Whether chief justice of high court can transfer cases from HC bench to principal seat without hearing parties?

 It is well settled law that Hon'ble the Chief Justice
of a High Court is always the master of roster. It is
the prerogative of the Hon'ble the Chief Justice to
allocate the judicial work to the Judges of the Court.
Hon'ble the Chief Justice decides which Judge shall

sit Single and which Judge shall sit in a Division
Bench. A Judge or a Bench of the High Court can
take up any particular case provided it is assigned by
the Hon'ble the Chief Justice. It is axiomatic that
when the Hon'ble the Chief Justice has power to
allocate judicial work to the Judges and different
Benches, he has a power to withdraw the matters
assigned to the Judges or Benches. The said power
is implicit as the Hon'ble the Chief Justice is the
master of roster. Therefore, the power to transfer the
matters filed at the Benches to the Principal Seat at
Mumbai and vice versa always vests in the Hon'ble
the Chief Justice. Hon'ble the Chief Justice of this
Court in exercise of his power as the master of roster
can always direct that a particular category of cases
pending before its Benches at Nagpur, Aurangabad
and Goa shall be heard at the Principal seat.
Similarly, Hon'ble the Chief Justice of this Court in
exercise of his power as the master of roster can
always direct that a particular category of cases
which ought to be filed before its Benches at
Nagpur, Aurangabad and Goa shall be filed and
heard at the Principal seat. While exercising the said
plenary power of transfer, the Hon'ble the Chief
Justice is under no obligation to hear the parties to
the proceedings;
 The orders of transfer of the Writ Petition No.9207 of
2011 and the Contempt Petition No.277 of 2012

have been passed in exercise of the power of the

Hon'ble the Chief Justice as the master of roster, and
therefore, the said orders cannot be interfered with.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10048 OF 2012
WRIT PETITION NO.1860 OF 2014
WRIT PETITION NO.8182 OF 2012
W.P. NO.10048 OF 2012
Lawyers' Forum for General Utility
& Litigating Public, Aurangabad,
Through its President. .. Petitioner
Vs
1. The State of Maharashtra ,
2. The Hon'ble the Chief Justice,
3. The Hon'ble High Court of Bombay,
Through its Registrar. .. Respondents


CORAM : A.S. OKA & G.S.KULKARNI, JJ

DATE ON WHICH JUDGMENT IS PRONOUNCED: 11TH DECEMBER 2014
Citation;AIR 2015 (NOC) 517 Bom,2016(3) ALLMR613

An important issue is raised in these proceedings regarding
the powers of the Chief Justice of this Court to transfer a matter
pending before a Bench of this Court to its principal seat by exercising
administrative powers vesting in him as the Master of Roster. Another
important issue involved in these Petitions is as regards the legality and
validity of the Proviso to Rule 2 of Chapter XXXI of the Bombay High
Court (Appellate Side) Rules, 1960 (for short “the Appellate Side
Rules”). This challenge is in Writ Petition No.1860 of 2014 (which is
transferred from the Bench at Aurangabad). In Writ Petition No.8182 of
2012, the challenge is to the legality and validity of the general orders
dated 24th February 1993 and 6th January 2010 issued under the
directions of the Hon'ble the Chief Justice of this Court on the
administrative side by which he directed that certain categories of
matters pending at Panaji,Aurangabad and Nagpur Benches of this
Court stand transferred to the principal seat of this Court at Mumbai.
The said orders have been passed in exercise of powers under Rules 1,2
and 3 of Chapter XXXI of the Appellate Side Rules. In Writ Petition
No.8182 of 2012, the challenge is also to the order dated 26th March
2012 passed by the Hon’ble Chief Justice by which, Writ Petition
No.9207 of 2011 pending before the Bench at Aurangabad was ordered
to be transferred to the Principal Seat at Mumbai. As far as Writ
Petition No.10048 of 2012(which is transferred from the Bench at

Aurangabad) is concerned, the challenge is to the order dated 29th June
2012 passed by the Hon’ble Chief Justice of the Bombay High Court
transferring Contempt Petition No.277 of 2012 pending before the
Bench at Aurangabad to the Principal Seat at Mumbai. The prayer is
for issuing a writ for retransfer
the matter to the Bench at Aurangabad.
FACTS:
2. Before we go to the other factual aspects, we must note
here that Rule 2 of Chapter XXXI of the Bombay High Court Appellate
Side Rules,1960 (for short “Appellate Side Rules”) which is a subject
matter of challenge, was added on the Rule Book on 7th August 1986. It
was published in the Gazette Notification dated 28th August 1986.
Rules 1 to 3 were substituted by the said Notification. The challenge is
essentially to the Proviso to Rule 2 of Chapter XXXI of the Appellate
Side Rules. The Rule 2 of Chapter XXXI of the Appellate Side Rules
reads thus:“
2. All appeals, applications, references and
petitions including petitions for exercise of
powers under Articles 226 and 227 of the
Constitution arising in the Judicial Districts of
Ahmednagar, Aurangabad, Beed, Jalgaon, Jalna,
Nanded, Osmanabad, Parbhani and Latur which
lie to the high Court at Bombay shall be
presented to the Additional Registrar at
Aurangabad and shall be disposed of by the
Judges sitting at Aurangabad:

Provided that the Chief Justice may, in his
discretion, order that any case or class of cases
arising in any such District shall be heard at
Bombay:
Provided further that the Chief Justice may, in
his discretion, order that any case presented at
Bombay be heard at Aurangabad.”
The Rules 1 and 3 of the ChapterXXXI
are similar which apply to the
matters filed at the Benches at Nagpur and Panaji (Goa).
3. The order dated 24th February 1993 has been issued under
the directions of the Hon’ble Chief Justice in exercise of powers under
aforesaid Rules 1 to 3 of Chapter XXXI of the Appellate Side Rules . By
the said order, it was directed that all the proceedings pending at the
Benches at Nagpur, Aurangabad and Panaji (Goa) and all the
proceedings filed thereafter against the Hon’ble Chief Justice, this Court
and its Officers or the District Judges by the Judicial Officers and Staff
Members shall stand transferred to the Principal Seat at Mumbai. The
order dated 6th January 2010 modifies the earlier order dated 24th
February 1993. Relevant part of the said order dated 6th January 2010
reads thus:
“In exercise of the powers conferred by proviso to
Rules 1, 2 and 3 of ChapterXXXI
of the Bombay High
Court, Appellate Side Rules, 1960 ( reprint 1981) and
in partial modification of the previous order dated 24th
February 1993 (No.P.1605/93) on the subject, the
Hon'ble the Acting Chief Justice is pleased to direct
that all Appeals, Applications, References and

Petitions, including petitions for exercise of powers
under Article 226 and 227 of the Constitution of India
which are pending, as well as hereinafter filed at the
High Court Benches at Nagpur, Aurangabad and
PanajiGoa,
against the Hon'ble the Chief Justice, High
Court and it's Offices and the District and Sessions
Judges, by the judicial Officers in the District and Subordinate
judiciary and private parties arising from
Judicial Districts of:1.
Akola, Amravati, Bhandara, Buldana,
Chandrapur, Nagpur, Wardha, Yavatmal and
Gadchiroli ( in the High Court Bench at
Nagpur.)
2. Ahmednagar, Aurangabad, Beed, Dhule,
Jalgaon, Jalna, Nanded, Osmanabad, Parbhani
and Latur (in the High Court Bench at
Aurangabad).
3. Panaji and Sought Goa (Margao) in the State of
Goa (in the High Court Bench at PanajiGoa).
Shall stand transferred to the High Court at
Bombay for being heard and finally disposed of
by the appropriate Bench.”
The order further clarifies that the same will not apply to
the cases where the judicial orders are challenged and the judicial
officers who have passed the orders have been made formal parties. It
also directs that in view of the modification of the order dated 24th
February 1993, the proceedings filed by the staff members of the High
Court and the District and other Courts shall be retransferred
to the
respective Benches.

