# Smt. Maya Dixit and others v. The State of U.P. and others

- **Citation:** (2010) 3 ILRA 1228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-09-13
- **Case number:** Civil Misc. Writ Petition No. 34179 of 2010
- **Bench:** F.I. Rebello, C.J. V.K. Shukla, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maya-dixit-and-others-v-the-state-of-u-p-and-others-41754
- **Pages:** 18

## Headnote

Constitution of India Art.226-practiced
Procedure-writ
jurisdiction-reference
made by judge exceeding power of the
Bench of PIL-against the verdict of Apex
Court-on basis of interim order-without
hearing both parties-the G.O. Prohibiting
use of machine in mining operations-in
compliance of interim order-itself under
challenge
before
Apex
Court-heldreference itself not maintainable-require
no further discussion.
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1229
Held: Para 20 and 21

We are surprised at the stage at which
the reference was made. Normally a
reference is made after hearing the
parties on merits and the learned Bench
arrived at a conclusion that it does not
agree with the view taken by another
coordinate
Bench,
which
has
earlier
decided the law. In this case, a strange
procedure has been followed. Interim
relief was first granted, the matter was
not finally heard, and without considering
the merits of the matter, a reference has
been made. In our opinion, this was a
strange procedure. We express, therefore,
our anguish at the manner in which this
reference is made. We may also note that
the
interim
order
dated
06.03.2009
passed in Noor Mohammad (supra), was
the subject matter of special leave
petition to the Supreme Court. The
learned Court did not interfere with that
order. The special leave petition was
dismissed on 06.04.2009 and further
clarification was issued on 28.08.2009.
The
effect
was
that
use
of heavy
machinary was banned. In spite of that
the interim relief was granted without
considering the normal tests for granting
an injunction.

The learned counsel has sought to take us
through the merits of the matter. In view
of the fact that the reference itself is not
maintainable, we do not propose to
examine the matter on merit and leave it
to the parties to take appropriate steps
which in law they may be entitled to.
Case law discussed:
AIR 2006 SC 1489, 2001 (4) AWC 2688, AIR
1982 SC 1198, AIR 1990 Cal. 168, (1996) 6 SCC
587, 1996 AWC 644, (1998) 1 SCC 1, (2000) 2
SCC 391, (2006) 8 SCC 294, Special Appeal No.
578 of 2010, AIR 1981 SC 606, 2008 (1) AWC
673, [2008 (2) ADJ 397 (DB) ], AIR 2006 SC

## Text

_Characters 0–39,858 of 57,298. This is a partial read: ask again with offset=39858 for what follows._

1228 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
FIR regarding commission of a cognizable
offence whether he has any interest in the
matter or not. The question of locus in such
matters does not arise. However, if the
relevant law requires lodging of an FIR by a
particular person, then and then alone, the
question of locus has a relevancy otherwise
not. As the ITP Act is silent as to how the
FIR is to be lodged, the FIR lodged by a
private person, namely, Smt. Atul Sharma
cannot be treated as not maintainable, and as
such the proceedings held in pursuance
thereof are not in any way without
jurisdiction.

7. The present case, according to the
FIR, is that the complainant got an
information that one person along with three
minor girls was present at the Bus Stand for
taking the girls to some unknown place. The
complainant then went to the Bus Stand and
found that in the waiting hall three minor
girls and one male person had been indulged
in gossip. It is also alleged that the minor
girls were to be taken to New Delhi for
prostitution and this fact was stated by all the
minor girls on interrogation. In case, the
informant, instead of lodging the FIR, had
tried to contact Special Police Officer for
lodging the FIR, there was every possibility
of moving the accused and girls from the
place of occurrence to some unknown place
and in that situation no action could be taken
against them. In this view of the matter,
lodging of the FIR by the complainant was
not, in any way, against the law.

8. In my opinion, the charge sheet
cannot be quashed only on the ground that
the FIR was lodged by a private person.

9. In this case, the investigation was
done by a Special Police Officer and the
charge sheet has been filed by him, on the
basis of the materials collected during the
investigation, and from such materials, a
prima facie case is made out against the
applicant, therefore, I do not consider it
proper to interfere with the charge sheet and
the proceeding of the criminal case.

