# Amar Singh v. State of U.P. Opp. Party

- **Citation:** (2015) 2 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-28
- **Case number:** Criminal Appeal No. 4922 of 2006
- **Bench:** V.K. Shukla, Arun Tandon, Dilip Gupta, Pradeep Kumar Singh Baghel, Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-v-state-of-u-p-opp-party-43333
- **Pages:** 15

## Headnote

Govt.
Advocate,
A.G.A.,
Sri
A.K.
Srivastava, Sri Narendra Kr. Singh Yadav,
Sri Vishnu Pratap, Sri Manish Goyal, Sri
Ravi Kant.
(A)High Court Rules 1952, Chapter V
Rule 1,7, 12, 13, 14, 15-Practice &
Procedure-Verdict of Full Bench in case
of Smt. Chawali-affecting notification
dated
16.12.13-without
framing
any
question-whether
could
have
give
findings?-held-'No'.
Held: Para-48
990
 INDIAN LAW REPORTS ALLAHABAD SERIES
From a bare perusal of the 18 questions
which were formulated by the Full Bench in
Smt. Chawali (supra), which were later
compartmentalised as Issues no. A to H, it
is clear that no issue was framed in respect
of validity of the order of the Chief Justice
dated 16 December 2013. We have no
hesitation to record that the Full Bench
could not have examined the validity of the
order of the Chief Justice dated 16
December 2013 in absence of any issue
having been framed and the same being
addressed by counsel for the parties.
(B)High Court Rules 1952-Chapter-V
Rule 14-setting a side notification dated
16.12.13 regarding tied -up and partheard cases-without hearing Registrar
General-without considering Full Bench
Opinion in Sanjay Srivastava case duly
approved by Apex Court-whether bad-inlaw?-held-'Yes'.
Held: Para-50
So far as issue no. 'C' is concerned, we are
of the considered opinion that the Full
Bench
judgment
in
Sanjay
Kumar
Srivastava (supra) had been completely
ignored by the majority opinion in Smt.
Chawali (supra). The judgment had been
noted with approval by the Supreme Court
in State of Rajasthan vs. Prakash Chand
(supra) and had a material bearing on the
issue as to when a case can be said to be
tied up/part-heard within the meaning of
Rule 14 of Chapter V. Therefore, non
consideration of the said judgment in our
opinion is bad in law.
(C) High Court Rules 1952 Chapter VRule 14-Tied up cases-notification dated
16.12.13-after change of roster-whether
should be heard by same Bench?-heldcan be heard by same Senior Judge-even
after
change
of
roster-after
fresh
nomination by Hon'ble the Chief Justice.
Held: Para-51
So far as the issue no. 'D' is concerned, it
has been dealt with extensively, herein
above. In our opinion for a case to be
treated as tied up or part heard, it must
have been extensively heard on merits by
the Judge/Bench concerned. The Bench
should have spent sufficient time for
hearing of the matter on merits so that
administration of justice would require the
case to be heard/disposed of by the same
Bench. It is only such cases which have to
be placed before the Chief Justice for
consideration as to whether the matter has
to be listed before the same Bench or not.
Case Law discussed:
(1998) 1 SCC 1; (2013) 2 SCC 398; 2010 (4)
SCC 290; AIR 1974 SC 209; 2010 (83) ALR
664; 1996 (14) LCD 1170; 2008(1) AWC 1050.

## Text

_Characters 0–39,992 of 50,131. This is a partial read: ask again with offset=39992 for what follows._

2 All] Amar Singh Vs. State of U.P.
989
claim the benefit of Section 122-B (4-F)
of the Act; and Section 122-B (4-F) of the
Act clearly confers a positive right on
such person to claim the right of
Bhumidhar with non-transferable right. It
is also to be observed that in this regard
the person concerned can move an
application under Section 33/39 of U.P.
Land Revenue Act to effect necessary
changes in the revenue records.
41. So far as the question as to
whether the order passed conferring
benefit of Section 122-B (4-F) of the Act
on any person or an order cancelling such
benefit is an administrative order and
against such order no appeal or revision
would lie, as claimed by learned counsel
for the petitioners is concerned, suffice is
to observe that provisions of Section 122B (4-F) of the act does not confer any
independent right on a person and the
provisions as envisaged under Section
122-B (4-F) of the Act is to be read in
consonance with other provisions under
Section 122-B of the Act. Under Section
122-B (4-A) of the Act, there is a specific
provision of filing revision against an
order passed in proceedings under Section
122-B of the Act, as such, I am of the
considered view that any order passed in
the matter relating to Section 122-B (4-F)
of the Act is a judicial order and the same
would
be
amenable
to
revisional
jurisdiction under Section 122-B (4-A) of
the Act. Any person aggrieved has a
remedy of filing revision under Section
122-B (4-A) of the Act in this regard.