4. On 19th March 2012, a note was put up by the Incharge
Registrar (JudicialI)
before the Hon’ble the Chief Justice seeking a
direction as to whether Criminal Writ Petition No.78 of 2010 filed
before the Bench at Aurangabad by the Principal District Judge, Jalna
and others for getting an uninterrupted electricity supply to all Courts,
should be continued before the Bench at Aurangabad or whether it
should be placed at the Principal Seat at Mumbai by transfer from the
Bench at Aurangabad. It was stated in the said Note that as the issue
involved in the Petition concerns policy decision to provide
infrastructure to the District Courts,whether the same should be placed
at the Principal Seat at Mumbai. On the very date, an order was passed
by the Hon’ble the Chief Justice transferring the said Petition to the
Principal Seat at Mumbai. On 21st March 2012, the Incharge
Registrar
(JudicialI)
submitted a note before Hon’ble the Chief Justice seeking a
direction for transfer of the matters pending before the Benches at
Aurangabad and Nagpur involving the issues regarding the
infrastructure of the District Courts to the Principal Seat at Mumbai. A
list of four cases pending before the Bench at Aurangabad and a list of
five cases pending before the Bench at Nagpur were submitted along
with the said note. The Hon’ble the Chief Justice by an order dated
22nd March 2012 ordered the transfer of four cases pending before the
Bench at Aurangabad including the Writ Petition No.9207 of 2011 to
the Principal Seat at Mumbai. Out of five matters pending before the

Bench at Nagpur, the Hon’ble Chief Justice directed that the four
matters to be transferred to the Principal Seat at Mumbai. A Petition
filed by the High Court Bar Association at Nagpur through its Secretary
on the subject of maintenance and upkeep of the Nagpur Bench
Building was not transferred and was retained at the Bench at Nagpur.
On 29th June 2012, the Registrar (Judicial) of the Bench at Aurangabad
submitted a note before Hon’ble the Chief Justice seeking a direction
for transfer of Contempt Petition No. 277 of 2012 arising out of Writ
Petition No.9207 of 2011 to the Principal seat as the Writ Petition was
already transferred as above. On the same day, Hon'ble the Chief Justice
passed an order of transfer. These orders dated 22nd March 2012 and
29th June 2012 are the subject matter of challenge before us.
5. The present three Petitions have been filed by the Lawyers’
Forum for General Utility and Litigating Public, Aurangabad, through its
President Shri S.B. Talekar, Advocate who has appeared in person.
WRIT PETITION NO.9207 OF 2011 AND CONTEMPT
PETITION NO.277 OF 2012 AT AURANGABAD BENCH:
6. As far as Writ Petition No.9207 of 2011 filed at the Bench
at Aurangabad is concerned, the same was filed by the Petitioner i.e.
Lawyers' Forum for General Utility and Litigating Public. The subject
matter of the said Writ Petition is establishing a National Law University

of Maharashtra. The case of the Petitioner is that the Hon’ble Chief
Minister had decided to establish a National Law University at
Aurangabad. The said decision was reiterated by the Council of
Ministers of the Maharashtra Government on 26th July 2009. The case
is that the Council of Ministers had decided to promulgate an
Ordinance for establishing the National Law University at Aurangabad.
However, on 8th September 2011, the Hon'ble Minister for Higher and
Technical Education forwarded a proposal to establish the National Law
University at Nagpur to the Central Government. Writ Petition
No.9207 of 2011 was filed by the Petitioner seeking implementation of
the decisions dated 3rd May 2007 and 26th July 2009.
7. On 31st November 2011, the said Writ Petition appeared
before a Division Bench at Aurangabad when a notice on the Writ
Petition was issued. Affidavits were filed in the said Writ Petition.
Affidavitinreply
filed by the Deputy Director of Higher and Technical
Education on 5th February 2012 contained a statement that the decision
to set up National Law University at Aurangabad has been taken and
acquisition of the land at Village Karodi will be made. It was stated that
the Government is exploring possibility to make a temporary
arrangement at Aurangabad for starting a National Law University. On
16th January 2012, the Deputy Director of Higher and Technical
Education filed a reply to the said Petition stating that the State

Government has decided to establish a National Law University at
Aurangabad and accordingly, a necessary bill would be presented in
both the Houses of State Legislature in March 2012. As stated earlier,
on 26th March 2012, an order was made by the Hon'ble the Chief Justice
transferring the said Writ Petition No.9207 of 2011 to the Principal Seat
at Mumbai.
8. A Contempt Petition being Contempt Petition No.277 of
2012 was filed by the Petitioner alleging breach of assurances given in
the affidavits filed in the Writ Petition No.9207 of 2011. On 20th June
2012, the said Contempt Petition came up before the learned Single
Judge of this Court at the Bench at Aurangabad. The claim of the
Petitioner is that the Contempt Petition was adjourned till 25th June
2012 to enable the Government Pleader to seek instructions as to the
date of establishment of the National Law University at Aurangabad.
According to the case of the Petitioner, on 25th June 2012, the Contempt
Petition was adjourned to 2nd July 2012 with a clear understanding that
the learned Government Pleader will positively make a statement on 2nd
July 2012 regarding the date of establishment of a National Law
University at Aurangabad. As recorded earlier, on 29th June 2012, a
note was put up before the Hon'ble the Chief Justice by the Registrar
(Judicial) at Aurangabad stating that the Writ Petition No.9207 of 2011
has been already transferred to the Principal Seat at Mumbai and,
therefore, directions were sought as regards the Contempt Petition

No.277 of 2012. On 29th June 2012, the Hon'ble the Chief Justice
passed an order transferring Contempt Petition No.277 of 2012 with a
direction to place it before the same Bench which will hear Writ Petition
No.9207 of 2011 which was already transferred to the Principal Seat at
Mumbai.
SUBMISSIONS OF THE PETITIONER
9. Shri S.B. Talekar, the President of the Petitioner appearing
in person has made detailed submissions. We must note here that he
filed Written Submissions on 19th September 2014 in which he has
stated that as an Officer of the Court, he was not desirous of pressing
the allegations of mala fide against the Hon'ble the Chief Justice. His
submission is that though the Hon'ble the Chief Justice enjoys the
power to allocate business amongst the Judges or to fix a roster and
transfer the matters from Benches to the Principal Seat at Mumbai, such
powers cannot take away or override the power of judicial review
conferred under Article 226 of the Constitution of India. He urged that
the power to transfer the cases from Benches to the Principal Seat at
Mumbai can be exercised in partheard
matters provided there was a
justifiable or compelling reason. His submission is that the Bench at
Aurangabad has been established to provide an easy access to justice to
the litigants falling within its jurisdiction. His submission is that no
attempt should be made to tinker with the judicial power of the review