10. The petition has no merit and is,
accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 34179 of 2010

Smt. Maya Dixit and others ...Petitioners
Versus
The State of U.P. and others ...Respondents

Counsel for the Petitioners:
Shri S.P. Singh, Sr. Advocate
Shri Sandeep Kumar Srivastava
Shri Mukesh Prasad
Shri Arvind Srivastava
Shri Sanjeev Singh

Counsel for the Respondents:
Shri S.G. Hasnain
Addl. Advocate General
Shri Alok Kumar Singh
Standing Counsel

Constitution of India Art.226-practiced
Procedure-writ
jurisdiction-reference
made by judge exceeding power of the
Bench of PIL-against the verdict of Apex
Court-on basis of interim order-without
hearing both parties-the G.O. Prohibiting
use of machine in mining operations-in
compliance of interim order-itself under
challenge
before
Apex
Court-heldreference itself not maintainable-require
no further discussion.
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1229
Held: Para 20 and 21

We are surprised at the stage at which
the reference was made. Normally a
reference is made after hearing the
parties on merits and the learned Bench
arrived at a conclusion that it does not
agree with the view taken by another
coordinate
Bench,
which
has
earlier
decided the law. In this case, a strange
procedure has been followed. Interim
relief was first granted, the matter was
not finally heard, and without considering
the merits of the matter, a reference has
been made. In our opinion, this was a
strange procedure. We express, therefore,
our anguish at the manner in which this
reference is made. We may also note that
the
interim
order
dated
06.03.2009
passed in Noor Mohammad (supra), was
the subject matter of special leave
petition to the Supreme Court. The
learned Court did not interfere with that
order. The special leave petition was
dismissed on 06.04.2009 and further
clarification was issued on 28.08.2009.
The
effect
was
that
use
of heavy
machinary was banned. In spite of that
the interim relief was granted without
considering the normal tests for granting
an injunction.

The learned counsel has sought to take us
through the merits of the matter. In view
of the fact that the reference itself is not
maintainable, we do not propose to
examine the matter on merit and leave it
to the parties to take appropriate steps
which in law they may be entitled to.
Case law discussed:
AIR 2006 SC 1489, 2001 (4) AWC 2688, AIR
1982 SC 1198, AIR 1990 Cal. 168, (1996) 6 SCC
587, 1996 AWC 644, (1998) 1 SCC 1, (2000) 2
SCC 391, (2006) 8 SCC 294, Special Appeal No.
578 of 2010, AIR 1981 SC 606, 2008 (1) AWC
673, [2008 (2) ADJ 397 (DB) ], AIR 2006 SC
2190.

(Delivered by: Justice F.I. Rebello, C.J.)

1. A learned Division Bench of this
Court, hearing the above writ petitions,
during the summer vacation, filed for
quashing the Government Order dated
31st May, 2010, by which the lease
holders of leases for excavating sand
have
been
restrained
from
using
machines for the purposes of excavating
sand, and after noting that the impugned
Government Order dated 31st May, 2010
was issued in furtherance of an interim
order passed by the Lucknow Bench of
this Court on 27th May, 2010 in Writ
Petition No. 3879 (M/B) of 2010,
Pradeep Chaudhary Vs. State of U.P. &
Ors., and after considering some other
aspects, was pleased to make a reference
by order dated 14.06.2010 in respect of
the
following
three
questions
for
consideration by a larger Bench:-

"(1)
Whether
such
a
blanket
Government Order, prohibiting use of
machinery, which is against the spirit of
Statutory Rules and the final and binding
judgments rendered by the Division
Benches of this Court at Allahabad, can
be issued on the basis of an interim order
passed by a Division Bench of Lucknow
Bench of this Court at Lucknow, when
there are already three binding, final and
unchallenged judgments of the Division
Benches and a judgment of learned
Single Judge of this Court of Principal
Seat at Allahabad on the subject?

(2) Whether the interim order dated
27.5.2010, passed by the Lucknow
Bench of this Court, not exercising P.I.L.
Jurisdiction, and other interim orders on
the basis of which Government Order
dated 31.5.2010, imposing complete ban
on
use
of
machinery
in
mining
operations on the riverbeds or nearby
areas could be issued, when the Division
Benches and the learned Single Judge of
this Court at Allahabad have not ordered
1230 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for total prohibition on the use of
machines for excavation of sand?

