TMI Blog2003 (12) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... har, JJ. vide common order dated 16-4-2002 passed in Writ Petition No. 137/1986, Anil Dattatraya Ade v. Presiding Officer, School Tribunal and three others and in Writ Petition No. 2387/1985, Laxmikant Balkrishna Joshi v. Shikshan Prasarak Mandal and five others referred the matter of the Hon'ble Chief Justice for constituting larger Bench. The Hon'ble Chief Justice vide order dated 11-11-2002 was pleased to constitute a Full Bench of three Judges, which was presided over by the Hon'ble Chief Justice. The Full Bench passed judgment on 13-3-2003 (since reported in (2003) 2 MLJ 316 ) and decided the questions of law referred to it. The present applicants (original respondents) in the above referred Writ Petition, filed Misc. Civil Application No. 329 of 2003 as well as Misc. Civil Application No. 330 of 2003, inter alia, seeking a review of the Judgment, dated 13-3-2003, of the Full Bench. Mr. Deshpande, learned counsel for non-applicant No. 1, raised a preliminary objection about maintainability of the Misc. Civil Applications for review of the Judgment, dated 13-3-2003, of the Full Bench on the following grounds :-- 3. Mr. Deshpande, learned counsel for non-applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 and Commissioner of Income Tax v. Bansi Dhar and Sons, [1986]157ITR665(SC) . 6. Mr. Deshpande, learned counsel, further contended that it is well settled that the power of review is not an inherent power, but needs to be conferred by law and the only exception to this principle is Article 226 of the Constitution. The jurisdiction of reference, which the Full Bench exercises, is not a jurisdiction under Article 226 of the Constitution, but it is an advisory and consultative jurisdiction. Hence, it does not fall within the exception. There is no power of review conferred upon the Full Bench to review its own judgment rendered to answer the reference. Mr. Deshpande, therefore, states that Misc. Civil Applications for review of the Judgment, dated 13-3-2003, of the Full Bench are not tenable in absence of such provision and are liable to be dismissed as such. 7. Mr. Bhangde, learned counsel for the applicants, states that it is not in dispute that power of review is not an inherent power, but needs to be conferred by law or statue and the only exception to this principle is the jurisdiction exercised by the High Court under Article 226 of the Constitution, where the power of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors., AIR1953Bom284 . 11. It is contended that when a power to hear a dispute under the Act is conferred on the High Court, then the dispute has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charters under which that Court is constituted. Mr. Bhangde, learned counsel, therefore, states that in the instant case the jurisdiction, which the earlier Full Bench has exercised, was under Articles 226 and 227 of the Constitution of India and power of review being inherent, Misc. Civil Applications filed by the applicants for review of the Judgment of the said earlier Full Bench are legally maintainable. 12. We have given our anxious thought to various contentions canvassed by the respective counsel and perused the provisions of law as well as decisions of the Apex Court and this Court, relied on and cited by the respective counsel. At the outset, we must express that it is well settled that the power of review must be conferred by law either specifically or by necessary implication. So far as Section 114 and Rule 1 of Order 47 of the Civil Procedure Code are concerned, they expressly confer a power of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contradictory views expressed by the earlier Division Benches of this Court in regard to the applicability of the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 to the Polytechnic Institutes, which are technical institutes, and referred the following two questions for consideration of the Larger Bench :-- (1) Whether the employees of Pharmacy Institution are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977? (2) Whether the amendment by Maharashtra Act 32 of 1990 introduced on 6-12-1990 to the provisions of the said Act is declaratory in nature so as to have retrospective operation? The Hon'ble the Chief Justice constituted a Full/Larger Bench of three Judges, which has resolved the inconsistency by answering these questions vide judgment, dated 13th March, 2003 [since reported in 2003(3)BomCR465 16. It is pertinent to note that the power of the High Court under Articles 226 and 227 is supervisory in nature and the main purpose of this power is to enable the High Court to keep various authorities within the bounds of their powers and to ensure that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in this regard and for no other purpose. This aspect can only be gone into by the Division Bench