M ROMEN SINGH Vs. DAULOUSIRU

JUDGEMENT

(1.) The question of law involved in this case is that whether a single Judge can entertain a writ appeal and pass an interlocutory order when a Division Bench is not available in the station/in an outlying Bench in view of the Rule 2(2) of Chapter V-A of the Gauhati High Court Rules. This rule was amended on 19-8-1992. Prior to that this rule reads as follows."2. Every such application shall be made and heard before the Division Bench except where the Chief Justice otherwise directs :Provided that during the vacation such application may be made before the vacation Judge :Provided further that when or where no Division Bench is sitting or available it shall be competent for a single Judge to pass any interlocutory orders in such application and direct the same to be placed before a Division Court for orders :Provided also that all interlocutory matters including stay and condonation of delay application and substitution petitions shall be dealt with by a single Judge unless otherwise ordered by a Division Bench."

(2.) After amendment this Rule 2 relevant for the case reads as follows :-"2. An appeal from the Judgment and order of a single Judge disposing of an application shall lie to the Division Bench if preferred within thirty days of the date of such judgment and order. The Division Bench may condone the delay in filing any appeal, if good and sufficient cause is shown."

(3.) We have not quoted the proviso as it is not relevant for the decision of the question. As bare look at this rule will show that the power which was given earlier to a single Judge by the second proviso quoted above has been deleted and/or wiped out. When a proviso is deleted or wiped out it must be deemed that that power now cannot be exercised by the authority because the legislature or rule making body in its wisdom thought it proper/fit to delete it. In view of rule as it stands today that power is no longer available, in this connection we may have look at Chapter II, Rule 1 of the Gauhati High Court Rules which deals with Civil and other matters as mentioned therein. That is quoted below :-"1. A Division Court for the hearing of appeals from the decrees or orders of the SubordinateCivil Courts shall consist of two or more Judges as the Chief Justice may think fit.(i) Provided that it shall be competent for one Judge to hear appeals and applications in all matters specified in the sub-joined Schedule except where such appeals, application or matters involve a substantial question of law as to the interpretation of the Constitution of India. He may, however, send back any particular case he thinks fit to be disposed of by two Judges :(ii) Provided further that when or where no Division Court is sitting or available it shall be competent for a single Judge to pass any interlocutory orders in any appeals, applications or matters preferable before a Division Court and direct the same for placing before a Division Court for orders :(iii) Provided also that on the requisition of any Division Court, or whenever he thinks fit, the Chief Justice may appoint a special Division Court, to consist of three Judges, for the hearing of any particular appeal, on any particular question or law arising in an appeal, or of any other matter."