Order Passed By Judge On A Subject Matter Beyond His Assigned Roster Is Illegal: Orissa High Court

The Orissa High Court has recently held that an order passed by a Judge [of High Court] on a subject matter, which is not included in the roster/determination set by the Chief Justice, is per se illegal as usurpation of power without the authority of the Master of the Roster, i.e. the Chief Justice, is impermissible.Clarifying the effect of such judicial overstepping, the Division Bench of Chief Justice Harish Tandan and Justice Murahari Sri Raman held–“It is well settled that the Chief Justice is the master of the Roster. It segregates the category of cases to be dealt by each of the Hon'ble Judges of the High Court which ipso facto leads to an inescapable inference that category of cases which are not assigned to a particular Judge, cannot be taken up by the said Judge. Once the power under jurisdiction exercised by each of the Judges is assigned by the Chief Justice, usurpation of power de hors such category of cases would relate to an exercise of the jurisdiction without any authority, and, therefore, any order is passed by a Bench having not assigned the Roster/determination is per se illegal.”The case emanates from an order passed by the Senior Civil Judge (Commercial Court), Bhubaneswar in an execution proceeding. After obtaining a favourable arbitral award, the appellant had approached aforesaid Court seeking execution thereof since the dispute fell within the ambit of “commercial dispute” under Section 2(c) of the Commercial Courts Act, 2015.The judgment-debtor/respondent allegedly displayed a lackadaisical attitude in order to delay the execution of the award. It purportedly took repeated adjournments to keep the usufructs of the award away from the appellant. Though the Commercial Court had issued show cause notice for such apathetic behaviour, it still sought adjournment for which the Court was constrained to order detention of the respondent in civil prison. Against such order, respondent filed an application under Articles 226 and 227 of the Constitution. The matter was accordingly listed before a Single Judge having the roster arrangement to deal with 'writ petitions'. The Judge quashed the impugned order and asked the respondent to deposit the entire award amount before the Executing Court, along with a direction to dispose of the impending litigation within three months. Against the order of Single Judge, the appellant preferred the instant writ appeal.The interesting question which arose for consideration was whether a writ petition under Article 226 is maintainable against judicial order passed by a Commercial Court, which is essentially a Civil Court.To answer the aforesaid question, the Court resorted to refer the conclusion reached at by a three-Judge Bench of the Supreme Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors. (2015) wherein it categorically held that judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution, which in effect overruled the ratio of a two-Judge Bench judgment in Surya Dev Rai v. Ram Chander Rai (2003).“Be that as it may, the judgment rendered in Radhey Shyam (supra) has created an embargo in entertaining an application under Article 226 of the Constitution of India, more particularly, the writ of certiorari against the judicial order passed by the Court in a civil proceeding, and, therefore, the writ in the nature of certiorari is not an appropriate remedy for an aggrieved person,” the Court opined.However, the Court was particular in holding that no embargo has been put by Radhe Shyam (supra) or any other precedent of the Apex Court restraining High Court from exercising its supervisory jurisdiction under Article 227, even against a judicial order passed in a civil proceeding. The Court accordingly ruled–“In view of the discussions made hereinabove, we hasten to say that the writ of certiorari under Article 226 of the Constitution is not maintainable against the judicial order passed in a civil proceeding, but equally the proceeding is maintainable under Article 227 of the Constitution of India.”In the present case, though the application was captioned to be filed under Articles 226 and 227 of the Constitution, the categorization of the case appeared to have been done treating the application to be one under Article 226 and most importantly, the Single Judge who passed the impugned order was rostered to deal with applications under Article 226.“There is no incongruity on our part in proceeding on such basis that an application under Article 226 of the Constitution is entertained by the Single Bench against an order passed in execution of decree by the Commercial Court and being the judicial order, the writ of certiorari is not an appropriate remedy as the same is not maintainable in view of the law laid down in Radhey Shyam (supra),” the Court held.Authoring the judgment for the Division Bench, the Chief Justice made it clear that a High Court Judge cannot deal with a subject matter traversing beyond his...

Order Passed By Judge On A Subject Matter Beyond His Assigned Roster Is Illegal: Orissa High Court

Jyoti Prakash Dutta

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