conferred on the Judges sitting at Aurangabad by Article 226 of the
Constitution of India in the garb of exercise of power of transfer by the
Hon'ble the Chief Justice. He submitted that the power of judicial
review under Article 226 of the Constitution of India and the
independence of the judiciary are the facets of basic structure of the
Constitution as held in the case of Kesavananda Bharat Sripadagalvaru
v. State of Kerala1. While conceding that the Hon'ble the Chief Justice
has power to transfer the cases from one Bench to another, he urged
that it is necessary to consider the manner in which the said power is
exercised in the present cases.
10. He invited our attention to Article 225 of the Constitution
of India. He urged that the said provision does not confer a power on
the High Courts to frame Rules to regulate its practice and procedure
unlike Article 145 of the Constitution of India which confers the said
powers on the Apex Court. He urged that Article 225 of the
Constitution of India saves the existing power. Inviting our attention to
the provisions of the Government of India Act, 1935 and the
Government of India Act, 1915, he urged that what is saved by Article
225 of the Constitution of India is the power vested in the High Court
under Section 108 of the Government of India Act, 1915 which is the
power to frame Rules regarding allocation of business to the Single
Judges or to a Bench consisting of more than one Judge. His
1 (1973)4 SCC 225
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submission is that the Rule making power exercised for framing the
Appellate Side Rules was under Part X of the Code of Civil Procedure,
1908 ( for short “the said Code”). He submitted that in any event, the
power to frame Rules contained in Chapter XXXI can be traced only to
Part X of the said Code. He urged that the mandatory provisions in the
said part X regarding referring the Rules to the Statutory Rules
Committee and obtaining prior consent or approval of the Government
have not been followed while issuing Gazette Notification dated 17th
August 1986 by which, a proviso was added to Rules 1, 2 and 3 of
Chapter XXXI of the Appellate Side Rules.
11. He submitted that the information about the transfer of
Writ Petition No.9207 of 2011 and Contempt Petition No.277 of 2011
was not provided to the Petitioner even under the Right to Information
Act, 2005. He pointed out that only after these Petitions were partly
heard, the copies of the orders of tranfer passed by the Hon’ble the
Chief Justice have been made available. Inviting our attention to the
order dated 22nd March 2012, he pointed out that a note prepared by
the Registry was for a transfer of the Petitions involving the issues
regarding infrastructure/ facilities to be provided to the District Courts.
He pointed out that in the list of four pending matters at the Bench at
Aurangabad submitted to the Hon’ble the Chief Justice, only three
matters were concerning the issue of infrastructure of the District
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Courts. In the list of four matters, the subject matter of Writ Petition
No.9207 of 2011 is mentioned as “to establish a National Law
University at Aurangabad”. He, therefore, submitted that the order of
transfer may be a mere mistake or it may have been passed due to
oversight. He pointed out that a Petition involving a similar issue
regarding establishment of National Law University which is pending
before the Bench at Nagpur was not included in the list submitted to the
Hon’ble the Chief Justice and was not transferred. He pointed out that
though an Application was made by the Petitioner on 3rd April 2012, the
mistake was not corrected.
12. He urged that the partheard
matters could not have been
transferred without hearing the parties to the Petition. He urged that
there were no justifiable reasons for transfer and in any case, no party
to the Petitions had sought transfer.
13. He pointed out that even after the impugned order dated
24th February 1993 was issued, at least 266 cases have been decided at
Aurangabad Bench in which either Hon’ble the Chief Justice or this
Court were parties. He submitted that there was nonapplication
of
mind while passing the impugned orders of transfer. He urged that
before passing the impugned orders of transfer by the Hon’ble the Chief
Justice, a notice ought to have been given to all the concerned parties
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by following the principles of natural justice. He urged that the orders
of transfer are in violation of Article 14 of the Constitution of India. He
submitted that a right to have an easy access to justice is an attribute of
personal liberty granted under Article 21 of the Constitution of India
and, therefore, the transfer of matters from the Bench at Aurangabad to
the Principal Seat at Mumbai is in violation of Article 21 of the
Constitution of India. He submitted that the doctrine of Nemo Debt Esse
Judex In Propria Sua Causa was applicable as the Hon’ble the Chief
Justice himself was a party to the proceedings which were transferred.
In the written submissions, it was pointed out that the Hon’ble the Chief
Justice was averse to the idea of establishment of a National Law
University at Aurangabad. He urged that the forum conveniens is
applicable in the present case. He submitted that the Bench at
Aurangabad has territorial jurisdiction to hear and decide both the
matters which were transferred to the Principal Seat at Mumbai and,
therefore, unless there were compelling reasons, the same could not
have been transferred to the Principal Seat at Mumbai. He submitted
that the orders passed by Division Benches at Aurangabad transferring
certain Petitions are per incuriam as the orders could be passed only by
the Hon’ble the Chief Justice.
14. The Petitioner appearing in person has relied upon several
decisions in support of his submissions to which we are making a
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reference in the subsequent part of the judgment. Lastly, he submitted
that the Hon’ble Judges at Aurangabad Bench can very well deal with
the proceedings to which the Hon’ble the Chief Justice of the Bombay
High Court or the High Court is a party and there is no necessity of
passing an order of transfer.
THE SUBMISSIONS ON BEHALF OF THE HIGH COURT
ADMINISTRATION:
15. The learned Senior Counsel representing the High Court
Administration submitted that the Hon’ble the Chief Justice is the
master of roster and he has the power not only to assign the matters,
but also to transfer and withdraw the matters. He submitted that the
relevant decisions relied upon by the Petitioner will have no application
inasmuch as when the Hon’ble the Chief Justice transfers the matters by
an order of transfer made on the administrative side, service of notice to
the parties to the proceedings and hearing them is not contemplated.
He urged that inherent power of this Court to frame Rules has been
saved by Article 225 of the Constitution of India and the Rules which
are impugned have been framed in exercise of that power. He relied
upon Section 129 of the said Code. He urged that the Section starts
with a nonobstante
clause. He urged that a Writ Petition filed on the
Appellate Side as well as a Contempt Petition are original proceedings
and, therefore, the Appellate Side Rules are within the purview of
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Section 129 of the said Code. He submitted that the procedure
contemplated by Sections 121 to 129 is required to be followed only
when the Rules under the first Schedule of the said Code are sought to
be altered and added to. He invited our attention to Section 41 of the
Bombay Reorganisation Act, 1960 and Section 51 of the States
Reorganisation Act, 1956. He urged that the powers of the Hon’ble the
Chief Justice to transfer the cases flows from the said two provisions.
16. He urged that there has been a long standing practice
followed for nearly 54 years of not obtaining the State Government’s
approval while amending the Appellate Side Rules. He urged that in
the cases in which the order of transfer was passed, High Court was a
party and therefore, the forum conveniens is Mumbai as the papers of
the proceedings are available at the Principal Seat at Mumbai. The
learned Senior Counsel also relied upon various decisions to which a
reference is made in the subsequent part of the judgment. Lastly, the
learned counsel submitted that there is no merit in the challenge of the
orders of transfer and the Petitions deserve to be dismissed.
THE NATURE OF THE RULE MAKING POWER
EXERCISED WHILE FRAMING THE IMPUGNED
RULES:
17. The first question is of the nature of Rule making power
exercised while incorporating the Rules 1 to 3 in Chapter XXXI of the
Appellate Side Rules. The said Rules were incorporated by the
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Notification dated 7th August 1986 published in the Maharashtra
Government Gazettee dated 20th August 1986. As noted earlier, the
challenge by the Petitioner is to the first Proviso to Rule 2 of Chapter
XXXI of the Appellate Side Rules. These three Rules deal with filing of
Appeals, Applications, References and Petitions including the Petitions
under Articles 226 and 227 of the Constitution of India in the judicial
Districts which are attached to the Benches of this Court at Nagpur,
Aurangabad and Goa. We must hasten to add here that after coming
into force of the Goa,Daman and Diu Reorganization Act, 1987 the
Bench at Goa ceased to be a Bench of the Principal Seat at Mumbai in
that sense that the High Court of Judicature at Bombay has become a
common High Court for the States of Maharashtra and Goa. The
contention of the Petitioner is that the Rule making power for framing
the said Rules on 7th August 1987 has been exercised under Section 122
of the said Code. The contention of the High Court Administration is
that the Rule making power is exercised under Article 225 of the
Constitution of India. It will be necessary to make a reference to the
Rule making power conferred on the High Court by Chapter X of the
said Code. The Sections 121 to 131 of the said Code read thus:
121. Effect of Rules in First Schedule.The
Rules in the First Schedule shall have effect
as if enacted in the body of this Code until
annulled or altered in accordance with the
provisions of this Part.
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122. Power of certain High Courts to make Rules—
High Courts not being the Court of a Judicial
Commissioner may, from time to time after
previous publication, make Rules regulating their
own procedure and the procedure of the Civil
Courts subjects to their superintendence, and may
be such Rules annul, alter or add to all or any of
the Rules in the First Schedule.
123. Constitution of Rule Committees in certain States(
1) A committee to be called the Rule Committee,
shall be constituted at the town which is the
usual place of sitting of each of the High Courts
referred to in section 122.
(2) Each such Committee shall consist of the
following persons, namely—
(a) three Judges of the High Court established
at the town at which such Committee is
constituted, one of whom at least has
served as a District Judge or a Divisional
Judge for three years,
(b) two legal practitioners enrolled in that
Court
(c) a Judge of a Civil Court subordinate to the
High Court
(3) The members of each such Committee shall be
appointed by the [High Court], which shall also
nominate one of their number to be President :
(4) Each member of any such Committee shall hold
office for such period as may be prescribed by the
[High Court] in this behalf; and whenever any
member retires, resigns, dies or ceases to reside
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in the State in which the Committee was
constituted or becomes incapable of acting as a
member of the Committee, the said [High Court]
may appoint another person to be a member in
his stead.
(5) There shall be a secretary to each such
Committee who shall be appointed by the [High
Court] and shall receiver such remuneration as
may be provided in this behalf by the State
Government.
124. Committee to report to High Court.— Every Rule
Committee shall make a report to the High Court
established at the town at which it is constituted
on any proposal to annul, alter or add to the
Rules in the First Schedule or to make new Rules,
and before making any Rules under section 122
the High Court shall take such report into
consideration.
125. Power of other High Courts to make Rules— High
Courts, other than the Courts specified in section
122, may exercise the powers conferred by that
section in such manner and subject to such
conditions as the State government may
determine:
Provided that any such High Court may, after
previous publication, make a Rule extending
within the local limits of its jurisdiction any Rules
which have been made by any other High Court.
126. Rules to be subject to approval— Rules made
under the foregoing provisions shall be subject to
the previous approval of the Government of the
State in which the Court whose procedure the
Rules regulate is situate or, if that Court is not
situate in any State, to the previous approval of
Central Government.
127. Publication of Rules— Rules so made and
approved shall be published in the Official
Gazette and shall from the date of publication or
