Judgment:
D.S. SINHA, C.J.
1. Heard Mr. Anand L. Sharma, the learned Counsel appearing for the petitioner, Mr. S.R. Brahmbhatt, the learned Counsel appearing for the respondent No. 2, and Ms. P.J. Davawala, the learned Counsel appearing for the respondent No. 2.
2. Capt. P.C. Chaturvedi, serving Kandla Port Trust, hereinafter called 'the Trust', as Deputy Conservator, has been awarded penalty of censure under Clause 10 of K.P.E. (Classification, Control and Appeal) Regulations, 1964, hereinafter called 'the Regulations', by an order dated 15th September, 1999 passed by the Chairman granted vide its order dated 8th September, 1999 as contemplated in Regulation 17 of the Regulations.
3. Regulation 17 provides that no appeal shall lie against any order made with the approval of the Central Government. Therefore, the petitioner has filed instant Special Civil Application challenging the validity of the order dated 15thSeptember, 1999. Besides praying for quashing of the order, the petitioner has also prayed for declaration that Regulation 17 of the Regulations is ultra vires. As envisaged in Rule 2 of Chapter I of Part I of the Gujarat High Court Rules, 1993, hereinafter called 'the Rules', this Special Civil Application is to be disposed of by a single Judge.
4. The provisions of Rule 2 of the Rules, so far as they are relevant for the purpose, are extracted below :
'2. Matters to be disposed of by a single Judge -
xxx xxx xxx (10) Applications under Article 226 of the Constitution of India, except :-
(1) those where vires of any provision of a statute are challenged. (2) xxx xxx xxx(3) xxx xxx xxx(4) xxx xxx xxx(11) to (25) xxx xxx xxx'
5. The order sheet indicates that the matter was up before the Division Bench, comprising the then Hon'ble Chief Justice and Hon'ble Mr. Justice M.S. Shah, on 20th November, 2000. Their Lordships opined that this Special Civil Application did not involve any question of vires of any statute inasmuch as Regulation 17, vires whereof is under challenge, was merely a Regulation of the Trust, and the matter was wrongly placed before them by mistake. Thereafter, the matter appeared on several occasions before several learned single Judges having jurisdiction to dispose of the Special Civil Application. Eventually, the matter came up before the Hon'ble Mr. Justice Y.B. Bhatt on 27th September, 2002. His Lordship was pleased to pass the following order :
'In view of prayer (B) made in the petition, the Registry is directed to place this matter before the Division Bench.'
The prayer (B) made in the petition pertains to declaration of Regulation 17 of the Regulations as ultra vires.
6. It appears that the order of the Division Bench dated 20th November, 2000 was not brought to the notice of the learned single Judge.
7. Pursuant to the order of the learned single Judge dated 27th September, 2002, the matter is up before this Bench. Apart from the fact that vide its order dated 20th November, 2000, the Division Bench has already held that instant petition does not involve any question of vires of a statute, and is cognizable by a single Judge, another Division Bench, comprising the then Hon'ble the Chief Justice and Hon'ble Mr. Justice C.K. Thakker (as his Lordship then was), had the occasion to deal with similar situation in Special Civil Application No. 8786 of 1991 in M.V. Solanki v. State of Gujarat (decided on 10th February 2000), and their Lordships, after investigating the relevant aspects and the provisions of Rule 2 of the Rules, ruled thus :
'From the above provision, it is clear that a single Judge has no jurisdiction to deal with and decide a matter, wherein vires of any provision of a statute is challenged. In other words, where vires of an Act enacted by Parliament or State Legislature is challenged, the matter cannot be heard by a single Judge and must be placed before a Division Bench, In the instant case, however, validity or vires of a statute is not challenged. What is challenged is validity and vires of a regulation which is in the nature of subordinate or delegated legislation, which cannot be said to be a 'statute'. In our opinion, therefore, the matter must be placed before a single Judge for hearing. The office is directed to place the matter before a learned single Judge taking up such matters,'
8. Thus, it is clear that only such matters wherein vires of an Act enacted by Parliament or State Legislature is challenged cannot be heard by a single Judge, and they must be placed before a Division Bench. The matters involving the validity and vires of a Regulation having character of subordinate or delegated legislation should be heard by a learned single Judge. It has not been disputed by the learned Counsel of the parties that character of Regulation 17 of the Regulations sought to be assailed in this Special Civil Application is that of a subordinate or delegated legislation.
9. For what has been said above, the Court is clearly of the opinion that the matter must receive consideration of the learned single Judge. Accordingly,Registry is directed to place the matter before appropriate Bench presided bya learned single Judge.