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Firm Ladhuram Rameshwardayal Vs. Krishi Upaj Mandi Samiti, Shivpuri and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 319 of 1975
Judge
Reported inAIR1978MP10; 1977MPLJ641
ActsMadhya Pradesh High Court (Civil) Rules - Rule 11
AppellantFirm Ladhuram Rameshwardayal
RespondentKrishi Upaj Mandi Samiti, Shivpuri and ors.
Appellant AdvocateA.R. Naokar, Adv.
Respondent AdvocateB.D. Gupta, H.G., ;A.B. Mishra, Adv. and ;Swamisaran, G.A.
Cases ReferredSee Hethubha v. State of Gujarat
Excerpt:
- - --(1) when on account of difference of opinion between two judges constituting a division bench, a matter is referred to, under rule 11 of chapter i of the high court rules, a third judge nominated by the chief justice under clause 26 of the letters patent who, after formulating the point or points of difference between the judges of the division bench, gives his decision, then can any other division bench of which one or both the judges were not members of the division bench which originally heard the case, give its decision in accordance with the majority of the opinion of the judges of the referring bench as well as of the referee bench? he has clearly held that the electoral roll was invalid and in his opinion, fresh electoral roll has to be prepared and consequently the..........rule 11 of chapter i of the high court rules reads thus:--'11. when in any appeal or civil matter heard by a bench of two judges, the judges composing the bench differ on a point of law and state the point on which they differ, the proceeding shall be placed before the chief justice for the purpose of nominating one or more of the other judges to deal with the matter.' it was under this rule that, when raina, j. and bhachawat, j. differed, the proceedings were placed before the chief justice who nominated lodha, j. to deal with the matter. the expression 'civil matter' is comprehensive enough to include a writ petition under article 226 of the constitution. the object of this rule is the appointment of a third judge, in case the judges of the division bench are equally divided in.....
Judgment:

Shiv Dayal, C.J.

1. Two questions have been referred to us by a Division Bench. It will be useful to state the circumstances leading to this reference:--

(i) Firm Ladhuram Rameshwardayal, by this petition under Article 226 of the Constitution, sought a writ of mandamus and/or certiorari, inter alia, to quash the electoral roll and also to quash the election programme in connection with an election to the Agriculture Market Committee of Krishi Upaj Mandi Samiti, Shivpuri.

(ii) The petition was heard by a Division Bench of Raina, J. and Bhacha-wat, J. They differed. In the opinion of Raina, J. the petition was to be dismissed. In the opinion of Bhachawat, J. the petition was to be allowed inasmuch as the voters list and the whole programme of the election were invalid and consequently the election which had taken place was also to be quashed.

(iii) Accordingly, they directed the case to be placed before the Chief Justice for nominating a Bench under Rule 11 of Chapter I of the High Court Rules.

(iv) The Chief Justice nominated Lodha, J. as the third Judge.

(v) Lodha, J., in his order, directed as follows:--

'In view of my foregoing conclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs.

In other words, he agreed with Bhachawat J.

(vi) The Registry then placed the matter before the Chief justice who constituted a Division Bench of Vyas, J, andBhachawat, J. (because, in the meantime, Raina, J. had taken over as Chairman of the Industrial Court, Indore, and was not available to sit in the High Court).

(vii) When the opinion of Lodha, J. was placed before the Division Bench of Vyas, J. and Bhachawat, J., a question cropped up whether that Bench, constituted as it was, and which had not heard the matter on merits at any stage, could decide the case in accordance with the opinion of the majority. They agreed with each other that this question be decided by a larger Bench. However, Bhachawat, J. was of the opinion that one more question should be referred to the larger Bench along with the abovesaid question, on which they both agreed. Thus, again, a difference of opinion arose between Vyas, J. and Bhachawat, J. as to the questions to be referred to the larger Bench.

(viii) This difference was resolved by a third Judge (Chief Justice), who said that as it was a matter of procedure and of general importance, the other question may also be referred to a larger Bench which is to be constituted for the first question.

2. It is thus that the matter has come before us and the two questions which we have to answer are these:--

' (1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench?

(2) When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench, can the matter be said to be pending and can the Chief Justice suo motu order for its being listed be-fore the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent?

