Skip to content


Balwantraik Shukla Vs. Dalwadi Dahya Chhagan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR44
AppellantBalwantraik Shukla
RespondentDalwadi Dahya Chhagan and ors.
Cases ReferredNurmahomed Gulam Rasul v. The Sural City Municipality
Excerpt:
- - he, further, held that the municipality failed to prove that the executive committee was satisfied that the running of the flour mill by the opponents caused nuisance to the neighbourhood. the executive committee on being satisfied about the existence of the nuisance or danger may by notice require the owner or occupier of the building or the place at once to discontinue the use or call upon either of them to use it in such a manner as the executive committee may in such notice prescribe. raval, to deal with the question whether what is complained by the municipality is likely to be a nuisance and whether as a matter of fact that particular use of the building or place within the municipal limits is a danger or is likely to become a danger to life, health or property of the.....a.d. desai, j.1. this is complainant's appeal directed against the judgment and order passed by the learned judicial magistrate, first class, limbdi, acquitting the opponents of having committed offences punishable under section 221(2) and 227 of the gujarat municipalities act, 1963. 2. briefly stated the facts are that the appellant is the chief officer of the limbdi municipality. opponent no. 2 is the son-in-law of opponent no. 1. the case of the appellant was that the opponents were running a flour mill in the house of opponent no. 1 situated in the locality known as ugamna para in the town of limbdi. on the southern side of this house is situated the house owned by ranchhoddas ramjibhai and between this house and the house of opponent no. 1, there is an old wall made mud. the flour.....
Judgment:

A.D. Desai, J.

1. This is complainant's appeal directed against the judgment and order passed by the learned Judicial Magistrate, First Class, Limbdi, acquitting the opponents of having committed offences punishable under Section 221(2) and 227 of the Gujarat Municipalities Act, 1963. 2. Briefly stated the facts are that the appellant is the Chief Officer of the Limbdi Municipality. Opponent No. 2 is the son-in-law of opponent No. 1. The case of the appellant was that the opponents were running a flour mill in the house of opponent No. 1 situated in the locality known as Ugamna Para in the town of Limbdi. On the southern side of this house is situated the house owned by Ranchhoddas Ramjibhai and between this house and the house of opponent No. 1, there is an old wall made mud. The flour mill was worked by means of a 5 Horse Power electric motor. Opponent No. 1 had obtained a permission to run the flour mill from the Limbdi Municipality. Ranchhoddas Ramji made applications to the Limbdi Municipality (hereinafter referred to as the Municipality) on November 2, 1965 and May 4, 1966, alleging that as a result of the vibration caused by the running of the flour mill there was likelihood of damage to the wall. It was also alleged that the noise was caused due to the running of the flour mill which endangered health of the persons residing in the house. Mr. M.B. Bhala, the Chief Officer in charge of the Municipality along with a surveyer visited the premises of opponent No. 1 on May 4, 1966. He drew up a Rojkam. The Executive Committee of the Municipality (hereinafter referred to as the Executive Committee) inspected the house of opponent No. 1. The Executive Committee thereafter passed a resolution on June 13, 1966 to the effect that the running of the flour mill by the opponents was likely to cause damage to the northern wall of the house of Ranchhoddas Ramji, was injurious to the health of the persons residing therein and decided to give notice to the opponents to stop the running of the flour mill. In pursuance of this resolution of the Executive Committee a notice dated June 23/24, 1966 was issued to the opponents to stop the running of the flour mill within 3 days of the receipt of the notice. This notice was not complied with by the opponents and a complaint was filed on August 16, 1967 by the Chief Officer of the Municipality in the Court of the Judicial Magistrate, First Class, Limbdi against the opponents for running the flour mill in the premises in respect of which the notice was given by the Executive Committee and also for committing breach of the directions given in the notice and thus having committed offences punishable under Sections 221(2) and 227 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the Act).

