2004(1) ALL MR 713
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(FULL BENCH)

D.D. SINHA, S.G. MAHAJAN AND P.S. BRAHME, JJ.

Shikshan Prasarak Mandal & Ors.Vs.Laxmikant Balkrishna Joshi & Ors.

MISC Civil Application No.329 of 2003,Writ Petition No.2387 of 1985,MISC Civil Application No.330 of 2003,Writ Petition No.137 of 1986

18th November, 2003

Petitioner Counsel: Shri. M. G. BHANGDE , Shri. V.V. BHANGDE
Respondent Counsel: Shri. R. K. DESHPANDE,Shri. A. G. MUJUMDAR

Bombay High Court (Appellate Side) Rules (1960), Chap.30, R.3(1)(2), Chap.1, R.7 - Letters Patent (Bombay) Cl.36 - Composition/Constitution of Full Bench - Application for review of decision rendered by a Full Bench of three judges - R.3 (1) and (2) of Chap.21 is applicable and attracted and not R.7 of Chap.I - Chief Justice can in his discretion constitute a Full Bench of same judges and of same strength - If difference of opinion arises between them i.e. two Judges on one side and one Judge on the other side, only course open would be to refer matter for appropriate larger Bench - But such hypothetical possibilities would not create any legal infirmity rendering composition of Bench of equal strength invalid in law.(Paras 13,14,17,18)

Cases Cited:
Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangha, 2001(4) SCC 448 [Para 7,16]
Dr. D. C. Saxena Vs. Hon'ble Chief Justice of India, 1996(5) SCC 216 [Para 8,19]
State of Orissa and others Vs. Commissioner of Land Records and Settlement, Cuttack, 1998 (7) SCC 162 [Para 9]


JUDGMENT

D. D. SINHA, J.:- Heard Shri. Bhangde, learned Counsel for the applicants, Shri. Dastane, learned Counsel for the non-applicant no.1, Shri. Panpalia, learned Counsel for the non-applicant no.3, Shri. Mujumdar, learned Assistant Government Pleader for non-applicant no.4 in Miscellaneous Civil Application No.329/2003 so also Shri. Deshpande, learned Counsel for non-applicant no.1 in Miscellaneous Civil Application No.330/2003.

2. The Division Bench of this Court consisting of R. K. Batta and J.P.Devadhar, JJ. vide common order dated 16-4-2002 passed in Writ Petition No.137/1986 (Anil Dattatraya Ade Vs. Presiding Officer, School Tribunal and three others) and in Writ Petition No.2387/1985 (Laxmikant Balkrishna Joshi Vs. Shikshan Prasarak Mandal and five others) referred the matter to the Hon'ble Chief Justice for constituting larger Bench. The Hon'ble Chief Justice vide order dated 11-11-2002 was pleased to constitute a Full Bench of three Judges, which was presided over by the Hon'ble Chief Justice. The Full Bench passed judgment on 13-3-2003 and decided the questions of law referred to it.

3. The original respondent nos.1 to 3 in Writ Petition No.2387/1985 and original respondent nos.2 and 3 in Writ Petition No.137/1986 have filed Miscellaneous Civil Application Nos.329/2003 and 330/2003 respectively, inter alia, seeking review of the judgment dated 13-3-2003 of the Full Bench. The Hon'ble chief Justice vide order dated 30-8-2003 is pleased to constitute the present Full Bench of three Judges, out of whom, Justice S. G. Mahajan and Justice P.S. Brahme were the members of the earlier Full Bench and, therefore, these miscellaneous civil applications are listed before us for admission.

4. Shri. Deshpande, learned Counsel for the non-applicant no.1 in Miscellaneous Civil Application No.330/2003, without prejudice to the stand of the non-applicant no.1, states that application seeking review of the decision of the Full Bench, is not maintainable and there is no case for review made out and has raised the preliminary objection to the composition and constitution of the present Full Bench to hear and decide the matter.