alone, since the same is not a part of the issues which are referred to the Larger Bench vide Order, dated 16th April, 2002, passed by the Division Bench. The Larger Bench was called upon to answer and resolve the inconsistency on the legal point referred to the Full Bench by the Division Bench. The power of the Full Bench was not invoked to consider and decide the grievance of the petitioner, which was made in the Writ Petition either by the petitioner, or by the Division Bench which has passed the order of reference and, therefore, by necessary implication, the power/jurisdiction which the Larger Bench has exercised cannot be said to be under Article 226 of the Constitution of India and it remained with the Division Bench and was exercised by Division Bench by disposing of the Writ Petition finally keeping in view the law laid down by the Full Bench. It is, therefore, evident that the power/jurisdiction under Article 226 of the Constitution, which was invoked by the petitioner, remained with the Division Bench all through and the Writ Petition is finally disposed of by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly distinct and separate in nature and advisory, or consultative in character and is not akin to jurisdiction under Article 226 of the Constitution. Therefore, the contention canvassed by Shri Deshpande, learned counsel for non-applicant No. 1 in this regard has substance and is acceptable. 19. In the decision of the Apex Court is cases of Commissioner of Income Tax, Delhi v. Bansi Dhar and Sons and Commissioner of Income Tax, Bihar, Patna v. Chathuram Bhadani and Ors. reported in [1986]157ITR665(SC) relied on and cited by Shri Deshpande, the question involved was regarding jurisdiction of the High Court to grant stay or pass interim orders in pending Reference under Section 66 of the Income Tax Act, 1922 and Section 256 of the Income Tax Act, 1961. The Apex Court in Para 40 of its Judgment has observed thus:-- 40. It has to be borne in mind that in answering questions or disposing of references either under Section 66 of 1922 Act or Section 256 of 1961 Act, the High Courts do not exercise any jurisdiction conferred upon them by the Code of Civil Procedure or the Charters or by the Acts establishing respective High Courts, hi respect of certain matters, jurisdictions exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also either extended or shifted to the Full Bench. It is, no doubt, true that the power under Article 226 is conferred on the High Court and, therefore, whenever it is invoked, it cannot be refused by the High Court if the issue is relevant or incidental to the proceedings which are before the Single Bench or Division Bench wherein the power under Article 226 is invoked. Invoking a power of the High Court under Article 226 is distinct and separate aspect than exercise of power/jurisdiction by the High Court under Article 226 of the Constitution. In order to understand this aspect, we may give a hypothetical example, such as if the High Court, i.e., learned Single Judge is hearing the civil revisions and if in such proceedings a challenge is raised to the validity of the provisions of some Act or Rules, which is/are relevant to the controversy in issue, in such situation, the learned Single Judge may not be able to dismiss such contention on the ground that the jurisdiction which he is exercising is under Section 115, Civil Procedure Code, and not under Article 226 of the Constitution, since the power under Article 226 vests in the High Court. This view is fortified by the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l jurisdiction under Article 226 with itself. It is, therefore, evident that in the case in hand, neither the petitioner, nor the Division Bench can be said to have invoked jurisdiction of Full Bench under Article 226 to decide the controversy involved in the Writ Petition, and in absence thereof, question of exercising jurisdiction/power under Article 226 of the Constitution by the Full Bench does not arise. On the other hand, the Full Bench is only called upon to give an advice and resolve the legal inconsistency, so that the Division Bench in original jurisdiction under Article 226 of the Constitution can dispose of the Writ Petition by applying the law laid down by the Apex Court to the facts contained in the Writ Petition and, therefore, by necessary implication, the jurisdiction, which the Full Bench exercises, is distinct and separate than the jurisdiction under Article 226 of the Constitution and is only advisory and consultative. We are unable to understand as to how the ratio laid down by the Apex Court in case of Hari Shankar Jain (cited supra) supports the contention advanced by learned counsel for the applicants Mr. Bhangde, particularly when the analogy in the said ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation of People Act, 1951, Company law, matrimonial law, etc. including one