2. Opponent No. 1 in his statement under Section 342 of the Criminal Procedure Code stated that he had sold the flour mill to opponent No. 2 and he was not running the flour mill at the date of the notice. The defence of opponent No. 2 was that no doubt he was running the flour mill but the running of the flour mill did not cause any nuisance or damage to the property of Ranchhoddas Ramji.

3. The learned Magistrate held that the question of nuisance was a matter of subjective satisfaction of the Municipality and the same could not be challenged except on the ground of mala fide. He further held that evidence led in the case disclosed that no proper inquiry was made by the Executive Committee that the running of the flour mill by the opponents caused nuisance to the persons in the neighbourhood. The evidence on the record indicated that the inquiry made by the Executive Committee was to the effect that the running of the flour mill caused nuisance to Ranchhoddas Ramji alone. He, further, held that the Municipality failed to prove that the Executive Committee was satisfied that the running of the flour mill by the opponents caused nuisance to the neighbourhood. He, therefore, acquitted both the opponents. This appeal filed by the Municipality came for hearing before a Single Judge of this Court. Mr. Vyas appearing for the opponents challenged the constitutionality of the provisions of Section 221 of the Act and, therefore, the matter has been referred to this Bench.

4. Mr. Raval appearing for the appellant contended that under the provisions of Sub-rule (1) of Section 221 of the Act the Executive Committee had to satisfy itself that any building or place used or intended by any person to be used for the purposes mentioned in the section is or is likely to become by reason of such use and its situation a nuisance to the neighbourhood or dangerous to life, health or property. The Executive Committee on being satisfied about the existence of the nuisance or danger may by notice require the owner or occupier of the building or the place at once to discontinue the use or call upon either of them to use it in such a manner as the Executive Committee may in such notice prescribe. On receipt of the notice the owner or the occupier of the building or the place is bound to comply with the directions given in the notice. If the owner or the occupier disobeys or fails to comply with any lawful direction given in the notice the Municipality can pursue the remedies provided in Sub-section (2) of Section 221 or Section 227 of the Act. In the proceeding under Sub-section (2) of Section 221 of the Act, the opinion of the Executive Committee relating to the subjective satisfaction of the existence of nuisance or danger cannot be subject to a challenge except on the ground of mala fide. In such proceeding all that the Municipality has to establish is that a notice under Sub-section (2) of Section 221 of the Act is served on the person who is prosecuted and that he uses any building or place or permits it to be used in such a manner as to be a nuisance or likely to be a nuisance to the neighbourhood or dangerous to life, health or property. The Legislature has made the Executive Committee a sole Judge as to whether a building or a place is or is likely to become by reason of its use or of its situation a nuisance to the neighbourhood or is so used or so situated as likely to be dangerous to life, health and property. It is not for the Court, contended Mr. Raval, to deal with the question whether what is complained by the Municipality is likely to be a nuisance and whether as a matter of fact that particular use of the building or place within the Municipal limits is a danger or is likely to become a danger to life, health or property of the resident of the locality. To put the argument in short, the contention was that the existence of nuisance is purely a matter of subjective satisfaction of the Executive Committee, and it is not justiciable even at a stage of proceeding under Sub-section (2) of Section 221 of the Act. All that the Court has to decide in such proceeding is whether the person to whom notice is issued has complied with the directions given in the notice or not.

5. Mr. Vyas, appearing for the opponents, on other hand argued that in order to issue notice under Sub-section (1) of Section 221 of the Act, the existence of a nuisance in the terms of the sub-section may be within the subjective satisfaction of the Executive Committee but when the proceeding under Sub-section (2) of Section 221 of the Act is taken, different considerations arise. The scheme of Section 221 of the Act is to permit the Executive Committee, if it is satisfied that a nuisance or danger in terms of Sub-section (1) of Section 221 of the Act exists, to issue a notice requiring either the owner or occupier to discontinue at once the use of the premises or at once to desist from carrying out or allowing to be carried out the intention so to use, such building or place or to use it in such a manner or after such structural alterations as the Executive Committee in such notice prescribes so that it may not become or may be no longer, a nuisance or danger. This subjective satisfaction on the basis of which the notice is issued is not subject to challenge but different considerations arise when proceeding under Sub-section (2) of Section 221 of the Act is taken. In the said proceeding the Municipality has to establish that the notice under Sub-section (1) was given and that the owner or occupier after the receipt of the notice uses any building or place so as to be nuisance to the neighbourhood or that the owner or the occupier permits any building or place to be used in such a manner as to be dangerous to life, health or property. In the proceeding under Sub-section (2) it is open to the Court to investigate into the existence of the nuisance or danger.

