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Judgment
A. S. Oka , J
In this Review petition, the learned Senior Counsel appearing for the Respondent has raised a preliminary objection to this Court hearing the Review Petition. The objection is that the Review Petition must be heard by the same learned Judge who has passed the order under Review though the learned Judge is at present sitting in the bench at Nagpur. Review is sought of order dated 4th July, 2008 passed by this Court in exercise of powers u/s 11(6) of the Arbitration and Conciliation Act, 1996 ( hereinafter referred to as "the said Act"). The order dated 4th July, 2008 is sought to be reviewed has been passed by Mr. Justice S. A. Bobde. In terms of Rule 3 of Chapter XXX of the Bombay High Court Appellate Side Rules, 1960 ( hereinafter referred to as "the Appellate Side Rules" ), the Review Petition has been placed before this Court as Mr. Justice S. A. Bobde is not available at the seat of this Court at Panaji. A preliminary objection in brief raised by the learned Senior Counsel appearing for the Respondent in Review Application is that Rule 3(1) of Chapter XXX of the Appellate Side Rules has no application as the said Rules are not applicable to the seat of this Court at Panaji. As it is necessary to decide a preliminary objection before taking up the Review application for final hearing, I have heard the learned Senior Counsel appearing for the parties on the said objection. The learned Senior Counsel appearing for the Respondent invited attention of the Court to the provisions of the High Court at Bombay ( Extension of Jurisdiction to Goa, Daman and Diu ) Act, 1981 ( hereinafter referred to as "the said Act of 1981" ). He relied upon Section 4 of the said Act and submitted that from the appointed day, the High Court at Bombay shall have in respect of the territories included in the Union Territory of Goa, Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, were exercisable in respect of the territories by the Court of the Judicial Commissioner. He pointed out that u/s 9 of the said Act of 1981, a permanent bench of Bombay High Court at Panaji was established. He submitted that the Appellate Side Rules were in force on the day on which the said Act of 1981 came into force. He submitted that only the jurisdiction and powers exercisable by the Court of the Judicial Commissioner in relation to the Union Territory of Goa were vested in the bench of this Court at Panaji. He submitted that the Jurisdiction under the Letters Patent was not vested in the Court of Judicial Commissioner at Goa. He pointed out that in the year 1982 an order was passed by the Hon''ble the Chief Justice providing for allocation of business amongst the Judges sitting at Panaji with effect from 30th October, 1982 and the said order has been modified by the Hon''ble the Chief Justice from time to time which shows that the provisions of the Appellate Side Rules have no application to this Court at Panaji. He invited the attention of the Court what is held by the Division Bench of this Court in the case of Shri Sanjay Z. Rane and others V/s Smt. Saibai S. Dubaxi and others in Letters Patent Appeal No. 15/2000. He submitted that this Court held that the jurisdiction conferred upon the Bombay High Court under the Letters Patent was not extended to the permanent Bench established at Panaji under the said Act of 1981. He, therefore, submitted that as the Appellate Side Rules were not applicable to the Court of Judicial Commissioner, in view of Section 4 of the said Act of 1981, the Appellate Side Rules were not applicable to the permanent Bench at Panaji established u/s 9 of the said Act of 1981. He also invited attention of this Court to the order dated 1st April, 2005 passed by a learned Single Judge of this Court in Writ Petition No. 107 of 2005 ( Shri Filipe Nery Rodrigues V/s Shri Sadanand Mhalu Shet and others ) by which it was held that the Appellate Side Rules will apply to this Court at Panaji. He pointed out that though a SLP filed against the said decision was disposed of by the Apex Court, the issue has been kept open by the Apex Court.
He invited attention of this Court to Section 20 of the Goa, Daman and Diu Re-organization Act, 1987 (hereinafter referred to as "the said Act of 1987") and submitted that in view of the said provision, now the High Court at Bombay is made a common High Court for the State of Maharashtra and the State of Goa, and, therefore, seat of the said High Court at Panaji cannot be called as a Bench. He submitted that Rule 3(1) of Chapter XXX is applicable only to the Benches at Nagpur and Aurangabad. He submitted that the Review Petition can be heard only by the same learned Judge who has passed the order under review though he is not available at Panaji.
The learned Senior Counsel appearing for the Review Petitioner has taken this Court through the various Sections of the said Act of 1987 and in particular Section 22 thereof. He submitted that the Appellate Side Rules have been made application to this Court. He has invited attention of the Court to various decisions under the provisions of the States Reorganization Act, 1956. He submitted that there are various Rules forming part of the Appellate Side Rules which specifically refer to the Panaji Bench and the said Rules have been enacted after the said Act of 1987 came into force.
