w w w . L a w y e r S e r v i c e s . i n



M/s. Modern Anitasha Electonics v/s The Cosmos Co-operative Bank Ltd. & Others


Company & Directors' Information:- E-COSMOS (INDIA) PRIVATE LIMITED [Active] CIN = U30007KA2004PTC034007

Company & Directors' Information:- M P O ELECTONICS PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012176

Company & Directors' Information:- MODERN BANK LIMITED [Dissolved] CIN = U65110TN1926PLC001738

Company & Directors' Information:- THE COSMOS BANK LIMITED [Active] CIN = U99999MH1933PTC002029

    WRIT PETITION NO. 6247 OF 2010

    Decided On, 15 November 2011

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE G.S. GODBOLE

    For the Petitioner: R.M. Haridas, Advocate.For the Respondents: R1, Siddharth Karpe, Advocate.



Judgment Text

ORAL JUDGMENT:

1 This Petition challenges an order passed under the Multi State Corporative Societies Act which is a Central Enactment which is not specifically referred to in sub Rules 1 to 43 of Rule 18 of the Bombay High Court Appellate Side Rules, 1960. (hereinafter called as B.H.C.A.S. Rules, 1960 for short) Though I am proceeding to hear the Writ Petition on merit since a question of law of importance as to whether the Writ Petition filed for challenging orders passed by the Judicial or Quasi Judicial Authorities other than those mentioned in the Sub-Rules (1), (2) and 4 to 43 of Chapter 17, Rule 18 of the Bombay High Court Appellate Side Rules, 1960, crops up for consideration repeatedly and since, apparently there is no authoritative pronouncement on this issue, I deem it fit to decide the said issue.

2 Pursuant to my earlier order dated 8.11.2011, Mr. Haridas, learned Advocate for the Petitioners has circulated a compilation of three Judgments which he seeks to rely upon and it is necessary to deal with those three Judgments very briefly. However, it is necessary to note the relevant Rules from the B.H.C.A.S. Rules, 1960.

3 A] Rule 1 of Chapter 1 of the Rules reads thus:

1. Jurisdiction ordinarily exercised by Division Court of two Judges. - The Civil and Criminal jurisdiction of the Court on the Appellate Side shall, except in cases where it is otherwise provided for by these rules, be exercised by Division Court consisting of two or more Judges.

B] Rule 2 thereafter carves out an exception and the matter which can be disposed off by the single Judge are mentioned.

C] Rule 1, Sub-Rule (1) of Chapter 17 reads thus:

1. (i) Applications for issue of writs, directions, etc. under Article 226 of the Constitution. - Every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if, the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of.

D] Rule 4 of Chapter 17 reads thus:

4. Division Bench to dispose of the application; rule nisi may be granted by a Single Judge. Applications under Rule I shall be heard and disposed of by a Division Bench; but a single Judge may grant rule nisi, provided that he shall not pass any final order on the application.

E] Rule 17(i) of Chapter 17 reads thus:

17. (i) Applications under Article 227 and 228. -- An application invoking the jurisdiction of the High Court under Article 227 of the Constitution or under Article 228 of the Constitution, shall be filed on the Appellate Side of the High Court and be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application is disposed of.

F] Thereafter, Sub-Rule 3 of Rule 18 of Chapter 17 and the explanation reads thus:

[18. Single Judge's powers to finally dispose of applications under Article 226 or 227.-Notwithstanding anything contained in Rules 1,4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of ---

(1)........

(2)........

(3) the decrees or the orders passed by any Subordinate Court [or by any quasi Judicial Authority] in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court [and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.]

May be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice :

[Provided when the matter in dispute is or relates to the challenge to the validity of any statute or any rules or regulations made thereunder, such application shall be heard and disposed off by a Division Bench to be appointed by the Chief Justice.