5. It is contended by learned Counsel Shri. Deshpande that the Constitution of larger Bench of two or more Judges can only be in the manner provided under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules and in no other manner and hence, the present composition of Full Bench not being in conformity with the said provision, is not competent to hear and decide the miscellaneous civil application of review.

6. Learned Counsel Shri. Deshpande states that on earlier occasion, a Full Bench was constituted upon receipt of the report/order dated 16-4-2002 passed by the Division Bench consisting of R.K. Batta and J. P. Davadhar, JJ. and vide judgment dated 13-3-2003, the Full Bench decided the matter on the question of reference. It is contended that while constituting the present Full Bench as contemplated in Rule 7, there is no report or order by any Judge either on the application of the party or otherwise to hear and decide the applications for review of the judgment of the earlier Full Bench. The Chief Justice in absence thereof, is not competent to constitute the present Full Bench since procedure adopted by the applicants is de hors of the procedure contemplated under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960.

7. It is submitted by learned Counsel Shri. Deshpande that present Full Bench consists of only three Judges of this Court and, therefore, an anomalous situation is likely to arise if two Judges agree to allow the review applications and one Judge disagrees in this regard and then the earlier decision of the three Judges would stand reviewed by majority of two Judges, which is not legally permissible in view of the judgment of the Apex Court in Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangha and others (2001(4) SCC 448). It is contended that in the Full Bench or Division Court of three Judges, there cannot be equal division on the point of difference and hence, Clause 36 of the Letters Patent cannot be invoked. However, there can be a majority of two Judges on a given point and ultimate decision can be by a majority of two Judges. This action would result in an anomalous situation of reviewing decision of the majority of three Judges by the majority of two Judges and such disposal or decision cannot be said to be more advantageous as contemplated in Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960.

8. It is further contended by learned Counsel Shri. Deshpande that matter cannot be referred to the Full Bench on mere asking by the party. The procedure laid down under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 is required to be followed and the Bench hearing the matter alone is required to report to the Hon'ble Chief Justice that reference is required to be decided by a larger Bench. It is submitted that the High Court has framed Rules under Chapter XXX of the Bombay High Court Appellate Side Rules, 1960 prescribing the procedure to process application for review of the order. However, in the present case, this procedure is not adopted and, therefore, constitution of the present Full Bench by the Hon'ble Chief Justice is not proper. In order to substantiate the contentions, reliance is placed by the learned Counsel on the judgment of the Apex Court in Dr. D. C. Saxena Vs. Hon'ble the Chief Justice of India (1996(5) SCC 216).

9. Shri. Bhangde, learned Counsel for the applicants, supported the order of the Hon'ble Chief Justice constituting the present Full Bench of three Judges to hear review applications moved by the applicants. It is submitted that whenever question of review of the judgment and order passed by the Single, Division or Larger Bench is concerned, it is required to be heard preferably by the same Bench having same strength of Judges, who had decided the earlier matter. In order to substantiate this contention, reliance is placed on the judgment of the apex Court in State of Orissa and others Vs. Commissioner of Land Records and Settlement, Cuttack and others (1998 (7) SCC 162).

10. Learned Counsel Shri. Bhangde further states that even otherwise, present Full Bench of three Judges is competent to hear and decide the review applications and there is no question of likelihood of any anomalous situation as contended by learned Counsel Shri. Deshpande in case there is a difference of opinion amongst Judges of the present Full Bench on the issue of allowing or dismissing the review applications. It is contended that even if two Judges of the present Full Bench take one view on the subject and one Judge disagrees with the same, even then the majority view would be treated to be the view of the Full Bench and such view would be legally sustainable in law and same is in conformity with provisions of Clause 36 of Letters Patent.

11. We have considered the contentions canvassed by the learned respective Counsel for the parties and perused the relevant provisions of Rules and decisions cited by the respective Counsel. The question which falls for our consideration is "whether the present Full Bench of three Judges is legally competent to hear and decide the applications for review of the earlier judgment of the Full Bench consisting of three Judges".