from such other date as may be specified have the
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same force and effect, within the local limits of
the jurisdiction of the High Court which made
them, as if they had been contained in the First
Schedule.
128.Matters for which Rules may provide.(
1) Such Rules shall be not inconsistent with the
provisions in the body of this Code, but, subject
thereto, may provide for any matters relating to
the procedure of Civil Courts.
(2) In particular, and without prejudice to the
generality of the powers conferred by subsection
(1), such Rules may provide for all or any of the
following matters, namely:(
a) the service of summonses, notices and other
processes by post or in any other manner
either generally or in any specified areas,
and the proof of such service;
(b) the maintenance and custody, while under
attachment, of livestock
and other movable
property, the fees payable for such
maintenance and custody, the sale of such
livestock
and property, and the proceeds of
such sale;
(c) procedure in suits by way of counterclaim,
and the valuation of such suits for the
purposes of jurisdiction;
(d) procedure in garnishee and charging orders
either in addition to, or in substitution for,
the attachment and sale of debts;
(e) procedure where the defendant claims to be
entitled to contribution or indemnity over
against any person whether a party to the
suit or not;
(f) summary procedure(
i) in suits in which the plaintiff seeks
only to recover a debt or liquidated
demand in money payable by the
defendant, with or without interest,
arisingon
a contract express or implied; or
on an enactment where the sum
sought to be recovered is a fixed
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sum of money or in the nature of a
debt other than a penalty; or
on a guarantee, where the claim
against the principal is in respect of
a debt or a liquidated demand only;
or on a trust; or
(ii) in suits for the recovery of
immovable property, with or without
a claim for rent or mesne profits, by
a landlord against a tenant whose
term has expired or has been duly
determined by notice to quit, or has
become liable to forfeiture for nonpayment
of rent, or against persons
claiming under such tenant;
(g) procedure by way of originating summons;
(h) consolidation of suits, appeals and other
proceedings;
(i) delegation to any Registrar, Prothonotary or
Master or other official of the Court of any
judicial, quasijudicial
and nonjudicial
duties;
and
(j) all forms, registers, books, entries and accounts
which may be necessary or desirable for the
transaction of the business of Civil] Courts.
129. Power of High Courts to make Rules as to their
original civil procedure.Notwithstanding
anything in this Code, any High
Court not being the Court of a Judicial
Commissioner may make such rules not
inconsistent with the Letters Patent or order or
other law establishing it to regulate its own
procedure in the exercise of its original civil
jurisdiction as it shall think fit, and nothing
herein contained shall affect the validity of any
such rules in force at the commencement of this
Code.
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18. The power conferred by Section 122 is in two parts. It is a
power conferred on the High Courts to make Rules regulating their own
procedure and the procedure of Civil Courts subject to their
superintendence. The second part of the said Section 122 confers the
power to annul, alter or add to all or any of the Rules in the first
schedule to the said Code. Even the said power has to be exercised by
making Rules. Thus, Section 122 confers the power to amend the
Rules in the first schedule to the said Code and to add to the said Rules.
It also confers the power on the High Courts to make Rules regulating
the procedure applicable to them and to the Civil Courts under the
superintendence of High Courts.
19. Section 123 of the said Code provides for a Committee to
be constituted at the town which is usually the place of sitting of each
of the High Courts referred to in Section 122. Section 122 excludes the
Court of a Judicial Commissioner. Section 124 provides that every Rule
Committee shall make a report to the High Court established at the
town at which it is constituted on any proposal to annul, alter or add to
the Rules in the First Schedule or to make new Rules. Thus, a proposal
to annul, alter or add to the Rules in the First Schedule or a proposal to
frame new Rules as contemplated by Section 122 is required to be
placed before the Statutory Rule Committee and before making any
Rules under Section 122, the High Court shall take such a report into
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consideration. Section 125 will not have any application to this Court
as it applies to the High Courts other than the Courts specified in
Section 122. Section 126 provides that the Rule making in exercise of
powers under foregoing provisions of Part X shall be subject to the
previous approval of the Government of the State in which the Courts
whose procedure the Rules regulate is situate. Section 127 provides for
publication of approved Rules in the official gazette.
20. A submission was made on behalf of the High Court
Administration that only to the Rules made by the High Court in
exercise of powers under Section 122 of the said Code for annulling,
altering or adding to all or any of the Rules in the First Schedule that
the provisions of Section 124 and the provision of prior approval of the
Government of the State under Section 126 will apply. On plain
reading of Section 124 of the said Code, it is apparent that it applies to
every category of the Rule making power under Section 122. Section
126 applies to the Rules made under the foregoing provisions viz. the
Rules made under Sections 122 and 125 of the said Code. Therefore,
the argument needs to be rejected at the outset.
21. The other argument of the High Court Administration was
that the Applications/Petitions under Articles 226 and 227 of the
Constitution of India are also the original proceedings and, therefore,
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the Rules 1 to 3 of Chapter XXXI of the Appellate Side Rules in so far as
the Applications/Petitions under Articles 226 and 227 of the
Constitution of India are concerned, will be governed by Section 129 of
the said Code and, therefore, none of the provisions of Sections 122 to
127 of the said Code will apply to such Rules. We must note here that
the Rule 2 of the ChapterXXXI
also deals with Appeal and applications
and not only the Applications/Petitions under Articles 226 and 227 of
the Constitution of India. On a plain reading of Section 129 of the said
Code, it is clear that the same is applicable to the Rules which are
sought to be framed to regulate the own procedure of a High Court in
exercise of its Original Civil Jurisdiction. The Section applies to Original
Civil Jurisdiction and not to Original Jurisdiction. Original Civil
Jurisdiction is the Jurisdiction exercised as a Civil Court of original
jurisdiction. Thus, by no stretch of imagination, the Applications/
Petitions under Articles 226 and 227 of the Constitution of India are
part of the Original Civil Jurisdiction. Therefore, Rule 2 of ChapterXXXI
is not framed in exercise of the powers under Section 129 of the said
Code.
22. Another issue which arises for consideration is about the
nature of the Rule making power exercised for framing the said Rules 1
to 3 of ChapterXXXI
in the context of the contention of the High Court
Administration that the Rule making power under Article 225 of the
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Constitution of India has been exercised for framing the said Rules
1 to 3. If the said contention is not accepted, it follows that the Rule 2
which is the subject matter of challenge, will be governed by Sections
124 and 126 of the said Code. Admittedly, the mandatory procedure
under Section 126 of seeking previous approval of the State
Government has not been followed while framing the Rules 1 to 3 as is
clear from the written submissions of the High Court Administration.
The provision of the Section 126 is mandatory in nature.
23. Therefore, it is necessary to make a reference to Article 225
of the Constitution of India which reads thus:“
225. Jurisdiction of existing High Courts.—
Subject to the provisions of this Constitution
and to the provisions of any law of the
appropriate Legislature made by virtue of
powers conferred on that Legislature by this
Constitution, the jurisdiction of, and the law
administered in, any existing High Court, and
the respective powers of the Judges thereof
in relation to the administration of justice in
the Court, including any power to make
Rules of Court and to regulate the sittings of
the Court and of members thereof sitting
alone or in Division Courts, shall be the
same as immediately before the
commencement of this Constitution:
2[Provided that any restriction to which the
exercise of original jurisdiction by any of the
High Courts with respect to any matter
concerning the revenue or concerning any act
ordered or done in the collection thereof was
subject immediately before the commencement
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of this Constitution shall no longer apply to the
exercise of such jurisdiction.]”
(emphasis added )
24. Article 225 saves the Rule making power of the High Courts
to make Rules of the Court and to regulate the sittings of the Court and
of members thereof sitting alone or in Division Courts which existed
before the commencement of the Constitution. Article 225 by itself does
not confer a Rule making power on the High Courts. It only saves the
existing Rule making power before the commencement of the
Constitution. Therefore, it will be necessary to ascertain what was the
preexisting
Rule making power on the date of commencement of the
Constitution. We may make a useful reference to the provisions of the
Indian High Court Act, 1861(for short “the said Act of 1861”). This Act
is also known as Charter Act which provided for establishing three
chartered High Courts including this Court. Sections 13 and 14 of the
said Act of 1861 read thus:
“13. Power to High Courts to provide for Exercise of
Jurisdiction by Single Judges or Division CourtsSubject
to any Laws or Regulations which may be
made by the GovernorGeneralinCouncil
the
High Court established in any Presidency
under this Act may by its own Rules provide
for the Exercise, by one or more Judges, or by
Division Courts constituted by two or more
Judges, of the said High Court, of the original
and appellate Jurisdiction vested in such
Court, in such Manner as may appear to such
Court to be convenient for the due
Administration of Justice.
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14. Chief Justice to determine what Judges shall sit
alone or in the Division Courts.The
Chief Justice of each High Court shall from
Time to Time determine what Judge in each case
shall sit alone, and what Judges of the Courts,
whether with or without the Chief Justice, shall
constitute the several Division Courts as
aforesaid.”
(emphasis supplied)
25. Relevant part of Clause 36 of the Letters Patent establishing
this Court reads thus:“
36. Single Judges and Division Courts.—And we do
hereby declare that any function, which is
hereby directed to be performed by the said
High Court of Judicature at Bombay in the
exercise of its original or appellate jurisdiction,
may be performed by any Judge or any Division
Court thereof, appointed or constituted for such
purpose, in pursuance of Section One hundred
and eight of the Government of India Act,
1915 ....”
26. Therefore, it is necessary to make a reference to the
provisions of the Government of India Act, 1915. Section 108 is the
only section which deals with the Rule making power of the High Courts
which reads thus:
“108. Exercise of jurisdiction by single judges or
division courts.—
(1) Each High Court may by its own Rules
provide, as it thinks fit, for the exercise, by
one or more judges, or by division courts
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constituted by two or more judges, of the
High Court, of the original and appellate
jurisdiction vested in the Court.
(2) The Chief Justice of each High Court shall
determine what judge in each case is to sit
alone, and what judges of the court, whether
with or without the Chief Justice, are to
constitute the several division courts.”
(emphasis supplied)
27. Then comes the Government of India Act,1935 (for short
“the said Act of 1935”). The only section which deals with the Rule
making power of this Court is Section 223 which reads thus:
“223. Jurisdiction of existing High Courts.—Subject to
the provisions of this Part of this Act, to the
provisions of any Order in Council made under
this or any other Act and to the provisions of
any Act of the appropriate legislature enacted
by virtue of powers conferred on that
legislature by this Act, the jurisdiction of and
the law administered in, any existing High
Court, and the respective powers of the judges
thereof in relation to the administration of
justice in the court, including any power to
make Rules of court and to regulate the
sittings of the court and of members thereof
sitting alone or in division courts, shall be
the same as immediately before the
commencement of Part III of this Act.”
( emphasis supplied)
