Judgment:
1. This petition was initially listed before the Hon'ble Single Judge of this Court who on 24.2.2005 passed an order holding that the petition is tenable only before the Division Bench of this Court for which the learned Single Judge placed reliance on the provisions of Rule 18 in Chapter XVII of High Court (Appellate Side) Rules, 1960.
2. The question of hearing a writ petition filed under Article 226 or 227 of the Constitution or a petition filed under Article 226 & 227 of the Constitution has been a debatable question on several occasions. Office also in many cases finds it difficult to list a particular petition before appropriate bench as there is some confusion in this regard. In our opinion, therefore it is necessary that the entire aspect is clarified and stated as law applicable.
3. The High Court of Judicature at Bombay has framed Rules and procedure for working out matters on the Appellate side of the High Court, they are called Bombay High Court Appellate Side Rules, 1960. These rules provide extensively for the manner and the procedure according to which several different kinds of litigations are to be conducted in this Court. Part 1 of these rules deals with Conduct of Business and Chapter I of that Part 1 deals with jurisdiction of Single Judges and Benches of High Court. Rule 1 in this Chapter provides that the Civil and Criminal jurisdiction of the Courts on Appellate Side shall, except in cases where it is otherwise provided for by these Rules, be exercised by Division Court consisting of two or more Judges.
4. Then Rule 2 of Chapter I provides what matters can be disposed of by a Single Judge. It also stipulates that save as otherwise expressly provided by these rules, a Single Judge may dispose of the following matters as provided under the head of Civil and Criminal.
5. Then Rule 2-B of Chapter I provides that all petitions under Articles 226 and/or 227 of the Constitution of India arising out of or relating to an order of penalty or confiscation or an order otherwise of a penal character and passed under any special statute shall be heard and decided by a Division Bench hearing writ petitions.
6. Thus, order of penalty or confiscation or having a penal character passed under any special statute are required to be heard by a Division Bench. The Chapter then deals with other aspects of exercise of jurisdiction with which we are not concerned.
7. Then Chapter XVII of Part 1 specifically deals with the petitions under articles 226 and 227 and applications under article 228 of the Constitution of India and rules for issuance of directions, orders or writs under article 226 of the Constitution shall if the matter in dispute is or has arisen substantially outside Greater Bombay be heard and disposed of by a Division Bench to be appointed by the Chief Justice. Then other rules prescribe the requirements of the writ petitions.
8. Rule 4 then provides that an application under Rule 1 shall be heard and disposed of by a Division Bench, but a Single Judge may grant rule nisi provided he does not make any final order on the application. The other rules provide for various other requirements with which we are presently not concerned.
9. Then Rule 17 deals with applications under Articles 227 and 228 and it provides that such application shall be filed on the Appellate Side of the High Court and be heard and disposed of by a Division Bench to be appointed by Chief Justice. It will thus be seen that wherever it was found necessary or expedient by this Court specific provision was made regarding hearing of such writ petitions by a Division Bench.
10. Then comes Rule 18 of Chapter XVII which provides that notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII applications under article 226 or 227 or under articles 226 & 227 may be disposed of by the learned Single Judge of this Court and proceeds to enumerate the categories of orders or enactments which are to be dealt with by the learned Single Judge. It will thus be seen that provisions of Rule 18 of Chapter XVII is a provision made in relation to rules in Chapter XVII and therefore are rules which as contemplated by rules 1 and 2 of Chapter I provide for hearing by a learned Single Bench. As we have noticed above that rules 1 and 2 both of Chapter I provide for exception in cases where it is otherwise provided for by these rules. Language of Rules 17 and 18 in the circumstances is required to be noted. Rule 18 of Chapter XVII says notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII the following applications mentioned in the said rule are to be heard by the learned Single Judge. It means rule 18 is a provision which is a case where it is otherwise provided by these rules that the matters can be heard by the learned Single Judge. Clauses 1 to 43 of this rule 18 provide various categories of orders passed by under various enactments which are required to be dealt with by a learned Single Judge of this Court. Sub-clause 3 however is omnibus clause which reads thus:
'The decrees or the orders passed by any Sub-ordinate Court (or by any quasi judicial Authority) in any suit or proceedings (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court.'
According to these provisions therefore any decree or order passed by any subordinate Court or quasi judicial Tribunal in any suit or proceedings including suit or proceedings in any suit or legal law are to be dealt with by a Single Judge. It will thus be clear from the conjoined reading of all the relevant provisions that according to Rule 18 of Chapter XVII all petitions mentioned in that rule in sub-clauses 1, 2 and 4 to 43 are to be dealt with by a Single Judge and this will not present any difficulty in classification. The problem as has been raised in the present case arises on interpretation of Chapter XVII Rule 18 clause 3 quoted above. We have explained how this rule 18 operates.
11. In our opinion, the position in regard to hearing of writ petitions under Bombay High Court Appellate Side Rules, 1960 is clear. All writ petitions under articles 226 and/or 227 or under article 226 or under article 227 are to be heard by learned Single Judge of this Court. Exceptions having been provided by clause 2-B of Chapter I and ratio laid down by Supreme Court in relation to articles 323A and 323B. Therefore writ petitions covered by clause 2- B, writ petitions arising out of orders made by Administrative Tribunals established under 1985 Act and orders passed by such Special Tribunals as are created under the Constitution and all other matters are required to be herd by the learned Single Bench. The order impugned in the present petition is passed under the provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 which is a special law enacted for protection of persons mentioned therein. It is therefore a special enactment or law and the order made thereunder is squarely covered by the provisions of clause 3 of Rule 18 of Chapter XVII being the order made by an authority under Special Act. The Registry is therefore directed to place the matter before the appropriate bench. Interim order already granted to continue.