(3) Whether such interim order,
which was passed without taking into
account a settled legal position and not
laying down any law, would be per
incuriam where the controversy raised
has already been settled by various
judicial pronouncements of this Court at
Principal Seat of the High Court at
Allahabad?"

Accordingly, the reference so made
has been heard by this Bench.

2. Insofar as the first question is
concerned, an order has already been
issued by the State Government, in
exercise of its powers of subordinate
legislation. After such an exercise,
whether earlier any learned Bench had
passed an order directing such legislation
is irrelevant. The exercise of subordinate
legislation is an act independent of the
judicial direction. A Court in matters
pertaining to legislation, whether primary
or subordinate, based on material before
it, directs an authority to consider the
issue as it feels the need for legislation in
that area. It is for those entrusted with
the duty of enacting legislation under the
Constitution or the delegate of the
legislature, to exercise their legislative
power and undergo that legislative
exercise. Once the legislative body
proceeds to enact legislation, whether
primary or secondary, it is immaterial as
to why it enacted the legislation. The
legislative body may act in public
interest, based on public opinion, the felt
need by pressure groups calling on the
Government
for
a
need
to
enact
legislation or on observation by a Court,
finding a vacuum in a particular area of
legislation. This exercise is by the
legislative body, in the plenary exercise
of its powers. The Courts also, at times,
in the area of environment and ecology
and other matters involving Article 21 of
the
Constitution,
considering
U.N.
Conventions, Directive Principles and
Fundamental Duties, if can be read into
Article 21, also issue directions in the
absence of legislation.

We are concerned here with a case
where the Government, in exercise of its
delegated powers of legislation, has
issued the Government Order. In the
Order because it has been stated that
pursuant to the interim order passed by
the Court, the Government has issued the
Government Order, is immaterial and
irrelevant. The statement would be in the
nature of a preamble, as to why
legislation has to be enacted. Once that
be the case, the issue whether the
delegate proceeded to enact subordinate
legislation pursuant to an interim order,
would be immaterial. All that the Court
in such a case can do is to examine the
validity of subordinate legislation on
tests as laid down by the Supreme Court
in Bombay Dyeing and Mfg. Co. Ltd.
Vs. Bombay Environmental Action
Group and Ors., AIR 2006 SC 1489. In
our opinion, therefore, the first question,
as referred, could not be the subject
matter of reference to a larger Bench.

3. The next question is, whether a
Bench conferred/assigned a particular
work in terms of Chapter V of the
Allahabad High Court Rules, can hear
matters assigned to another Bench?

Rule 1 of Chapter V of the
Allahabad High Court Rules, reads as
under:-
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1231

"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."

4. The issue, whether a Bench
allotted a particular assignment can hear
matters allotted to another Bench, in our
opinion, need not be gone into at length,
as the same has been extensively covered
by a judgment of a learned Division
Bench of this Court in Prof. Y.C.
Simhadri, Vice Chancellor, B.H.U. &
Ors.
Vs.
Deen
Bandhu
Pathak,
Student, 2001 (4) AWC 2688. We may
gainfully reproduce paragraphs 16, 17
and 18 which read as under:-

"16. Thus, the following principles
emerge from the foregoing discussions :

(1) The administrative control of the
High Court vests in the Chief Justice
alone and it is his prerogative to
distribute business of the High Court
both judicial and administrative.

(2) The Chief Justice alone has the
right and power to decide how the
Benches of the High Court are to be
constituted : which Judge is to sit alone
and which cases he can and is required to
hear as also which Judges shall constitute
a Division Bench and what work those
Benches shall do.

(3) The puisne Judges can only do
that work which is allotted to them by
the Chief Justice or under his directions.
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.

(4) Any order which a Bench or a
single Judge may choose to make a case
that is not placed before them or him by
the Chief Justice or in accordance with
his direction
is
an
order
without
jurisdiction and void.

(5) Contempt jurisdiction is an
independent
jurisdiction
of
original
nature whether emanating from the
Contempt of Courts Act or under Article
215 of the Constitution of India.

(6) For exercising the jurisdiction
under Article 215 of the Constitution of
India, the procedure prescribed by law
has to be followed.

