Maverick Holdings and Investments (P) Limited, a Company Registered Under the Companies Act, 1956 Represented by Its Director Vs. the Registrar General, High Court of Karnataka and ors. - Court Judgment

Excerpt:
- karnataka motor vehicles taxation act (35 of 1957) item 8 & karnataka motor vehicles (taxation (second amendment act), 2007 (act no. 10 of 2007), item 8a: [ajit gunjal,j] determination of tax and penalty - dismissal of writ petition on the ground that the private transport vehicles are to be treated on par with contract carriages and the tax payable would be as applicable to the contract carriages - appeal against - quashing of demand made by the respondents -distinction made by the division bench between the contract carriage vehicles as well as the private transport vehicles with reference to the definition under the motor vehicles act and also the definition as to who is the owner - dismissal of special leave petition -representations of petitioners for refund of tax - non consideration of pleaded against judicial pronouncement on the basis of the rules and the definition of a contract carriage before introduction of item 8a - lacuna pointed out by the division bench to the effect that the private service vehicle cannot be equated with contract carriages -finding of the division bench has been set at naught or remedied by the introduction of clause 8a the lacuna pointed out by the division bench has been remedied/validated by the introduction of clause 8a introduction item 8a, is in violation of article 19 of the constitution held, the lacuna which was sought to be pointed out by the division bench to the effect that the private service vehicles cannot be equated with contract carriages has been set at naught or remedied by the introduction of clause 8a wherein it encompasses omnibus and private service vehicles which are held under the lease agreement with an industrial undertaking for carrying their employees from the residents to the factory and vice-versa and such industrial undertaking or company being the holder of permit of such vehicle thereby equating the private service with that of the contract carriages. indeed, as on today, the petitioners are paying vehicle tax as per item 8a as introduced by act 7/2000 with effect from 1.4.2000. indeed as observed by the apex court in the decisions there is no impediment and it is within the legislative power of the state to validate an enactment with retrospective effect. hence, it cannot be said that the introduction of item 8a in any way in violation of article 19 of the constitution. a competent legislature can always validate the law which has been declared by the court to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured. . further, what has been done by the statute is to take away the effect and the judgment rendered by the court by introducing item 8a in the schedule. but, however, the decision as such inter se between the petitioner and the respondent holding that the petitioner is not liable to pay tax as demanded stands and holds the fields.orderv. gopala gowda, j.1. in this writ petition the petitioner is seeking to quash the order dated 1-9-2009 passed by the hon'ble chief justice directing to post the matter before the bench having roster of lb-bmp. a declaration is also sought that hon'ble chief justice has no authority to order to place an application filed to recali an order dismissing the writ petition before a judge other than the judge who passed the dismissal order and the impugned order is contrary to rule 5 of high court of karnataka rules, 1959.2. the circumstances leading to file this writ petition are:w.p. no. 13918/2008 is filed by m/s. aakruthi city ltd., challenging the decision of government of karnataka dated 26-9-2008. in that writ petition the petitioner herein is the 5th respondent. the said writ petition was dismissed on 14-8- 2009 for non-prosecution. to recall the said order, an application was filed, to which objections was filed. since the hon'ble judge who passed the dismissal order was not available in the principal bench, hon'ble chief justice passed the following order:since an appeal has also been preferred against the order dated 28.8.09, it may not be practically possible to post even the part heard matters before the hon'ble judge concerned before whom the matter is pending as part heard either at gulbarga or dharwad. hence post the matter before hon'ble judge having roaster viz anvg on 02.09.09.according to the petitioner herein, the said application was to be considered only by the judge who passed the dismissal order under rule 5 of the rules.3. in the writ petition, only hon'ble chief justice is arrayed as respondent. the petitioner and respondents in w.p. no. 13918/2008 are not arrayed as respondents. since they are necessary and proper parties, the office has raised objection in that regard as also for making hon'ble chief justice as respondent. learned counsel for the petitioner has not complied with office objections. since memo was filed to list the matter on the ground that it is very urgent, the matter was listed with office objections. mr. naganand, learned senior counsel appearing on behalf of the petitioner made oral application to implead the omitted parties as respondents. a memo is also filed to this effect by the learned counsel for the petitioner. the oral application is allowed and the counsel for the petitioner is permitted to implead the left-out respondents and to amend the cause title.4. so far as the office objection