28. Thus, Section 223 of the said Act of 1935 does not confer
any Rule making power. It only saves the existing Rule making power.
On conjoint reading of Section 13 of the said Act of 1861, Clause 36 of
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the Letters Patent, Section 108 of the said Act of 1915 and Section 223
of the said Act of 1935, the Rule making power which is saved by
Article 225 of the Constitution is the one under Subsection
(1) of
Section 108 of the said Act of 1915. The Power of a High Court under
Section 108 is a limited to power of framing Rules to provide for
exercise of its Original and Appellate Jurisdiction by one or more
Judges or by Division Courts constituted by two or more Judges of the
High Court. In the case of National Sewing Thread Co. Ltd. v. James
Chadwick and Bros, Ltd.,2 the Apex Court held in paragraph 8 which
reads thus:
“.....Section 108 of the Government of India Act, 1915,
provides:
“Each High Court may by its own Rules
provide as it thinks fit for the exercise, by
one or more Judges, or by division courts
constituted by two or more Judges of the
High Court, of the original and appellate
jurisdiction vested in the Court.”
The section is an enabling enactment and confers
power on the High Courts of making Rules for the
exercise of their jurisdiction by Single Judges or
division courts. The power conferred by the section is
not circumscribed in any manner whatever and the
nature of the power is such that it had to be conferred
by the use of words of the widest amplitude. There
could be no particular purpose or object while
conferring the power in limiting it qua the jurisdiction
already possessed by the High Court, when in the
other provisions of the Government of India Act it was
contemplated that the existing jurisdiction was subject
to the legislative power of the GovernorGeneral
and
the jurisdiction conferred on the High Court was liable
2 1953 SCR 1028
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to be enlarged, modified and curtailed by the
legislature from time to time.
It is thus difficult to accept the argument that the
power vested in the High Court under subsection
(1)
of Section 108 was a limited one, and could only be
exercised in respect to such jurisdiction as the High
Court possessed on the date when the Act of 1915
came into force. The words of the subsection
“vested
in the court” cannot be read as meaning “now vested
in the court”. It is a wellknown
Rule of construction
that when a power is conferred by a statute that power
may be exercised from time to time when occasion
arises unless a contrary intention appears. This Rule
has been given statutory recognition in Section 32 of
the Interpretation Act. The purpose of the reference to
Section 108 in clause 15 of the Letters Patent was to
incorporate that power in the charter of the Court
itself, and not to make it moribund at that stage and
make it rigid and inflexible. We are therefore of the
opinion that Section 108 of the Government of India
Act, 1915, conferred power on the High Court which
that Court could exercise from time to time with
reference to its jurisdiction whether existing at the
coming into force of the Government of India Act,
1915, or whether conferred on it by any subsequent
legislation.”
(emphasis added)
In paragraph 9, the Apex Court observed thus:
“.....This objection also in our opinion is not well
founded as it overlooks the fact that the power that
was conferred on the High Court by Section 108 still
subsists, and it has not been affected in any manner
whatever either by the Government of India Act, 1935,
or by the new Constitution. On the other hand it has
been kept alive and reaffirmed with great vigour by
these statutes. The High Courts still enjoy the same
unfettered power as they enjoyed under Section
108 of the Government of India Act, 1915, of
making Rules and providing whether an appeal has
to be heard by one Judge or more Judges or by
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Division Courts consisting of two or more Judges
of the High Court.
It is immaterial by what label or nomenclature that
power is described in the different statutes or in the
Letters Patent. The power is there and continues to be
there and can be exercised in the same manner as it
could be exercised when it was originally conferred.
As a matter of history the power was not conferred for
the first time by Section 108 of the Government of
India Act, 1915. It had already been conferred by
Section 13 of the Indian High Courts Act of 1861.”
(emphasis added)
29. A full bench of this Court in its decision in the case of State
of Maharashtra v. Kusum3, observed thus in paragraph 89:
“Since Article 225 of the Constitution preserves the
power of the High Court to make Rules and to
regulate the sittings of the Court not only in
respect of the existing jurisdictions but also in
respect of other jurisdictions and powers which the
Constitution has conferred upon it, there can be no
scope for reading by implication into Article 226 or
227 any Rulemaking
power. Such an interpretation
would be contrary to the wellestablished
principle of
interpretation, namely, expressio unius est exclusio
alterius, (the express mention of one person or thing is
the exclusion of another). When the power to make
Rules is expressly conferred by Article 225 of the
Constitution, no necessity whatever arises to seek for
any implied power in that behalf in Article 226 or
227.”
(emphasis added)
30. The learned Senior Counsel for the High Court relied upon
the following observations of the Apex Court in the case of Kailash v.
Nanhku4 :
3 1981 Mah. LJ 93
4 (2005) 4 SCC 480
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“..However, the High Court is not entirely
powerless in the matter of framing the rules of
procedure. Article 225 of the Constitution confers
powers on the High Court, inter alia, to make rules
of court for the purpose of hearing, trying and
deciding any matter lying within the jurisdiction of
the High Court. The High Court can thus frame
rules of procedure regarding the trial of election
petitions under Article 225 of the Constitution. This
source of power emanates from the Constitution
and is, therefore, very potent. Section 129 CPC is
another source of power of the High Court to make
rules to regulate its own procedure in the exercise
of its original civil jurisdiction. This will include
election petitions also as they are tried in the
original civil jurisdiction of the High Court.”
31. However, this decision does not specifically deal with the
nature of the Rule making power saved by Article 225. This issue has
been specifically dealt with in the earlier decision of a Coordinate
Bench of the Apex Court in the case of National Saving Thread Co. Ltd.
which we have quoted above and also by another decision of a Coordinate
Bench of the Apex Court in the case of High Court of
Judicature at Allahabad v. Raj Kishore Yadav5. The Apex Court held thus:
9. Article 216 deals with “Constitution of High
Courts” and lays down that “every High Court shall
consist of a Chief Justice and such other Judges as the
President may from time to time deem it necessary to
appoint”. Therefore, the High Court as a court of
record would consist of a Chief Justice and other
Judges who are appointed to the said court by the
President from time to time. Article 225 deals with
“Jurisdiction of existing High Courts” meaning thereby
which were in existence at the time when the
5 (1997) 3 SCC 11
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Constitution of India came into force. The High Court
of Allahabad is one such High Court. Therefore, its
jurisdiction gets validly traced to Article 225. The said
article provides as under:
“225. Jurisdiction of existing High Courts.—
Subject to the provisions of this Constitution
and to the provisions of any law of the
appropriate Legislature made by virtue of
powers conferred on that Legislature by this
Constitution, the jurisdiction of, and the law
administered in, any existing High Court, and
the respective powers of the Judges thereof in
relation to the administration of justice in the
Court, including any power to make rules of
Court and to regulate the sittings of the Court
and of members thereof sitting alone or in
Division Courts, shall be the same as
immediately before the commencement of this
Constitution:
Provided that any restriction to which the
exercise of original jurisdiction by any of the
High Courts with respect to any matter
concerning the revenue or concerning any act
ordered or done in the collection thereof was
subject immediately before the
commencement of this Constitution shall no
longer apply to the exercise of such
jurisdiction.”
Prior to the advent of the Constitution the then
existing High Courts were having jurisdiction
emanating from Section 223 of the Government of
India Act, 1935 which read as under:
“223. Subject to the provisions of this Part
of this Act, to the provisions of any Order in
Council made under this or any other Act
and to the provisions of any order made
under the Indian Independence Act, 1947,
and to the provisions of any Act of the
appropriate Legislature enacted by virtue of
powers conferred on that Legislature by this
Act, the jurisdiction of, and the law
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administered in, any existing High Court,
and the respective powers of the Judges
thereof in relation to the administration of
justice in the court, including any power to
make rules of Court and to regulate the
sittings of the Court and of members thereof
sitting alone or in division courts, shall be
the same as immediately before the
establishment of the Dominion.
226.(1) Until otherwise provided by Act of
the appropriate Legislature, no High Court
shall have any original jurisdiction in any
matter concerning the revenue, or
concerning any act ordered or done in the
collection thereof according to the usage
and practice of the country or the law for
the time being in force.”
As Section 223 of the Government of India Act, 1935
in its turn referred to the powers of the High Courts as
were being exercised by them immediately before the
establishment of the Dominion under the said Act of
1935, reference to yet earlier Government of India Act
of 1915 especially Section 108 thereof becomes
relevant. Section 108 of the Government of India Act,
1915 which regulated the administration of justice by
the High Courts concerned prior to the establishment
of Dominion read as under:
“108. (1) Each High Court may by its own
rules provide, as it thinks fit, for the
exercise, by one or more Judges, or by
division courts constituted by two or more
Judges, of the High Court, of the original
and appellate jurisdiction vested in the
court.
(2) The Chief Justice of each High Court
shall determine what Judge in each case is
to sit alone, and what Judges of the court,
whether with or without the Chief Justice,
are to constitute the several division courts.”
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Thus, a conjoint reading of Section 108 of the
Government of India Act, 1915, Section 223 of the
Government of India Act, 1935 and Article 225 of
the Constitution of India makes it clear that every
High Court by its own rules can provide for
exercise of its jurisdiction, original or appellate, by
one or more Judges or by division courts consisting
of two or more Judges of the High Courts and it is
for the Chief Justice of each High Court to
determine what Judge in each case is to sit alone
or what Judges of the court whether with or
without the Chief Justice are to constitute several
division courts. In exercise of the aforesaid rulemaking
power which inhered in all existing High
Courts at the time of the advent of the Constitution
of India and which was expressly saved by Article
225 of the Constitution of India, the Full Court of
the High Court had framed these Rules in 1952. The
impugned Rule is one of those Rules. Pursuant to the
said Rule the learned Chief Justice was entitled to
nominate a learned Single Judge to decide civil
contempt cases arising under the Contempt of Courts
Act, 1971. The aforesaid Rule, therefore, clearly falls
in line with the constitutional scheme in connection
with the exercise of jurisdiction of the High Court as
seen earlier. Consequently it cannot be said that by
enacting the impugned rule the High Court on its
administrative side had encroached upon any
forbidden field. The scheme of the aforesaid
provisions was examined by this Court in the case of
National Sewing Thread Co. Ltd. v. James Chadwick
and Bros. Ltd. In that case a Bench of three learned
Judges speaking through Mahajan, J., had to consider
the question whether an order passed by a learned
Single Judge of the High Court under the Trade Marks
Act, 1940 could be appealed against under clause 15
of the letters patent of the Bombay High Court. It was
submitted amongst others that such an appeal would
not lie as clause 15 of the letters patent applicable to
Bombay High Court permitted appeal from the order
of a learned Single Judge delivered pursuant to
Section 108, Government of India Act, 1915 which no
longer survived after the advent of the Constitution of
India. Repelling the said contention the following
pertinent observations were made in para 9 of the
Report:
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“It was argued that simultaneously with the