17. It appears that on 26.3.2001,
when the learned Judge passed the said
order, he was allotted and assigned the
determination
with
regard
to
the
following matters by the Chief Justice as
appears from the printed cause list:

"Fresh writs in educational matters
(except
service
writs)
for
orders,
admission and hearing and all single
Judge writ-C for order, admission and
hearing including bunch cases".

The learned Judge on the face of the
record, therefore, had no determination
assigned to him by the Chief Justice with
regard to the matters relating to contempt
and the said jurisdiction had been
assigned to another Hon'ble single Judge.

18. In view of the rule as already
noted that the power to constitute
Benches and allotment of work to the
learned Judges vests absolutely in the
Chief Justice and the Rules 1, 6 and 17
1232 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of Chapter V and Rule 2 of Chapter VIII
of the Allahabad High Court Rules also
clearly provide for the same. In that view
of the matter, the order passed by the
learned single Judge in the instant case
appears to us to be without jurisdiction
and void."

We
may
also
reproduce
the
following two paragraphs : -

"24. In the instant case, admittedly,
the question of jurisdiction is involved
and, as such, the order falls within the
meaning of 'judgment' under the relevant
clause of Rule 5 of Chapter VIII of the
High Court Rules and accordingly
appears to us to be appealable.

25. In the instant case, since the
order passed by the learned single Judge
was
beyond
his
competence
or
Jurisdiction to pass such order, it is void
and
non-est
and
is
accordingly
appealable. The appellant being Vice
Chancellor
of
the
Banaras
Hindu
University, who is holding a responsible
position, issue of notice by the order
impugned, which is without jurisdiction,
has adversely affected his rights and the
rights of the appellant having been
adversely affected, the appeal appears to
be maintainable."

We approve the law laid down in
Prof. Y.C. Simhadri (Supra).

5. Let us also look at some other
aspects, as in spite of above and several
other judgments, the issues have been
raised once again. The issue of tied up
and part-heard cases had come up for
consideration, before a learned Division
Bench of this Court in the case of Ram
Prasad & Anr. Vs. State of U.P. & Ors.,
Civil Misc. Writ Petition No. 50748 of
2007 wherein, the learned Bench was
considering a letter written by the then
Chief Justice, and not an order by the
Chief Justice in exercise of his powers of
constituting Bench. The learned Bench,
by its order dated 02.11.2007, however,
was pleased to refer seven questions to
be heard by a larger Bench. The matter, it
appears, was placed before the learned
Chief Justice. The questions referred for
consideration were:-

1. Whether the matters, which have
been nominated by Hon'ble the Chief
Justice, are to be heard by a Bench
presided by a particular Hon'ble Judge
will be heard by that Hon'ble Judge till
he sits in that jurisdiction and thereafter
he has to release the matter or he shall
continue to hear the matter, irrespective
of change of the roster?

2. Whether any matter, which is
assigned to a Bench, shall continue with
the same Bench till the stage of
admission of the matter irrespective of
the change in the roster?

3. Whether any matter, which is
assigned, nominated or otherwise is
heard substantially by a Bench at the
admission stage, the matter would be
heard by the same Bench, which has
heard it substantially, or, after the change
in the roster, the matter has to be released
by the Bench to be heard by the Bench
having jurisdiction as per the changed
roster?

4. Whether, where the matter is
nominated or assigned to a Bench, the
Bench can simply say that the matter
may be listed before another Bench and
such matter would be heard by another
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1233
Bench or the Bench shall have to send
the matter to Hon'ble the Chief Justice
for fresh nomination of a Bench?

5. Whether instructions contained in
the
aforementioned
letter
dated
24.10.2007 to the effect that "one can
understand retaining of a matter, which is
admitted, is being heard finally and has
been substantially heard and would be
concluded in a hearing or two" applies
only to 'admitted cases' which are being
heard finally by the Bench or it also
applies to hearing of a matte where
affidavits have been exchanged at the
'admission stage', the matter is being
finally heard by the Bench, as the
prevailing practice in Allahabad High
Court is that the cases are being decided
finally at the 'admission stage itself'.
Whether the Bench hearing matters at the
'admission stage' finally even where
substantial hearing has taken place has to
release the matter after the change of the
roster or it is to be heard by the same
Bench?