3. It appears that for two peculiarities, the Division Bench (Vyas, J. and Bhachawat, J.) thought that these questions should be decided by a larger Bench, (i) Vyas, J. did not hear this case earlier. It was Raina, J. who heard it with Bhachawat, J. (ii) the operative part of Lodha, J.'s opinion is couched in a language expressive of the final decision of the writ petition.

4. Rule 11 of Chapter I of the High Court Rules reads thus:--

'11. When in any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of Law and state the point on which they differ, the proceeding shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter.' It was under this rule that, when Raina, J. and Bhachawat, J. differed, the proceedings were placed before the Chief Justice who nominated Lodha, J. to deal with the matter. The expression 'civil matter' is comprehensive enough to include a writ petition under Article 226 of the Constitution. The object of this rule is the appointment of a third Judge, in case the Judges of the Division Bench are equally divided in opinion as to the decision to be given on any point. The object and purpose of the rule is that the third Judge should be appointed by the Chief Justice. This rule does not lay down the jurisdiction of the third Judge.

5. The jurisdiction of the third Judge is to be found in Clause 26 of the Letters Patent, which reads thus:--

'26. Single Judges and Division Courts.-- And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Nagpur in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court, thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the judges, if there be a majority, but if the Judges be equally divided theyshall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.' The contemplation of this clause is that whenever Judges are equally divided in opinion as to the 'decision' to be given on 'any point', an opinion is to be obtained on such point by one or more of the other Judges. By this method the opinion of a third Judge or a Bench of Judges is obtained. Then there are three opinions on the 'point'.

6. The next stage is that the point has to be 'decided'. The mandate in Clause 26 is that the point shall be 'decided' according to the 'opinion' of the majority of the Judges who have heard the case, including those who first heard it. The three opinions have to be placed side by side and it has to be seen what the opinion of the majority of Judges is, that is to say, out of the three opinions, which is the majority opinion and which is the minority opinion. The point must be decided according to the majority opinion.

7. The question is who shall decide what the majority opinion is? Clause 26 does not specify which Judge or Bench would decide the point. It merely leaves the matter with the mandate that the point shall be decided according to the opinion of the majority of the Judges who heard the case including those who first heard it.'

8. It is undoubted position that the point has to be decided at this stage (i.e. after the third Judge has recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word 'decided' ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only:

(i) to find out from the three opinions what the majority opinion is and to 'decide' the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall toe bound to give to the parties.

9. It is at once noteworthy that the two Judges of the Division Bench which first heard the case, recorded their 'opinions'. They did not decide the point at the stage of their difference; obviously they could not, because of the difference. When the matter goes to the third Judge, he also records his 'opinion' on that 'point'. Clause 26 of the Letters Patent confers only this limited jurisdiction on the third Judge. He does not 'decide' the point. This is obviously so because in a matter which is to be heard by a Division Bench of two Judges, every point has to be 'decided' by two Judges only. It cannot be decided by a single Judge, be he the third Judge. That is why what the third Judge does (who is so constituted because of the difference of opinion of two Judges) is that he records his 'opinion' on the point on which the Judges of the Division Bench are divided in opinion. After the receipt of the opinion of the third Judge, it is the Division Bench which 'decides' the point, although it cannot decide the point by applying its mind de novo on the merits but is bound to decide the point according to the majority opinion of the judges. Thus although the jurisdiction is limited, yet, the jurisdiction to decide the point rests with the Division Bench itself,

