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TMI Blog2015 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained or the advocate should be asked to file a separate application for fixing early date of hearing. Therefore, the matter was placed before the then Chief Justice. The learned Chief Justice passed an order to refer this matter before the Full Bench to resolve the issue and give appropriate directions and guidance in the matter for the future administration of justice in the High Court of Gujarat. Hence this Reference. Civil Reference No. 2 of 2009: Upon Special Civil Application No. 9201 of 2005 being listed before the Division Bench (Coram: B.J. Shethna and M.C. Patel, JJ), on 27th March 2006, the learned Court was pleased to observe as follows :- 1. In this matter, learned Senior Advocate Mr Y.N. Oza, appearing with Mr R.S. Sanjanwala for Respondent Nos. 9 and 10 tried to make a mention for adjourning this case. It is noticed by this Court that designated Senior Advocates are at times mentioning the matters either for circulation, or for adjournments, or for any other purposes, which is against rules and very basis of being designated Senior Advocates. It is also noticed that mentioning is being made that designated Senior Advocate is appearing in the matter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la to adjourn the matter. Put up on 24-4-2006. 6. Copy of this order be circulated to all the courts by the Registrar General forthwith. Consequently, in compliance with the above order, the Registry circulated a copy of the above order to all the Courts. Criminal Misc. Application No. 14828 to 14830 of 2005 with Criminal Misc. Application No. 14833 of 2005 were subsequently placed before a learned single judge of this Court (Coram : B.J. Shethna, J) and the learned Court was pleased to pass the following directions to the Registry in the paragraph 20 of the order dated 7th April 2006. 20. In view of the above, while allowing all the four applications and quashing and setting aside all these four complaints filed by the complaints before the Trial Court and the order of process issued by the Trial Court qua the applicant-accused No. 3, following directions are issued: (i) That, henceforth no advocate will make his/her appearance directly or indirectly before the Judge who is not taking up his/her matters, and (ii) No advocate, whose matters are not taken up by the particular Judge, will either directly or indirectly file his appearance and challenge or defend th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it. Henceforth, the Office shall not entertain any such note and insist for civil application for fixing early date of hearing. Therefore, consequent to the placement of the order passed by learned Court (Coram: B.J. Shethna and M.C. Patel, JJ) before the learned Chief Justice, a Circular in this behalf was issued to all the Judicial Departments not to entertain any such note for fixing early date of hearing and to insist on filing Civil Application for fixing early date of hearing. Thereafter, the matter was placed before the Chief Justice. The learned Chief Justice passed an order to refer this matter before the Full Bench to resolve the issue and give the directions and guidance in the matter for the future administration of justice in the High Court of Gujarat. Hence this Reference. Criminal Reference 2 of 2009. Upon Criminal Misc. Application No. 14828 to 14830 of 2005 with Criminal Misc. Application No. 14833 of 2005 being listed before a learned Single Judge (Coram: B.J. Shethna, J.) on 7th April 2006, the Court was pleased to observe as follows : 1. Rule. Shri R.C. Kodekar, learned APP waives service of notice of rule for the respondent No. 1 - State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch type of cases, the designated Senior Advocate should rescue [sic] himself or herself from appearing in such matters. (iv) Henceforth, no designated Senior Advocate will be permitted to argue the case without the assistance of his advocate on record or his colleague sitting by his side. (v) It is also not desirable, that designated Senior Advocate appears either through associates or firm of his or her own office. 4. This order was passed in presence of designated Senior Advocates like, Mr Sudhir I. Nanavati, Mr S.H. Sanjanwala and Mr Oza, who is also President of the Bar. We were also ably assisted by Mr. Girish Bhatt. We highly appreciate his assistance. 5. In view of the aforesaid order passed by this Court instead of designated Senior Advocate, Mr. Y.N. Oza, now request was made by Mr R.S. Sanjanwala to adjourn the matter. Put up on 24-4-2006. 6. Copy of this order be circulated to all the courts by Registrar General forthwith. (B.J. Shethna, J.) (M.C. Patel, J.) 19. It has also come to the notice of this Court than an advocate whose matters are not placed before a particular Judge, challenging orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shethna and M.C. Patel, JJ), on 4th April 2005, the learned Court was pleased to observe as follows :- There is a sick note of Mr Japi for the respondent. No note for fixing early date of hearing can be entertained. Learned advocate has to file proper Civil Application for fixing early date of hearing by making out Special case in it. Hence, no order on this note. Before parting, we must state that proper course for fixing early date of hearing is to file proper civil application making out a special case in it. Henceforth, the Office shall not entertain any such note and insist for civil application for fixing early date of hearing. Subsequently, the Registry placed the order before the then Chief Justice and the learned Chief Justice was pleased to give direction to issue a Circular to the Judicial Branches not to entertain any such note for fixing early date of hearing and to insist on filing of Civil Application for fixing early date of hearing. By filing a Note dated 8th July 2009 in Criminal Revision Application No. 52 of 2005, the Learned Advocate Mr. M.M. Tirmizi stated as under:- Above application is awaiting final hearing. The Advocate for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disagrees with the above view, there is no scope of referring the matter to the Chief Justice for constitution of a Larger Bench. According to the learned counsel, in the cases before us, the decision given by the said Division Bench while laying down the proposition of law has not been appealed against by the aggrieved party and has attained finality and the said decision is binding upon a Division Bench or a learned Single Judge of this Court as a precedent while deciding any subsequent judicial matter. In such circumstances, the Chief Justice of this Court, sitting in administrative capacity, is not authorized by law to make a Reference to a Larger Bench for the purpose of deciding the correctness of the said decision of the Division Bench. In other words, according to the learned counsel, the initiation of Reference is not permissible under law unless there exists a pending judicial matter where the Judges of the Bench or a learned Single Judge has referred the matter on judicial side before the Chief Justice. There learned counsel, therefore, pray for dismissal of these References as not maintainable. 5. Therefore, the question that falls for determination in all these Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. We find substance in the contention of the learned counsel appearing on behalf of the Gujarat High Court Advocates Association that in the matter of References, the source of Reference must be a judicial order passed by either a learned Single Judge or any Bench while deciding a judicial matter. 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. 11. 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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