relating to arraying hon'ble chief justice as respondent is concerned, learned counsel for the petitioner made a note to the following effect:as per the decision of this hon'ble court in sippegowda's case, the hon'ble chief justice can be made as party if impugned action by the hon'ble chief justice. this w.p. is against the orders of the hon'ble chief justice on the administrative side and not by the high court. hence r(g) cannot represent the hon'ble chief justice.therefore, firstly we deal with this aspect. hon'ble chief justice is conferred with the powers of passing both judicial as well as administrative orders. the administrative powers are exercised for effective and smooth functioning of the office. though he is the head of the institution, for all purposes the high court is represented by registrar general who is the custodian of all files, documents, records etc. in order to reduce his burden, decentralization (sic) made and judicial matters are entrusted to registrar (judicial) and administrative matters are assigned to registrar (administration). but, the over-all supervision and control of administration of this court are with registrar general. he represents the high court in all matters, including judicial matters and litigation. therefore, instead of arraying hon'ble chief justice, the registrar general should have been arrayed as representing the high court. that apart, hon'ble chief justice is the constitutional functionary. he is the head of the high court. even though he has passed the impugned order in exercise of his administrative powers under rule 5 of the rules, he need not be necessarily arrayed as respondent in this writ petition. high court is not represented by hon'ble chief justice but by registrar general. another important aspect is, if litigants are allowed to make hon'ble chief justice to array as respondent, he has to personally defend the actions complained of his in official capacity. if a judicial direction is issued, he has to obey it. hon'ble chief justice cannot be subjected to such an embarassing situation. if judicial direction/order is not complied with, hon'ble chief justice may have to face contempt proceedings. to avoid all such irking, analomous and embarassing situations to the constitutional functionary, the registrar general is representing the high court.5. the only exception where hon'ble chief justice can be impleaded as respondent is where allegations are made against him. the allegations may relate to favouritism, corruption, colourable exercise of power, mala fides or acting in a manner not befitting to the post held etc. in the instant case, no such allegations are made. therefore, impleading of hon'ble chief justice in this writ petition is wholly unnecessary and unwarranted.6. though in sippe gowda's case is cited for impleading hon'ble chief justice, that was a case pertaining to disciplinary action against the delinquent official and therefore the learned single judge held that hon'ble chief justice is a necessary party. but, the same is differed by a division bench of this court by observing that the view taken by the learned single judge requires reconsideration. this aspect has been brought to the notice of learned senior counsel and asked him to delete hon'ble chief justice and in his place to implead registrar general. since the same is not done, we direct the registry to do it under order 1 rule 10(2) cpc by deleting the name of chief justice and implead the registrar general of this court in its place by suitably amending the cause title of this petition.7. learned senior counsel mr.naganand appearing on behalf of the petition submits placing reliance upon rule 5 of the high court rules, contending that the hon'ble chief justice could not have passed the order in the administrative side to place the miscellaneous writ application before the roster bench, when the learned judge, who has passed the order dated 14.8.2009 in the writ petition, as he was very much available.8. we now proceed to consider the correctness of the impugned order passed by hon'ble chief justice assigning the case to some other judge. mr.basava prabhu patil learned senior counsel on behalf of 9th respondent has vehemently sought to justify the order impugned in this petition placing reliance upon the decision reported in (2001) 2 scc 294 (rajasthan high court advocates' association v. union of india) paragraph 11. the relevant portion is extracted hereunder:11. xxxxxxx the chief justice of the state cannot, thereafter, artificially or indirectly take away the jurisdiction belonging to one and confer it on the other. conferring a discretion on the chief justice to order any case or class of cases arising in any district within the territorial jurisdiction of permanent bench at jaipur shall be heard at jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case.9. another decision relied upon by him is reported in : (1998) 1 scc 1 (state of rajasthan v. prakash chand).10. in this regard, it is necessary to extract rule 5 of the rules and it reads:every petition or application for review, reconsideration or correction of a judgment, decree, order or sentence shall be posted before the original bench which pronounced, made or passed such judgment, decree, order, or sentence or if the judge or any of the judges who constituted the said bench is not available by reason of death, retirement, or absence, before any other bench constituted in the same manner on the original bench.from a bare reading of the aforesaid rule it is clear