repeal of Section 108, Government of India
Act, 1915 and of the enactment of its
provisions in Section 223, Government of India
Act of 1935 and later on in Article 225 of the
Constitution of India, there had not been any
corresponding amendment of clause 15 of the
letters patent and the reference to Section 108
in clause 15 of the letters patent could not
therefore be taken as relating to these
provisions, and that being so, the High Court
had no power to make rules in 1940 when the
Trade Marks Act was enacted under the
repealed section and the decision of Mr Justice
Shah therefore could not be said to have been
given pursuant to Section 108. This objection
also in our opinion is not well founded as it
overlooks the fact that the power that was
conferred on the High Court by Section 108
still subsists, and it has not been affected in any
manner whatever either by the Government of
India Act, 1935 or by the new Constitution. On
the other hand it has been kept alive and
reaffirmed with great vigour by these statutes.
The High Courts still enjoy the same unfettered
power as they enjoyed under Section 108 of
the Government of India Act, 1915 of making
rules and providing whether an appeal has to
be heard by one Judge or more Judges or by
Division Courts consisting of two or more
Judges of the High Court.”
Thus enactment of the impugned Rule squarely falls
within the administrative power of the High Court
well preserved by the aforesaid provisions.”
(emphasis added)
32. Thus, the aforesaid decision of the Apex Court in the case
of the High Court of Judicature at Allahabad lays down the scope and
extent of the Rule making power saved by Article 225 of the
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Constitution. Hence to conclude, the power of the existing High Courts
saved by Article 225 of the Constitution is the Power to make Rules
providing for “exercise of its jurisdiction, original or appellate, by one
or more Judges or by division courts consisting of two or more Judges
of the High Court” not only in respect of the existing jurisdictions but
also in respect of other jurisdictions and powers which the Constitution
has conferred upon it. Article 225 does not save or confer power to
frame Rules dealing with filing of matters at Benches and transfer of
matters from the Benches to the principal seat at Mumbai. The said
Rule making power is available only under Section 122 of the said
Code.
THE SOURCE OF RULE MAKING POWER EXERCISED FOR
FRAMING RULE 2 OF CHAPTER XXXI
33. In the Petitions in hand, the challenge is to the validity of
the first and second proviso to Rule 2 of Chapter XXXI of the Appellate
Side Rules. Rules 1, 2 and 3 of the said Chapter deal with filing of the
cases at the Benches at Aurangabad, Nagpur and Panaji (Goa)
respectively. What is challenged is only the first and second proviso to
Rule 2. The first proviso empowers Hon'ble the Chief Justice to order
that any matter which is required to be filed at the Bench at
Aurangabad shall be heard at the Principal Seat at Mumbai. The power
to make such a Rule cannot be traced to Section 108 of the said Act of
1915. It can be said that the Rules in Chapter I which deal with the
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jurisdiction of Single Judges and Benches of this Court could be framed
in exercise of Rule making power saved by Article 225 of the
Constitution of India. The power exercised for framing Rule 2 is
obviously under Section 122 of the said Code. Therefore, in absence of
compliance with Section 126 which requires previous approval of the
State Government, the first and second proviso to Rule 2 of the
Appellate Side Rules cannot be valid in law as the same are ultra vires
the provisions of Section 126 of the said Code in as much as it is
conceded in the written submissions that there is no previous approval
obtained under Section 126 of the said Code. As far of breach of Section
123 is concerned, it will be unfair to expect the High Court
administration to trace out the record of the proceeding of Rule
Committee after 27 years for ascertaining whether compliance was
made with the requirement of Section 123 of the said Code. Therefore,
we are not recording any finding on this aspect.
34. It is well settled law that the Hon'ble the Chief Justice of a
High Court is always the master of roster. It is the prerogative of the
Hon'ble the Chief Justice to allocate the judicial work to the Judges of
the Court. Hon'ble the Chief Justice decides which Judge shall sit
Single and which Judge shall sit in a Division Bench. A Judge or a
Bench of the High Court can take up any particular case provided it is
assigned by the Hon'ble the Chief Justice. It is axiomatic that when the
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Hon'ble the Chief Justice has power to allocate judicial work to the
Judges and different Benches, he has a power to withdraw the matters
assigned to the Judges or Benches. The said power is implicit as the
Hon'ble the Chief Justice is the master of roster. Therefore, the power
to transfer the matters filed at the Benches to the Principal Seat at
Mumbai and vice versa always vests in the Hon'ble the Chief Justice.
Hon'ble the Chief Justice of this Court in exercise of his power as the
master of roster can always direct that a particular category of cases
pending before its Benches at Nagpur, Aurangabad and Goa shall be
heard at the Principal seat. This Power can be exercised even in relation
to the cases which are partly heard at Benches. Similarly, Hon'ble the
Chief Justice of this Court in exercise of his power as the master of
roster can always direct that a particular category of cases which ought
to be filed before its Benches at Nagpur, Aurangabad and Goa shall be
filed and heard at the Principal seat. Therefore, even if the first and
second proviso to Rules 1, 2 and 3 of Chapter XXXI of the Appellate
Side Rules do not exist on the Rule Book, the Hon'ble the Chief Justice
always has the power which is sought to be conferred by the first and
second proviso to the aforesaid Rules. Therefore, even if we have come
to the conclusion that the first and second proviso to Rule 2 of the
Appellate Side Rules are not valid, Hon'ble the Chief Justice always
retains the power which is merely reiterated by the said proviso.
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35. The Petitioner appearing in person is right when he
contends that the Benches at Nagpur, Aurangabad and Panaji (Goa) are
not inferior or subordinate
to the Principal Seat at Mumbai. But we
must note that the Judge occupying the august office of the Chief
Justice always exercises his prerogative in the larger interests of
administration of Justice. The prerogative power of transfer of cases or
a class of cases from Benches to the Principal Seat is conducive to the
larger interests of administration of justice. The contention on behalf
of the Petitioner that exercise of such power by the Hon'ble the Chief
Justice would defeat the very object of setting up a Bench at
Aurangabad cannot be countenanced.
THE LEGALITY AND VALIDITY OF THE ORDERS DATED
24TH FEBRUARY 1993 AND 6TH JANUARY 2010:
36. The Hon'ble the Chief Justice has issued orders which are
impugned in these Petitions which lay down that the Petitions filed by
the Judicial Officers at Benches to which the High Court or the Hon'ble
the Chief Justice is a party should be transferred to the Principal Seat at
Mumbai. Considering the fact that the Hon'ble the Chief Justice is the
master of roster, he is well within the power to issue the orders of
transfer of a class of cases even in absence of power conferred by the
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proviso to Rules 1, 2 and 3 of Chapter XXXI. The Registry cannot justify
the circulars on the ground that the record of the cases against this
Court is available at the Principal Seat at Mumbai. By that logic, all the
Writ Petitions filed at the Benches challenging the orders or decisions of
the State of Maharashtra will have to be transfered to the Principal Seat
at Mumbai. We see no reason to disturb the orders passed by the
Hon'ble the Chief Justice dated 24th February 1993 and 6th January
2010 which are impugned in these Petitions. These orders cannot be
stricto sensu justified as the orders made in exercise of powers under the
Appellate Side Rules as in exercise of the powers as the master of roster,
the Hon'ble the Chief Justice can always issue such orders. As the
Hon'ble the Chief Justice could have always issued the impugned orders
as the Master of Roster, it is not necessary to set aside the said orders.
37. It is obvious that the said orders have not been made for
treating the Benches as subordinate
or inferior to the Principal Seat at
Mumbai. All the Judges of this Court whether they sit at Principal Seat
or Benches exercise the same jurisdiction subject to the exercise of the
power of allocation of work by the Hon'ble the Chief Justice. The
Petitioner appearing in person may be right in expressing a sentiment
that a Bench at Aurangabad has been established to cater the need of
the litigants of Marathwada Region and, therefore, it should be ensured
that the litigants of Marathwada Region should have a forum available
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at Aurangabad. The orders which are impugned do not defeat the very
object of establishing the Bench at Aurangabad. We are sure that
Hon'ble the Chief Justice will never allow the object to be defeated.
WHETHER THE HON'BLE CHIEF JUSTICE WAS
BOUND TO FOLLOW THE PRINCIPLES OF NATURAL
JUSTICE WHILE PASSING IMPUGNED ORDERS OF
TRANSFER:
38. Now the other issue which survives for consideration is
whether the Hon'ble the Chief Justice in exercise of his powers as the
master of roster can transfer a pending proceeding before one Bench to
another without notice to the parties to the proceedings and without
hearing them. The question is when the Hon'ble the Chief Justice
transfers the pending matters on the administrative ground, whether he
is bound to hear the parties to the matters.
39. A distinction has to be made between a transfer sought to
be made on the prayer made by the parties to the proceedings on the
grounds which are not administrative in nature and a transfer sought to
be made by the Hon'ble the Chief Justice on the administrative grounds.
The second category will also include the cases where concerned
Benches opine that the matters pending at different Benches need to be
clubbed together and to be heard by one and the same Bench. As far
as the first category is concerned, the transfers are normally sought on
the ground of convenience of the parties to the litigations or on the
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ground that a party to the litigation is of the view that the matter
should not be heard by a particular Judge or by a particular Division
Bench. In the first category of cases, it is obvious that the Hon'ble the
Chief Justice will have to hear the contesting parties before passing an
order of transfer. As far as the second category is concerned, when the
Hon'ble the Chief Justice transfers the cases on administrative grounds,
he exercises his plenary power being the master of roster.
40. The Petitioner appearing in person has relied upon a large
number of decisions in support of his contention that even in cases of
administrative actions when civil rights of the parties are affected, the
principles of natural justice will have to be followed. We need not
reproduce the well settled law on the subject in catena of decisions
relied upon by the Petitioner. We do not see as to how the principles of
natural justice will apply to the exercise of prerogative powers of the
Hon'ble the Chief Justice as the master of roster. Therefore, the
contention that the principles of natural justice will have to be followed
by the Hon'ble the Chief Justice while exercising such powers deserves
to be rejected.
41. The Petitioner appearing in person relied upon a decision
of the Apex Court in the case of Manju Varma (Dr.) v. State of U.P. And
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Others6. Relying upon the said decision, he urged that the Hon'ble the
Chief Justice ought to have given hearing to the parties before passing
an order of transfer especially when both the Writ Petition No.9207 of
2011 and the Contempt Petition No.277 of 2012 were partly heard.
42. Before we deal with the aforesaid submissions, we must
note here that both the Writ Petition and the Contempt Petition were
pending at the preadmission
stage and there were no orders passed by
the concerned Benches recording that the matters deserved to be
treated as partheard.
In fact, in both the matters, there were no
specific orders on merits even on consideration of prima facie case.
43. In the case of Manju Varma (Dr.), an order was passed by
the Hon'ble the Chief Justice of Allahabad High Court transferring a
Petition from Lucknow Bench to the main seat at Allahabad for hearing.
A Special Leave Petition filed for challenging the said order was
opposed by the Respondent by contending that the same was not
maintainable as there was no order passed by a Court or a Tribunal.
The argument before the Apex Court was that the power exercised by
the Hon'ble the Chief Justice for passing an order of transfer was under
Clause 14 of the 1948 Order and that the said power was akin to the