6. The question thus raised is one of construction of Section 221 of the Act. The material part of Section 221(1) runs as under:

221(1): If it be shown to the satisfaction of the executive committee that any building or place used or intended by any person to be used:

(a)to (p)....

(b)(q) as a factory, workshop or place of business in which animals are employed or intended to be employed for doing work or in which steam, water or any mechanical power is used or intended to be used, (r) & (s)....

is likely to became by reason of such use and of its situation a nuisance 'to neighbourhood or is so used or is so situated as to be likely to be dangerous to life, health or property the executive committee may by written notice require the owner or occupier-

(i) at once to discontinue the use of or at once to desist from carrying out or allowing to be carried out the intention so to use, such building or, place, or

(ii) to use it in such manner or after such structural alterations as the executive committee in such notice prescribes so that it may not become or may be no longer, a nuisance or dangerous.

(2) Whoever after notice has been given under Sub-section (1), uses any building or place or permits it to be used in such a manner as to be a nuisance to the neighbourhood or dangerous to life, health, or property, shall be punished with fine which may extend to five hundred rupees, and with further fine which may extend to seventy-five rupees for every day on which such use or permission of use is continued after the date of the first conviction.

(3) Upon a conviction being obtained under this section, the Magistrate shall, on the application of the executive committee but not otherwise, order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in Sub-section (1).