6. Whether the provisions contained
in Chapter VI Rules 13 & 14 and Chapter
VI Rule 7 of the Allahabad High Court
Rules, 1952 have to be followed by the
Benches?

Rule 6 of Chapter V of the
Allahabad High Court Rules is the Rule
pertaining to reference to a larger Bench,
which reads as under:-

"6. Reference to a larger Bench.-
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
question and dispose of the case after
deciding the remaining questions, if any,
arising therein."

The
matter,
it
appears,
was
considered on the administrative side by
the learned Chief Justice. The learned
Chief Justice on the administrative side
considered the following judgments:-

(i) State of Maharashtra Vs.
Narayan, AIR 1982 SC 1198;

(ii)Sohan Lal Vs. State, AIR 1990
Cal. 168;

(iii)Inder Mani Vs. Matheshwari
Prasad, (1996) 6 SCC 587;

(iv) Sanjay Kumar Srivastava Vs.
Acting Chief Justice & Ors., 1996
AWC 644;

(v) State of Rajasthan Vs. Prakash
Chand & Ors., (1998) 1 SCC 1;

(vi) R. Rathinam Vs. State By
DSP, District Crime Branch, Madurai
District, Madurai & Anr., (2000) 2
SCC 391; and

(vii) Jasbir Singh Vs. State of
Punjab, (2006) 8 SCC 294.

6. We may gainfully refer to these
judgments to understand the correct
position in law. In State of Maharashtra
Vs. Narayan (supra), the Supreme
Court held as follows:-

"The Chief Justice is the master of
the roster. He has full power, authority
and
jurisdiction
in
the
matter
of
1234 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
allocation of business of the High Court
which flows not only from the provisions
contained in sub-section (3) of Section
51 of the Act, but inheres in him in the
very nature of things."

6.A. In Sohan Lal (supra), the
Calcutta High Court on a review of the
constitutional and statutory provisions
held as follows:-

"...The power and jurisdiction to
take cognizance of and to hear specified
categories or classes of cases and to
adjudicate and exercise any judicial
power in respect of them is derived only
from the determination made by the
Chief
Justice
in
exercise
of
his
constitutional, statutory and inherent
powers and from no other source..."

7. In Inder Mani Vs. Matheshwari
Prasad (supra), a learned Judge of this
Court who was to sit in a Division
Bench, sat singly and disposed of a writ
petition. The Apex Court noted the
Registrar's Affidavit and then observed
as under:-

"... It was most improper on his part
to disregard the administrative directions
given by the Chief Justice of the High
Court and to sit singly to take up matters
that he thought he should take up. Even
if he was originally shown as sitting
singly on 22.12.1995, when the Bench
was reconstituted and he was so
informed, he was required to sit in a
Division Bench on that day and was
bound to carry out this direction. If there
was any difficulty, it was his duty to go
to the Chief Justice and explain the
situation so that the Chief Justice could
then give appropriate directions in that
connection. But he could not have, on his
own, disregarded the directions given by
the Chief Justice and chosen to sit singly.
We deprecate this behaviour which
totally undermines judicial discipline and
proper functioning of the High Court."

8. In Sanjay Kumar Srivastava
Vs. Acting Chief Justice (supra), a writ
petition was pending before a Division
Bench of this Court for admission. The
matter had been adjourned for about
seven dates. An interim order had been
passed and an application to vacate the
interim order was rejected by that
Division Bench. On an application being
made on behalf of the State, the then
Acting Chief Justice withdrew that
petition from the said Division Bench
and referred it to a Larger Bench. That
order of the Acting Chief Justice was
challenged by the petitioner. This second
petition was placed before a Bench
consisting of three Judges. This Larger
Bench upheld the decision of the Acting
Chief Justice. Amongst others, it was
submitted before the Full Bench that the
earlier writ petition had become part
heard before that Bench and it was not
permissible to the Acting Chief Justice to
withdraw the same and to refer it to
another Bench.

The Full Bench went through the
relevant provisions of the Constitution of
India compared it with the earlier
provisions of Government of India Act,
1935
and
also
looked
into
the
Government of India Act of 1915, as
well as the relevant provisions of the
Allahabad High Court Rules, 1952 and
the earlier judgments of the Supreme
Court as well as of this Court. In
paragraph 19 of the judgment, the Court
specifically referred to and quoted Rule 1
of Chapter V of the High Court Rules,
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1235
which reads as follows:-

"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."