12. It is no doubt true that Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 contemplates that if a Judge of this Court hearing the appeal or any matter is of the view either on the application of the party or otherwise that it will be more advantageous if the matter is heard by the Bench of two or more Judges, he is required to report to that effect to the Hon'ble Chief Justice, who is required to make such order as he thinks fit. In other words, Rule 7 empowers the Judge of this Court to report or refer the matter to the Hon'ble Chief Justice in case of contingency mentioned in the said Rule for constituting a larger Bench. However, in the instant case, we are faced with a different situation wherein applicants have filed miscellaneous civil applications for seeking review of the judgment dated 13-3-2003 of the Full Bench and, therefore, contingency which is mentioned in Rule 7 enabling Judge of this Court to refer matter to the Hon'ble Chief Justice does not arise. In the instant case, question of requiring matter to be referred to the Hon'ble Chief Justice for constituting larger Bench to be heard more advantageously as required in Rule 7 does not arise since Full Bench is constituted only for the purpose of considering miscellaneous civil applications for review of judgment dated 13-3-2003 of the Full Bench and not because of difference of opinion amongst Judges on any point.

13. The miscellaneous civil applications are moved by the applicants for review of judgment of the earlier Full Bench and, therefore, analogy, which is provided in Rule 3 of Chapter XXX of the Bombay High Court Appellate Side Rules, 1960 is attracted and applicable while constituting the Bench for review. Sub-rule (1) of Rule 3 makes it evident that an application for review needs to be placed before the Single Judge of this Court, who has passed the original order, unless the said Judge is not available because of reasons mentioned in the said provision. Similar is the situation in respect of judgment delivered by the Division Bench. The principle which emerges from sub-rules (1) and (2) of Rule 3 of Chapter XXX is that application for review must necessarily be placed before the Bench, which has delivered the earlier judgment unless the Judge, who has delivered the judgment is not available for the reasons mentioned therein. This proposition is well settled and fortified by the view expressed by the Apex Court in the case of State of Orissa and others (cited supra) and the Apex Court in paras (28) and (29) of the said judgment has observed thus :

"28. It may be argued that if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. This appears to be plausible at first blush but is, in our opinion, not correct because of the intervention of another fundamental principle relating to "review" of orders. The important principle that has to be kept in mind here is that a review application is to be made only to the same Judge or if he is not physically available, to his successor."

"29. The decision of the Privy Council in Maharajah Moheshur Sing Vs. Bengal Govt. to which reference was made by learned Senior Counsel, Shri. T. L. Vishwanath Iyer, is very apt in this connection. Adverting to the basic concept of review, it was observed by the Privy Council : (p. 47)

'It must be borne in mind that a review is perfectly distinct from an appeal; that is quite clear from all these Regulations that the primary intention of granting a review was a reconsideration of the same subject by the same Judge, as contradistinguished to an appeal which is a hearing before another Tribunal.'

Their Lordships added :

'We do not say that there might not be cases in which a review might take place before another and a different Judge; because death or some other unexpected and unavoidable cause might prevent the Judge who made the decision from reviewing it; but we do say that such exceptions are allowable only ex-necessitate. We do say that in all practicable cases the same Judge ought to review ;...'

It is, therefore, clear that the same Judge who disposes of a matter, if available, must "review" the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the face of his own order. Again, he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle is equally applicable in respect of orders of review passed by quasi-judicial authorities."

14. The above referred legal principle laid down by the Apex Court clearly demonstrates that the application for review necessarily should be before the Bench, which has passed the order, which is under review, unless the Judge, who has passed the order is not available and if the same Judge is not available, then such review application can be placed before another Judge. Similar analogy applies to the order under review of the Division Bench or larger Bench. Applying this principle, in the instant case, the order under review is the judgment rendered by the Full Bench consisting of three Judges and, therefore, application for review necessarily is required to be placed before the Bench consisting of three Judges and, therefore, order passed by the Hon'ble Chief Justice constituting the instant Full Bench of three Judges to hear applications for review is perfectly legal and proper. However, the Hon'ble Chief Justice, who had presided over the earlier Full Bench being not available at Nagpur, is justified in nominating other senior judge to preside over the present Full Bench along with other two Judges, who were members of the earlier Full Bench and, therefore, composition/constitution of the present Full Bench does not suffer from any legal vice.

15. The provisions of Clause 36 of the Letters Patent deal with the power of single Judges and Division Courts. Clause 36 contemplates that if Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority. It further provides that if the Judges are equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges, who have heard the case including those who first heard it. It is, therefore, evident that Clause 36 of the Letters Patent not only describes nature of powers exercised by the Single Judges or Division Courts, but also provides mechanism and procedure in case there is a difference of opinion of the Judges, who are members of the Division Court and when they are equally divided on the point. Similarly, Clause 36 provides that such point shall be decided according to majority opinion of the Judges.

16. It is no doubt true that in the instant case, since Full Bench consists of three Judges and if there is a difference of opinion on any point, the division of Judges cannot be equal in number and it would be two Judges on one side and one Judge on the other side and, therefore, it may not be possible for the majority of two Judges to alter or modify the judgment rendered by the Full Bench consisting of three Judges. This view is fortified by the decision of the Apex Court in the case of Bharat Petroleum Corporation Ltd. (cited supra) wherein Apex Court has observed thus :

"We are of the view that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and the judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges."

Hence, contention canvassed by learned Counsel Shri. Bhangde in this regard is misconceived.

17. The mechanism/procedure which is provided under Clause 36 of the Letters Patent operates altogether in a field where because of difference of opinion amongst Judges of the Division Court, the matter is referred to another Judge or Judges and, therefore, it is premature at this stage to consider a hypothetical situation which, in a given case, may or may not arise. However, if there is a difference of opinion on any point amongst us i.e. two Judges on one side and one Judge on the other side, in such situation, the only course open is to refer the matter to the Hon'ble Chief Justice for formation of an appropriate larger Bench and the point shall be decided according to the opinion of the majority of the Judges, who will hear the matter including those who first heard it.

18. It is no doubt true that Hon'ble Chief Justice in such situation, in order to overcome the contingencies referred to hereinabove, could have constituted a larger Bench of at least five Judges to hear the review applications, which would have taken care of all these shortcomings. However, this is more of a judicial propriety and does not create any legal infirmity rendering the composition of present Full Bench constituted by the Hon'ble Chief Justice invalid in law in, therefore, the contention canvassed by Shri. Deshpande, learned Counsel for the non-applicant no.1, is misconceived and devoid of substance.

19. The constitution of Benches and assignment of judicial work is the prerogative of the Hon'ble Chief Justice and does not depend upon the whims and caprice of the litigants. Similarly, same is exclusive domain of the Hon'ble Chief Justice. In this regard, observations of the Apex Court in para (26) of the judgment in Dr. D. C. Saxena Vs. Hon'ble Chief Justice of India (1996(5) SCC 216) are relevant, which read thus :

"When imputations were made against the Chief Justice, the petitioner assumed, in our view, "wrongly" that the CJI cannot constitute Benches nor should he discharge the functions of Chief Justice until the matter is decided. On appointment by the President by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of Benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra-position. As regards his personal disposition to hear a case by a Bench of which he is a member, it is his own personal volition. The Chief Justice's prerogative to constitute Benches and assignment of judicial business would not binge on the whim of a litigant."

20. On the backdrop of the above legal propositions, we are of the view that the present Full Bench is competent to hear and decide the miscellaneous civil applications for review of the judgment dated 13-3-2003 of the earlier Full Bench. Hence, we answer the question in affirmative.

We want to make it clear that we have not adjudicated either upon maintainability of the miscellaneous civil applications for review, merits of the matter nor expressed any opinion in this regard, keeping these issues open for the parties to agitate, if they so desire at appropriate stage.

21. For the reasons stated hereinabove, the preliminary objection raised by learned Counsel Shri. Deshpande is rejected.

Order accordingly.