power conferred by Section 24 of the said Code. The Petitioner
6 (2005)1 SCC 73
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appearing in person has placed reliance on this decision as the Apex
Court was dealing with the interpretation of the proviso to Clause 14 of
the 1948 Order which reads thus:
“14. The new High Court, and the Judges and
Division Courts thereof, shall sit at Allahabad or at
such other places in the United Provinces as the Chief
Justice may, with the approval of the Governor of the
United Provinces, appoint:
Provided that unless the Governor of the United
Provinces with the concurrence of the Chief Justice,
otherwise directs, such Judges of the new High Court,
not less than two in number, as the Chief Justice, may,
from time to time nominate, shall sit a Lucknow in
order to exercise in respect of cases arising in such
areas in Oudh, as the Chief Justice may direct, the
jurisdiction and power for the time being vested in the
new High Court:
Provided further that the Chief Justice may in his
discretion order that any case or class of cases arising
in the said areas shall be heard at Allahabad”.
44. It will be necessary to make a reference to the Paragraph
15 of the said decision, In Paragraph 15 of the decision in the case of
Manju Varma (Dr.), the Apex Court observed thus:“
15. There was nothing executive in the procedure
followed in this case. The respondent had applied to
the Chief Justice under para 14 for a transfer of the
appellant's writ petition from Lucknow to Allahabad.
The Chief Justice heard the parties and by a detailed
and reasoned order directed such transfer. There can
in the circumstances be no doubt that the order of the
Chief Justice was, if not judicial, at least quasijudicial.”
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In Paragraph 19, the Apex Court held thus:“
19. He was, therefore, acting as an adjudicating
body empowered by the Constitution to discharge
judicial functions. We would accordingly hold that the
Chief Justice while exercising jurisdiction under para
14 of the 1948 Order, acts as a judicial authority with
all the attributes of a Court and his order is, therefore,
amenable to correction under Article 136.”
45. Thus, it is clear that the Apex Court was dealing with a
case where a regular Application for transfer of a case from Lucknow
Bench to Allahabad was made to which an objection was raised by the
Petitioner before the Apex Court. The Apex Court in the context of the
fact that the Hon'ble the Chief Justice had passed an order after hearing
the parties observed that there was nothing executive in the procedure
followed in the case. Considering the procedure followed in the case by
the Hon'ble the Chief Justice that the Apex Court held that the Hon'ble
the Chief Justice was acting as a judicial authority with all the attributes
of a Court.
46. Independently of the proviso to the said Rule, as we have
held earlier, there is a plenary power vesting in the Hon'ble the Chief
Justice to withdraw a matter pending before a Bench and transfer it to
an another Bench. The case before the Apex Court was of a regular
transfer application moved before the Hon'ble the Chief Justice by a
party to the proceedings by invoking Clause 14 of the 1948 Order which
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was objected by the Respondent. At this stage, it will be necessary to
make a reference to another decision of the Apex Court in the case of
Vivekanand Nidhi & Others v. Asheema Goswami (Smt.)4. In the said
case, the Apex Court accepted the submission made before it that if an
order was passed suo motu by the learned District Judge in exercise of
powers under Section 24 of the said Code, there was no occasion to
issue a notice to the Respondent. The learned senior counsel appearing
for the High Court Administration relied upon another decision in the
case of Jitendra Singh v. Bhanu Kumari & Others5. In Paragraph 9 of the
said decision, the Apex Court held thus:“
9. The purpose of Section 24 CPC is merely to
confer on the Court a discretionary power. A Court
acting under Section 24 CPC may or may not in its
judicial discretion transfer a particular case. Section
24 does not prescribe any ground for ordering the
transfer of a case. In certain cases it may be
ordered suo motu and it may be done for
administrative reasons. But when an application
for transfer is made by a party, the Court is
required to issue notice to the other side and hear
the party before directing transfer. To put it
differently, the Court must act judicially in ordering
a transfer on the application of a party. In the
instant case the reason which has weighed with the
High Court for directing transfer does not really make
out a case for transfer.”
(emphasis added)
47. The Apex Court thus observed that in certain cases, a suo
motu order of transfer can be passed for administrative reasons. Even
in this decision, the Apex Court held that when the Court is to order
4 (2000)10 SCC 23
5 (2009)1 SCC 130
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transfer on the basis of an Application made by a party, the Court must
act judicially.
48. The learned senior counsel representing the High Court
Administration relied upon Section 41 of the Bombay Reorganisation
Act, 1960 and urged that the powers exercised by the Hon'ble the Chief
Justice originate from the said Section. Section 41 of the Bombay
Reorganisation Act, 1960 reads thus:“
41. Without prejudice to the provisions of Section
51 of the States Reorganisation Act, 1956, such Judges
of the high Court at Bombay being not less than three
in number, as the Chief Justice may from time to time
nominate, shall sit at Nagpur in order to exercise the
jurisdiction and power for the time being vested in
that High Court in respect of cases arising in the
districts of Buldana, Akola, Amravati, Yeotmal,
Wardha, Nagpur, Bhandara, Chanda and Rajura:
Provided that the Chief Justice may, in his discretion,
order that any case arising in any such district shall be
heard at Bombay.”
The proviso to Section 41 which confers discretion on the
Hon'ble the Chief Justice merely reiterates the existing power of the
Hon'ble the Chief Justice to pass suo motu orders of transfer on the
administrative grounds.
49. In the present case, there is nothing on record to show that
the orders for transfer were passed by the Hon'ble the Chief Justice by
exercising the power under the proviso to Rule 2 of Chapter XXXI of the
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Appellate Side Rules. There was no application made by any party for
transfer. The note dated 21st March 2012 submitted by the Incharge
Registrar (JudicialI)
and the order passed thereon by the Hon'ble the
Chief Justice read thus:
“This is regarding placing of matters in which the
issue regarding infrastructure facilities to be provided
to the District Courts.
In this respect it is submitted that Your Lordship has
been pleased to place the Criminal Writ Petition No.78
of 2011 before the Principal Seat at Bombay. The Cri.
W.P. No.78 of 2011 is filed for taking up policy
decision in respect of infrastructure facilities to be
provided to the district Court.
In view of the above, Your Lordship's directions are
solicited for:
A) Placing of matters in which the issue regarding
infrastructure facilities to be provided to the
District Courts before the Principal Seat at
Bombay.
AND
B) Calling of record and proceedings from the
concerned Benches, for being placed before the
Principal Seat at Bombay.
AND/OR
C) Giving any other direction.
21st March 2012 Sd/(
D.R.Shirasao)
I/c.Registrar (JudlI)
Approved A & B Sr. Nos.1 to 4. Aurangabad Bench
2 to 5 Nagpur Bench
Sd/Chief
Justice
22/3/12”
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50. The Note dated 29th June 2012 put up by the Registry and
the Order passed thereon by the Hon'ble the Chief Justice read thus:“
1. It is respectfully submitted that, Lawyers' Forum
for General Utility & Litigating Public, Aurangabad,
filed Writ Petition No.9207/2011 seeking directions
against respondent for adopting necessary steps so as
to establish National Law University at Aurangabad,
wherein, Your Lordship has been arrayed as party
respondent no.4.
2. It is further respectfully submitted that, as per
the order of Your Lordship, as informed to this office
vide letter dt. 26/3/2012 by the Registrar (JudicialI),
Bombay high Court (AS), Mumbai, the above Writ
Petition has already been transferred to the Principal
Seat at Bombay.
3. It is further respectfully submitted that, now, in
the above matter, the petitioner has filed Contempt
Petition No.277/2012, alleging therein that, the four
respondents, as arrayed in the Contempt Petition at
Sr.Nos.2 to 5, have breached undertaking furnished
before the Hon'ble Court.
In view of the above, further directions are
solicited.
Sd/Date:
29/6/2012 Registrar (Judicial )
The Hon'ble the Chief Justice
Contempt Petition No.277/2012 be also transferred to
the Principal Seat of the High Court at Bombay so that
it will be placed before the same Bench which will
hear WP No.9207/2011 already transferred to
Bombay.
Sd/Chief
Justice
2962012”
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51. As stated earlier, there is nothing on record to indicate that
the power was exercised by the Hon'ble the Chief Justice under the
proviso to Rule 2 of Chapter XXXI of the Appellate Side Rules.
Moreover, the cases cannot be said to be partheard
in the sense that
both the cases were at a preadmission
stage. There were no orders
passed on both the matters recording findings on merits. Therefore, the
submission of the Petitioner appearing in person that the Hon'ble the
Chief Justice ought to have followed the principles of natural justice
deserves to be rejected.
52. As far as transfer of Writ Petition No.9207 of 2011 is
concerned, it is true that the Note dated 21st March 2012 put up by the
Incharge Registrar (JudicialI)
before the Hon'ble the Chief Justice
indicates that the orders of the Hon'ble the Chief Justice were sought as
regards placing of matters in which the issue regarding infrastructure/
facilities to be provided to the District Courts is involved before the
Principal Seat at Mumbai. Before the said Note was put up, one
Petition (Criminal Writ Petition No.78 of 2011) in the same category
was already transferred from the Bench at Aurangabad to the Principal
seat at Mumbai. We have perused the chart appended to the said Note.
In the last column, it was disclosed that the subject of the Writ Petition
No.9207 of 2011 was regarding establishing a National Law University
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at Aurangabad. The Petitioner appearing in person has given up the
allegations of mala fide against the Hon'ble the Chief Justice. It is true
that in the Note put up by the Incharge
Registrar (JudicialI),
the
subject of the Writ Petition No.9207 of 2011 was not set out, but in the
chart annexed to it, the subject was specifically disclosed. There is no
reason to believe that Hon'ble the Chief Justice did not apply his mind
to the subject mentioned in the chart. In the list of cases pending
before the Nagpur Bench, a Petition regarding the infrastructure at
Nagpur Bench was included at Sr.No.1. The said case was not
transferred to the Principal Seat. As far as Contempt Petition No.277 of
2012 is concerned, a Note was put up by the Registrar Judicial on 29th
June 2012 before the Hon'ble the Chief Justice by pointing out that the
Writ Petition No.9207 of 2011 was already transferred to the Principal
Seat and the contempt alleged is of the assurances given in the said
Writ Petition. Therefore, on 29th June 2012, the Hon'ble the Chief
Justice passed an order directing transfer of the Contempt Petition to be
heard along with the Writ Petition No.9207 of 2011 which was already
ordered to be transferred. We find nothing wrong with the said order
as it is based on the order of transfer of the main Writ Petition being
Writ Petition no.9207 of 2011.
53. The Petitioner appearing in person has relied upon various
decisions of the Apex Court as well as this Court. He has relied upon a
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decision of the Apex Court in the case of Monnet Ispat and Energy
Limited v. Jan Chetna and Others6 holding that every Bench must
scrupulously follow the relevant Rules and statutory provisions
specifying its jurisdiction. He relied upon a decision of the Apex Court
in the case of Nasiruddin v. State Transport Appellate Tribunal7 by
contending that the jurisdiction vests in the Bench within whose
territorial jurisdiction, a cause of action for filing a case arises. He
relied upon a decision of this Court in the case of Damodar S/o
Jagannath Lokhande & Another v. Central Bureau of Investigation &
Others8 by contending that the Principal Seat cannot exercise territorial
jurisdiction over the areas falling within the jurisdiction of the Benches.
There are various decisions dealing with the malice in law and
arbitrariness as well as personal bias. In view of the statement made in
Paragraph XVI of the Written Submissions of the Petitioner, it is not
necessary to go into the aspect of mala fides.
54. To summarize, our conclusions are as under:(
a) The power of the existing High Courts saved by
Article 225 of the Constitution is the Power to
make Rules providing for “exercise of its
6 (2013)10 SCC 574
7 (1975)2 SCC 671
8 2008 ALL MR (Cri) 999