The Court proceeded to observe as
under in paragraph 24:-

"24. In view of the above, it is clear
that the Chief Justice enjoys a special
status not only under 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 the Judges sitting alone or
in Division Bench, etcetra, work in a coordinated manner and the jurisdiction of
one court is not over-lapped 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."

It was canvassed before the Full
Bench that the earlier petition had
become part heard before the earlier
Division Bench and that it was not open
to the Chief Justice to refer it to a Larger
Bench. The Court went into the question
as to whether the earlier writ petition had
ever become part heard. On the facts of
the case, having gone through the order
sheet of various dates, the Court held that
the writ petition was not part heard and
legally also the case did not become part
heard or tied-up matter of that Bench.

The Court then went into the
question as to when matters become part
heard and whether even a supposedly
part heard matter could be withdrawn by
the Chief Justice. In paragraph 34 of the
judgment, the Court specifically quoted
Rule 14 of Chapter V, which is on tiedup cases and which reads as follows:-

"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 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 by the Bench admitting it."

Thereafter the Court observed:-
1236 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"The provision of sub-rule (1)
would indicate that even a case which is
partly heard by a Division Bench is not
necessarily to be laid before that Bench.
The use of word "ordinarily" itself
indicates that there can be a departure
from the normal practice of listing a partheard case before the same Bench. The
word "ordinarily" means in a large
majority of cases but not "invariably".

In paragraph 35 of the judgment, the
Court observed as under:-

"The word "ordinarily" is utilized to
indicate that although in normal course a
thing will be done in a particular manner,
in special circumstances a departure from
normal course of action is permissible
under law. Normally, therefore, a case
which has been partly heard by a Bench
shall be laid before that Bench but in
special circumstances, the Chief Justice
who, as pointed out above, has exclusive
jurisdiction of distributing work to
Judges, can depart from the normal
course and list the case before some
other Judge ..."

Going into the question as to
whether a pre-admission matter can be
said to have become part heard, in
paragraph 36 of the judgment, the Court
held as follows:-

"36. The other part of sub-rule (1)
lays down in clear terms that the case in
which the Bench has merely issued
notice to the opposite party or had passed
an ex parte order shall not be deemed to
be a case partly heard by that Bench.
This provision has been made to specify
that a case does not become part heard
merely by passing of interim order. It
also lays down that if notices are directed
to be issued to the opposite party, the
case does not become part heard case of
that
Bench. The
consequences
are
obvious. If the Division Bench which has
merely passed an ex parte order or
directed notice to be issued to the
opposite party locate it as a part heard
case or passes an order that it will come
up before that Bench for "further
hearing" or as a "part heard" or as a
"tied-up" case, the order would be in
violation of the Rules of Court and,
therefore, a nullity. Such an order would
be without jurisdiction and would not
confer any jurisdiction on the Bench
concerned to proceed with that case
unless the case is listed before them
again under the orders of the Chief
Justice. In a situation where any order
has been passed indicating such a case on
the order-sheet or on the main writ
petition to be a part heard or tied up case,
the Chief Justice in spite of that order
would retain his jurisdiction to list it
before the appropriate Bench for hearing
as the order limiting the case to be a part
heard or tied up would be in violation of
the Rules of Court and would not bind
the hands of the Chief Justice from
listing that case as a "seen" case before
any other Bench rather than as a "tied
up" case before that very Bench."

9. In State of Rajasthan Vs.
Prakash Chand (supra), a matter earlier
heard
by
a
Single
Judge
was
subsequently placed before a Division
Bench under the order of the Chief
Justice of the Rajasthan High Court. The
Division Bench disposed of that petition
as it had become infructuous when it was
placed before it. The Single Judge then
directed the Registry to place that
petition before him and subsequently
issued a notice of contempt to the Chief
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1237
Justice of that Court since he had earlier
withdrawn the matter from his Bench.
This was allegedly on the ground that it
had become part heard before him and
the withdrawal constituted contempt of
Court. This order was carried to the
Supreme Court. The Supreme Court
referred to Rule 54 of Chapter V of the
High Court Judicature at Rajasthan
Rules, 1952. This Rule is identical to
Rule 1 of Chapter V of the Allahabad
High Court Rules. After a careful reading
of the said Rule, the Court observed in
paragraph 10 as follows:-