7. Now to justify the notice issued under Sub-section (1) of Section 221 of the Act, there must be in existence to the satisfaction of the Executive Committee such a nuisance to the neighbourhood or a danger to life, health or property. The satisfaction is the subjective satisfaction of the Executive Committee and no authority can question the action of the Executive Committee in issuing the notice on the ground that the Executive Committee should not have been satisfied. On the notice being issued, it is open to the owner or the occupier of the premises on whom the notice is issued under Sub-section (1) of Section 221 of the Act to accept the assertion of the Executive Committee that the nuisance or danger in question exists and to comply with the directions given in the notice. In such cases there is no conflict between the Executive Committee and the person to whom the notice is issued. This authority or power is confirmed on the Executive Committee by the provisions of Sub-section (1) of Section 221 of the Act in order that a nuisance or danger which an occupier or owner does not object may be immediately remedied. The owner or the occupier to whom the notice is issued and who does not comply with the directions given in the notice is liable to be prosecuted under Sub-section (2) of Section 221 of the Act. The sub-section refers to 2 cases namely (1) where the owner or occupier after the receipt of the notice uses any building or place in such a manner as to be a nuisance to the neighbourhood or dangerous to life, health or property; and (2) were the owner or occupier permits any building or place to be used in such a manner as to be a nuisance to neighbourhood or dangerous to life, health and property. In both these cases when it is challenged in the proceeding under Sub-section (2) that the user or the intended use of any building or place for the purposes mentioned in Clauses (a) to (s) of Sub-section (1) of Section 221 of the Act does not amount to a nuisance or danger, it would be then for the Court to determine the actual existence of the nuisance or danger. The owner or occupier of the premises who does not comply with the directions given in the notice can challenge the existence of a nuisance or danger in the proceeding under Sub-section (2) but he does so at the risk of prosecution and conviction. If the intention of the Legislature in enacting Sub-section (2) was that the person to whom the notice is issued under Sub-section (1) cannot object to the subjective satisfaction arrived at by the Executive Committee or that the subjective satisfaction of the Executive Committee was final even at the stage of the proceeding under Sub-section (2), the sub-section would have been differently worded. In order to attract the provisions of Sub-section (2) of Section 221 of the Act it is necessary to establish that the notice is given under Sub-section (1) of Section 221 of the Act and that the owner or occupier uses any building or place or permits it to be used in such a manner as to be a nuisance to neighbourhood or dangerous to life, health or property. Sub-section (3) of Section 221 of the Act provides that upon a conviction obtained under Sub-section (2), the Magistrate shall on the application of the Executive Committee but not otherwise order such place to be closed and thereupon appoint persons or take other steps to prevent such place being used for any purpose mentioned in Sub-section (1). Hence the Executive Committee after obtaining a conviction under Sub-section (2) of Section 221 of the Act has to make an application to the Magistrate for the premises to be closed. The scheme under the provisions of Section 221 of the Act is, therefore, to leave to the subjective satisfaction of the Executive Committee as to the existence of the nuisance or danger upto the stage of notice to be issued under the provisions of Sub-section (1) of Section 221 of the Act. Sub-section (1) of Section 221 of the Act refers only upto the stage of notice and provides for a machinery by which the scheme under Section 221 of the Act can be set in motion. When the question of enforcement of the directions given in the notice arises recourse to the Court is necessary and all the ingredients of Sub-section (2) has to be established in order that the owner or the occupier can be convicted of disobeyance or failure to obey the directions given in the notice. It is important to note that Section 221 of the Act provides for regulations of certain trade and occupations. Under Sub-section (1) the Executive Committee is to be satisfied itself as to the existence of nuisance or danger. There is no obligation Oil the Executive Committee under the provisions of Sub-section (1) to hear the owner or the occupier of the premises before the Executive Committee satisfies itself about the existence of nuisance or danger. The said satisfaction, therefore, can be arrived ex parte i.e. without hearing the person to whom notice under Sub-section (1) of Section 221 of the Act is to be issued. The person on whom the notice under Sub-section (1) of Section 221 of the Act is issued has no further remedy by way of an appeal or a revision against the subjective satisfaction of the Executive Committee. It is, therefore, obvious that up to the stage of notice the subjective satisfaction is that of the Executive Committee and no other authority can question the action of the Executive Committee. When the proceeding under Sub-section (2) of Section 221 of the Act is taken, it is within the jurisdiction of the Court to determine that the premises are used in such manner as to be a nuisance to the neighbourhood or dangerous to life, health or property. Mr. Vyas at this stage made a statement that he does not press hisarguments challenging to the constitutionality of the provisions of Section 221 of the Act.

