as to whether the petition was to be placed before the learned Single Judge or could be heard by the Division Bench. The petitioner therein relied on the adinterim order passed by the learned Single Judge in the Vacation Court, and the matter was moved before the Division Bench for vacating the ad-interim order. The petitioner contended that as per Rule 18(3) of Chapter XVII of Rules of 1960, the petition pertained to a Single Judge as the challenge arose from a quasi-judicial order. The Division Bench took the view that even if the impugned order was passed by a quasi-judicial authority, that would not be a criteria to decide that the learned Single Judge could hear a Writ Petition under Article 226/227 of the Constitution of India, unless the impugned order is passed by any quasi-judicial authority empowered to adjudicate under one of those Acts specified in Rule 18. Accordingly, the Division Bench disposed of the Writ Petition by order dated 4 January 2021. This view is directly contrary to the binding dicta of the Full Bench in Prakash Securities. The decision of the Full Bench in Prakash Securities rendered on 26 April 2012 was not brought to the notice of the Division Bench. The Division Bench has rendered its opinion without noticing the judgment of the Full Bench in Prakash Securities.
9. Second decision referred to in the referral order is of the Larger Bench of two learned Judges (R.K. Deshpande and Amit B. Borkar, JJ.) (Nagpur Bench) which considered the reference arising from the divergent opinions of two learned Judges in the case of Hariom Krishi Kendra. The issue was a challenge to the order passed by the Additional Collector in the exercise of powers under Section 48(7) of the Maharashtra Land Revenue Code imposing a penalty for unauthorizedly extracting minor mineral. The learned Single Judge (S.C. Gupte, J.) in the case of M/s. Bhandara Traders, Bhandara, through its Proprietor v/s. State of Maharashtra 6 (Writ Petition No. 4401 of 2017) in paragraph 2(3) observed that the Land Revenue Code could not be considered as a special statute in terms of the Third Proviso below Rule 18 of Chapter XVII so as to exclude it from the jurisdiction of the Single Judge. Order dated 31 July 2018. Another learned Single Judge (S.B. Shukre, J.) held that Section 48(8) of the Maharashtra Land Revenue Code is to be considered as a special statute in terms of the Third Proviso to Rule 18 of Chapter XVII of the Rules of 1960, the matter is to be decided by the Division Bench. Therefore, before the Larger Bench in Hariom Krishi Kendra the question for consideration was Section 6 2017 MhLJ Online 111 48(8) of the Maharashtra Land Revenue Code was a special statute or not because if it was to be so then the order of penalty or confiscation would fall within the Third Proviso to Rule 18(3) of Chapter XVII of Rules of 1960. The Larger Bench answered the Reference, holding that Section 48(8) cannot be considered a special statute and, therefore, required to be dealt with by the Single Judge. This decision is rendered in a different context.
10. The above narration is self-explanatory to answer the Reference. The decision of the Division Bench in the case of Shivaji Laxman Wadkar is rendered without noticing the binding decision in the case of Full Bench in Prakash Securities. The decision of the Division Bench in the case of Shivaji Laxman Wadkar, therefore, is clearly per incuriam. The decision in the case of Hariom Krishi Kendra was in the context of the third Proviso to Rule 18(3) and dealt with a completely different aspect.
11. The Full Bench in Prakash Securities took note that various clauses came to be added in the Rules from 1960 onwards, and observed that by the amendment to the Explanation, the High Court intended to cover all the quasi-judicial orders irrespective of whether they are included in the Acts contained in Rule 18. The Full Bench in Prakash Securities, having taken note of the source of the framing of these Rules, the fact that they regulate procedural aspect and necessity of effecting amendment to Rule 18 from time to time, interpreted the Explanation to cover all orders by quasi-judicial authorities even though they are not covered in the clauses stipulated under Rule 18. It may also be noted that under Section 2 of Maharashtra High Court (Hearing of the Writ Petition by Division Bench and abolition of Letters Patent Appeals) Act, 1986 and its Amendments Act of 2008, the provision of Letters Patent Appeal against the order passed by the learned Single Judge to the Division Bench in the High Court stood abolished. Prior to abolition of Letters Patent Appeal, an appeal would lie before the Division Bench from the order of the Single Judge.
12. In the referral order the learned Single Judge has not stated that the Full Bench's judgment in the Prakash Securities is in contravention of any binding decisions, such as of another special bench or the Hon'ble Supreme Court, or whether any directly applicable statutory provision had been overlooked. The learned Single Judge could have followed the decision in Prakash Securities being binding law holding that decision of the Division Bench in Shivaji Laxman Wadkar was per incuriam. However, the learned Single Judge was of the opinion that the matter needs to be referred to for consideration of the Larger Bench as a matter of judicial propriety. As the reference order suggests, even the learned Single Judge was of the opinion that, the order passed by the Division Benches would be per incuriam of the decision of Full Bench in Prakash Securities, The Full Bench's decision in Prakash Securities, being a decision by a Larger Bench of three Judges, limits the scope of consideration by this Full Bench to affirming the pre-existing position. The Single Judge's decision to refer the matter primarily arose from the difference between the decisions of the Full Bench and the Division Benches. The Respondent's argument in the reference order, which mentions the addition of two more Acts to the Rules, does not justify doubting or revisiting the Full Bench's ruling in Prakash Securities. In fact, in view of Full Bench's decision in the Prakash Securities case, there was no need to amend Rule 18 to add more enactments to the list. The Explanation to Rule 18 still stands and is not amended, changed, or deleted. The decision in Prakash Securities interpreting the Explanation to Rule 18(3) in present form would hold the field.
13. In conclusion, it is declared that the decision of the Division Bench in the case of Shivaji Laxman Wadkar, which holds that only those quasi-judicial orders and enactments specified under Rule 18(3) of Chapter XVII of the 1960 Rules fall under the purview of a Single Judge, is per incuriam of the Full Bench decision in the case of Prakash Securities and, therefore, does not constitute a binding precedent. The decision in the case of Hariom Krishi Kendra pertained to an entirely different aspect. The existing pronouncement of the Full Bench in the case of Prakash Securities, which has held that the Explanation to Clause (3) of Rule 18, added in 1999, encompasses orders of any quasi-judicial authority under any other legislation, even if not specified in Clauses (1) to (43), is binding.
14. The nature of the Rules in question needs to be noted. These Rules are framed by the High Court regulating the procedural aspects and which Writ Petitions are to be placed before the Division Bench and which before Single Judge. Prakash Securities has interpreted the Explanation to the Rule as it stands today. Prakash Securities has not intended and nor denudes the High Court of its powers to amend these Rules to bring about a different position.
15. With this conclusion on the question framed, let the Petition be placed before the Single Judge for disposal on merits. (NITIN JAMDAR, J.) (BHARATI H. DANGRE, J.) (SANDEEP V. MARNE, J.)
PRAKASH PAWAR