"10. A careful reading of the
aforesaid provisions of the Ordinance
and Rule 54 (supra) shows that the
administrative control of the High Court
vests in the Chief Justice of the High
Court alone and that it is his prerogative
to distribute business of the High Court
both judicial and administrative. He
alone, has the right and power to decide
how the Benches of the High Court are
to be constituted : which Judge is to sit
alone and which cases he can and is
required to hear as also as to which
Judges shall constitute a Division Bench
and what work those Benches shall do.
In other words the Judges of the High
Court can sit alone or in Division
Benches and do such work only as may
be allotted to them by an order of or in
accordance with the directions of the
Chief Justice. That necessarily means
that it is not within the competence or
domain of any Single or Division Bench
of the Court to give any direction to the
Registry in that behalf which will run
contrary to the directions of the Chief
Justice."

The Supreme Court then referred to
the judgments of various High Courts
and of the Supreme Court with approval.
In paragraph 12 of the judgment, the
Supreme Court quoted with approval the
following observations of a Division
Bench of this Court (Per: Mukerji, J.) in
State Vs. Devi Dayal, AIR 1959 All.
421:-

"It is clear to me, on a careful
consideration
of
the
constitutional
position, that it is only the Chief Justice
who has the right and the power to
decide which Judge is to sit alone and
which cases such Judge can decide;
further it is again for the Chief Justice to
determine which Judges shall constitute
Division Benches and what work those
Benches shall do. Under the rules of this
Court, the rule that I have quoted above,
it is for the Chief Justice to allot work to
Judges and Judges can do only such
work as is allotted to them..."

It also quoted with approval the
concurring opinion of H.P. Asthana, J. in
that matter to the following effect:-

"Rule 1, Chapter V, of the Rules of
this Court, provides that 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.

It will appear from a perusal of the
above provisions that the High Court as a
whole consisting of the Chief Justice and
his companion Judges has got the
jurisdiction to entertain any case either
on the original or on the appellate or on
the revisional side for decision and that
the other Judges can hear only those
matters which have been allotted to them
by the Chief Justice or under his
1238 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
directions. It, therefore, follows that the
Judges
do
not
have
any
general
jurisdiction over all the cases which the
High Court as a whole is competent to
hear and that their jurisdiction is limited
only to such cases as are allotted to them
by the Chief Justice or under his
directions."

In paragraph 13, the Supreme Court
quoted with approval the following
observations
of
a
Full
Bench
of
Rajasthan High Court in Niranjan Singh
Vs. State of Rajasthan, AIR 1974 Raj.
171:-

"It is therefore the responsibility of
the Chief Justice to constitute the
Division Courts of Benches. The Judges
are required to sit alone or in the
Division Benches and, in either case, do
such work as may be allotted to them by
order of the Chief Justice or in
accordance with his direction. This
power to allot the work to the Judges
cannot be taken away, in face of the clear
provision of Rule 54, merely because a
date of hearing has been fixed in a case
by a particular Bench."

"...There is nothing in the rule to
justify the argument that such a case
should always be treated as 'tied up' with
a Bench simply because it has once fixed
the date of its hearing or that with the
exception of a case in which a Bench has
directed the issue of notice to the
opposite party or passed an ex parte
order all other cases should be deemed to
be part heard. On the other hand, the use
of the word 'ordinarily' goes to show that
if there are extraordinary reasons, even a
part heard case may not be laid before
the same Bench for disposal. So far as
the second sentence of Rule 66 (1) is
concerned, it is really in the nature of an
illustration or an explanation."

In paragraph 16 of the judgment, it
referred to a judgment of the Supreme
Court in Inder Mani Vs. Matheshwari
Prasad (supra), in which the Supreme
Court has held as follows:-

"It is the prerogative of the Chief
Justice to constitute benches of his High
Court and to allocate work to such
benches. Judicial discipline requires that
the puisne Judges of the High Court
comply with directions given in this
regard by their Chief Justice. In fact it is
their duty to do so. Individual puisne
Judges cannot pick and choose the
matters they will hear or decide nor can
they decide whether to sit singly or in a
Division Bench..."