10. Clause 26 of the Letters Patent studiously employs the words 'decide' and 'opinion'.

11. The third Judge has no jurisdiction to decide any other point. His jurisdiction is limited to the point on which the Judges of the Division Bench are divided in opinion. It is that point alone which is referred to the third Judge for decision. In Clause 26 of the Letters Patent the word 'point' is used everywhere. It is true that in Rule 11 of Chapter I of the High Court Rules the expression employed is 'to deal with the matter' but it is plain enough that the word 'matter' here means the point and not the whole case. The referee Judge has no jurisdiction to enter into any question or point on which the Judges who first heard the case did not differ, and the referee Judge has no jurisdiction to decide the whole case. It must, therefore, be said that even if the referring Division Bench directs that the 'case be referred to a third Judge', the jurisdiction of the third Judge cannot be enlarged by the Division Bench. Clause 26 of the Letters Patent itself confines it to the'point' on which there has been difference of opinion between the two Judges. It follows that if the referee Judge decides any point on which the' Judges of the Division Bench did not differ, or if referee Judge decides the whole case, that part of his opinion, or order or judgment (howsoever the opinion may be styled) must be read as opinion on the point or points on which the Judges of the Division Bench were divided in opinion. The rest is to be ignored, for want of jurisdiction, by application of the principle of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. See Amalgamated Coalfields Ltd. v. State of M. P., AIR 1967 MP 56 ; 1966 Jab LJ 884 (Para 58 at p. 917) : 1966 MP LJ 842 where it is observed as follows (at p. 74 of AIR) :--

'The very language of Clause 26 makes it undoubted that the Judge to whom the matter is referred in consequence of the difference of opinion between the Judges constituting the Division Bench, shall not hear the case upon any other point, because his opinion on such other points will not itself be the decision of the Court, his opinion on the point or points on which the Judges constituting the Division Court have differed will be the decision of the Court. The reason is that every point has to be decided according to the opinion of the majority of the Judges who first heard the case and the Judge who has heard the case in consequence of the difference of opinion. This is not possible unless and until the Judges constituting the Division Bench have heard upon other points. The duty of the referee Judge is only to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench. It is the Division Bench seized of the case, which must pronounce the final judgment according to the method provided by Clause 26 of the Letters Patent. If the referee Judge passes the final order, it would cause difficulty and anomaly with regard to the question of forum in case of a further appeal. If the referee is a single Judge and he decides the appeal or other matter finally, will a further appeal lie? If it will, the position will be anomalous. Useful assistance can be derived from the analogous provisions contained in Section 98, Civil Procedure Code. My view finds support in Royal Calcutta Turf Club v. Kishan Chand, AIR 1943 Lah 84 (89, Col. 1); also observations of Blacker, J. on the same page, col. 2 (FB)); Mst. Akbari v. Rahmat Hussain,AIR 1933 All 861 and State of Bihar v. Ram Ballabh Das, AIR 1960 Pat 400. For these reasons, I am of the opinion that 'matter' in Rule 11 of the High Court Rules, means the point or points on which the Judges constituting the Division Bench have differed and not the whole case. It seems to me that under Rule 11 of the High Court Rules, read with Clause 26 of the Letters Patent, a Division Bench cannot refer the entire case, to a third Judge without expressing its opinion on all the points and that the Judge to whom the case is referred cannot enter into those points on which the Judges constituting the Division Bench have not differed. Rule 11 itself requires that the Judges composing the Division Bench have to state the point on which they differ and it is an this light that I read the order of the Division Bench in the present case.'

12. The view that we are taking was also the view expressed by a Full Bench of the Lahore High Court in Royal Calcutta Turf Club v. Kishan Chand, (AIR 1943 Lah 84 at p. 89) :--

'It appears to me doubtful whether even the referee Judge has jurisdiction to decide the point of difference. The clause says that the appeal shall be heard upon that point by the referee Bench and the point shall be decided according to the opinion. It does not specifically lay down that the point shall be decided by the referee Judge, as the Legislature could very easily have stated, if it had been the intention to transfer jurisdiction for deciding the point, from the Division Bench seized of the case, to the referee Judge. It appears to me, there-tore, that the jurisdiction for the decision not only of the appeal as a whole but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by Clause 26. If in the interval a change has occurred in the constitution of the Division Bench in question, it would be necessary for the Hon'ble the Chief Justice to constitute another Division Bench as the successor of the referring Bench.'

13. It was an argument before us that Justice Lodha's order in deciding the whole case is ultra vires so that it must be sent back to him for recording fresh opinion. We cannot accede to this contention. Lodha, J. has expressed his opinion on the point on which Raina, J, and Bhachawat, J. differed. He has clearly held that the electoral roll was invalid and in his opinion, fresh electoral roll has to be prepared and consequently the election is to be quashed. That being so, his opinion is undoubtedly within his jurisdiction under Clause 26 of the Letters Patent if he has said something beyond it and has as if decided the case, that part, being clearly separable, cannot be given effect to, being without jurisdiction.

