9 Dec 2021 2:50 PM GMT
No litigant can decide which judge should be assigned to hear his matter as that is the absolute and unfettered power that vests with the Chief Justice, the Bombay High Court has held. The court further held that the Chief Justice can deviate from the roster and assign a matter to a particular bench, however, the decision to do so is not subject to judicial review. "Every...
No litigant can decide which judge should be assigned to hear his matter as that is the absolute and unfettered power that vests with the Chief Justice, the Bombay High Court has held.
The court further held that the Chief Justice can deviate from the roster and assign a matter to a particular bench, however, the decision to do so is not subject to judicial review.
"Every institution has to have confidence and trust in he or she who is the leader of that institution and his or her administrative capacities and decisions. We must trust our Chief Justices; and we do. That is all there is to it."
"…. every decision and authority has held that the right of a litigant is to obtain a listing. No litigant has a right to insist on a listing before a particular Bench. To which Bench that matter should be assigned is an absolute, unfettered and untrammelled power that vests, and vests only, in the undergoing Chief Justice"
A division bench of Justices GS Patel and Madhav Jamdar adjudicated on questions raised about the powers of the Chief Justice of a High Court, as the Master of the roster, whether she/he would be constrained by the assignment list or not in a writ petition under Article 226.
The court said that if the Chief Justice's authority in administrative matters of setting a roster is to be constantly called into question or sought to be restricted or trammelled because it suits a particular litigant to do so at a particular time, the entire administrative edifice would simply collapse.
"We are absolutely clear that no Bench can on its own take up matters outside its roster without a specific assignment by the Chief Justice. To do so would be to act without jurisdiction. But this does not mean that the Chief Justice himself is constrained by the roster or by any directions in that roster.
To put it plainly, even if the parties do not consent and even if the Bench itself does not particularly indicate its willingness, it is open to the Chief Justice to assign a matter to a particular Bench in exercise of the discretion with which he and he alone is vested. That discretion cannot be called into question in any proceeding or manner," the court observed.
The bench held that the Chief Justice can also 'treat a matter as part-heard' without the consent of the parties and willingness of the judge, the court ruled.
Facts of the Case
The writ petition under Article 226 was filed in Vasudev Darra & Ors vs Registrar General, Aakar Infra Projects Private Ltd and Others.
In 2019, a chamber summons and notice of motion filed by Aakar Infra Projects Private Ltd was heard and reserved for orders. However, considering the lockdown, even though the judgement was ready by March 2020, it could not be pronounced.
Before the order could be pronounced, one of the respondents (petitioner in the present writ) changed her lawyer. The new lawyer challenged the maintainability of the petition and sought for it to be heard before any order is passed.
Subsequently, in January 2021, the party said that the Division bench which was to pronounce the order must not hear the matter at all since, as per the current assignment the case should be heard by the Chief Justice's bench.
On January 18, 2021 the Chief Justice said that the matter should be heard by the same Division Bench. This administrative direction of the Chief Justice was not challenged.
However, in February, the same party moved the present writ petition before Justice Patel's bench and sought for the matter to be assigned for directions to the 'regular Bench,' which would mean the bench as per assignment. Ie. The Chief Justice's bench.
The writ petition was rejected with the below observations.
The court agreed with the argument of the respondents that even if the Chief Justice acted imprudently or even improperly regarding the withdrawal of a one particular matter, that in itself would not invalidate the power that inheres in the Chief Justice.
"The fact that a law is being abused is not a reason to invalidate the law itself. The same principle will apply here. Even if, in a given case, a Chief Justice wrongly or improperly exercises the discretionary power vested in him as Master of the Roster, this is no reason to deny the validity of that power or that it does vest in the Chief Justice. The remedy for that lies elsewhere, not in seeking a judicial review."
Advocate Vijay Kurle and Samkit Shah, for the petitioners
Advocate SR Nargolkar., Anuj Desai, i/b DM Legal Associates, for the respondents
Click Here To Read/Download Judgment