I have given careful consideration to the submissions. In the case of Sanjay Z. Rane ( supra ), the issue which arose for consideration of this Court was whether the jurisdiction conferred upon the High Court of Judicature at Bombay by the Letters Patent has been extended to the permanent bench of the High Court at Panaji. The Division Bench interpreted Section 4 of the said Act of 1981. The Division Bench was of the view that while establishing the permanent bench at Panaji u/s 9 of the Act of 1981 what was conferred upon the Division Bench was the jurisdiction, powers and authority which were exercisable in respect of Union Territories of Goa, Daman and Diu by the Court of Judicial Commissioner. The Division Bench accepted the submission that the jurisdiction conferred upon the High Court of Judicature at Bombay by the Letters Patent of 1865 was never conferred upon the bench at Panaji which was established u/s 9 of the said Act of 1981. It must be noted here that the Division Bench was not specifically called upon to answer the issue as regards the applicability of Rules of procedure contained in Appellate Side Rules to the Bench at Panaji established u/s 9 of the said Act of 1981. The Division Bench has made a reference to the powers conferred by Section 13(1) of the said Act of 1981 of issuing an order for removal of difficulties. The Division Bench also considered the provisions of the High Court at Bombay (Extension of Jurisdiction to Goa, Daman and Diu ) for removal of difficulties Order, 1982. The said order was issued in exercise of the powers conferred by Section 13(1) of the said Act of 1981. Clause 2 of the said order reads thus :
Adaptation of Rules and forms-(1) All the rules relating to procedure and conduct of cases before the Court of the Judicial Commissioner (including rules for the charging of fees for certified copies and for Court processes ) which were in force immediately before the appointed day ( hereinafter referred to as the said rules ) shall continue in force and shall be applicable mutatis mutandis to proceedings before the bench of the High Court at Bombay established u/s 9 of the said Act (hereinafter referred to as the said bench ) subject to the power of the said High Court to repeal or alter them. The powers which were exercisable by the Registrar of the Court of the Judicial Commissioner for Goa, Daman and Diu under the said rules immediately before the appointed day shall be exercised by the Special Officer of the said bench.
(2) In the absence of any provision in the said rules on any particular matter, the Bombay High Court Appellate Side Rules, 1960 shall apply to proceedings before the said bench.
In fact the effect of the said clause 2 has been considered by the Division Bench in the case of Sanjay Z. Rane (supra ). In paragraphs 45, the Division Bench observed thus :
...The Removal of Difficulties Order, 1982, vide its clause (2) provides for adaptation of rules and forms used by the Court of Judicial Commissioner immediately before the appointed day with suitable modification for proceedings before the Bench of High Court at Bombay established u/s 9 of 1981 Act. Sub-clause (2) states that in the absence of any provision in the said rules on any particular matter, the Bombay High Court Appellate Side Rules, 1960 shall apply to proceedings before the bench. Bombay High Court Appellate Side Rules, 1960 is a procedural law which does not confer any new jurisdiction and, in any case, letters patent jurisdiction on Bombay High Court. This Section 13, read with the Removal of Difficulties Order, 1982, therefore, cannot be stretched to mean that the jurisdiction conferred upon the Bombay High Court by Letters Patent of 1865, as amended, has also been extended to Union Territory of Goa, Daman and Diu....
(underline supplied)
The Division Bench thus held that in absence of any provision on any particular matter in the rules of procedure applicable to the cases before the Judicial Commissioner, the Appellate Side Rules shall apply to the proceedings before the bench at Panaji. Thus, the decision which is relied upon by the learned Senior Counsel appearing for the Respondent specifically holds that in absence of any provision in the rules of procedure governing the Court of Judicial Commissioner, the provisions of Appellate Side Rules shall apply to proceedings before the bench established under the Section 9 of the said Act of 1981.
For dealing with the objection raised by the learned Senior Counsel appearing for the Respondent, it is not necessary to go into the wider question of the nature of jurisdiction and powers conferred by the said Act of 1987 on the common High Court for Maharashtra and Goa in relation to the territory forming part of erstwhile Union Territory of Goa, Daman and Diu. The only limited aspect which needs to be examined is as regards the applicability of the Appellate Side Rules to the common High Court. Sub-section (1) of Section 20 of the said Act of 1987 reads thus :
(1) On and from the appointed day,
(a) there shall be a common High Court for the States of Maharashtra and Goa, and for the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be called the High Court of Bombay (hereinafter referred to as the common High Court);
(b) the Judges of the High Court of Bombay (hereinafter referred to as the existing High Court ), holding office immediately before that day shall, unless they have elected otherwise, become, on that day the Judges of the common High Court.