under Article 226 of the Constitution and is required to exercise the same as and when it is invoked by the party and not otherwise. The observations made and law laid down by the Apex Court in the case of Hari Shankar Jain (cited supra) are relevant. The Apex Court opined that the designated Election Judge of the High Court hearing an election petition can exercise jurisdiction under Article 226 of the Constitution, if such power is invoked in the election dispute before the designated Election Judge of the High Court though exercising powers under the Representation of People Act, 1951. The legal proposition which emerges in this regard, is that whenever power/jurisdiction, which is vested in the High Court and is invoked, it cannot be denied merely because same is invoked in the proceedings where High Court is exercising jurisdiction under different Act, if it is relevant and incidental to the cause of action in the said proceedings. The Apex Court, therefore, in case of Hari Shankar Jain (cited supra) recorded its final conclusion in para 34, which reads thus : To sum up, we are of the opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :-- In our opinion that is not the proper interpretation to put upon Section 4 and Section 7 of Act 12 of 1939. That Act sets up a new Tribunal and Section 7 confers upon that Tribunal generally certain power, viz., the power and jurisdiction to review its own decisions. Section 4 defines its functions and so long as this Act stood on the statute book, the only functions which the Tribunal could discharge were the functions mentioned in Section 4, and in discharging those functions, it could exercise the power of review conferred upon it under Section 7. But when the Tenancy Act was passed, further functions were allocated to the Tribunal, and one of those functions was the power to act as a revisional body in certain tenancy matters specified in the Tenancy Act. But when the functions of the Tribunal were increased, the Tribunal still had the power to review its decisions conferred upon it under Section 7. The power to review conferred upon it under Section 7 was not limited to the exercise of the functions enumerated in Section 4 but that power attached to the Tribunal as such and it could always be exercised by the Tribunal, whatever powers might be conferred upon it from ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review is in-built therein. However, the same cannot be extended in respect of the orders passed by the High Court under any other power or jurisdiction unless it is specifically provided and conferred on the High Court under the said law or statute. In other words, we cannot generalize the power of review and cannot extend it to the orders passed by the High Court under power or jurisdiction other than under Article 226 of the Constitution. If it is not provided, nor conferred on the High Court under the said Act or statute, merely because the same is inherent in respect of the orders passed by the High Court under Article 226 of the Constitution. It is well settled that power of review is the creature of statute and, therefore, unless it is specifically conferred on the Court by the statute, it cannot be invoked, with the only exception the order passed by the High Court under Article 226 of the Constitution. Therefore, power of review cannot be generalized or extended in respect of the orders passed by the High Court under the jurisdiction other than Article 226 of the Constitution. We are, therefore, of the view that the law laid down by this Court in the case of Raghunath Gam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking review of the judgment of the Division Bench, wherein the Division Bench has ordered reinstatement and back wages of the petitioner. It is, therefore, evident that the Division Benches, keeping in view the law laid down by the Full Bench, in exercise of their power under Article 226 of the Constitution, which was invoked by the petitioners in those respective writ petitions, finally disposed of those Writ Petitions and rendered finality to the litigation. It is, therefore, implicit that the Full Bench, in its advisory/consultative jurisdiction, only answered the questions of law referred to it by the Division Bench and neither adjudicated upon the cause of actions in the respective Writ Petitions, nor expressed any opinion in this regard, since that was not the point of reference and, therefore, by necessary implication it can be safely held that the power of the Full Bench under Article 226 was neither invoked, nor exercised by the Full Bench, and is admittedly exercised by the respective Division Benches after the decision of the Full Bench. If we, at this stage, permit the applicants to once again reopen the legal issue concluded by the Full Bench in these Miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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