jurisdiction, original or appellate, by one or more
Judges or by division courts consisting of two or
more Judges of the High Court” not only in respect
of the existing jurisdictions but also in respect of
other jurisdictions and powers which the
Constitution has conferred upon it. Article 225 does
not save or confer power to frame Rules dealing
with filing of matters at Benches and transfer of
matters from the Benches to the principal seat at
Mumbai. The said Rule making power is available
only under Section 122 of the said Code;
(b) The proviso to Rule 2 of Chapter XXXI of the
Appellate Side Rules is illegal and invalid as the
same is in contravention of Section 126 of the Code
of Civil Procedure, 1908;
(c) It is well settled law that Hon'ble the Chief Justice
of a High Court is always the master of roster. It is
the prerogative of the Hon'ble the Chief Justice to
allocate the judicial work to the Judges of the Court.
Hon'ble the Chief Justice decides which Judge shall

sit Single and which Judge shall sit in a Division
Bench. A Judge or a Bench of the High Court can
take up any particular case provided it is assigned by
the Hon'ble the Chief Justice. It is axiomatic that
when the Hon'ble the Chief Justice has power to
allocate judicial work to the Judges and different
Benches, he has a power to withdraw the matters
assigned to the Judges or Benches. The said power
is implicit as the Hon'ble the Chief Justice is the
master of roster. Therefore, the power to transfer the
matters filed at the Benches to the Principal Seat at
Mumbai and vice versa always vests in the Hon'ble
the Chief Justice. Hon'ble the Chief Justice of this
Court in exercise of his power as the master of roster
can always direct that a particular category of cases
pending before its Benches at Nagpur, Aurangabad
and Goa shall be heard at the Principal seat.
Similarly, Hon'ble the Chief Justice of this Court in
exercise of his power as the master of roster can
always direct that a particular category of cases
which ought to be filed before its Benches at
Nagpur, Aurangabad and Goa shall be filed and
heard at the Principal seat. While exercising the said
plenary power of transfer, the Hon'ble the Chief
Justice is under no obligation to hear the parties to
the proceedings;
(d) As regards the orders dated 24th February 1993 and
6th January 2010, even assuming that the powers
could not have been exercised under the proviso to
Rules 1, 2 and 3 of Chapter XXXI of the Appellate
Side Rules to issue the orders, the Hon'ble the Chief
Justice possesses the powers to direct that a
particular category of matters shall stand transferred
to the Principal Seat at Mumbai on the ground of
administrative convenience. Though the said orders
could not have been issued stricto sensu in exercise of
powers under the proviso to Rules 1, 2 and 3 of the
Appellate Side Rules, it is not necessary to set aside
the said orders as even otherwise the Hon'ble the
Chief Justice has power to issue directions which he
has issued under the said orders;
(e) The orders of transfer of the Writ Petition No.9207 of
2011 and the Contempt Petition No.277 of 2012

have been passed in exercise of the power of the
Hon'ble the Chief Justice as the master of roster, and
therefore, the said orders cannot be interfered with.
55. Hence, we pass the following order:
(i) Writ Petition No.10048 of 2012 is rejected;
(ii) Writ Petition No.1860 of 2014 is made absolute in
terms of prayer clause (B) subject to what is held in
the Judgment;
(iii) Writ Petition No.8182 of 2012 is hereby rejected;
(iv) There will be no orders as to costs.
(v) Writ Petition No.5097 of 2012, Writ Petition
No.5098 of 2012, Contempt Petition No.234 of
2012, Review Petition No.60 of 2014 in Writ Petition
No.4529 of 2014 shall be listed before the
appropriate Court on 19th January 2015.
( G.S.KULKARNI, J ) ( A.S. OKA, J )
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