42. As such, I am of the considered
view that the petitioners have statutory
remedy of filing revision against the
impugned order, as observed above,
which they have not availed. Therefore,
the writ petition in the High Court directly
against the impugned orders is not
maintainable. It is accordingly dismissed
with remedy to petitioners to avail
statutory alternative remedy before the
concerning competent Court.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2015
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE ARUN TANDON, J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
Criminal Appeal No. 4922 of 2006
Amar Singh
...Appellant
Versus
State of U.P.
...Opp. Party
Counsel for the Appellant:
Sri Kamal Krishna, Sri Anubhav Trivedi, Sri
Dileep Kumar, Sri M.D. Singh Shekhar, Sri
R.M. Singh, Sri R.N. Pandey, Sri Rajrshi
Gupta, Sri Rajiv Gupta, Sri Rakesh
Pandey, Sri Ravindra Sharma, Sri Satish
Trivedi, Sri Shashi Nandan, Sri Suresh
Singh, Sri Sushil Kumar Dwivedi, Sri V.S.
Choudhary, Abhishek Kumar
Counsel for the Respondents:
Govt.
Advocate,
A.G.A.,
Sri
A.K.
Srivastava, Sri Narendra Kr. Singh Yadav,
Sri Vishnu Pratap, Sri Manish Goyal, Sri
Ravi Kant.
(A)High Court Rules 1952, Chapter V
Rule 1,7, 12, 13, 14, 15-Practice &
Procedure-Verdict of Full Bench in case
of Smt. Chawali-affecting notification
dated
16.12.13-without
framing
any
question-whether
could
have
give
findings?-held-'No'.
Held: Para-48
990
 INDIAN LAW REPORTS ALLAHABAD SERIES
From a bare perusal of the 18 questions
which were formulated by the Full Bench in
Smt. Chawali (supra), which were later
compartmentalised as Issues no. A to H, it
is clear that no issue was framed in respect
of validity of the order of the Chief Justice
dated 16 December 2013. We have no
hesitation to record that the Full Bench
could not have examined the validity of the
order of the Chief Justice dated 16
December 2013 in absence of any issue
having been framed and the same being
addressed by counsel for the parties.
(B)High Court Rules 1952-Chapter-V
Rule 14-setting a side notification dated
16.12.13 regarding tied -up and partheard cases-without hearing Registrar
General-without considering Full Bench
Opinion in Sanjay Srivastava case duly
approved by Apex Court-whether bad-inlaw?-held-'Yes'.
Held: Para-50
So far as issue no. 'C' is concerned, we are
of the considered opinion that the Full
Bench
judgment
in
Sanjay
Kumar
Srivastava (supra) had been completely
ignored by the majority opinion in Smt.
Chawali (supra). The judgment had been
noted with approval by the Supreme Court
in State of Rajasthan vs. Prakash Chand
(supra) and had a material bearing on the
issue as to when a case can be said to be
tied up/part-heard within the meaning of
Rule 14 of Chapter V. Therefore, non
consideration of the said judgment in our
opinion is bad in law.
(C) High Court Rules 1952 Chapter VRule 14-Tied up cases-notification dated
16.12.13-after change of roster-whether
should be heard by same Bench?-heldcan be heard by same Senior Judge-even
after
change
of
roster-after
fresh
nomination by Hon'ble the Chief Justice.
Held: Para-51
So far as the issue no. 'D' is concerned, it
has been dealt with extensively, herein
above. In our opinion for a case to be
treated as tied up or part heard, it must
have been extensively heard on merits by
the Judge/Bench concerned. The Bench
should have spent sufficient time for
hearing of the matter on merits so that
administration of justice would require the
case to be heard/disposed of by the same
Bench. It is only such cases which have to
be placed before the Chief Justice for
consideration as to whether the matter has
to be listed before the same Bench or not.
Case Law discussed:
(1998) 1 SCC 1; (2013) 2 SCC 398; 2010 (4)
SCC 290; AIR 1974 SC 209; 2010 (83) ALR
664; 1996 (14) LCD 1170; 2008(1) AWC 1050.
(Delivered by Hon'ble Arun Tandon, J.)
1. The Hon'ble The Chief Justice
while notifying the roster (allocation of
work to The Hon'ble Judges) vide orders
dated 16 December 2013 and dated 23
December 2014 directed as follows :
ORDER
No pending, case, civil or criminal,
shall be treated as part-heard or tied up in a
Court after the commencement of a new
roster. All pending cases shall be listed
before the appropriate Bench dealing with
such matters in accordance with the fresh
roster, unless so ordered by the Chief Justice
in a specific case hereafter.
16.12.2013
ORDER
The administrative order dated 16th
December, 2013 regard part heard and
tied up cases will continue in operation."
23.12.2014
2. A Full Bench of the High Court of
Judicature at Allahabad ( A bench of three
Hon'ble Judges) in the case of Smt.