that if any judge or judges who passed the judgment, decree or order are not available by reason of death, retirement or absence, petitions or applications mentioned therein can be posted before any other bench.11. assignment of judicial work is the prerogative of hon'ble chief justice. on 4-6-2008 the high court of karnataka established two circuit benches at dharwad and gulbarga and territorial jurisdictions were also fixed with principal bench at bangalore by issuing the notification. since judge, who has passed the order dismissing the writ petition for non-prosecution was not available in principal bench and was sitting at another circuit bench, the application filed to recall the dismissal order was assigned to another judge having roster. this has been done by the hon'ble chief justice in exercise of the administrative power. the power of hon'ble chief justice in this regard is wide and the same is reflected in the following decisions relied upon by sri basavaprabhu s. patil, learned senior counsel appearing on behalf of sri brijesh paul, learned counsel for 9th respondent12. a full bench of this court in the case of narasimhasetty v. padmasetty reported in : 1998(3) kar.l.j 73 has field as under:12. so far as the first question is concerned, rule 6 of the high court rules in unambiguous terms confers an absolute power on the chief justice to constitute benches and allot/distribute judicial work amongst them. this power can be exercised only by the chief justice of the high court and not by any puisne judge or any bench comprised of them. the provisions made in the said rule has now been recognised by the supreme court as an absolute procedural law ensuring maintenance of judicial discipline and proper functioning of the high court in the case, of state of rajasthan v. prakash chand and ors. on the review of catena of decisions on the point has approved the view taken by the full bench of allahabad high court in case of sanjay kumar srivastava v. acting chief justice. in this decision it was inter alia held that:in view of the above, it is clear that the chief justice enjoys a special status not only under constitution but also under rules of court, 1952 made in exercise of powers conferred by article 225 of the constitution. the chief justice alone can determine jurisdiction of various judges of the court. he alone can assign work to a judge sitting alone and to the judges sitting in full bench. he alone has the jurisdiction to decide which case will be heard by two or more judges.the conferment of this power exclusively on the chief justice is necessary so that various courts comprising of the judges sitting alone or in division bench etc., work in a co-ordinated manner and the jurisdiction of one court is not overlapped by other court. if the judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the court would collapse and the judicial functioning of the court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. the nucleus for proper functioning of the court is the 'self and 'judicial' discipline of judges which is sought to be achieved by rules of court by placing in the hands of the chief justice full authority and power to distribute work to the judges and to regulate their jurisdiction and sittings.14. in view of the said pronouncement of law by the supreme court, since the existence and proper functioning of an independent judiciary, like the high court, is a part of the essential basic structure of our constitution, all the legislative acts and the administrative or executive orders concerning the high court administration must conform with the law laid down by the supreme court. if there be any irreconcilable statutory provision or order, then the same has to be read down so as to give supremacy to the powers of the chief justice in constituting the benches and allocation/distribution of judicial work among them. all the provisions of the high court act and the rules framed thereudner including the provisions for intra-court appeal have to be read as being subject to the said power of the chief justice.13. a division bench of this court in the case of bab mahabaleshar revankar v. syndicate bank reported in ilr 1992 kar 3477 has held at paragraph 4 as under:therefore, in view of rule 5 of chapter iii of the rules it is open to any other similar bench to review the order passed by a judge....14. a single judge of this court in the case of prabhakar, m. v. v. venkataswamy reported in 1982(2) kar.l.j 446 has held that:the application having been posted by special order of chief justice, there was no violation of rules 4 and 5 of chapter x of the rules.15. in view of the clear pronouncements of the apex court, full bench and division bench and single judge decisions regarding the powers of hon'ble chief justice in the matter of allocation of cases and assignment of roster to hon'ble judges and for the reasons assigned by the hon'ble chief justice in the impugned order, we hold that the action of hon'ble chief justice impugned in this writ petition is legal and valid and the impugned order need not be quashed. the declaration sought that the impugned order is contrary to rule 5 of the rules cannot be issued and the prayer is mis conceived. the petition is mischievous one and therefore the same is liable to be dismissed with costs.16. accordingly, the writ petition is dismissed with cost of rs. 25,000/- which amount shall be deposited with registry within one month from today, later on the amount shall be paid to the bangalore mediation center.