Explanation.-- The expression 'order' appearing in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes]

4 In cases where the orders have been passed under any enactment or by authorities mentioned in Sub- Rules (1) & (2) and 4 to 43 are concerned, there is absolutely no difficulty whatsoever since it is clear that these matters can be disposed off by the learned single Judge. Similarly, in cases which are in the excluded category of enactments mentioned in Sub-Rule (3) are concerned, namely, matters decided by the Parsi Chief Matrimonial Court, orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Administrative Tribunals Act, the Securitisation and Reconstruction of Financial Assets and Enforcemet of Security Interest Act, 2002 etc., there is absolutely no difficulty. Similar is the case in respect of the orders passed by the Caste Scrutiny Committee. The real difficulty arises in respect of enactments which are not mentioned in sub-rules 1,2 and 4 to 43 and the excepted enactments mentioned in sub-rule 3.

5 Mr. Haridas relied upon the Judgment of the Division Bench of this Court (Coram: V.G. Palshikar & D.B. Bhosale,JJ.) in the case of Principal, Micky School, English Medium vs. State of Maharashtra & Ors. 2006 (1) Bom. C.R.694. He relies on the observations at paragraphs 10 and 11 of the said Judgment and submits that the said Judgment lays down that any order under special or local law which is judicial or quasi judicial order can be challenged by the Writ Petition which can be entertained and disposed off by a single Judge. Paragraph 10 and relevant part of paragraph 11 reads thus :

10. Then comes Rule 18 of Chapter XVII which provides that notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII applications under article 226 or 227 or under articles 226 & 227 may be disposed of by the learned Single Judge of this Court and proceeds to enumerate the categories of orders or enactments which are to be dealt with by the learned Single Judge. It will thus be seen that provisions of Rule 18 of Chapter XVII is a provision made in relation to Rules in Chapter XVII and therefore are rules which as contemplated by rules 1 and 2 of Chapter I provide for hearing by a learned Single Bench. As we have noticed above that rules 1 and 2 both of Chapter I provide for exception in cases where it is otherwise provided for by these rules. Language of Rules 17 and 18 in the circumstances is required to be noted. Rule 18 of Chapter XVII says notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII the following applications mentioned in the said rule are to be heard by the learned Single Judge. It means rule 18 is a provision which is a case where it is otherwise provided by these rules that the matters can be heard by the learned Single Judge. Clauses 1 to 43 of this rule 18 provide various categories of orders passed by under various enactments which are required to be dealt with by a learned Single Judge of this Court. Sub-clause (3) however is omnibus clause which reads thus:

'The decrees or the orders passed by any Sub-ordinate Court (or by any quasi judicial Authority) in any suit or proceedings (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court.'

According to these provisions therefore any decree or order passed by any subordinate Court or quasi judicial Tribunal in any suit or proceedings including suit or proceedings in any suit or legal law are to be dealt with by a Single Judge. It will thus be clear from the conjoined reading of all the relevant provisions that according to Rule 18 of Chapter XVII all petitions mentioned in that rule in sub-clauses 1, 2 and 4 to 43 are to be dealt with by a Single Judge and this will not present any difficulty in classification. The problem as has been raised in the present case arises on interpretation of Chapter XVII Rule 18 clause 3 quoted above. We have explained how this rule 18 operates.

11. In our opinion, the position in regard to hearing of writ petitions under Bombay High Court Appellate Side Rules, 1960 is clear. All writ petitions under articles 226 and/or 227 or under article 226 or under article 227 are to be heard by learned Single Judge of this Court. Exceptions having been provided by clause 2-B of Chapter I and ratio laid down by Supreme Court in relation to articles 323 A and B. Therefore writ petitions covered by clause 2- B, writ petitions arising out of orders made by Administrative Tribunals established under 1985 Act and orders passed by such Special Tribunals as are created under the Constitution and all other matters are required to be heard by the learned Single Bench.

Prima facie, the observations made by the Division Bench in paragraph 11 are contrary to the provisions of Rule 1 of Chapter 17. However, the Division Bench Judgment does not seem to have considered the explanation to Rule 18 of Chapter 17.

