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2001 Supreme(Cal) 131
HIGH COURT OF CALCUTTA
Ajoy Nath Ray & S.N. Bhattacharjee, JJ.
Ram Nath Santra & Ors.
Vs.
State of West Bengal & Ors.
Appeal from Original Order No. 3663 of 1999
Decided on : March 8, 2001
Sadananda Ganguly, S.P. Purkait, Badal Saha for the petitioner;
S. Mukherjee for the respondent Nos. 7 & 8;
Durgadas Roy, Husan Ara Begum for the State-respondent.
A Division Bench cannot dispose of a writ application as a Court of first instance, in the absence of a special mandate from the Constitution or the Supreme Court, even if done by consent of parties.
Headnote:
Jurisdiction - Writ Application - Division Bench - Consent - Usurpation of Jurisdiction
Fact of the Case:
The writ court did not pass an interim order in aid of the writ on 7.10.99. The Division Bench granted an interim order on 28.1.2000 and directed, on consent of parties, that the writ application itself be listed for consideration along with the appeal from the refusal of the interim order.
Finding of the Court:
The court held that the Division Bench could not dispose of a writ application as a Court of first instance, as it can only sit in appeal. The court emphasized that the parties could not confer upon the Division Bench jurisdiction which it does not otherwise possess.
Issues: The key issue was whether the Division Bench, with the consent of parties, could confer jurisdiction upon itself to dispose of a writ application as a Court of first instance.
Ratio Decidendi: The court ruled that in the absence of a special mandate from the Constitution or the Supreme Court, a Division Bench would be usurping the jurisdiction of a Single Bench by disposing of writs in the first instance, even if done by consent of parties.
Final Decision: The appeal was dismissed with the direction that the interim order granted by the Appellate Court would continue until the writ matter is disposed of by the competent authority according to law. The order to hear the writ itself passed by the Division Bench was declared without jurisdiction and was recalled.
Ajoy Nath Ray, J.: On 7.10.99 the writ court did not pass an interim order in aid of the writ. On 28.1.2000 the Division Bench of our court did grant an interim order but, and it is with this part of this order that we are the most concerned today, directed on consent of parties that the writ application itself be listed for consideration along with the appeal from the refusal of the interim order.
2. It is our clear opinion that the parties could not by consent confer upon the Division Bench jurisdiction which it does not otherwise possess. A writ application under Article 226 of the Constitution of India is invariably to be heard by an Hon'ble Single Judge of this High Court, in the first instance; the Division Bench cannot dispose of a writ application as a Court of first instance, it can only sit in appeal.
3. We are aware that in certain matters like the Sanchaita matter and the Green Bench matters, a Division Bench directly gives authority for issuance of prerogative writs; but this is done on the basis of a joint authority derived by the Division Bench from the Constitution and a special mandate of the Hon'ble Supreme Court of India.
4. Where there is no such mandate a Division Bench would be usurping the jurisdiction of a Single Bench, were it to dispose of writs in the first instance, even if that be done by consent of parties. The usurpation would be as bad as, say, a Division Bench on the Original Side seeking to dispose of suits as the court of first instance and thus going ahead with the usually unheard of appellate procedure of discovery, inspection and witness examination all by itself.
5. Thus, the appeal is disposed of with this direction that the interim order already granted by the Appellate Court will continue until the writ matter is disposed of by the competent authority according to law, or until such authority sees fit to amend, alter or vary the interim order, upon just and legal materials. The order to hear the writ itself passed by the Division Bench on 28.1.2000 is without jurisdiction and is recalled.
6. Urgent xerox certified copy of this order, if applied for, be given as expeditiously as possible.
S.N. Bhattacharjee, J.: I agree.
Appeal dismissed of with direction.