Chawali vs. State of U.P. and others [Writ
Petition (Misc. Bench) No. 9470 of 2014]
2 All] Amar Singh Vs. State of U.P.
991
decided on 16 January 2015 by majority
judgment, while dealing with the said
orders, in paragraph 79 and 80 held as
follows :
"79. In view of above, part-heard and
tied up cases should be listed before the
same Bench for disposal. Listing of partheard and tied-up cases to other Bench is an
exception. Accordingly, in case Hon'ble The
Chief Justice is of the opinion that a
particular cases is to be listed before other
Bench for fresh hearing, then necessarily, it
implies that part-heard and tied-up matter to
other Bench is an exception which requires
separate order. Hence by general (sweeping)
order or circular while changing the roaster,
it is not permissible to release all part-heard
cases by the Chief Justice, without applying
mind to individual cases.
WITHDRAWAL OF CASES
80. Withdrawal of a case may be for
variety
of
reasons
which
may
be
administrative or otherwise on complaint
against the Judge concerned or for some
other
reasons.
After
withdrawing
a
petition/case, Chief Justice may refer to
other Bench or nominate a particular Bench.
Nomination of a petition/case to other
Judge/Bench also depends upon a variety of
factors
keeping
in
view
the
ability,
competency or knowledge of a particular
Judge. Once a case is nominated to a
particular Judge, then it does not appear that
it may be denominated or go to other regular
Bench with the change of roster. Nominated
case may be withdrawn or be listed to other
Bench or regular Bench only in case Chief
Justice passes some order withdrawing the
same followed by nomination to other Bench
competent to adjudicate the controversy in
accordance with rules of the Court. In
absence of fresh nomination, if shall not be
open for the registry to withdraw and send it
to other Bench with the change of roster.
Exercise of power with regard to
allocation of work at regular interval for the
purpose of change of roster stands on
different footing than the power exercised by
Chief Justice to withdraw a particular case
from a particular Bench or nomination to
other Bench."
3. It is because of the said directions
of the Full Bench that Criminal Appeal
No. 4922 of 2006 was listed before a
Division Bench for hearing on 03
February 2015 although as per the
changed roster enforced from 05 January
2015 by the The Chief Justice, the
Division Bench was not assigned the
jurisdiction to hear the criminal appeals.
4. The Registry of the High Court
placed the Criminal Appeal before the
Division Bench because of the earlier
nomination order dated 15 November
2014 made by the Hon'ble The Chief
Justice for listing of the appeal before the
Bench presided over by one of the
Hon'ble Judge named therein.
5.
The Division Bench, finding it
difficult to agree with the reasoning and the
conclusions drawn in the majority judgment
in Smt. Chawali (supra) regarding the impact
of the orders/circulars of The Chief Justice,
referred to above, deemed it fit to refer the
following seven questions for consideration
by a Larger Bench vide order dated 03
February 2015 :
(a) Whether the Full Bench in the
case of Smt. Chawali (supra) could have
proceeded
to
examine
the
legality/enforceability of the circular
issued by Hon'ble The Chief Justice dated
16.12.2013
specifically
in
the
circumstances when no issue was framed
in that regard by the Full Bench and it
992
 INDIAN LAW REPORTS ALLAHABAD SERIES
had not been addressed upon by any of
the counsel present before the Full Bench
in the case of Smt. Chawali (supra).
(b) Whether general direction to list
and tied up cases irrespective of the
circulars of Hon'ble the Chief Justice
dated 16.12.2013 could be issued to the
Registry by the Full Bench without
affording opportunity to the High Court to
have its say in the matter.
(c) Whether the majority opinion of
the Full Bench in the case of Smt.
Chawali (supra) on the issue is bad for
non-consideration of the law laid down by
earlier Full Bench in the case of Sanjay
Kumar Srivastava (supra).
(d) What meaning is to be attached to
the words "tied up cases" in light of Rule 14
to which the circulars dated 16.12.2013 may
not apply and that there may be a
requirement of separate order from Hon'ble
The Chief Justice after application of mind
for being listing before another Bench.
(e) Whether the nominated cases
must be listed before the same Bench even
after there has been a change of roster.
(f) At what stage the assignment of
fresh cases to a particular Bench comes
to an end.
(g) Whether nomination in the name
of the Senior Member of the Bench would
suffice or there should be a nomination
with the name of all the judges
constituting the Bench, in matters is to be
heard by more than one Judge.
6. The Chief Justice vide order dated
10 February 2015 constituted this Bench
for answering the referred questions.
7. We have heard Shri Rajrshi Gupta,
Advocate on behalf of the appellant, Shri
Shashi Nandan, Senior Advocate, Shri
M.D.Singh Shekhar, Senior Advocate, Shri
Vishnu Bihari Tiwari, Advocate and Shri
Rakesh Pandey, President High Court Bar
Association as friends of the Court. Shri
Vijay Bahadur Singh, Advocate General
appeared on behalf of the State of U.P., while
Shri Ravi Kant, Senior Advocate assisted by
Shri Manish Goyal, Advocate appeared on
behalf of the Allahabad High Court.