8. This being the correct interpretation of the provisions of Section 221 of the Act, we will now proceed to consider authorities cited at the bar. Mr. Raval relied on the decision in Nurmahomed Gulam Rasul v. The Sural City Municipality 22 B.L.R. 838. The decision interprets the provisions of Section 151 of the District Municipal Act which are in material respect similar to the provisions of Section 221(1) of the Act. The facts of the case were that Nurmahomed, who was the plaintiff in the case, owned a lime-kiln within the limits of the Surat Municipality. The Health Officer of the Municipality reported that the lime-kiln was likely to be a nuisance to the inhabitants of the locality. The Municipality, therefore, issued a notice to the plaintiff under the provisions of Section 151(1) of the Bombay District Municipal Act, calling upon the plaintiff to stop the working the kiln on the ground that it was likely to cause a nuisance. The plaintiff then filed a suit to obtain a declaration that the said notice was illegal, wanton, capricious and oppressive and for a permanent injunction restraining the Municipality from interfering with the plaintiff in carrying on his work in the kiln in question. The learned Judge while interpreting Section 151(1) observed that it was not for the Court to deal with the question whether what was complained of by the Municipality had been or was likely to be a nuisance and to consider whether as a matter of fact that particular use of the land was a nuisance or likely to become a nuisance to the neighbourhood. Sub-section (2) of Section 151 of the Bombay District Municipal Act is in the same terms as that of Sub-section (2) of Section 221 of the Act. The learned Judge was only concerned with the interpretation of Sub-section (1) of Section 151 of the Bombay District Municipal Act. No proceedings under Sub-section (2) of Section 151 of the Bombay District Municipal Act were taken in that case and the said subsection did not come for interpretation before the Court. Under the circumstances the said decision could not be of any assistance in the interpretation of Sub-section (2) of Section 221 of the Act. Reliance was placed on the decision of the Saurashtra High Court, in Criminal Revision No. 59 of 1951, dated April 8, 1952. The judgment was delivered by Division Bench consisting of the learned Chief Justice and Baxi J. The facts of the case were that Manilal Ranchhoddas owned a tobacco factory. A notice was served under the provisions of Sub-section (1) of Section 151 of the Bombay District Municipal Act to the effect that the tobacco factory owned by him was in midst of the town and running of it was harmful to the people residing in the neighbourhood. Manilal Ranchhoddas was called upon to do the needful within 4 days of the receipt of the notice. Manilal did not comply with the notice and, therefore, he was prosecuted under Sub-section (2) of Section 151 of the Bombay District Municipal Act. The learned First Class Magistrate convicted Manilal under Sub-section (2) of Section 151 of the Borfft my District Municipal Act. An appeal filed against the said conviction was dismissed and a revision application was preferred to the High Court. It was argued before the Court that Municipality had no jurisdiction to issue the notice and while considering this point the Court observed that the question whether the building used for the manufacture of tabacco was a nuisance to the neighbourhood or was likely to be dangerous to the life, health or property was a matter of subjective satisfaction of the Municipality and could not be challenged except on the ground of mala fide. It is obvious that these observations were made by the Court while considering the question whether the Municipality had jurisdiction to issue the notice or not. The learned Judges did not consider the provisions of Sub-section (2) of Section 151 of the Bombay District Municipal Act. This decision, therefore, cannot render any assistance in interpreting the provisions of Section 221 of the Act.

9. Mr. Vyas then raised a contention about the construction of Clause (a) of Sub-section (1) of Section 221 of the Act. The contention was that the power confirmed by Sub-section (1) of Section 221 of the Act on the Executive Committee is to satisfy itself that any building or place used or intended to be used by any person as a factory, workshop or place of business in which animals are employed or in tended to be employed for doing work or in which steam, water or any mechanical power is used or intended to be used is or is likely to become by reason of such use and of its situation a nuisance to neighbourhood or is so used or is so situated as to be likely to be dangerous to life, health or property. The factory or the workshop or the place of business which causes nuisance or likely to cause nuisance or danger to life, health or property must be one which is run by an animal or by steam, water or any mechanical power. In the instant case the flour mill was run by means of an electrical power. The electrical power is different than the mechanical power. A factory, workshop or place of business run with the help of electric power does not fall within the Clause (q) of Sub-section (1) of Section 221 of the Act contended Mr. Vyas, and, therefore, the Executive Commit tee had no authority to issue a notice under Clause (q) of Sub-section (1) of Section 221 of the Act. Now the words 'mechanical power' means power produced by ma chine. The expression 'factory or workshop or place of business in which any mechanical power is employed' would also include a flour mill run by means of an electric power. The provisions of the section have drawn a distinction between machinery worked by animal and the machinery worked by steam, water or any mechanical power. It is, therefore, obvious that the flour mill run by the opponents with the help of electric power would be included within the provisions of Clause (q) of Sub-section (1) of Section 221 of the.