14. Section 98 of the Code of Civil Procedure also employs the following expression:--

'...... shall then be heard upon thatpoint only by one or more of the Judges, and such point shall be decided according to the majority (if any) of the Judges who have heard the appeal, including those who first heard it.'

The Letters Patent overrides Section 98 of the Code of Civil Procedure, under which even when there is a difference of opinion on a question of fact, it can be referred to a third Judge.

15. The corresponding provisions contained in Section 429 of the Code of Criminal Procedure, 1,898, and Section 392 of the Code of Criminal Procedure, 1973, are differently worded. Under Section 392 of the present Code, where Judges of a Division Bench are divided in opinion, 'the appeal with their opinion shall be laid before another Judge of that Court, and that Judge, after hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow the opinion......' This was also the wording ofSection 429 of the Code of Criminal Procedure, 1898. Under that section, the whole case, not merely the point or points on which the Judges differed, is referred to a third Judge, whose duty it is to consider all the points involved before he gives his opinion. His jurisdiction is not limited to the point or points on which the Judges constituting the Division Bench differed. The third Judge is empowered to deal with the entire case. The judgment and order in the case follows the opinion of the third Judge. This is because of the clear language of Section 392 of the Code of Criminal Procedure, which adopts the language of Section 429 Cr. P. C., 1898 See Hethubha v. State of Gujarat, AIR 1970 SC 1266 which was followed in Union of India v. 6. N. Ananthapadmanabhaiah, AIR 1971 SC 1836.

16. To the present case, the provisions of the Code of Criminal Procedure have no application. Therefore, the dictum of the two cases last mentioned is not apposite. The present case is governed by Rule 11 of Chap. I of the High Court Rules and Clause 26 of the Letters Patent.

17. Suppose in a civil appeal between A as the appellant, and B and C as respondents, each one of the three parties claims title to the land and the two Judges of the Division Bench of the High Court differ in their opinion, one of them holding that A is the owner, while the other holding that B is the owner. In such a case, if the third Judge is of the opinion that neither A nor B is the owner, but C is the owner, it will have to be said that the opinion of the third is without jurisdiction. He has to confine his opinion to the difference of opinion whether A is the owner or B.

18. We would now advert to the question whether after the opinion of the third Judge is recorded, it is necessary that the case must be placed before the same Bench which first heard it. There is no such restriction either in Rule 11, Chapter I of the High Court Rules, or in Clause 26 of the Letters Patent. But as a matter of propriety it should be laid before the same Bench which first heard it. However, if that Bench is not available or if it is not convenient for that Bench to sit, for instance in our High Court, where Judges who sat in a Division Bench at one of the seats of the High Court may be sitting at another seat when the matter is returned by the third Judge, it is not necessary that the matter should go before the same Bench for deciding the point according to the opinion of the majority.

19. As already said, after the opinion of the third judge is returned, it is more or less a matter of formality to pronounce the decision of the Court which has got to be according to the opinion of the majority, consisting of the third Judge and the Judges of the Division Bench which first heard it.

20. In the result, we answer the two questions referred to us as follows:--

(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge nominated by the Chief Justice under Rule 11 of Chapter I of the High Court Rules, and the third Judge, after formulating the point or points of difference of the Judges of the Division Bench, returns his opinion under Clause 26 of the Letters Patent, any other Division Bench of which one or both of the Judges were not members of the Division Bench which originally heard the case, can render the decision in accordance with the majority of the opinion of the Judges of the referring Bench and the referee Bench.

(2) When on a difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge, the third Judge can, only express his 'opinion.' on the 'point' on which the Judges are divided in opinion. However, the third Judge cannot 'decide' that point. (He has to leave to the Division Bench to 'decide' the point as directed under Clause 26 of the Letters Patent). Nor can he enter into any other point on which the Judges of the Division Bench were not divided in opinion. If the third Judge expresses his opinion on any other point or finally decides the case as a whole, the latter part of his opinion (be it styled as 'order' or 'judgment') has to be ignored as without jurisdiction. After the third Judge has recorded his opinion; the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Clause 26 of the Letters Patent.


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