8. All the counsel who assisted the Bench
were unanimous on at least one issue namely the
power of the Chief Justice in the matter of
constitution of Benches and allocation of
cases/work to the Benches so constituted as also
on the issue that a puisne Judge/Judges can do
such work as is allotted to Judge/Judges by the
Chief Justice or under the directions of the Chief
Justice and not beyond it.
9.
As a matter of fact such an
administrative control of the Chief Justice in
the matter of allocation of work to the puisne
judge is well settled under the judgment of
the Supreme Court in State of Rajasthan vs.
Prakash Chand And Others reported in
(1998) 1 SCC, 1. In paragraph 59 of the
judgment, the Supreme Court held :
"59. From the preceding discussion the
following broad CONCLUSIONS emerge.
This, of course, is not to be treated as a
summary
of
our
judgment
and
the
conclusions should be read with the text of
the judgment:
(1) That the administrative control of
the High Court vests in the Chief Justice
alone. On the judicial side, however, he is
only the first amongst the equals.
(2) That the Chief Justice is master
of the roster. He alone has the prerogative
to constitute benches of the court and
allocate
cases
to
the
benches
so
constituted.
(3) That the puisne Judges can only
do that work as is allotted to them by the
Chief Justice or under his directions.
2 All] Amar Singh Vs. State of U.P.
993
(4) That till any determination made by
the Chief Justice lasts, no Judge who is to sit
singly can sit in a Division Bench and no
Division Bench can be split up by the Judges
constituting the bench themselves and one or
both the Judges constituting such bench sit
singly and take up any other kind of judicial
business not otherwise assigned to them by or
under the directions of the Chief Justice.
(5) That the Chief Justice can take
cognizance of an application laid before
him under Rule 55 (supra) and refer a
cases to the larger bench for its disposal
and he can exercise this jurisdiction even
in relation to a part-heard case.
(6) That the puisne Judges cannot "pick
and choose" any case pending in the High
Court and assign the same to himself or
themselves for disposal without appropriate
orders of the Chief Justice.
(7) That no Judge or Judges can give
directions to the Registry for listing any
case before him or them which runs
counter to the directions given by the
Chief Justice.
(8) .............
(9) .............
.........
.........
........."
10. The judgment in State of Rajasthan
vs. Prakash Chand (Supra) has been reiterated
with approval in paragraphs 26 and 27 of the
judgment of the Supreme Court in Kishore
Samrite vs. State of Uttar Pradesh and others
reported in (2013) 2 SCC, 398 and in paragraph
29 the Supreme Court held as follows :
"29. Judicial discipline and propriety
are
the
two
significant
facets
of
administration of justice. Every court is obliged
to adhere to these principles to ensure
hierarchical discipline on the one hand and
proper dispensation of justice on the other.
Settled cannons of law prescribe adherence to
the rule of law with due regard to the prescribed
procedures. Violation thereof may not always
result in invalidation of the judicial discretion.
Where extraordinary jurisdiction, like the writ
jurisdiction, is very vast in its scope and
magnitude, there it imposes a greater obligation
upon the courts to observe due caution while
exercising such powers. This is to ensure that
the principles of natural justice are not violated
and there is no occasion of impertinent exercise
of judicial discretion."
11. We may at the very outset record
that the Rajasthan High Court rules which
were subject matter of consideration in the
case of State of Rajasthan vs. Prakash Chand
(Supra) are para materia to the Allahabad
High Court Rules, 1952 (hereinafter referred
to as the Rules, 1952). Therefore, what has
been observed by the Supreme Court in State
of Rajasthan vs. Prakash Chand (Supra)
would apply with full force in respect of
Rules, 1952.
12. In our opinion the notification of
the roster has twin purpose :
(a) it provides for the category of
cases jurisdiction-wise to be heard by a
Judge/Division Bench and;
(b) it also directs the Registry of the
High Court to ensure that the cases of the
assigned jurisdiction are listed before a
particular Judge/Division Bench only.
13. It, therefore, acts as a controlling
direction in the matter of listing of cases
before various Judges/Benches.
14. It is in the aforesaid legal
background we propose to examine the
issues involved.
15. The administrative powers to be
exercised by Hon'ble The Chief Justice in
994
 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter of framing of the roster and in
the matter of listing of cases is regulated
by the Rules, 1952 framed in exercise of
powers conferred under Article 225 of the
Constitution of India.
16. For answering the seven
questions which have been referred to the
Larger Bench, it is worthwhile to refer to,
Rules 1, 7, 12, 13, 14 and 15 of Chapter V
and Rule 7 of Chapter VI of the Rules,
1952 which read as follows:
"Chapter V:-- JURISDICTION OF
JUDGES SITTING ALONE OR IN
DIVISION COURTS :--
(1) Constitution of Benches :--Judges
shall sit alone or in such Division Courts
as may be constituted from time to time
and do such work as may be allotted to
them by order of the Chief Justice or in
accordance with his directions.