10. Having thus considered the argument relating to the construction of Section 221 of the Act, we will now proceed to consider the merits of the present case. It is argued by Mr. Raval that there is evidence on the record to show that the running of flour mill constituted a nuisance or danger to life, health and property. In order to establish its case the Municipality relied on the evidence of Balvantrai Shukla who was the Chief Officer of the Municipality. He deposed that on the receipt of the report from Mr. Jhala, he had gone to see the premises wherein the opponents were running the flour mill. He noticed that the vibrations due to the running of the mill caused jerks like an earth-quake. The mud wall was likely to fall down. After the notice was served on both the opponents the flour mill was continued to be run. He deposed that there was a partition wall between engine of the flour mill and the mud wall. The engine of the flour mill had a foundation and it was an engine of 5 Horse Power. He admitted that he had not submitted any written report to the Executive Committee and that the wall in question was in existence when he gave his evidence in the Court. He stated that he had accompanied the Executive Committee and it did not make any record of what it saw. No member thereof was expert in machine. The inspection was taken for 20 minutes and from the house of Ranchhoddas. The witness had not stated that he found any damage to the mud wall. According to the witness there was a partition wall between the mud wall and the engine of the flour mill. He had not deposed that he found any damage to this wall or that the working of the flour mill caused any noise. According to the witness the mud wall existed even at the time when he gave his evidence. Under the circumstances the evidence of the witness is not sufficient to prove that the running of the flour mill was a nuisance or danger to life, health and property of the residents.

11. Ranchhoddas Ramjibha, Ex. 17, deposed that the running of the flour mill caused vibrations. He apprehended that the mud wall might collapse at any time. Due to the working of the flour mill vibrations were received and, therefore, he had complained to the Municipality. He stated that there was a partition wall between the mud wall and the engine of the flour mill. The partition wall was of lime or cement. He stated that he had not given any notice to the opponents about the damage to the mud wall. He stated that he had not talked to any person about the vibrations due to the working of the flour mill. The evidence of this witness is the evidence of an interested witness. According to the witness there is a partition wall between the mud wall and the engine of the flour mill which is constructed of lime or cement. This wall is nearer to the engine of the flour mill. No damage is noticed to this wall. It is not the say of the witness that the mud wall had received any damage after the notice was served on the opponents by the Executive Committee. He had not given any notice about the damage to the opponents. The evidence of the witness, therefore, is not sufficient to establish that the running of the flour mill caused the nuisance or was dangerous to life, health and property of the residents of the house. Thus the prosecution has failed to prove that the opponents were running the mill so as to cause nuisance or that the running of the mill was dangerous to life, health and property of the residents.

12. It was contended by Mr. Raval that the opponents were at least guilty under the provisions of Section 227 of the Act, in so far as they disobeyed or failed to comply with the lawful direction in the notice under Sub-section (1) of Section 221 of the Act. Now Section 227 of the Act runs as under:

227: Whoever disobeys or fails to comply with any lawful direction given by any written notice issued by or on behalf of a municipality under any power conferred by this Chapter, or fails to comply with the conditions subject to which any permission was given to him by or on behalf of a municipality under any power so conferred, shall, if the disobedience or failure is not an offence punishable under any other section, be punished with fine which may extend to one hundred rupees and with further fine which may extend to ten rupees for every day on which the said disobedience or failure continues after the date of the first conviction:

Provided that when the notice fixes a time within which a certain act is to be done, and no lime is specified in this Act, it shall rest with the Magistrate to determine whether the time so fixed was reasonable time within the meaning of this Act.

It was contended by Mr. Vyas that the provisions of the section are inapplicable to the facts of the present case. The argument of Mr. Vyas was two fold: The first contention was that the provisions of the section contemplate disobeyance or failure to comply with notice given by the Municipality. In the present case what is alleged is the breach of the directions given in the notice issued by the Executive Committee and the Executive Committee is not the same authority as the Municipality. The second contention was that the section itself provides that it would not be applicable if the disobedience of or failure to comply with the directions given in the notice is an offence punishable under any other section. In the instant case the breach of the directions given in the notice is made punishable under Sub-section (2) of Section 221 of the Act and, therefore, Section 227 of the Act is inapplicable.