6 Mr. Haridas next relied upon the Judgment of the learned single Judge -A.A.Desai, J. in the case of GirdharC. Nichani vs. Rev. E.H. Lewellen & another, (1991 (2) Mh. L.J.891), relevant portion of which reads thus:

'I heard the matter for quite some time. Shri Deshpande, the learned Counsel for the petitioner has raised the question that this matter is to be heard and decided by a Division Bench. According to him Rule 18 of Chapter XVII of the Bombay High Court (Appellate Side) Rules, does not include the writ petitions questioning the order passed under the Act to be dealt and decided by the Single Judge. I thereupon referred the matter to the registry. It is certified on 12.4.1991 that the order impugned in the instant writ petition being one in the proceedings under the Local Act, as per sub-rule (3) of Rule 18, the matter can be heard by Single Judge.

Submission of Shri Deshpande is that by amendment to Rule 18 various local Acts have been incorporated. However, the amendment omits the Act for inclusion. As such, the order passed under the Act cannot be covered by a general entry of 'local Act' as envisaged under sub-rule (3) of Rule 18 which was existing even prior to the amendment.

True, there is no specific inclusion of the Act. However, according to me inclusion of various Acts does not curtail the scope and ambit of the term 'local Act' as referred to under sub-rule (3) of Rule 18.'

7 Mr.Haridas next relied upon the Judgment of the learned single Judge (B.P.Dharmadhikari,J.) in the case of JyotiAnil Ganeshpure vs. State of Maharashtra (2006(3) Bom C.R.852)and particularly paragraphs 10 and 12 thereof.

8 Apart from this Mr. P.B. Shah, learned Advocate appearing in W.P. No. 5941/2011 where a similar question had arisen, relied upon the Judgment of learned single Judge B.P. Dharmadhikari, J. in the case of Balkrishnas/o. Shankar Nafde & Ors. vs. State of Maharashtra (2010 (1) Bom. C.R. 626 = 2010 (3) Mah. L.J. 117 = 2010 (2) AIR Bom. page 65. Paragraph 26 of this Judgment reads thus:

'26. The first objection of Shri Madkholkar, learned counsel about the competence of learned Single Judge to take cognizance of such Writ Petition needs to be looked into. The provisions of Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960 which mention the challenges which can be before the Single Judge in its clauses 1 to 43, specify those orders and also Acts under/in which those orders are passed. APMC Act does not figure in it. But, than as pointed out by the parties due to its Rule 3, orders passed by any quasi judicial authority in any proceedings under any Special or Local Law are to be challenged before the Single Judge. 'Order' as per explanation at the end of

Please Login To View The Full Judgment!

Rule 18 means any order passed by the quasi judicial authority empowered to adjudicate under the 'above mentioned statutes' i.e. in clauses 1 to 43. Thus, the question which arise before this Court is whether power exercised under Section 44 of the APMC Act or order passed therein is a quasi judicial proceedings ororder. The second and most important question which falls for determination is whether, the impugned order under S. 43 can be said to be passed by the quasi judicial authority empowered to adjudicate by APMC Act.' 9 It is therefore, possible to take a view that the explanation is introduced solely with a view to provide that all Writ Petitions challenging judicial or quasi judicial orders under Sub-Rule 2 & 3 to 43 and those falling outside the excepted enactments in Sub-Rule 3 can will be heard by the learned single Judge. In other words, it is possible to take a view that the explanation is for a limited purpose, challenging purely administrative orders may not be entertained by a single Judge. When this interpretation of the expression is done then there is no anomaly between Sub-Rule (3) and the Explanation and by applying a rule harmonious construction and for following the Judgment of the learned single Judge (Coram: B.P.Dharmadhikari,J.) in the case of Balkrishna s/o Shankar Nafde, supra, it is prudent to take a view that the present Writ Petition pertains to the assignment of the single Judge.
O R