(7) Contempt in facie curiae :--
Where a contempt as contemplated by
Section 345 of the Code of Criminal
Procedure, 1973is committed before the
Court, the Judge or judges before whom
such contempt is committed may take
cognizance of the offence and deal with
the offender under the provisions of that
Code and subsequent sections of that
Code.
(12) Application for review :--An
application for the review of a judgment
shall be presented to the Registrar, who
shall endorse thereon the date when it is
presented and lay the same as early as
possible before the Judge or Judges by
who such judgment was delivered along
with an office report as to limitation and
sufficiency of Court fees. If such Judge or
Judges or any one or more of such Judges
be no longer attached to the Court, the
application shall be laid before the Chief
Justice who shall, having regard to the
provisions of Rule 5 of Order XLVII of
the Code, nominate a Bench for the
hearing of such applications :
Provided that an application for the
review of a judgment of one Judge who is
precluded by absence or other clause for a
period of six months next after the
presentation of the application from
considering the decree or order to which
the application refers, shall be heard or
disposed of by a Single Judge and that an
application for the review of a judgment
of two or more Judges, any one or more
or whom is or are precluded by absence or
other cause for a period of six months
next
after
the
presentation
of
the
application from considering the decree or
order to which the application refers, shall
be heard or disposed of by a Bench
consisting of the same or a greater
number of Judges.
(13) Subsequent application on the
same subject to be heard by the same
Bench :--No application to the same effect
or with the same object as a previous
application upon which a Bench has
passed any order other than an order of
reference to another Judge or Judges,
shall except by way of appeal, ordinarily
be heard by any other Bench.
The application when presented by
or on behalf of the person by whom or on
whose behalf such previous application
was made shall give the necessary
particulars of such previous application,
the nature and the date of the order passed
thereon and the name or names of the
Judge or judges by whom such order was
passed.
(14) Tied up cases :-- (1) A case
partly heard by a Bench shall ordinarily
be laid before the same Bench for
disposal. A case in which a Bench has
merely directed notice to issue to the
opposite party or passed an ex-parte order
2 All] Amar Singh Vs. State of U.P.
995
shall not be deemed to be a case partly
heard by such Bench.
(2) When a criminal revision has
been admitted on the question of severity
of sentence only, it shall ordinarily be
heard the Bench admitting it.
(15) Application in a tied up case :--
Any application in case, which may under
the next preceding Rule be heard by a
particular Bench shall ordinarily be heard
by such Bench."
Chapter VI, Rule 7 which is relevant
for our purposes is also reproduced :
"Chapter VI :-- HEARING AND
ADJOURNMENT OF CASES :
7. Part-heard cases :-- A case, which
remains part-heard at the end of the day,
shall, unless otherwise ordered by the
Judges concerned, be taken up first after
miscellaneous cases, if any, in the Cause
List for the day on which such Judge or
Judges next sit. Every part-heard case
entered in the list may, unless the Bench
orders otherwise, be proceeded with
whether any Advocate appearing in the
case is present or not :
Provided that if any part-heard case
cannot be heard for more than two months
on account of the absence of any Judge or
Judges constituting the Bench, the Chief
Justice may order such part-heard case to
be laid before any other Judge or Judges
to be heard afresh."
17. From a plain reading of the
aforesaid Rules it would be clear that the
allocation of work to the Judges who are
to sit singly or in Division Benches is
done under orders of The Chief Justice or
in accordance with the directions of the
Chief Justice as per Rule 1 of Chapter V.
It is clear that Judges can only do that
work as is allocated to the Judge under
orders of the Chief Justice or under the
directions of the Chief Justice. This
method of allocation of work/jurisdiction
to hear cases of particular nature in the
Allahabad High Court is known as
framing of the Roster by the Chief Justice.
Besides the roster, there can be special
orders for allocating a particular case or a
particular
category
of
cases
to
Judge/Judges. The power to allocate work
by the Chief Justice includes the power to
direct any case or class of cases which are
normally to be heard by a single Judge to
be heard by a Division Bench and
similarly a case normally to be heard by a
Division Bench, to be heard by a Judge
sitting alone [Ref. Chapter V Rule 2
Proviso (a)].
18. The Rules, 1952 do contemplate
that in certain circumstances a matter has
to be normally heard by a particular
Judge/Bench like matters which are
covered by Rule 7, 12, 13 and 14.
Similarly Applications which are made in
tied up cases have to be heard by the
particular Bench to which the case is tied
up. (Ref. Rule 15 of Chapter V).
19. Chapter VI of the Rules, 1952
lays down the procedure for the listing
and hearing of cases before the Court
concerned. Rule 7 of Chapter VI provides
that all part-heard matter at the end of the
day shall be taken up first after
miscellaneous cases, if any, on the cause
list for that day when the Judge/Judges sit
next with a further condition that the
Bench shall proceed with the matter
whether any Advocate is present or not
unless ordered otherwise. This would
mean that so far as part-heard cases at the
end of the day are concerned, they have to
be heard by the Bench concerned after the
miscellaneous cases even in the absence
of the counsel. The proviso to Rule 7 of
Chapter VI further clarifies that if a part-
996
 INDIAN LAW REPORTS ALLAHABAD SERIES
heard matter cannot be heard for more
than two months on account of the
absence of any Judge/Judges, the Chief
Justice may order such part-heard case to
be laid before any other Judge/Judges to
be heard afresh.
20. We have narrated the scheme of
the Rules, 1952 framed under Article 225
of the Constitution of India only for the
purposes of illustrating that irrespective of
the general roster notified by the Chief
Justice in the matter of allocation of work
to the puisne Judges, the Rules do
contemplate that certain cases like review
application, application for the ex-facie
contempt proceedings, application on the
same
subject,
tied
up
cases
and
applications in tied up cases are to be
listed before the particular Judge/Bench
even if the roster as notified under Rule 1
of Chapter V confers jurisdiction in
respect of that particular nature of cases to
other puisne Judge/Bench.
21. At this stage itself we may put in
a caveat to the aforesaid general statement
namely that even in respect of such cases
which are to be listed before a particular
Bench namely the review application, the
ex facie contempt application, tied up
cases and application in tied up cases, the
Chief Justice retains the power to
withdraw such matters also from a
particular Judge/Bench and to assign the
same to some other Bench/puisne Judge.
22. The power of the Chief Justice
to withdraw even tied up case/cases which
have been heard substantially earlier by a
particular Single Judge or the Division
Bench is well recognized. The legal
position in that regard stands settled under
the judgment of the Supreme Court in
State of Rajasthan vs. Prakash Chand
(Supra). Paragraphs 21, 22 and 23 of the
Judgment read as follows :
"21. A Full Bench of the Allahabad
High Court in Sanjay Kumar Srivastava v.
Acting Chief Justice was confronted with
a similar situation. The Full Bench
precisely dealt with an objection raised in
that case to the effect that since the writ
petition was a part-heard matter of the
Division Bench, it was not open to the
Chief Justice of the High court to refer
that part-heard case to a Full Bench for
hearing and decision. It was argued before
the Full Bench that once the hearing of
the case had started before the Division
Bench, the jurisdiction to refer the case or
the question involved therein to a larger
Bench vests only in the judges hearing the
case and not in the Chief Justice. It was
also argued that the Chief Justice could
not, even on an application made by the
Chief Standing Counsel, refer the case
which had been heard in part by a
Division Bench for decision by a Full
Bench of that Court.
22. After referring to the provisions
of the Rules of the Allahabad High Court
and in particular Rule 1 of Chapter V,
which provides that Judges shall sit alone
or in such Division Courts as may be
constituted by the Chief Justice from time
to time and do such work as may be
allotted to them by order of the Chief
Justice or in accordance with his
directions and Rule 6 of Chapter V which
inter alia provides :
"6. The Chief Justice may constitute
a Bench of two or more Judges to decide
a case or any question of law formulated
by a Bench hearing a case. In the latter
event the decision of such Bench on the
question so formulated shall be returned
to the Bench hearing the case and that
Bench shall follow that decision on such
2 All] Amar Singh Vs. State of U.P.
997
question and dispose of the case after
deciding the remaining questions, if any,
arising therein."
and a catena of authorities, rejected
the arguments of the learned counsel and
opined that the order of the Chief Justice,
on an application filed by the Chief
Standing Counsel, to refer a case, which
was being heard by the Division Bench,
for hearing by a larger Bench of three
Judges because of the peculiar facts and
circumstances
as
disclosed
in
the
application
of
the
Chief
Standing
Counsel, was a perfectly valid and a
legally sound order. The Bench speaking
through S. Saghir Ahmad, J. (as His
Lordship them was) said :
"Under Rule 6 of Chapter V of the
Rules of Court, it can well be brought to
the notice of the Chief Justice through an
application or even otherwise that there
was a case which is required to be heard
by a larger Bench on account of an
important question of law being involved
in the case or because of the conflicting
decisions on the point in issued in that
case. If the Chief Justice takes cognizance
of an application laid before him under
Rule 6 of Chapter V of the Rules of the
Court and constitutes a Bench of two or
more Judges to decide the case, he cannot
be said to have acted in violation of any
statutory provisions."
The learned Judge then went on to
observe :
"In view of the above, it is clear that
the Chief Justice enjoys a special status
not only under the Constitution but also
under Rules of Court, 1952 made in
exercise of powers conferred by Article
225 of the Constitution. The Chief Justice
alone can determine jurisdiction of
various Judges of the Court. He alone can
assign work to a Judge sitting alone and to
the Judges sitting in Division Bench or to
Judges sitting in Full Bench. He alone has
the jurisdiction to decide which case will
be heard by a Judge sitting alone or which
case will be heard by two or more Judges.