The section establishes a common High Court for the States of Maharashtra and Goa, and for the Union territories of Dadra and Nagar Haveli as well as Daman and Diu called as the High Court of Bombay. The said High Court of Bombay has been referred to as a common High Court. The High Court of Bombay which was in existence prior to the commencement of the said Act of 1987 has been referred to therein as the existing High Court. In this context, Section 22 of the said Act will have to be considered which reads thus :
Practice and procedure in the common High Court.-Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the existing High Court shall, with the necessary modifications, apply in relation to the common High Court.
What has been provided in Section 22 is that the law in force immediately before the appointed day with respect to practice and procedure in the existing High Court shall, with the necessary modifications, apply in relation to the common High Court. Thus, Section 22 expressly makes applicable the law in force with respect to the practice and procedure in the existing High Court to the common High Court. The law in force with respect to the procedure in the existing High Court (as defined in clause (b) of Section 20 ) was in the form of the Appellate Side Rules. Hence, the Appellate Side Rules are applicable to the common High Court established u/s 20. Even assuming that the rules of procedure applicable to the permanent bench at Panaji established under the said Act of 1981 apply to the common High Court in relation to the territories falling in former Union Territory of Goa, Daman and Diu, in the matters in which procedure applicable to the Court of Judicial Commissioner is silent, the Appellate Side Rules were applicable. It is not the case of the Respondent and it is not brought to the notice of this Court that there was any provision in the Rules applicable to the Court of Judicial Commissioner as regards procedure to be followed in case of placing Review applications before the Court. Hence, Rule 3 of Chapter XXX will apply to Review Petitions filed at Panaji. Therefore, the argument that Chapter XXX will have no application has to be rejected outright. Sub-rule (1) of Rule 3 of Chapter XXX reads thus :
"3.(1) An application for review or for amendment of an order or a decree, for speaking to the minutes passed by a Single Judge of this Court shall be placed before that Judge : provided, however, where such Judge has ceased to be the Judge of the High Court or has ceased to sit at the particular Bench, such application shall be placed before the regular Court of the Single Judge dealing with the category of matters to which the proceedings relates - as for example :
(a) Writ Petition, if the original order had been passed in a Writ Petition;
(b) First Appeals, if the original order had been passed in any other Civil matters;
(c) Criminal Appeals, if the original order had been passed in any Criminal matters :
Provided that, where the Single Judge concerned is not available for the time being by reason of he being on leave or otherwise as aforesaid such application shall be placed before the Court of Single Judge to which the matter may be assigned by the order of the Honourable Chief Justice.
A submission was sought to be canvassed that the provision of Rule 3 of Chapter XXX will apply only to benches of the High Court by contending that the seat of this Court at Panaji cannot be called as a bench, as the High Court of Bombay is a common High Court for the States of Maharashtra and Goa and two Union territories. The learned Senior Counsel appearing for the Petitioner has pointed out several provisions contained in the Appellate Side Rules where there is a clear reference to the Panaji bench of this Court including the rule relating the filing of matters. The learned Senior Counsel appearing for the Petitioner submitted that the word ''bench'' has to be interpreted in the context in which the same has been used. He relied upon a decision of the Apex Court in the case of Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat, . He relied upon what is held by the Apex Court in paragraph 14 which reads thus :
The more stringent the law, the less is the discretion of the Court. Stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the Court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to, to achieve the objectives.
(emphasis added)
If the narrow interpretation sought to be put by the learned Senior Counsel appearing for the Respondent is accepted, sub-rule (1) of Rule 3 will not apply even to a matter which is pending before the principal seat of this Court at Bombay. The reference to the words ''particular bench'' in sub-rule (1) of Rule 3 is to a seat of this Court which includes the principal seat at Bombay as well as to all other places of sittings. The object of the Rule is that if the Judge whose order is sought to be reviewed has ceased to be a Judge of High Court or has to ceased to sit at the particular place of sitting of the High Court, the review application shall be heard by the other Judge who is entrusted with the category of matters to which the proceedings relates. Thus, sub-rule (1) of Rule 3 of Chapter XXX of the Appellate Side Rules will have to be applied to the present Review Petition and as the concerned learned Judge Mr. Justice S. A. Bobde has ceased to sit at Panaji, the Review application will have to be placed before the concerned Judge who is assigned with the work of dealing with the applications u/s 11 of the said Act of 1996. In the circumstances, there is no merit in the preliminary objection raised by the Respondent. Hence, the preliminary objection rejected. Review application shall be placed for admission on 27th August, 2010.