Vinayak Hari Kulkarni vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Bom) 1027

High Court of Judicature at Bombay
MR. JUSTICE BILAL NAZKI, THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE A.R. JOSHI
Vinayak Hari Kulkarni & Others
Versus
State of Maharashtra & Others
WRIT PETITION NO.6597 OF 2007 WITH CIVIL APPLICATION NO.2677 OF 2007 IN WRIT PETITION NO.6597 OF 2007 WRIT PETITION (STAMP) NO.24274 OF 2007
Decided on: 14-08-2009

Advocates Appeared:
For the Appellants:A.V. Anturkar i/b S.B. Deshmukh, Advocate. For the Respondents:V.S. Masurkar, Government Pleader, R2, G.S. Godbole, R4, Patki, R5, M.P.S. Rao i/b K. Shailesh, Advocates.

Headnote:(A) Constitution of India, Art.348 – Interpretation of Word “proceedings” - Includes not only proceedings in the Court but also the business of the Court - Copies of impugned judgment/order will form part of the proceedings initiated before High Court. Per majoprity Per S. C. Dharmadhikari, J.:- The majority is right in their conclusion recorded in para 15 but, the fear is that its observations can be termed as obiter and not binding. To obviate that, it is necessary to endorse them. Copies of the impugned judgment/order of the authorities/subordinate courts/tribunals will form part of the proceedings, yet, the annexures to a writ petition stands on a different footing. The word “pleadings” would be included in the term “proceedings” appearing in Article 348(1)(a) of the Constitution of India. All that the proviso postulates is that a translation there of in English language shall be provided as and when demanded by the Court. The proviso enables presentation and acceptance of a writ petition under Articles 226 and 227 with Annexures in Marathi language but with the undertaking as contemplated therein. These are procedural provisions enabling litigants to approach the High Court in its jurisdiction under Article 226 of the Constitution of India. (Para 61)
       (B) Constitution of India, Art.350 Expression “to any officer or authority” - Is not intended to cover Court of law. (Paras 15, 126)
       (C) Bombay High Court (Appellate Side) Rules (1960), Chap.1, R.7 - Constitution of Full Bench is not exercise of appellate power – Referral court is not appellate forum – Aggrieved party shall prefer the appellate forum
       (D) Bombay High Court (Appellate Side) Rules (1960), Chap. 1, Rr.7, 2(i) - Powers of Constitution of Full Bench – Rule can’t be challenged in writ jurisdiction as per majority decision. Per majority :- Rule 2(i) of the Appellate Side Rules, 1960 which has been declared to be unconstitutional, null and void by the Division Bench in the case of Satish cannot be a subject matter of reference for deciding its constitutional validity by the Full Bench/Larger Bench. Hence we answer issue no.2 framed by us in the negative and return the reference. Registrar General directed to place a copy of this order before the Honble Chief Justice, with a request to direct to place the same before the Full House (and by circulation, if required) so as to devise an alternative administrative mechanism so that registration of Writ Petitions with copies of the impugned orders, GRs or Rules in the Marathi language, is not refused. (Para 26) per Dharmadhikahari Once it is understood that the Full Bench is acting in an advisory capacity and sitting to resolve the difference of opinion, then, there is no question of the reference being returned• unanswered on the ground that the rule has ceased to exist after the pronouncement in Nadgaudas case. The Rule cannot be said to be still born or dead because the rule has not been struck down. It is only the proviso to sub-rule (i) of Rule 2 which has been held to be unconstitutional. It is a judgment of Division Bench which declares it to be so and which judgment is differed and dissented by another bench. Therefore, when the conflict is being resolved, there is no question of the full bench acting as a court of appeal. Hence, the reference cannot be said to be not maintainable. (Para 59)
       (E) Bombay High Court (Appellate Side) Rules (1960), Chap.17, R.2(i), Proviso - Not violative of Art.348(1)(a) of the Constitution. (Per S. C. Dharmadhikari, J.)
       (F) Bombay High Court (Appellate Side) Rules (1960), Chap A, Rr.3, 5; Chap.17, R.2(i) – No differentiation or discrimination differentiation or discrimination between presentation of application under other laws and under Arts.226, 227 of the Constitution. (Per S. C. Dharmadhikari, J.). (Para 65)

Judgment :-

Rule 2 provides that any application made before the Court should be in English and any documents which are not in English, typed copies of such documents in English translation shall be filed before the Court. However, this Rule has a proviso which provides that "Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding." It appears that this proviso was not a part of the Rule but was added by a Notification in the year 1986. This proviso is the subject-matter of controversy. A Learned Division Bench of this Court held this proviso to be unconstitutional whereas another Learned Division Bench has not agreed with the views of the said Bench. We have perused the orders of both the Learned Division Benches and we feel that since one Bench did not agree with the other Bench, a reference was made to Full Bench and as a result the matters have come before this Bench. Since no question has been framed in the order of reference and, therefore, we frame the following question:

"Q. Whether the proviso to Rule 2(i) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 is unconstitutional?"

Learned counsel appearing for the petitioner supports the Rule. Learned counsel appearing for the High Court also supports the Rule as the High Court has framed the said Rule. There is no counsel appearing who holds the view that the Rule is ultra vires. The Court would appreciate that all the aspects of the matter are argued so that the Court reaches to the correct conclusion as the question itself is important. Therefore, we request Shri Rafique Dada, Senior Advocate, to assist the Court in the present matter as an amicus curiae. Let the papers be served on Shri Dada. Shri Dada can appoint on record Advocates of his choice. The matter shall be listed on 4-9-2009, at 3:00 p.m.

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