In paragraph 18, the Supreme Court
noted and quoted Rule 66 of the
Rajasthan High Court Rules, which is on
tied-up cases, which is identical to Rule
14 of Chapter V of the Allahabad High
Court Rules on tied-up cases. It also
quoted Rule 74 of the Rajasthan High
Court Rules on part heard cases, which is
identical to Rule 7 of Chapter VI of the
Allahabad High Court Rules on part
heard cases. It held in paragraph 19 as
follows:-

"Under Rule 74 (supra) a case
which remains part heard at the end of
the day, is ordinarily required to be heard
by the Judge concerned or the Judges
sitting next and is to be placed first after
miscellaneous cases in the next list but
that does not imply that the Chief Justice
does not have the power or jurisdiction to
transfer even a part heard case, in the
peculiar facts and circumstances of a
3 All] Smt.Maya Dixit and others V. The State of U.P. and others
1239
case, from a single Judge to a Division
Bench in exercise of the jurisdiction
vested in the Chief Justice under proviso
(a) to Rule 55 (xi) (supra)."

The Supreme Court then referred to
paras 21 and 22 of the judgment of the
Full Bench of this Court in the case of
Sanjay Kumar Srivastava (supra). It
specifically quoted with approval the
above quoted paragraph 24 from the
judgment in Sanjay Kumar Srivastava
(supra) and then held in paragraph 23 as
follows:-

"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 of 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 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."

10. In R. Rathinam Vs. State
(supra)
also,
the
Supreme
Court
considered the powers of the Chief
Justice and in paragraph 10 reiterated the
proposition in State of Rajasthan Vs.
Prakash Chand (supra) to the following
effect:-

"The Chief Justice is the master of
the roster. He alone has the right and the
power to decide how the Benches of the
High Court are to be constituted; which
Judge is to sit alone and which cases he
can and is required to hear and also as
which Judges shall constitute a Division
Bench and what work those Benches
shall do."

11. The question again came up
before the Supreme Court in Jasbir Singh
Vs. State of Punjab (supra). In paragraph
19, the Court held as follows:-

" ...It may also be remembered that
normally a High Court Judge passes
orders on matters assigned by the Chief
Justice and this Court in State of
Rajasthan Vs. Prakash Chand (supra)
deprecated the practice of the Single
Judge directing the listing of certain part
heard cases before him without there
being any orders of the Hon'ble the Chief
Justice of the High Court. It is the
prerogative of the Chief Justice to assign
business of the High Court both on
judicial and administrative sides. The
Chief Justice alone has the power to
decide as to how the Benches of the High
Court are to be constituted. That
necessarily means that it is not within the
competence of any Single or Division
Bench of the High Court to give any
direction to the Registry in that behalf
1240 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
which will run contrary to the directions
of the Chief Justice."

Considering that the issues are
answered by the Full Bench or Division
Bench judgments of this Court and of the
Supreme Court and as all the questions
referred for consideration are answered
by the judgments, the learned Chief
Justice apparently declined to make a
reference.

12. Our attention has been drawn to
another judgment of this Court in the
case of Rajesh Chandra Gupta & Ors.
Vs. State of U.P. & Anr., Special
Appeal No. 578 of 2010, decided
29.04.2010, wherein, considering Rules
12 and 13 of Chapter V, and Rule 7 of
Chapter VI in the matter of part-heard
cases, the learned Division Bench was
pleased to hold that the learned Judge
who had heard the application for
restoration could not have heard the
matter, on the ground that the learned
Judge who had passed the order was not
available. We make it clear that Rule 12
of Chapter V confers the power of
substantive review and not procedural
review as the power of procedural review
is inherent in every Court or Tribunal,
whereas substantive review has to be
conferred. (See Grindlays Bank Ltd.
Vs.
The
Central
Government
Industrial Tribunal & Ors., AIR 1981
SC 606).

Rule 7 of Chapter VI of the
Allahabad High Court Rules speaks
about a matter being part-heard. The
proviso thereto provides that for some
reason, if a 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. A careful reading of
the rule will show that to be during the
assignment.