The conferment of this power
exclusively on the Chief Justice is
necessary
so
that
various
courts
comprising of a Judges sitting alone or in
Division
Bench
etc.,
work
in
a
coordinated manner and the jurisdiction
of one court is not overlapped by other
court. If the Judges were free to choose
their jurisdiction or any choice was given
to them to do whatever case they may like
to hear and decide, the machinery of the
Court would collapse and the judicial
functioning of the Court would cease by
generation of internal strife on account of
hankering for a particular jurisdiction or a
particular case. The nucleus for proper
functioning of the Court is the 'self' and
'judicial' discipline of Judges which is
sought to be achieved by Rules of Court
by placing in the hands of the Chief
Justice full authority and power to
distribute work to the Judges and to
regulate their jurisdiction and sittings."
23. The above opinion appeals to us
and we agree with it. Therefore, from a
review of the statutory provisions and the
cases on the subject as rightly decided by
various High Courts, to which reference
has been made by us, it follows that no
Judge or a Bench of Judges can assume
jurisdiction in a case pending in the high
Court unless the case is allotted to him or
them
by
the
Chief
Justice.
Strict
adherence of this procedure is essential
for maintaining judicial discipline and
proper functioning of the Court. No
departure from it can be permitted. If
every Judge or a High Court starts picking
and choosing cases for disposal by him,
the discipline in the High court would be
the casualty and the administration of
998
 INDIAN LAW REPORTS ALLAHABAD SERIES
justice would suffer. No legal system can
permit machinery of the Court to collapse.
The Chief Justice has the authority and
the jurisdiction to refer even a part-heard
case to a Division Bench for its disposal
in accordance with law where the rules so
demand. It is a complete fallacy to assume
that a part-heard case can under no
circumstances be withdrawn from the
Bench and referred to a larger Bench,
even where the Rules make it essential for
such a case to be heard by a larger
Bench."
23. The word 'ordinarily' as used in
Rule 14 of Chapter II of Rules, 1952
pertaining to part-heard and tied up cases
has been interpreted by the Supreme
Court in Union of India and Another vs.
Hemraj
Singh
Chauhan
and
others
reported in 2010 (4) SCC, 290 and in
Krishan Gopal vs. Shri Prakashchandra
and others reported in AIR, 1974 SC, 209.
The word 'ordinarily' as used in Rule 14
would mean that the normal practice of
listing of the tied up case before the same
Bench, which had heard the matter earlier,
can be departed with under orders of the
Chief Justice for good and valid reasons.
As a matter of fact the word ordinarily
itself indicates that there
can be a
departure from the normal practice of
listing a part-heard case before the same
Bench. The word 'ordinarily' means in a
large majority of cases but not invariably.
The expression 'ordinarily' would mean
that the authority empowered to assign
matters can exercise that power to place
the matter before the Bench, which had
earlier heard the matter.
24. In this context, the word
'ordinarily' has also been considered by a
Full Bench of Allahabad High Court in
Smt. Maya Dixit and Others vs. State of
U.P.
through
the
Secretary/Special
Secretary,
Industrial
Development/Geology
and
Mining,
Lucknow and others reported in 2010 (83)
ALR, 664. The relevant part reads as
under :
"17. .........The expression 'ordinarily'
would mean that the authority empowered
to assigning matters must exercise that
power to place the matter before the
Bench, which earlier had heard the matter.
This can be done in individual cases or by
a general order. This rule is based on the
principle
that
a
Bench
having
substantially heard the matter and spent
valuable judicial time, must be allowed to
ordinarily hear and dispose of the matter.
This power, therefore, could only be
exercised by the Chief Justice who
constitutes the Benches and not by the
Registry of the Court, nor can a Bench
hold that it can proceed with the matter as
a part heard matter."
25. The legal position which
emerges from a reading of the rules
contained in Chapters V and VI of Rules,
1952 specifically those quoted above, is
that the Chief Justice is the master of the
roster and can alone decide as to which
Judge would sit singly and which Judge
would sit in Division Benches. The Chief
Justice can allocate work to puisne Judges
and no Judge has jurisdiction to call for
any particular case and to hear the same.
Every Judge is bound by the roster framed
under Rule 1 of Chapter V of Rules, 1952.
26. But at the same time, the power
of the Chief Justice is circumscribed by
the Rules, 1952 in respect of review
application, tied up cases, application in
tied up cases, applications on same
subject and ex facie contempt case. In
2 All] Amar Singh Vs. State of U.P.
999
such matters the case is normally to be
listed before the same Bench which had
dealt with the matter earlier except when
the Chief Justice passes an order for the
matter to be listed before another
Judge/Bench.
27. So far as review application, tied
up cases, application in tied up cases and
ex facie contempt case are concerned,
they do not present any difficulty with
regard to the case to be treated within the
said category. It is the category of cases to
be treated as tied up/part-heard that
difficulty arises.