Judgment:
ORDER

V. Gopala Gowda, J.

1. In this writ petition the petitioner is seeking to quash the order dated 1-9-2009 passed by the Hon'ble Chief Justice directing to post the matter before the Bench having roster of LB-BMP. A declaration is also sought that Hon'ble Chief Justice has no authority to order to place an application filed to recali an order dismissing the writ petition before a Judge other than the Judge who passed the dismissal order and the impugned order is contrary to Rule 5 of High Court of Karnataka Rules, 1959.

2. The circumstances leading to file this writ petition are:

W.P. No. 13918/2008 is filed by M/s. Aakruthi City Ltd., challenging the decision of Government of Karnataka dated 26-9-2008. In that writ petition the petitioner herein is the 5th respondent. The said writ petition was dismissed on 14-8- 2009 for non-prosecution. To recall the said order, an application was filed, to which objections was filed. Since the Hon'ble Judge who passed the dismissal order was not available in the Principal Bench, Hon'ble Chief Justice passed the following order:

Since an appeal has also been preferred against the order dated 28.8.09, it may not be practically possible to post even the part heard matters before the Hon'ble Judge concerned before whom the matter is pending as part heard either at Gulbarga or Dharwad. Hence post the matter before Hon'ble Judge having roaster viz ANVG on 02.09.09.

According to the petitioner herein, the said application was to be considered only by the Judge who passed the dismissal order under Rule 5 of the Rules.

3. In the writ petition, only Hon'ble Chief Justice is arrayed as respondent. The petitioner and respondents in W.P. No. 13918/2008 are not arrayed as respondents. Since they are necessary and proper parties, the office has raised objection in that regard as also for making Hon'ble Chief Justice as respondent. Learned Counsel for the petitioner has not complied with office objections. Since memo was filed to list the matter on the ground that it is very urgent, the matter was listed with office objections. Mr. Naganand, learned Senior Counsel appearing on behalf of the petitioner made oral application to implead the omitted parties as respondents. A memo is also filed to this effect by the learned Counsel for the petitioner. The oral application is allowed and the Counsel for the petitioner is permitted to implead the left-out respondents and to amend the cause title.

4. So far as the office objection relating to arraying Hon'ble Chief Justice as respondent is concerned, learned Counsel for the petitioner made a note to the following effect:

As per the decision of this Hon'ble Court in Sippegowda's case, the Hon'ble Chief Justice can be made as party if impugned action by the Hon'ble Chief Justice. This W.P. is against the orders of the Hon'ble Chief Justice on the administrative side and not by the High Court. Hence R(G) cannot represent the Hon'ble Chief Justice.

Therefore, firstly we deal with this aspect. Hon'ble Chief Justice is conferred with the powers of passing both judicial as well as administrative orders. The administrative powers are exercised for effective and smooth functioning of the office. Though he is the head of the institution, for all purposes the High Court is represented by Registrar General who is the custodian of all files, documents, records etc. In order to reduce his burden, decentralization (sic) made and judicial matters are entrusted to Registrar (Judicial) and administrative matters are assigned to Registrar (Administration). But, the over-all supervision and control of Administration of this Court are with Registrar General. He represents the High Court in all matters, including judicial matters and litigation. Therefore, instead of arraying Hon'ble Chief Justice, the Registrar General should have been arrayed as representing the High Court. That apart, Hon'ble Chief Justice is the Constitutional functionary. He is the head of the High Court. Even though he has passed the impugned order in exercise of his administrative powers under Rule 5 of the Rules, he need not be necessarily arrayed as respondent in this writ petition. High Court is not represented by Hon'ble Chief Justice but by Registrar General. Another important aspect is, if litigants are allowed to make Hon'ble Chief Justice to array as respondent, he has to personally defend the actions complained of his in official capacity. If a judicial direction is issued, he has to obey it. Hon'ble Chief Justice cannot be subjected to such an embarassing situation. If judicial direction/order is not complied with, Hon'ble Chief Justice may have to face contempt proceedings. To avoid all such irking, analomous and embarassing situations to the Constitutional functionary, the Registrar General is representing the High Court.