13. The provisions of Section 227 of the Act refers to disobeyance or failure to comply with any lawful directions given in the notice issued by or on behalf of a municipality. The word 'on behalf of a Municipality' are of importance because it was contended that the Executive Committee discharges its statutory function under Section 221 of the Act on behalf of Municipality. Now Sub-section (1) of Section 44 of the Act provides that except a-, otherwise provided in the Act, the municipal government of a municipal borough vests in the Municipality. Sub-section (1) of Section 53 of the Act refers to the constitution of the Executive Committee. The members of the Executive Committee must be the councilors of the Municipality. Sub-section (2) of the said section provides that the Executive Committee shall exercise the functions allotted to it under the Act and subject to any limitation prescribed by the municipality especially in this behalf or generally by rules made under Clause (a) of Section 271 and to the provisions of Sections 49, 54 and 55 shall exercise all the powers of the municipality. The Executive Committee when it exercise powers under Section 221(1) is discharging the municipal functions and acts on behalf of the Municipality. The act of Executive Committee in issuing the notice under Section 221 is an action taken on behalf of the Municipality and any breach of direction given in the notice would be covered by provisions of Section 227 of the Act. The important question is whether the breach of the direction given in the notice is made punishable under any other section of the Act. Now Sub-section (2) of Section 221 of the Act would also cover the breach of the direction given in the notice under Section 221 of the Act and makes the same punishable. Section 221(2) of the Act is a special provision providing for punishment and, therefore, the general provisions of Section 227 of the Act are not applicable to such a case. Therefore, the argument of Mr. Raval that the opponents are guilty under the provisions of Section 227 of the Act cannot be accepted.

14. Our attention was drawn to the order of reference passed by the learned judge of this Court referring the matter to a Division Bench. The material part of the order runs as under:

There is no doubt that the matter is of public importance. No doubt the Appellate Side Rules provide that in cases of petitions under Article 226 wherein the vires of a statute are challenged are not triable by a Single Judge. However as this matter is of considerable importance it is desirable that the matter may be considered by a Division Bench and the papers may be placed before the Honourable the Chief Justice for consideration and necessary orders. In the event of the matter being placed before a Division Bench the notice to Advocate General may be necessary.

Now Sub-rule (1) of Rule 5 of the Bombay High Court Appellate Side Rules, 1960 is as follows:

5(1): A single Judge may refer any matter before him or any question arising in such matter to a Division Bench of two Judges.

Under the provisions of the said rule, a Single Judge of the Court is empowered to refer the matter or question arising in such matter to a Division Bench provided he is satisfied that the matter or any question raised in the matter is such that it requires to be decided by a Division Bench of two Judges. What the rule requires is that a Single Judge himself must come to a conclusion that the matter or any question raised in the matter is such that it requires to be decided by a Division Bench. The question as to whether the matter or any question arising in the matter is such that it requires to be referred to a Division Bench or not has to be decided by the Judge himself and the same cannot be left to the decision of any other authority. A Single Judge himself should come to the conclusion that the matter is such or raises such questions that a decision by a Division Bench is necessary. On a Single Judge deciding that the matter or any question raised in the matter is such that it requires to be decided by a Division Bench, the matter has to be placed before a Division Bench. In such a case, after the order of reference is passed by a Single Judge, the papers of the matter are placed before the learned Chief Justice only for an administrative order for determining a Division Bench before which the matter is to be placed for final disposal. In the present case the observations in the judgment of the learned Judge viz. 'the papers may be placed before the Honourable the Chief Justice for consideration and necessary orders. In the event of the matter being placed before a Division Bench the notice to Advocate General may be necessary,' indicate that the learned Judge did not come to his own conclusion but left the matter for consideration of the learned Chief Justice. The learned Judge was of a prima facie opinion that the instant case required to be decided by a Division Bench but he did not decide the matter in that manner but left it for the determination of the learned Chief Justice. Such an order of reference is not in accordance with law.

15. It is however necessary to refer to the provisions of Rule 6 of the Bombay High Court Appellate Side Rules, 1960 which provides that notwithstanding anything contained in these rules, the Chief Justice may by a special or general order direct that any matter or class of matters be placed before a Division Bench of two or more Judges. The provisions of Rule 6 empower the Chief Justice to refer a matter to a Division Bench. In the instant case there is an order passed by the learned Chief Justice referring this case to this Court for final hearing and disposal, and therefore, even though the order of reference passed by the learned Judge is not in accordance with law, it does not affect our jurisdiction lo hear and decide this case.

The result is that the criminal appeal is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //