J P RAI Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) WHEN this matter was taken up on 29. 04. 09 Mr. S. Deb, learned counsel appearing for the applicant (respondent in PIL No. 50/04) raised a preliminary objection regarding the legality of the proceedings before this Full Bench. According to the learned counsel, petitions filed invoking the jurisdiction of this Court under Article 226 are required to be heard either by a Single Judge or a Division Bench consisting of two Judges and the Rules framed by this Court in exercise of the power under Article 225 do not contemplate hearing of a petition filed under Article 226 of the Constitution by a Bench consisting of more than two Judges unless a Division Bench hearing the writ petition makes a specific reference of any question of law which in the opinion of the Bench hearing the matter is required to be considered and decided by a Full Bench or a Larger Bench. The learned counsel further submitted that in the instant case there is no such order of reference by the Division Bench which was hearing the matter earlier calling for constitution of a Full Bench for taking up this matter and, therefore, the learned counsel submitted that the continuance of the hearing by this Full Bench of three Judges of the instant case is without jurisdiction and must, therefore, be forthwith remitted back to the Division Bench which was hearing the matter prior to taking up of this matter by this Bench.

(2.) THE learned counsel for the petitioner in this behalf made reference to certain Rules framed by this court in exercise of the power under Article 225 of the Constitution and also relied upon various judgments of the Supreme Court reported in (2008) 3 SCC 243, T. A. Hameed Vs. M. Viswanathan, (2006) 6 SCC 258, Kerala State Science and Technology Museum Vs. Rambal Co. and Ors. , 1981 (Supp) SCC 38, Kesho Nath Khurana Vs. Union of India and Ors. and 2004 (1) Mhlj 619, Shikshan Prasarak Mandal and Ors. Vs. Laxmikant Balakrishna Joshi and Ors.

(3.) HOWEVER , the learned counsel submitted that though the expression "a Division Bench" is not defined in chapter VA, in view of the long established practice "a Division Bench" is always understood within the jurisdiction of this High Court as Bench consisting of two Judges of this Court and the Rules framed under Article 225 do not contemplate the hearing of any writ petition by a Bench consisting of more than two Judges. The only situation according to the learned counsel in which a Bench consisting of more than two Judges can hear a petition under Article 226 is when there is an order of reference by a Division Bench requiring the matter to be placed before a Bench of greater strength than of a Division Bench. As in this case there is no such order of reference and the matter is taken up by this Full Bench in view of an administrative order passed by the Chief Justice withdrawing this case from the Division Bench which was hearing the matter earlier, such an administrative order of the Chief Justice is beyond his jurisdiction and contrary to the tenor of the Rules and the long established practice of this High Court.