5. The only exception where Hon'ble Chief Justice can be impleaded as respondent is where allegations are made against him. The allegations may relate to favouritism, corruption, colourable exercise of power, mala fides or acting in a manner not befitting to the post held etc. in the instant case, no such allegations are made. Therefore, impleading of Hon'ble Chief Justice in this writ petition is wholly unnecessary and unwarranted.

6. Though in Sippe Gowda's case is cited for impleading Hon'ble Chief Justice, that was a case pertaining to disciplinary action against the delinquent official and therefore the learned single Judge held that Hon'ble Chief Justice is a necessary party. But, the same is differed by a Division Bench of this court by observing that the view taken by the learned single Judge requires reconsideration. This aspect has been brought to the notice of learned Senior Counsel and asked him to delete Hon'ble Chief Justice and in his place to implead Registrar General. Since the same is not done, we direct the Registry to do it under Order 1 Rule 10(2) CPC by deleting the name of Chief Justice and implead the Registrar General of this Court in its place by suitably amending the cause title of this petition.

7. Learned Senior Counsel Mr.Naganand appearing on behalf of the petition submits placing reliance upon Rule 5 of the High Court Rules, contending that the Hon'ble Chief Justice could not have passed the order in the Administrative side to place the miscellaneous writ application before the roster Bench, when the learned Judge, who has passed the order dated 14.8.2009 in the writ petition, as he was very much available.

8. We now proceed to consider the correctness of the impugned order passed by Hon'ble Chief Justice assigning the case to some other Judge. Mr.Basava Prabhu Patil learned Senior Counsel on behalf of 9th respondent has vehemently sought to justify the order impugned in this petition placing reliance upon the decision reported in (2001) 2 SCC 294 (Rajasthan High Court Advocates' Association v. Union of India) paragraph 11. the relevant portion is extracted hereunder:

11. Xxxxxxx The Chief Justice of the State cannot, thereafter, artificially or indirectly take away the jurisdiction belonging to one and confer it on the other. Conferring a discretion on the Chief Justice to order any case or class of cases arising in any district within the territorial jurisdiction of permanent Bench at Jaipur shall be heard at Jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case.

9. Another decision relied upon by him is reported in : (1998) 1 SCC 1 (State of Rajasthan v. Prakash Chand).

10. In this regard, it is necessary to extract Rule 5 of the Rules and it reads:

every petition or application for review, reconsideration or correction of a judgment, decree, order or sentence shall be posted before the Original bench which pronounced, made or passed such judgment, decree, order, or sentence or if the judge or any of the judges who constituted the said bench is not available by reason of death, retirement, or absence, before any other bench constituted in the same manner on the original bench.

From a bare reading of the aforesaid rule it is clear that if any judge or judges who passed the judgment, decree or order are not available by reason of death, retirement or absence, petitions or applications mentioned therein can be posted before any other bench.

