STATE OF MAHARASHTRA Vs. KUSUM CHARUDUTT BHARMA UPADHYE

JUDGEMENT

(1.) THE circumstances which led to this Special Bench being constituted are that on September 10, 1980 a Division Bench of this High Court consisting of Madon and Shah JJ., while hearing an Appeal, namely, Appeal No. 308 of 1979 Filmistan Private Limited v, Municipal Corporation of Greater Bombay, against the judgment and order of Pendse J., sitting singly on the Original Side, dismissing the Writ Petition filed by the appellants under Article 226 of the Constitution of India, entertained a doubt as to the competency of the said Appeal. Accordingly, they directed the papers in the said Appeal to be placed before the Chief Justice for him to constitute a larger Bench, if he so thought fit, for the determination of the question whether the said Appeal was maintainable under Clause 15 of the Letters Patent of this High Court. Six days later, that is, on September 16, 1980, while another Division Bench of this High Court consisting of Madon and Kania JJ., were taking admissions in appeals filed from judgments passed on the Original Side, the learned Advocate -General, appeared for the Appellants, the State of Maharashtra, in Appeal No. 499 of 1980 - State of Maharashtra v. Kusum, widow of Charudutt Bharma Upadhye - and applied that the said Appeal should be placed before a larger Bench to determine the question of the competency of the said Appeal in view of the judgment of a Full Bench of three Judges sitting on the Nagpur Bench of this High Court, a report of which judgment, according to the learned Advocate -General, had appeared in the newspapers. The learned Advocate -General also requested that as the matter was of vital public importance, notice should be given to him in his capacity as Advocate -General, and expressed his readiness to accept oral notice. Accordingly, oral notice was given to the learned Advocate -General, which he accepted in Court. A similar application was made to the said Division Bench by learned Counsel for the appellants, Union of India, in Appeal No. 479 of 1980 and by learned Counsel for the appellants, P. K. Banerji, General Manager of the High Explosives Factory at Kirkee, Pune, in Appeal No. 480 of 1980. The said Division Bench passed an order directing the papers in all the said three Appeals to be placed before the Chief Justice for him to constitute a larger Bench, if he so thought fit, for the purpose of deciding the competency of the said three Appeals. Thereupon this Special Bench was constituted by the Chief Justice.

(2.) ALL the above four Appeals arise out of Writ Petitions under Article 226 of the Constitution filed on the Original Side of this High Court. Miscellaneous Petition No. 1832 of 1978 against the judgment and order in which the said Appeal No. 308 of 1979 has been preferred inter alia challenged the constitutional validity of the amendments made in Section 217 of the Bombay Municipal Corporation Act (Bom. Ill of 1888) by Section 5 of the Maharashtra Municipal Corporations (Amendment) Act, 1975 (Mah. LXIII of 1975). The said Petition was heard and disposed of by Pendse J., sitting singly, in pursuance of Rule 623 of the Rules and Forms of the Bombay High Court (on the Original. Side), 1957, and by his judgment and order passed on July 16, 1979 he dismissed the said Petition and discharged the rule with costs. Miscellaneous Petition No. 1722 of 1975 against the judgment and order in which the said Appeal No. 479 of 1980 has been preferred was filed seeking a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution ordering and directing the respondents to the said Petition, namely, the Union of India, the Collector of Central Excise and the Superintendent of Central Excise, Range III, Division III, Bombay, to withdraw or cancel certain trade notices issued under Rule 233 of the Central Excise Rules, 1944, and an order issued by the Central Excise, Bombay, as also the demand made upon the original petitioners to comply with the requirements of the said order and the said notices. In the said Petition the original petitioners also sought a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution prohibiting the original respondents from requiring the original petitioners or the manufacturers from whom the original petitioners were purchasing goods for marketing under their trade name and from obtaining a licence under the Central Excise Act, 1944, or the Rules made thereunder. The said Petition was also heard and disposed of by Pendse J., sitting singly, under the said Rule 623, and by his judgment and order dated October 12, 1979 Pendse J., made the rule absolute and quashed the notice issued against the original petitioners. The said Appeal No. 479 of 1980 has been preferred by the original respondents, namely, the Union of India, the Collector of Central Excise, Bombay, and the said Superintendent of Central Excise. Miscellaneous Petition No, 1163 of 1979 against the judgment and order in which the said Appeal No. 480 of 1980 has been preferred was filed by the General Manager of the High Explosives Factory at Kirkee, Pune, and the Union of India against one of the employees of the said factory and the Presiding Officer of the Central Government, Labour Court No. II at Bombay, for a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution calling for the records or order passed by the said Labour Court on an application filed by the original respondent No. 1, and, after considering the same, quashing and setting aside the said order. The said Petition! came up for admission before Sawant J., sitting singly on the Original Side under the said Rule 623, who by his order dated June 19, 1979 summarily rejected the said Petition. The said Appeal No. 499 of 1980 has been preferred by the State of Maharashtra, the original Respondents No. 1, against an interlocutory order passed on September 10, 1980 by Mody J., in Writ Petition No. 1028 of 1980 filed by respondents Nos. 1 to 4 for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution directing the State of Maharashtra forthwith to derequisition certain premises, namely, room No. 28 on the second floor of Pushpadant Building situate at 3, Chunam Lane, Off Lamington Road, Bombay -400 007, and to hand over possession of the said room to the respondents. The said petition came up for admission and for interim relief before Mody J., sitting singly and hearing and disposing of writ petitions filed on the Original Side in pursuance of Rule 636 of the Rules of the High Court of Judicature at Bombay (Original Side), 1980. (Hereinafter referred to as 'the Original Side Rules, 1980'). Mody J., on September 10, 1980, admitted the said Petition and issued a rule nisi and passed the said interlocutory order against which the said Appeal No, 499 of 1980 has been preferred. By the said order Mody J., appointed the Court Receiver, High Court, Bombay, as receiver of the said room pending the hearing and final disposal of the said Petition, and further directed the Court Receiver to allow Respondents Nos. 1 to 4 and their family members, a list of whom was filed in Court, to use the said room for their personal residence as the Court Receiver's agents, without security or payment, on the condition that the said respondents should pay all the outgoings in respect of the said room.

(3.) AFTER the above orders were passed by the said two Division Benches, the judgment of the Full Bench of three Judges sitting on the Nagpur Bench of this High Court, referred to by the learned Advocate -General while making his aforesaid application for referring the matter -to a larger Bench, became available. That was the judgment of a Full Bench consisting of Masodkar, Waikar and Mohta JJ., in Shankar Naroba Salunke v. Gyanchand Lobhachand Kothari (1980) Letters Patent Appeal No. 3 of 1979 (with Letters Patent Appeals' Nos. 10, 11, and 17 of 1979 and 34 of 1980), decided on September 3, 1980 (Nagpur Full Bench) (Unreported). The said Full Bench held that no appeal under Clause 15 of the Letters Patent was competent against the judgment of a single Judge in a petition entertained pursuant to Rule 18 of chap. XVIII of the Bombay High Court Appellate Side Rules, 1960, in exercise of fee power conferred on the High Court under Articles 226 and 227 of the Constitution. The reasoning which led the said Full Bench to arrive at the above conclusion would render equally incompetent an appeal under Clause 15 of the Letters Patent against the judgment of a single Judge in a writ petition under Article 226 of the Constitution filed on the Original Side of this High Court.