28. A Full Bench of this Court in
Sanjay Kumar Srivastava vs. Acting Chief
Justice and others reported in 1996 (14)
LCD, 1170 has explained that later part of
Rule 14(1) clarifies that if the Bench has
merely directed notice to be issued or
passes an ex-parte order, it shall not be a
case partly heard by a Bench. The Full
Bench went on to hold that if the same
Bench passes an order that the matter
shall come up before that Bench for
further hearing or as part heard, such an
order would be in violation of the rules of
the Court and, therefore, a nullity. (Ref.
Paragraph 69 of the judgment).
29. Therefore, a case does not
become part-heard merely because of
passing of an interim order or that notices
have been directed to be issued to the
respondent. In such a case if any order on
the judicial side is passed for the case to
be listed as tied up/part-heard before the
same Judge/Bench, it would be in
violation of Rules of the Court and,
therefore, a nullity.
30. Following the aforesaid Full
Bench judgment of this Court, a Division
Bench of this Court in Sanjay Mohan vs.
State of U.P. and others reported in 2008
(1) AWC, 1050 held that at pre admission
stage no case can be treated as tied up and
no Single Judge or Division Bench of the
Court can issue a direction to the Registry
to list the matter before him or before the
Bench of which he is a member after the
roster has changed. Such orders have been
held to be a nullity.
31. We broadly agree with what has
been held in the case of Sanjay Kumar
Srivastava (supra) and Sanjay Mohan
(supra), but in our opinion the absolute
proposition that in no circumstance a case
could be part-heard/tied up at the
admission stage may not be correct.
32. In our opinion what is relevant is
not the stage of the case but as to whether
the case has been substantially heard i.e. it
has been heard extensively and therefore,
administration of justice requires that the
case should be heard and disposed of by
the same Bench.
33. Such extensive hearing of a
petition can takes place even at the
admission stage e.g. where parties have
exchanged their affidavits but the petition
has not been formally admitted, in cases
where the contesting parties decide not to
exchange any further affidavits, in the
background that the relevant facts are
already on record or where pure question
of law are raised and are to be decided on
admitted facts.
34. We are, therefore, of the opinion
that the relevant factors for deciding as to
when a case can be said to be 'tied up' or
'part heard', is not dependent on the stage
of the proceedings but on whether it had
been extensively heard/the Court has
1000
 INDIAN LAW REPORTS ALLAHABAD SERIES
devoted sufficient time in the hearing of
the petition so as to require in the interest
of administration of justice that the matter
be disposed of by the same Bench. There
cannot be any hard and fast rule that
unless the case is listed for final hearing,
it can not fall within the category of partheard case, within the meaning of Rule 14
of Chapter V of the Rules, 1952. To that
extent we find it difficult to agree with the
observation made in Sanjay Kumar
Srivatava (Supra) and Sanjay Mohan
(supra).
35. This takes the Court to the issue
as to who is to decide as to when the case
has been extensively heard by the
Judge/Bench
concerned
or
the
Judge/Bench has devoted sufficient time
while hearing the merits of the petition so
as to fall within the category of tied
up/part-heard case covered by Rule 14 of
Chapter V to be listed before the same
Bench/Judge.
36. Another issue which may come
up for consideration is as to who is to
decide as to whether the judicial order of
the Court for the matter being part-heard
or the matter being treated as tied up or
for listing as part heard before the same
Bench is as per the Rules of the Court or
it is a nullity i.e. it can be ignored.
37. In our opinion the Registry of
the High court cannot be permitted to sit
over the judicial order of the Court that
'the case be treated as part-heard' or 'be
listed before the same Bench'. The issue
as to whether a particular case has been
extensively heard by the Judge/Bench or
not so as to fall within the category of
'tied up' cases, can be examined by the
Chief Justice. The Chief Justice alone has
to satisfy himself as to whether the case
would fall within the category of tied up
or part-heard cases covered by Rule 14 of
Chapter V and no one else.
38. It is for this reason that the Chief
Justice under the administrative order
dated 16 December 2013 had directed that
the no case shall be treated as tied up or
part-heard after the commencement of
new roster except when so ordered by the
Chief Justice in a specific case hereafter.
The circular of the Chief Justice dated 16
December 2013 has to be read in a
manner that it is in conformity with the
Rules, 1952 of the Court.
39. In our opinion the circular of the
Chief Justice only intends to provide that
the Registry on its own will not list a
matter before a particular Bench after the
change of roster on the pretext that it is a
tied up or part-heard matter. Only such
cases are to be listed before a particular
Bench under the category of 'tied up
cases', as may be ordered by the Chief
Justice after the change of roster.
40. The purpose is obvious. The
Chief Justice can examine as to whether
the order made by the Bench concerned
for treating the matter as tied up or partheard or for listing of the matter before
the same Bench, is in conformity with the
Rules or in conflict thereof as has been
noticed in Sanjay Kumar Srivastava
(supra) and in Sanjay Mohan (supra).
41. Initially the counsel for the
Allahabad High Court did suggest that the
rational behind the circular was to see that
the special Benches are not required to be
constituted for hearing tied up matters so
as to save judicial time.