2015 (9) TMI 26 - HC - Indian Laws

Reference petition - Application for early hearing of petition - Held that - Rule 5 authorises either a learned Single Judge or a Division Bench to refer the matter pending before them or any question arising in such matter to a Division Bench of two-Judges or a larger Bench respectively. On such Reference being made it is the duty of the Chief Justice to constitute either a Division Bench or a larger one for the decision on the question referred or for decision of the matter referred. - Rule 6 of the Rules of 1993 merely authorizes the Chief Justice to place any pending matter or any type of pending matters to a Division Bench or a Larger Bench notwithstanding the fact that according to the Rules of 1993 those matters are required to be decided by any learned Single Judge or a Division Bench fixed by the Chief Justice in exercise of his power of fixation of roster. The aforesaid Rule also authorizes the Chief Justice to place the matter which is otherwise required to be heard by a Division Bench for hearing before a Larger Bench. The Chief Justice in his administrative capacity cannot constitute a Larger Bench for the purpose of deciding a pure question of law simply because the Chief Justice is of the view that such question notwithstanding a decision of a Division Bench of this Court in one way or other is required to be heard by a Larger Bench. Even if on any important question there is no decision of this court such fact cannot enable a learned Chief Justice to constitute a Larger Bench suo motu in exercise of administrative power. - We are quite conscious of the inherent power of the Chief Justice as the master of roster . By virtue of such power it is for the Chief Justice to decide which of the learned judges or the existing benches should decide any particular matter or a type of the matters. Such inherent power however does not authorize a Chief Justice to make a Reference in a judicial side by taking aid of his suo motu order in administrative capacity. So far the Reference by a learned Single Judge of the Court or a Bench of this Court is concerned Rule 5 of the Gujarat High Court Rules 1993 is the statutory provision exclusively dealing with the same and on the basis of such provision there is no scope of initiating a suo motu Reference by a Chief Justice in his administrative capacity - We therefore find that the preliminary objection raised by the learned counsel appearing on behalf of the Gujarat High Court Advocates Association has substance and on that ground alone we dispose of all these suo motu References as not maintainable. - Decided against Appellant.

Summary

Issues Involved:
1. Maintainability of suo motu References by the Chief Justice in administrative capacity.
2. Procedure for fixing early dates of hearing.
3. Conduct and responsibilities of designated Senior Advocates.
4. Compliance with judicial directions by the Registry.

Detailed Analysis:

1. Maintainability of suo motu References by the Chief Justice in administrative capacity:
The primary issue was whether the Chief Justice, acting administratively, could initiate suo motu References to a Larger Bench without a judicial order. The court examined Rules 5 and 6 of the Gujarat High Court Rules, 1993. Rule 5 allows a Single Judge or Division Bench to refer matters to a larger bench, while Rule 6 empowers the Chief Justice to direct that any matter be placed before a Division Bench or Special Bench. The court concluded that the Chief Justice, in administrative capacity, cannot make a Reference to a Larger Bench without a judicial order from a Single Judge or Division Bench. The right of Reference must be exercised judicially and not administratively. Consequently, the preliminary objection raised by the Gujarat High Court Advocates' Association was upheld, and all suo motu References were dismissed as not maintainable.

2. Procedure for fixing early dates of hearing:
In Civil Reference No. 1 of 2009 and Criminal Reference No. 1 of 2009, the issue was whether advocates could file notes for fixing early hearing dates or if a proper Civil Application was required. The court, in its earlier orders, mandated that advocates must file a proper Civil Application making out a special case for early hearing, and the Registry should not entertain mere notes. This procedure was affirmed by the Chief Justice, who issued a Circular to ensure compliance. The Full Bench was asked to resolve this procedural issue for future administration, but due to the dismissal of the References, the existing procedure requiring a Civil Application remained in effect.

3. Conduct and responsibilities of designated Senior Advocates:
In Civil Reference No. 2 of 2009 and Criminal Reference No. 2 of 2009, the court addressed the conduct of designated Senior Advocates. It was observed that Senior Advocates were making mentions for circulation or adjournments, which was against established rules and practices. The court directed that:
- No designated Senior Advocate should make mentions for circulation or adjournments.
- Requests for adjournments due to the unavailability of a designated Senior Advocate would not be entertained.
- Designated Senior Advocates should not argue cases without the assistance of their advocate on record.
- It was undesirable for designated Senior Advocates to appear through associates or firms from their own office.
These directions aimed to maintain decorum and proper conduct in court proceedings.

4. Compliance with judicial directions by the Registry:
The Registry faced challenges in complying with judicial directions regarding the filing of notes for early hearings and the conduct of Senior Advocates. The court had issued multiple directions to the Registry to ensure that proper procedures were followed, including the requirement for Civil Applications and the proper conduct of Senior Advocates. The Full Bench was to provide further guidance, but with the dismissal of the References, the existing judicial directions remained binding on the Registry.

Conclusion:
The court dismissed all suo motu References as not maintainable, emphasizing that the Chief Justice, in administrative capacity, cannot initiate References without a judicial order. The procedural requirements for fixing early hearing dates and the conduct of Senior Advocates were affirmed as per existing judicial directions. The Registry was instructed to continue complying with these directions to ensure proper administration of justice.