11. Assignment of judicial work is the prerogative of Hon'ble Chief Justice. On 4-6-2008 the High Court of Karnataka established two Circuit Benches at Dharwad and Gulbarga and territorial jurisdictions were also fixed with Principal Bench at Bangalore by issuing the notification. Since judge, who has passed the order dismissing the writ petition for non-prosecution was not available in Principal Bench and was sitting at another Circuit Bench, the application filed to recall the dismissal order was assigned to another Judge having roster. This has been done by the Hon'ble Chief Justice in exercise of the administrative power. The power of Hon'ble Chief Justice in this regard is wide and the same is reflected in the following decisions relied upon by Sri Basavaprabhu S. Patil, learned Senior Counsel appearing on behalf of Sri Brijesh Paul, learned Counsel for 9th respondent

12. A Full Bench of this Court in the case of Narasimhasetty v. Padmasetty reported in : 1998(3) Kar.L.J 73 has field as under:

12. So far as the first question is concerned, Rule 6 of the High Court Rules in unambiguous terms confers an absolute power on the Chief Justice to constitute benches and allot/distribute judicial work amongst them. This power can be exercised only by the Chief Justice of the High Court and not by any puisne Judge or any bench comprised of them. The provisions made in the said Rule has now been recognised by the Supreme Court as an absolute procedural law ensuring maintenance of judicial discipline and proper functioning of the High Court in the case, of State of Rajasthan v. Prakash Chand and Ors. on the review of catena of decisions on the point has approved the view taken by the Full Bench of Allahabad High Court in case of Sanjay Kumar Srivastava v. Acting Chief Justice. In this decision it was inter alia held that:

In view of the above, it is clear that the Chief Justice enjoys a special Status not only under Constitution but also under Rules of Court, 1952 made in exercise of powers conferred by Article 225 of the Constitution. The Chief Justice alone can determine jurisdiction of various Judges of the Court. He alone can assign work to a Judge sitting alone and to the Judges sitting in Full Bench. He alone has the jurisdiction to decide which case will be heard by two or more Judges.

The conferment of this power exclusively on the Chief Justice is necessary so that various Courts comprising of the Judges sitting alone or in Division Bench etc., work in a Co-ordinated manner and the jurisdiction of one Court is not overlapped by other court. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial functioning of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The nucleus for proper functioning of the Court is the 'self and 'judicial' discipline of Judges which is sought to be achieved by rules of Court by placing in the hands of the Chief Justice full authority and power to distribute work to the Judges and to regulate their jurisdiction and sittings.

14. In view of the said pronouncement of law by the Supreme court, since the existence and proper functioning of an independent judiciary, like the High Court, is a part of the essential basic structure of our Constitution, all the legislative Acts and the administrative or executive orders concerning the High Court administration must conform with the law laid down by the Supreme Court. If there be any irreconcilable statutory provision or order, then the same has to be read down so as to give supremacy to the powers of the Chief Justice in constituting the Benches and allocation/distribution of judicial work among them. All the provisions of the High Court Act and the rules framed thereudner including the provisions for intra-Court appeal have to be read as being subject to the said power of the Chief Justice.

13. A Division Bench of this Court in the case of Bab Mahabaleshar Revankar v. Syndicate Bank reported in ILR 1992 Kar 3477 has held at paragraph 4 as under:

Therefore, in view of Rule 5 of Chapter III of the Rules it is open to any other similar Bench to review the order passed by a Judge....

14. A single Judge of this Court in the case of Prabhakar, M. v. V. Venkataswamy reported in 1982(2) Kar.L.J 446 has held that:

The application having been posted by special order of Chief Justice, there was no violation of Rules 4 and 5 of Chapter X of the Rules.

15. In view of the clear pronouncements of the Apex Court, Full Bench and Division Bench and Single Judge decisions regarding the powers of Hon'ble Chief Justice in the matter of allocation of cases and assignment of roster to Hon'ble Judges and for the reasons assigned by the Hon'ble Chief Justice in the impugned order, we hold that the action of Hon'ble Chief Justice impugned in this writ petition is legal and valid and the impugned order need not be quashed. The declaration sought that the impugned order is contrary to Rule 5 of the Rules cannot be issued and the prayer is mis conceived. The petition is mischievous one and therefore the same is liable to be dismissed with costs.

16. Accordingly, the writ petition is dismissed with cost of Rs. 25,000/- which amount shall be deposited with Registry within one month from today, later on the amount shall be paid to the Bangalore Mediation Center.