SANJAY KUMAR Vs. STATE

JUDGEMENT

(1.) This L.P.A. has been preferred against a judgement dt. 8-6-1987 of a learned Judge sitting alone whilst acting in the long summer vacation as a Vacation Judge, dismissing a writ petition filed by the appellant.

(2.) Having heard the learned counsel for the appellant we are of the opinion that this L.P.A. is not maintainable. The jurisdiction of a learned single Judge and of Benches is provided on Chapter I of the High Court Rules. After enumerating the jurisdiction which can be exercised by a learned single Judge, or by other Benches, it is provided in R.4 of Chapter-I that save as provided by law or by these rules or by special order of the Chief Justice, all matters shall be heard and disposed of by a Bench of two Judges. The Writ Petition which was dismissed summarily by the learned Vacation Judge was cognizable by a Division Bench. This writ petition consequently in the absence of any rule empowering a learned single Judge to exercise powers of Division Bench could not be entertained, inasmuch as a learned single Judge has no jurisdiction to entertain a petition cognizable by a Division Bench. Any order passed by a learned single Judge would be without jurisdiction. In order to meet that situation special provision was made in R.5 Chapter-I. The said Rule provides that "Except in a matter which is required by virtue of any law to be heard by a Bench of two or more Judges, a Judge sitting alone whilst acting in the long vacation as a Vacation Judge, may exercise the original and appellate jurisdiction vested in the Court" "Law in R.5 refers to provisions of the nature specified in R.2 of Chapter I.

(3.) Apparently R.5 of Chapter 1 confers power on a single Judge sitting alone whilst acting in the long vacation as a Vacation Judge to exercise original and appellate jurisdiction vested not in any particular Bench but in the Court. In other words even though factually the Vacation Judge is a single Judge, by legal fiction, he will be deemed to be exercising the jurisdiction of a Division Bench in matters cognizable by a Division Bench by virtue of the provision contained in this behalf in R.5 of Chapter 1 of the High Court Rules. This provision has apparently been made to meet the difficulty pointed out above, namely that in the absence of such a provision a single Judge would have no jurisdiction to entertain a matter cognizable by a Division Bench. In this view of the matter, the dismissal of the writ petition by a Judge sitting alone whilst acting in the long vacation as a Vacation Judge would be deemed to be the dismissal of the writ petition by a Division Bench which alone is competent to entertain such a petition. In this connection, it would be useful to recall the famous observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132 that