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1981 Supreme(Guj) 126
Gujarat High Court
Judgename :D.H.SHUKLA, P.D.DESAI
SONAL V.SHAH - Appellant
Versus
HONORABLE CHIEF JUSTICE - Respondent
S.C.A. 3594 of 1981
Decided On : 09/09/1981
Headnote:
Constitution of India , 1950 – Article 226 - Chief Justice in exercise of the powers conferred by the said rule whereunder a review application being Miscellaneous which was pending for admission before a Division Bench was referred to a Full Bench consisting of himself N. H. Bhatt J. and a third learned Judge - Referred above to rule 6 in the course of the impugned order as well as in the petition the said rule has been erroneously referred to as rule 2 (6 ) - In order to appreciate the merit of the important questions which arise for consideration a few facts require to be stated - Review application was filed one of the Judges constituting the Division Bench which heard the main petition namely Divan C. J. had retired - Review application was therefore posted for hearing before a Division Bench consisting of the learned Chief justice - While the review application was pending for admission before the said Division Bench and after it was heard for sometime the learned Chief Justice passed the order which is impugned herein - Pursuant to the said order the review application was posted for hearing before the Full Bench consisting of the learned Chief Justice - Subsequently however the learned Chief Justice withdrew from the said case joined the Full Bench - Full Bench reconstituted accordingly has been hearing the review application for admission since yesterday and the hearing is actually in progress even now - Held, Present writ petition is competent there is still a further question to be considered namely whether having regard to the facts and circumstances of case this Court should entertain the same and grant any relief to the petitioners in exercise of its discretion - Despite width and amplitude of the writ jurisdiction certain self-imposed limitations in regard to the exercise of such jurisdiction are recognised because the remedies provided by the writs are of an extraordinary nature - Court will not ordinarily issue a writ of or in the nature of mandamus (1) in favour of a person who has adequate alternative remedy and (2) where the interests of justice do not require that the relief should be granted - Full Bench is inclined to dismiss the review application on merits the petitioners might decide not to raise the question of the validity of order referring the matter to the Full Bench or the validity of the rule whereunder the reference has been made - Under such circumstances it would be proper exercise of discretion to decline to entertain this petition and to refuse to enter into wide questions such as those that are raised herein in isolation and divorced from the proceeding in which they can be legitimately raised and decided if necessary - Aspects of the matter and having given our most anxious consideration to the questions arising for our decision we are of the view that the present writ petition should be rejected on the grounds stated above without entering into the merits of the questions sought to be raised therein - Writ petition is therefore summarily rejected.
( 1 ) THIS writ petition under Art. 226 of the Constitution challenges the validity of rule 6 of part J Chapter I of the Rules of the High Court of Judicature at Bombay Appellate Side 1960 which are the law in force and the order dated 1/09/1981 passed by the learned Chief Justice in exercise of the powers conferred by the said rule whereunder a review application being Miscellaneous Application No. 434 of 1981 which was pending for admission before a Division Bench was referred to a Full Bench consisting of himself N. H. Bhatt J. and a third learned Judge. Be it stated at the outset that though we have referred above to rule 6 in the course of the impugned order as well as in the petition the said rule has been erroneously referred to as rule 2 (6 ). In order to appreciate the merit of the important questions which arise for consideration a few facts require to be stated.
( 2 ) THE petitioners herein had instituted Special Civil Application No. 2530 of 1981 which was heard and finally decided on 18/08/1981 by a Division Bench consisting of the then learned Chief Justice Mr. B. J. Divan and N. H. Bhatt J. (Miss Sonal V. Shah v. Guj. University XXII G. L. R. 934 ). The Gujarat University which was the main respondent in the said writ petition instituted Miscellaneous Civil Application No. 434 of 1981 seeking review of the judgment and order passed on 18/08/1981 in the said writ petition. At the time when the review application was filed one of the Judges constituting the Division Bench which heard the main petition namely Divan C. J. had retired. The review application was therefore posted for hearing before a Division Bench consisting of the learned Chief Justice Mr. M. P. Thakkar and N. H. Bhatt J. While the review application was pending for admission before the said Division Bench and after it was heard for sometime the learned Chief Justice passed the order which is impugned herein. Pursuant to the said order the review application was posted for hearing before the Full Bench consisting of the learned Chief Justice and N. H. Bhatt and A. M. Ahmadi JJ. Subsequently however the learned Chief Justice withdrew from the said case and V. V. Bedarkar J. joined the Full Bench. The Full Bench reconstituted accordingly has been hearing the review application for admission since yesterday and the hearing is actually in progress even now.
( 3 ) THE impugned order is challenged on several grounds. Briefly stated the challenge is: (1) that the administrative power under rule 6 could not have been exercised when the Division Bench was seized of and was actually proceeding with the preliminary hearing of the review application; (2) that the withdrawal of a matter pending for judicial decision before a Division Bench of this Court and its assignment to a Full Bench in the purported exercise of the administrative powers conferred by rule 6 would undermine the judicial power conferred on and exercised by the High Court through its different Benches; that if the said rule were construed as conferring such powers on the learned Chief Justice the provisions of rule 5 of Part I of Chapter I of the Bombay High Court Appellate Side Rules 1960 would be rendered nugatory and it would also expose rule 6 to the challenge that it is ultra vires the rule-making power conferred upon the High Court by various constitutional and statutory instruments; and (4) that if such construction of rule 6 is inevitable the rule requires to be struck down as ultra vires.
( 4 ) WHEN the matter was called on for preliminary hearing before us we pointed out to the learned Counsel appearing on behalf of the petitioners that there were two initial difficulties in his way one affecting the maintainability of the petition and the other the right to relief therein and that unless those difficulties were resolved it would not be possible to entertain the present writ petition. The difficulties which were pointed out are as follows: (1) The Full Ben
